Obrázky stránek
PDF
ePub

8. Where the plaintiff was injured at a point where the railroad track
crossed the street, it is not per se negligence that he might have seen
the moving cars at another crossing where there were several tracks,
and the evidence was conflicting as to whether he could have discov-
ered that the cars were on the track which led to the crossing which
he was approaching. Ibid.

9. Where the common master invests one of his employees with the power
to hire, discharge, command and direct the other employees, the mas-
ter is liable for his acts, and he is not a fellow-servant, although he
works as any other servant and there is nothing in the nature of the
employment to show an authority to charge the common master.
Patton v. R. R. Co., 455

10. So, while there may be nothing in the nature of the employment of a
section master on a railroad to charge the master with responsibility
for his acts towards his co-laborers, yet if the master gives him au-
thority to command, discharge and employ the laborers, the common
master is liable for his misfeasance towards his fellow-laborers in the
exercise of the authority so conferred. Ibid.

II. One who is injured by jumping from a moving train is generally bar-
red of a recovery by reason of his contributory negligence, but where
a servant was ordered by his superior to do so in order to perform a
duty for the company, not appearing to the servant at the time that
obedience would certainly cause injury; It was held, that there was
no such contributory negligence as would prevent a recovery. Ibid.
12. Where the question of subscription to two different railway corpora-
tions is to be submitted to a vote, it is improper and irregular to sub-
mit them as a single proposition, at the same election and on the same
ballot. Goforth v. Cons. Co., 535.

RECEIVER:

1. Where a party establishes an apparent right to land, and the person in
possession is insolvent, a receiver will be appointed to take charge of
the rents and profits during the pendency of the action. McNair v.
Pope, 502.

2. Quare, whether a deed executed by the executor of a deceased mortga-
gee, who undertook to sell the land in pursuance of the mortgage to
his testator, would establish such apparent right; but when the pur-
chaser at such sale also sets up a release from the mortgagor he makes
out an apparent title and is entitled to a receiver, although the release
is attacked for fraud. Ibid.

RECITALS IN A JUDGMENT:

The recitals in a final judgment cannot change the force and effect of an
order made in a previous stage of the action. Jackson v. McLean, 474.

RECORDS:

1. Records of other States to be used in evidence in this State, must have the attestation of the clerk of the Court whose record is offered, and the seal of the Court, if it have one. If there be no seal, this fact must appear in the certificate of the clerk; and the Judge, Chief Justice, or presiding magistrate of such Court, must certify that the record is properly attested. Kinsley v. Rumbough, 193.

2. In such case, it is not necessary that the Governor of the State should certify under the great seal of the State to the official character of the Judge who makes the certificate, nor that the clerk should make such certificate, under his official seal. The provisions of $906 of the Revised Statutes of the United States do not apply to records of Courts and judicial proceedings. Ibid.

REFERENCE:

1. While a defendant has the right to have a plea in bar passed on by a jury before an account is ordered, yet he may waive the right to have it passed on by a jury at all, and by consenting to a reference he waives this right. Grant v. Hughes, 177.

2. Where an order of reference is made without objection or opposition it is equivalent to consent and is a waiver of the right to have the issue tried by a jury. Ibid.

3. It seems that an appeal will lie from an order of reference, where there is an undisposed of plea in bar, and the defendant objects to the reference on that ground. Ibid.

4. Where an appeal is taken to this Court from the action of a Judge in passing upon exceptions to the report of a referee, exceptions should be taken and stated in the record to the rulings of the Judge which it is sought to have reviewed, and the case ought not to be sent to this Court to be heard only on the exceptions taken to the ruling of the referee. Bank v. M'f'g Co., 298.

5. Where an order is made recommitting a report to a referee with directions to reform it in the particulars set out in the order, to which no exception is made, the complaining party cannot except to the report as reformed in the manner directed, and thus review the order of rereference, but he must except to the order itself at the time it is made. Cowles v. Curry, 331.

6. This Court cannot consider exceptions to the findings of a referee which depend upon the evidence when no evidence is sent up with the transcript. Jones v. Call, 337.

7. Where in the trial of an action before a referee the defendant puts his defence on one point which is sustained by the referee, he cannot ask to have other defences tried, not raised before the referee, when the conclusions of the referee have been reversed. Wiley v. Logan, 510.

8. So, in an action against the defendant for failing to account for notes put into his hands for collection, the referee ruled that the action could not be maintained for want of a demand, which ruling was sustained by the Superior Court, but sufficient facts were found by the referee to warrant a judgment, the question of demand being removed; It was held, that upon reversing the judgment in the Supreme Court the defendant was not entitled to have the case retried on the issue as to whether he had ever received the claims or not. Ibid.

REGISTRATION:

1. Where one who knows of a prior unregistered deed of trust or mortgage procures a mortgage for his own benefit on the same property, which is registered first, he gets the first lien on the property, unless he used fraud to prevent the registration of the mortgage which is first in date. Bank v. M'f'g Co., 298.

