7. License to Sell.-Fitness of Applicant.-Instruction to Jury.-In-
toxication.-Law and Fact.-Where, in an application for license
to sell intoxicating liquors, the court instructed the jury, in sub-
stance, that if they find that the petitioner has been intoxicated
in a public place, they should refuse him a license, is erroneous.
From the fact that it is a misdemeanor, subject to a fine, for a per-
son, even on one occasion, to become intoxicated in a public
place, it does not follow, as a matter of law, that such a person is
disqualified, under the law, to obtain a license.
Lynch v. Bates, 206
8. Judgment Correct Upon Merits of Case.-Reversible Error.-That
there was evidence tending to support certain other charges of
immorality and unfitness on the part of the applicant, can not
avail to satisfy the mind of the court that the verdict of the jury
was based upon such charges and evidence, and the court can not
say that the judgment is right upon the merits of the case, the
evidence not all being in the record, and the facts not being fully
found.
Ib.
9. Sale to a Woman for Retail Purposes.-Agent.-Contract for Pur-
chase-money Unenforcible.-Public Policy.-H., a woman, who was
the owner of saloon fixtures and stock, executed a written contract
with D., by the terms of which it was agreed that D. should apply
in his own name and procure a license from the board of commis-
sioners to sell intoxicating liquors, using H.'s fixtures, etc., and
that when the license was procured, D. would retail the liquors for a
salary of $45 a month, which H. agreed to pay, and that after the
current expenses are paid from the receipts the overplus was to
go to H. W. supplied liquors to be sold in the saloon, which was
charged to "D- for H."
Held, that as W. sold the liquor to H.'s agent, knowing the capacity
in which he acted, and the use to be made of it (such use being
against the express provisions of the statute, and contrary to pub-
lic policy), the law will not aid W. to enforce his contract of sale,
but will leave the parties in the situation in which they have
placed themselves.
Woodford v. Hamilton, 481
10. A Woman can not Obtain License for Sale of.-Sale by Unlawful.—A
woman is inhibited by statute from obtaining a license to vend
intoxicating liquors at retail, and when they embark in such
business they engage in an unlawful act.
INTOXICATION.
See INTOXICATING LIQUORS, 7.
See CONTRIBUTORY NEGLIGENCE, 3, 4; MASTER AND SERVANT, 8.
JOINT TENANCY.
See DEED, 1.
JUDGMENT.
See COUNTY COMMISSIONERS, 2; INTOXICATING LIQUORS, 8; NEW TRIAL,
2; NUISANCE, 2; PLEADING, 1; QUIETING TITLE, 1, 3, 8; SUPREME
COURT PRACTICE, 6; VARIANCE.
1. Review of.-Divorce Proceeding.-Attachment.-Alimony.-An ac-
tion will not lie to review a judgment in attachment and for ali-
mony in a divorce proceeding, the judgment in attachment being
merely in aid of the suit for divorce and alimony, and not an in-
dependent proceeding.
Keller v. Keller, 38
2. Order Subsequent to Final Judgment.—Review of on Appeal.— With-
drawal of Deposit to Secure Costs.--An order made after the ren-
dition of the judgment from which the appeal is taken, and
which does not affect the judgment, such as an order allowing a
party to withdraw from the clerk money deposited as security for
costs, is not available on appeal.
Shedd v. Disney, 240
3. Signing by Trial Judge.-Presumption.-Record.-Transcript.—
The transcript of the record need not show that the judgment
appealed from was signed by the trial judge, the presumption be-
ing in favor of such signing. The judge is only required to sign
the record of each day's proceedings once, which may include a
great number of judgments.
Ferris v. Udell, 579
4. Foreclosure of Mortgage.-Res Adjudicata.-Assignment for Benefit
of Creditors.-Bankruptcy.-Purchaser Pendente Lite.-Collateral
Attack.-A, a corporation, executed a deed of assignment to R.
for the benefit of its creditors, among which were certain lots.
Subsequently to the assignment, A, upon petition in the United
States District Court, was duly adjudged a bankrupt. R., upon
order of the State court in which the assignment proceedings
were pending, turned over to the assignee in bankruptcy of A all
of the property rights, credits and effects of said bankrupt, but
made no deed or conveyance of the lots or any of the assigned
real estate to the assignee ir bankruptcy. The assignee in bank-
ruptcy sold the lots to H. At the time of the assignment by A to
R., B. and S. held a judgment lien on the land of A, which, after
the sale by the assignee in bankruptcy, they foreclosed and be-
came the purchasers at the foreclosure sale, and received a certifi-
cate of purchase, one-half of which they had assigned to F., but
which had not been recorded when E., a mortgagee of H.,
brought suit against H., B. and S. and others to foreclose his
mortgage on said lots, which resulted in a judgment in favor
of E.
Held, that a decree in a suit to foreclose a mortgage, adjudicating
the titles involved, is conclusive upon the parties.
