9. EVIDENCE. IN AN ACTION AGAINST A MUNICIPAL CORPORATION FOR IN-
JURIES SUFFERED from a DEFECT IN THE STREET, evidence may prop-
erly be received that there were no street-lamps at the crossing where
the accident occurred. Id.
NEGLIGENCE IS ORDINARILY QUESTION OF FACT FOR JURY
TO DETERMINE, from all the circumstances of the case; and the cases
where a nonsuit is allowed are exceptional, and confined to those where
the uncontradicted facts show the omission of acts which the law ad-
judges negligent. Durbin v. Oregon etc. Co., 778.
11. THE FACT THAT ONE PASSING FROM A SIDEWALK CROSSING in a
city stops upon the track of a street-railroad, without first looking
to see whether a car is approaching or not, is not, as a matter of law,
negligence, whether the cars accustomed to run on such track are horse-
cars or grip-cars. The question whether the sufferer was negligent
must be determined by the jury in such case with regard to all the sur-
rounding circumstances, and his conduct cannot be said, as a matter of
law, either to be negligent or to be free from negligence. Chicago City
R'y Co. v. Robinson, 87.
12. NEGLIGENCE IN RUNNING TRAINS IN OPPOSITE DIRECTIONS.- If car-tracks
are in close proximity, to run a car or train of cars in one direction at
rapid speed, and without signal or warning, over a sidewalk crossing,
while another car or train bound in the opposite direction is discharging
passengers at such crossing, and where the view of the approaching
train is obstructed by the standing car from which the person injured
has just alighted, this conduct fairly tends to prove culpable negligence
on the part of the railway corporation, even though the rate of speed
of the approaching train does not exceed that which is permitted by
ordinance.
13. CONTRIBUTORY NEGLIGENCE ON THE PART OF THE PARENTS OF A CHILD
INJURED by a railway will not preclude a recovery for such injury, if
the child himself was using all the care which the occasion required. Id.
14. QUESTION OF PLAINTIFF'S CONTRIBUTORY NEGLIGENCE IS FOR CONSIDER-
ATION OF JURY, where he, an infant seven years of age, was, at the time
of the accident, standing, by the invitation of the conductor, on the plat-
form of a street-car, with which the defendant's wagon, which was being
driven at a rapid rate, came into collision, causing the injury complained
of, and the evidence shows that plaintiff did not see the wagon before
the collision, and did not look to see if any wagon was coming. Connolly
v. Knickerbocker Ice Co., 617.
15. FACT THAT PASSENGER ON STREET-CAR STANDS ON OUTER PLATFORM when
there is opportunity to take a seat in the car may, in an action against
the railroad company to recover damages as for its negligence, under or-
dinary circumstances, constitute a defense; but it is not so in an action
against another party to recover damages for negligence causing injury
to the passenger, because the defendant in such case cannot assert as a
defense the mere duty of the passenger in his relation as such to the rail-
road company. Id.
16. MINOR CHILD'S BEING UPON PLATFORM OF STREET-CAR IN VIOLATION OF
CITY ORDINANCE, while it may be proved as a fact for the considera-
tion of the jury, does not for all purposes necessarily establish negli-
gence on his part. Id.
17. CONTRIBUTORY, OF LAND-OWNER. One whose land is overflowed
with water, and whose brick-yard and crops on the premises are
submerged, by reason of the negligent construction of a railroad culvert,
is not guilty of contributory negligence in afterwards planting crops on
the same land, and erecting a brick-yard in the same place, both of
which are again submerged from the same cause. Emery v. Raleigh ete.
18. WHEN THE FACTS ARE ASCERTAINED, QUESTION WHETHER THERE HAS
BEEN NEGLIGENCE or contributory negligence, is one addressed to the
court. When there is any conflict in the testimony, the courts will lay
down the rules of law, and define the standard of care necessary, but
will leave the jury to decide whether, under the circumstances, proper
care was exercised. Id.
Bee ANIMALS, 1-3; CRIMINAL LAW, 40-43; DAMAGES, 3, 4; EVIDENCE, 30;
HIGHWAYS, 2, 3; Landlord and Tenant, 1, 2; Master and Servant,
1-5, 17, 18; MUNICIPAL CORPORATIONS, 1-3; NEGOTIABLE INSTRUMENTS,
4; RAILWAY COMPANIES, 1-8, 10, 14, 19-23.
1. MATERIAL ALTERATION OF CHECK AFTER ITS INDORSEMENT, WITHOUT IN-
DORSER'S CONSENT, is presumed to have been so made as to vitiate it as
against him, and the burden is upon the party seeking to recover on it
to relieve it from the effect of the unauthorized alteration, by showing
that it was made by a stranger to the instrument. National Ulster etc.
Bank v. Madden, 633.
2. TITLE TO COMMERCIAL PAPER RECEIVED FOR COLLECTION BY BANK, and
forwarded to its correspondent in the usual course of business, without
any express agreement in reference thereto, does not vest in such cor-
respondent, even if it has remitted upon the general account in anticipa-
tion of collections. Title passes only by a contract to that effect, either
expressly proved or inferred from an unequivocal course of dealing.