2. Two corporations were under the same management, and one of them executed a mortgage on its property to secure a debt, and afterwards this debt was assumed by the other corporation, which executed a mortgage on its property to secure it, and the mortgage on the property of the original debtor corporation was cancelled. After the expiration of some time, the original debtor corporation again assumed the payment of this debt, executed a new mortgage to secure it, and the mortgage on the second corporation was cancelled; It was held, that under the provisions of our registration laws, as against creditors, the cancelled mortgages were inoperative, and the secured creditor could claim no liens or priorities under them. Ibid.

[blocks in formation]

1. Only those persons whose names appear on the registration books are qualified voters, within the meaning of Art. 7. §7, of the Constitution. Southerland v. Goldsboro, 49: Duke v. Brown, 127; Markham v. Manning, 132.

2. The registration books are prima facie evidence of the number of qualified voters in a town, but they are open for correction on account of deaths, &c., and perhaps for intrinsic disqualifications and errors in admitting persons to register. Ibid.

3. Before an election is held, opportunity must be given to all persons entitled to become qualified voters to register, and if this opportunity is denied, either purposely or by accident, it may vitiate the election, and will certainly do so, if such denial should materially affect the result. McDowell v. Cons. Co., 514; Goforth v. Cons. Co., 535.

RENTS:

1. Where by will land is devised to a trustee, to rent the land and pay the
rents over to a person during his life, the cestui que trust takes no
estate in the land, but only the right to have the rents paid to him.
Hicks v. Bullock, 164.

2. Where a party establishes an apparent right to land, and the person in
possession is insolvent, a receiver will be appointed to take charge of
the rents and profits during the pendency of the action. McNair v.
Pope, 502.

3. Quare, whether a deed executed by the executor of a deceased mort-
gagee, who undertook to sell the land in pursuance of the mortgage
to his testator, would establish such apparent right; but when the pur-
chaser at such sale also sets up a release from the mortgagor, he makes
out an apparent title, and is entitled to a receiver, although the re-
lease is attacked for fraud. Ibid.

RES JUDICATA:

1. Where the rights of parties have been once judicia'ly determined, it is
irregular and improper to attempt to do away with the effect of the
judgment by attempting to try the same right in a different way.
Holley v. Holley, 229.

2. Where the title to a tract of land has been passed upon in one action
the losing party cannot re-open the question by a proceeding to have
the land processioned. Ibid.

RESULTING TRUSTS:

1. While trusts, unless annexed as an incident to a conveyance of the legal
estate, cannot be raised by parol even when founded on a valuable
consideration, they may be attached by agreement to such transferred
estate and will be enforced. Cade v. Davis, 139.

2. Where an agreement is made between husband and wife, that the pro-
ceeds of a sale of the wife's land shall be invested in other land in the
name of the wife, such agreement is within the provisions of the stat-
ute of frauds, and cannot be specifically enforced, but relief will be
given the wife by declaring her to be entitled to the proceeds of her
land, and perhaps to charge the land purchased with her money, with
its payment. Ibid.

3. Where a husband contracts with his wife to invest money received from
a sale of her land in other land, the title to which is to be taken to
the wife, but instead he takes the title to himself, he must either exe-
cute his contract by conveying the land to his wife or restore to her
the money which he received from her estate. Ibid.

RIPARIAN OWNER:

The riparian owner of land has the right, under our entry laws, to enter
the water front up to deep water, for the purpose of erecting a wharf,
and in such case, the title to the land passes. Gregory v. Forbes, 77.

ROADS:

1. The County Commissioners are vested by the statute with the power to
lay out or discontinue public roads, and from their action an appeal
lies to the Superior Courts in term, where the issues of fact are to be
tried by a jury, and from that Court an appeal lies to the Supreme
Court, as in other cases. King v. Blackwell, 322.

2. The main question to be determined as to the propriety of laying out a
public road is, whether it is necessary for the public good and con-
venience. Ibid.

3. Where in such case, the applicants submitted an issue whether such pro-
posed road was necessary, it was not error for his Honor to add the
words "to the public." Ibid.

4. It is well settled that the omission of the trial Judge to charge the jury
in a particular aspect of the case, is not ground for a new trial, when
the complaining party did not ask for such a charge. Ibid.

5. Evidence that there are private ways near to the proposed location of
the public road asked for, is competent both before the County Com-
missioners and the jury on an appeal to the Superior Court, to show
that the proposed road is not necessary, because the private ways
fulfilled all the public needs. Ibid.

6. The continuous use of a road as of right for the prescribed time is evi-
dence of the acquirement of the easement, and in the absence of other
evidence it is conclusive. Willey v. R. R. Co., 408.

7. Interruptions of the use of an easement when brought to the knowledge
of the claimant, rebut the presumption of a grant, unless such inter-
ruptions are promptly contested by the claimant and the easement re-
asserted. Ibid.

8. Interruptions of the use after the lapse of the time which raises the pre-
sumption of a grant of the easement, furnish evidence of, but do not
constitute of themselves an abandonment. lbid.

9. As the presumption of a grant will arise by an adversary and contin-
uous use of an easement for twenty years, so a disuse occurring after-
wards for the same length of time will raise a presumption of a sur-
render or extinction of the easement in favor of the servient tenement.
Ibid.

10. Where the plaintiff had a right to use a road which ran over the right
of way of a railroad corporation, the corporation has no right to ob-
struct such road, when such obstructions were not necessary for pur-
poses of the corporation. Ibid.

« PředchozíPokračovat »