Held, also, that if a judgment necessarily determines a particular fact,
that determination is conclusive, and requires the same fact to be
determined the same way in all subsequent actions between the
same parties or their privies.
Held, also, that E.'s foreclosure suit necessarily adjudicated two
things, viz: (1) That the sale of the lots in question by the as-
signed in bankruptcy as against B. and S. was valid and binding;
and (2) that the sheriff's sale to B. and S. on execution on their
judgment was invalid against H., the purchaser at the bankrupt
sale.
Held, also, that F., the assignee of B. and S. of one-half interest in the
certificate of purchase, should be regarded as a purchaser pendente
lite, and bound by the decree in favor of E., for such assignment
had not been recorded, as the statute provides, when E. instituted
his suit, having no notice of the assignment.
Held, that as the court, in the foreclosure suit by E., had jurisdiction
of the subject and the parties, and the adjudication was within the
issues, it is conclusive against a collateral attack, even though the
decree be full of errors.
5. Judicial Sale.-Redemption.-Effect on Judgment.-Conclusiveness
of Judgment. The only effect of a sale on a judgment is to satisfy
or pay the same, and the only effect of a redemption is to ex-
tinguish the sale (not the judgment) by making the payment in
money instead of the sale. The judgment, though paid, is a com-
plete bar, and conclusive of everything therein adjudicated. Ib.
6. Quieting Title.-Reformation of Decree as Against Subsequent Purchaser. A decree quieting title will not be reformed at the suit of a grantee of one who was a party thereto, as against a purchaser for value under the decree, on the ground that the plaintiff's grantor was prevented from defending by information from the attorney for the judgment plaintiff that the land claimed by him was not included in the complaint to quiet title, unless it is shown at least that the land purchased from such judgment plaintiff was purchased with knowledge of the erroneous information inducing the default. Craig v. Major, Exr., 624
See APPEAL, 2; APPELLATE COURT; BOARD OF CHILDREN'S GUARDIANS, 1, 2, 3; COUNTY COMMISSIONERS, 1; PROCESS; SUPERIOR COURT.
JUROR, QUALIFICATION OF.
See INTOXICATING LIQUORS, 5, 6.
See INSTRUCTIONS TO JURY; TRIAL.
1. Struck Jury.-Party Present but Refusing to Strike.—Withdrawal of Demand.-Clerk May Strike.-Motion to Quash Venire.—Where a party demands a struck jury and attends at the time fixed for striking the same, and is furnished by the clerk with a list of the names selected which he considers, and then announces that he withdraws his demand for a struck jury and refuses to proceed further, the clerk is authorized to proceed as in the case of an absent party, and a motion by the party demanding such struck jury to quash the venire should be overruled.
Dorsey Machine Co. v. McCaffrey, 545 2. Viewing Premises.-Discretion of Court.-In order to make the refusal of the trial court to let the jury view the scene of an accident available error it must be shown that there was an abuse of discretion. Board, etc., v. Nichols, 611
LAW AND FACT.
See INTOXICATING LIQUORS, 7.
LEGAL HOLIDAY.
See CRIMINAL LAW, 2.
Defense.-Justification. Sufficiency of Evidence.-When Evidence not Broad Enough.-Where an answer set up in an action for libel is that of justification, the same objection that might be urged against he answer, viz., that it is not broad enough to justify the charge published, may be urged against the sufficiency of the evidence. Miller v. McDonald, 465
LICENSEE.
See NEGLIGENCE, 8.
See INCUMBRANCES; QUIETING TITLE, 6, 8.
On Lands of Decedent. When May be Enforced After Final Settlement.— Contribution.-Where a person holds a specific lien on real estate of a decedent, as for contribution for money paid by a co-surety, he can either file his claim therefor against the decedent's estate, or he may enforce such lien against the land after final settlement of the estate, for liens continue against real estate unless discharged by decree or payment. Beach v. Bell, 167
See CONVEYANCE, 2, 4, 7; SALE, 2.
Alternative Writ, Insufficiency of.-Demand.-Public Ditch, Obstruction
of.-Railroad.-Township Trustee.-In a mandamus proceeding by
a township trustee against a railroad company, to compel the re-
moval of an obstruction from a public ditch, the alternative writ
is insufficient on demurrer where it is not made to appear that
the plaintiff had demanded of the defendant that the obstruction
be removed.
Lake Erie, etc., R. R. Co. v. State, ex rel., 158
MARRIED WOMAN.
1. Contract of Suretyship.-Not Bound by Form of.-Facts Control.-
A married woman is not bound by the mere form of the con-
tract into which she enters, but the facts must control in deter-
mining the question whether the wife or her property is surety
for another.
Bowles v. Trapp, 55
2. Promissory Note.-Surety for Her Husband.-Sole Maker of Note.-
Defense. Where a person loaned money on the individual note
of the wife, retaining part thereof in payment of the husband's
debt, and paying the remainder to the husband, knowing it was
loaned to be applied and appropriated by him to his sole use and
benefit, and knowing that the words in the note: "For my sole
use and benefit only," as well as the form of the contract, did
not express the transaction, such facts constitute a complete de-
fense to an action on the note, against the wife, by the payee. Ib.