National P. Bank etc. v. Seaboard Bank, 612.
3. WHERE BANK ON WHICH RAISED DRAFT IS DRAWN PAYS IT through mis-
take, upon its presentation to it by a correspondent bank, as agent, to
which it is forwarded for collection, the collecting bank cannot be com-
pelled to repay if it has paid over to its principal before notice of the
mistake. Id.
4. PROMISSORY NOTE-MAKER SIGNING NOTE WITHOUT KNOWING ITS CON-
TENTS- - BONA FIDE INDORSKE FOr Value and BEFORE MATURITY. –
Maker of a promissory note who signs the same without knowing its
contents, because he cannot read or write, and relying on false repre-
sentations by the payee that it was a mere memorandum of agency, is
guilty of such carelessness and undue confidence that, as between him-
self and an indorsee in good faith for value and before maturity, he
must bear the loss and pay the note. Bedell v. Herring, 307.
5. PROMISSORY NOTE - FRAUD IS NO DEFENSE AGAINST BONA FIDE INDORSED
FOR VALUE AND BEFORE MATURITY. - Maker of a promissory note can
not defend, it seems, on the ground that the note was procured from him
by fraud, as against an indorsee in good faith for value and before ma-
turity. Id.
6. EVIDENCE. One of two joint promisors whose names appear on the face
of a negotiable instrument may show by parol evidence that he signed
only as surety, if the payee had notice that one was a surety. But if
such payee indorses the instrument before maturity to one without
notice, who in turn indorses it to still another, after maturity, who
takes for value, and without notice, the fact that one of the promisors
was a surety cannot be shown as against the last taker. Lewis v. Long,
725.
7. LEGAL RELATION OF PARTIES TO BILL OR NOTE TO EACH OTHER IS
PRESUMED to be that indicated by the order in which their names stand
upon it.
The maker is liable to the payee, the payee to his indorsee,
and so on down the line of indorsements. The last indorsee is presumed
to be the holder and owner of the note, and entitled to its proceeds.
Temple v. Baker, 926.
8. LIABILITY ON IRREGULAR OR ANOMALOUS INDORSEMENT. In an action
to recover upon a note, it appeared that the defendant had indorsed the
note, and had also written his name under the words "credit the drawer,"
on the face of the note, before the maker had signed it or the blank had
been filled with the names of the payees, whose names were afterwards
placed on the back of the note under the defendant's indorsement. In
such case, the defendant's legal liability was that of second indorser
only, and he incurred no liability to the payees. His indorsement could
not be turned into a contract to guarantee payment of the note by parol
testimony, because of the Pennsylvania statute of frauds of 1855; and
the words " 'credit the drawer" implied no promise or undertaking on
the part of the defendant, but were a direction to all persons to whom
the note might be presented to treat with the drawer as the owner,
notwithstanding the apparent title of the indorsee. Id.
See EVIDENCE, 4; SCHOOLS, 1, 2.
1. GRANTING NEW TRIAL ON GROUND OF NEWLY DISCOVERED EVIDENCE is
a matter purely discretionary, whether the motion is addressed to the
court below or is made in the appellate court. The general rule is, that
when the new testimony tends merely to contradict a witness on the
opposite side, a new trial will not be granted. Brown v. Mitchell, 748.
2. JURY AND JURORS AFFIDAVIT TO IMPEACH VERDICT. - An affidavit by
a juror that the verdict was arrived at by unfair and illegal means, made
after the rendition of the verdict, and contradicted by the affidavit of.
ten of his fellow-jurors, is not ground for a new trial. McDade v. State,
216.
3. MOTION FOR NEW TRIAL OR IN ARREST OF JUDGMENT
after the term of court at which the trial was had. Palatka etc. R. R.
Co. v.
State, 395.
See CRIMINAL LAW, 54; TRIAL, 3, 7.
See NEGLIGENCE, 10; RAILWAY Companies, 3.
See ACKNOWLEDgments; Married Women, 2.
JUDGMENT OF CONVICTION OF NUISANCE must be adapted to the nature of
the nuisance, and must not be inconsistent with the legal rights of the
party convicted. The most accessible and consistent legal means of
abatement of the nuisance must be adopted. Palatka etc. R. R. Co. ♥.
State, 395.
See RAILWAY COMPANIES, 15; WATERCOURses, 1.
1. OFFICIAL BONDS. Where a statute imposes the duty of receiving
and disbursing a new fund upon certain county officers, but makes
no provision for an additional bond to secure the faithful applica-
tion of such fund, any bond given by the officer after the statute is in
force, though in terms providing only for securing the faithful discharge
of official duty, and accounting for money received by virtue of his office,
will be construed to embrace the new duty, and to constitute a security
for its performance. But when the statute imposing the new duty re-
quires, in express terms, an additional bond for its faithful performance,
a bond already required of the officer, and conditioned for the faithful
discharge of the duties of his office, will not embrace the new duty.