3. School Fund Mortgage on Her Separate Property to Secure Husband's
Individual Debt.-Void.-Sale May be Enjoined.—Where it does not
appear that a married woman made the statutory statement to
obtain a school fund loan, nor that she obtained the loan, but
that it was made directly to the husband on his individual note,
the only act of the wife being to unite with her husband in the
execution of the mortgage on land owned by the husband, and
also upon land owned by her in her own right, to secure the
note, the mortgage as to the wife's land is void, and its sale may
be enjoined.
Welch v. Fisk, Aud., 637
MASTER AND SERVANT.
See NEGLIGENCE, 4; RAILROAD, 4.
1. Safety of Premises.-Assumption of Hazards.-Pleading.—Where it
is alleged that "the usual, ordinary and safest" way of passing
from an elevated tramway into the defendant's adjoining mill
was through a dormer window, it can not be assumed from an
averment that the plaintiff's (the servant's) first use of the win-
dow was in passing from the tramway into the mill that he had
mounted the tramway by a safer method, and that he therefore
assumed the hazards of the use of the window.
Salem Stone and Lime Co. v. Griffin, 141
2. Construction of Premises.-Equality of Knowledge.-Where the
dangerous agencies leading to the injury of an employe arise out
of the negligent construction of the premises, he is not bound to
show absence of opportunities, equal to the employer's, for dis-
covering the danger.
3. Prior Injury to Another at Same Place.-Evidence of Admissible to
Show Notice to Master.-For the purpose of showing notice to the
employer of a dangerous condition, evidence that prior to the in-
jury sued for another person was injured at the same place in the
same way, is admissible.
4. Freedom from Fault.-Instruction as to.-An instruction that an
employe, who has used ordinary care to discover the dangers of
the place in which he works, and who is injured by reason of a
danger not so discoverable, is free from fault, is not objectionable,
if the conditions necessary to a recovery are fully given in other
instructions.
Ib.
5. What Risks are Assumed and What Not.-Notice to Employe of
Danger. Implied assumptions of risks are only such as are natur-
ally incident to the service, and those which are known, or dis-
coverable by ordinary care, but disregarded by the servant.
Dangers which are unknown to the servant, or not discoverable
by ordinary care, but which are, or should be, by ordinary care,
known to the master, are not assumed, and as to such the master
is bound to give notice.
Ib.
6. Time of Giving Notice.-Notice of an unassumed danger must be
given before the service involving it is required, and it is not
necessary that it should be given at the time of the contract of
employment; but where no notice was given at any time, an in-
struction fixing it at the time of employment is harmless. Ib.
7. Walk.-Use of.-Ignorance of Danger.-Contributory Negligence.—A
walk constructed along a tramway is an invitation to its use, and
a servant going upon it in the performance of a duty, without
knowledge of dangerous projections from the tramway cars which
make it unsafe, is not guilty of contributory negligence.
Ib.
8. Extra Hazard.-Not in Issue.--Finding Disregarded.-Where the
question of extra hazard is not in issue, a finding as to that fact by
the jury must be disregarded.
Neutz v. Jackson Hill, etc., Co., 411
9. Notice to Employer.-An employe is not, as a condition precedent
to recovery for an injury, required to notify his employer of a fact
which the employer is bound to know.
Pennsylvania Co. v. McCaffrey, Admx., 430
10. Railroad.-Unblocked Frog.-Injury to Brakeman.-Ignorance of
Blocking Device.—Assumption of Risk.-A brakeman upon a rail-
road not using blocks in its frogs and switches, who is killed in
the line of his service by getting his foot caught in an unblocked
frog, and who at the time of the accident had no knowledge
that such protecting devices as blocks were in use upon any rail-
road, will be held to have assumed the risk, although it is averred
that he had no time or opportunity to observe whether or not the
particular frog was blocked.
Sheets, Admr., v. Chicago, etc., R. W. Co., 682
11. "Kicking" Cars Into Switch.-Rule of Company.-Where a freight
conductor gives an order to place cars upon a side track, and couple
them with others standing upon said side track, without instruc-
tions as to the manner of doing it, and the trainmen in executing
the order make a "kicking" switch, and a brakeman, voluntarily
going in front of the detached, uncontrolled, and rapidly mov-
ing cars to make the coupling gets his foot fastened, in an un-
blocked frog, and is run down and killed, an action will not lie
against the company, even though the latter had in force no rule
prohibiting the making of switches of the character alleged. Ib.
12. Fellow-Servants.-Incompetent Fellow-Servant. — Voluntarily Going
into Danger Caused by.-Attempting to Make Perilous Coupling.--An
engineer is a fellow-servant of a brakeman, and a recovery against
the railroad company for the death of the brakeman by a negli-
gent act of the engineer in kicking cars into a siding at an ex-
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