County Board v. Bateman, 708.
2. OFFICIAL BONDS - LIABILITY ON. BONDS EXECUTed by County TREAS-
URER as provided by North Carolina code, section 766, and conditioned
that he "shall well and truly account for all moneys that may come into
his hands by virtue of his office," and faithfully execute the duties of his
office, do not cover the duties imposed upon him by section 2554 of the
code, which requires him to receive and disburse all public school funds,
and to execute a "justified treasurer's bond," "conditioned for the faith-
ful performance of his duties as treasurer of the county board of educa-
tion," etc., and for any breach of which, action shall be brought by said
board. And the board of education cannot maintain an action for the
misapplication of the school funds by him, as treasurer of the board of
education, on the bonds executed by him as county treasurer. Id.
1. ADOPTION JURISDICTION.
- To give decree of county court adopting
child any force or effect, such court must have acquired jurisdiction, —
1. Over the persons seeking to adopt the child; 2. Over the child; and
3. Over the parents of such child. Furgeson v. Jones, 808.
2. ADOPTION.
- CHILD BY ADOPTION CANNOT INHERIT from the parent by
adoption, unless the act of adoption has been done in strict accord with
the statute. Id.
3. RIGHT OF ADOPTION WAS UNKNOWN TO COMMON LAW, and is repugnant
to its principles. Such right, being in derogation of common law, is a
special power conferred by statute, and the rule is, that such statutes
must be strictly construed. The statute must receive a strict inter-
pretation, and every requirement essential to authorize the court to ex-
ercise the special power conferred must be strictly complied with. Id.
4. CONSENT LIES AT FOUNDATION OF STATUTES OF ADOPTION, and when it is
required to be given and submitted to the court, the court cannot take
jurisdiction of the subject-matter without it. Under the Oregon stat-
utes, if the parents are living, and do not belong to the excepted
classes, their consent must be obtained, and is a prerequisite to juris-
diction.
See BASTARDY, 1-3; DAMAGES, 3, 4; DEEDS, 5, 6; NEGLIGENCE, 13.
DISTRIBUTION OF PROCEEDS OF SALE BY ORPHANS' COURT, AND ALLOW-
ANCE OF COMPENSATION TO TRUSTEE. Where a trustee is appointed
by the orphans' court in partition proceedings, and he sells the land,
and the proceeds are paid into court in compliance with the terms of
the order of sale, the court may adjudicate the trustee's account and
make distribution without the intervention of an auditor; and although
the trustee furnished no bond, an allowance to him for his services in
conducting the sale, etc., of one per centum of the amount realized can-
not be regarded as excessive, the sale being an advantageous one, largely
the result of the trustee's personal efforts. Wistar's Appeal, 917.
1. PARTNER'S RIGHT TO SUE CO-PARTNER FOR MONEY LOANED WITHOUT SET-
TLEMENT OF PARTNERSHIP ACCOUNTS. - One partner may sue another
for money loaned, without a settlement of the partnership accounts, al-
though the borrower intended to put the money into the firm, and does
put it into the firm. The loan is not a partnership transaction.
Coe, 235.
2 ILLEGAL CONTRACT- ACCOUNTING. When, in an illegal venture, profits
may have been made, an account may be had in equity by one partner
against the other, who has them and is seeking to appropriate them to
himself, and when there has been a loss in the venture, an adjustment of
accounts between the partners, and an obligation given by the debtor
partner to the other, an action may be maintained on such obligation.
Crescent Ins. Co. v. Bear, 331.
3. GARNISHMENT OF PARTNERSHIP.
- A debt due a partnership cannot be gar-
nished by a creditor of one of the partners, even when such debt is due
for insurance on furniture used by the partners solely for gaming pur-
poses, for which alone the partnership existed, especially when the other
partner is not a party to the action, as the effect of such proceeding, if
allowed, would be to annul the partnership and deprive such partner of
what may be his rights in such debt, and to appropriate his property to
the payment of another's debts without an opportunity to be heard. Id.
4. PARTNERSHIP PROPERTY IS NOT EXEMPT FROM EXECUTION, and therefore
subject to be set apart for the use of the partners in insolvency pro-
ceedings, although it is such property as would be exempt if one partner
were the sole owner. Cowan v. Creditors, 294.
PAYMENT MADE UPON GENERAL ACCOUNT WITHOUT DIRECTION AS TO ITS
APPLICATION is applied by the law to the oldest items.
Bank v. Seaboard Bank, 612.
See EXECUTIONS, 5; JUDGMENTS, 10; MORTGAGES, 2-4.
1. PENSIONER OF UNITED STATES MAY, UNDER UNITED STATES REVISED
STATUTES, SECTION 4747, USE the money received from his pension in
any manner he may see proper, for his own benefit, and to secure the
comfort of his family, free from the attacks of creditors. Holmes v. Tal-
lada, 880.
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