6. EQUITABLE DEFENSE. Under section 2880 of the Revision, the defend. ant, in an action at law, may set up an equitable defense against one holding the legal title. Shawhan v. Long, 488.
See INTERROGATORIES, 1.
LIMITATION, STATUTE OF, 5, 11.
1. TRANSFER OF PROMISSORY NOTE. A power of attorney contained the following authority: "for me and in my place and stead to sell, convey and dispose of, any and all property, both personal and real, which I have, or may have, in Delaware county, Iowa, and to give in my name any bill of sale that may be necessary, of personal property, and in my name to give a warranty deed, or otherwise, for my real estate sold, and to collect in my name any money now or hereafter to become due to me, and to do all other matters in relation to any of my property or debts which I could do if person- ally present. Giving and granting," etc. Held, that the attorney was thereunder empowered to transfer the title and possession of a promissory note, by indorsement thereof, belonging to his prin- cipal. The case of Whiting v. The Western Stage Co., 20 Iowa, 554, distinguished from the present one. Gould v. Bowen et al., 77. 2. Whether the indorsement would subject the principal to the ordi- nary liabilities of an indorser, left undecided. Id.
RATIFICATION. The authority of an agent to pledge the goods of his principal may be inferred from the silence of the principal, and his failure to complain of or disaffirm the act. Farwell & Co. v. Howard & Co., Garnishees, 381.
See GARNISHMENT, 1.
HUSBAND AND WIFE, 1, 2.
1. TRIAL: WHO HAS THE AFFIRMATIVE OF THE ISSUE. If, under the state of the pleadings and admissions, the plaintiff is not entitled to recover without the introduction of evidence, the burden of proof is deemed to be on him, and he will be entitled to open and close the trial. Viele v. The Germania Ins. Co., 9.
2. CONSOLIDATION OF CAUSES. A policy of insurance executed by four companies, stipulated that each acted for itself, and would only be liable for one-fourth of the whole amount insured, in case of loss. A loss occurring under the policy, separate actions were com- menced against each of the companies for its proportion of the loss as stipulated in the policy. These actions being by the same plaintiff, depending upon the same evidence, defended by the same attorneys and involving the same defense, a motion was made to so consolidate them as that all should abide the result in one to be tried. This motion was sustained by the District Court; and, this court being equally divided in opinion, this ruling of the District Court was affirmed by operation of law. Id.
3. AS TO WHO HOLDS THE AFFIRMATIVE. While the right to review the question as to which party holds the affirmative of the issue, and has the right of opening and closing the argument, is not absolutely denied, yet there must be a clear case of prejudice to justify a reversal upon this ground, after a trial upon the merits. Preston v. Walker, 205.
4. IRRELEVANT INSTRUCTION. A case will not be reversed upon the ground that an instruction raised an issue not in the case, when its relevancy would depend upon the character of the evidence introduced, and the evidence is not all embodied in the record. Id. 5. CHANGE OF ORDER IN SUPREME COURT. Where a case has been reversed and remanded to the District Court, the Supreme Court will not revoke such order and enter judgment there on the motion of the party claiming to be entitled thereto, when not made until several months after such order and not until after the time in which the other party might have filed a petition for a rehearing has expired. Roberts, Assignee, v. Austin Corbin & Co. et al., 315.
6. In analogy to the rule applied to the District Court, the entries and orders made at a previous term of the Supreme Court, should be altered or changed only to correct an evident mistake. Id.
7. BILL OF EXCEPTIONS: INSTRUCTIONS. Instructions which are not embodied in a bill of exceptions nor identified thereby, and which are not marked excepted to on the margin, will not be regarded by the Supreme Court. Aliter, if the ruling of the court upon the instructions with the exceptions thereto were noted on the margin. Phillips v. Starr & Co., 349.
8. STATEMENTS OF THE CLERK. Nor will the statements of the clerk of the District Court, contained in the transcript, as to the modifi- cation of certain instructions, be regarded as sufficient by the Supreme Court. Id.
9. MODIFICATIONS OF INSTRUCTIONS. The modification of instructions should not be by erasure or interlineation. Id.
10. DEMURRER. The objection that a party has an adequate remedy at law, instead of by the present proceeding, which is in equity, cannot be raised by demurrer. Brown v. Mallory, 469.
11. JUDGMENT ON DEMURRER. If, upon the overruling of a demurrer to the petition, the defendant fails to plead over, a decree may be rendered against him as upon a default. Id.
12. FAILURE TO EXCEPT. The Supreme Court will not review an order of the District Court unless excepted to by the party complaining. Soup v. Smith, 472.
13. ARGUMENT OF COUNSEL. That counsel were permitted, in their closing argument, to comment upon matters not referred to by the opposite counsel, and to which they were afforded no reply, relates to a matter within the discretion of the court below, for which a case will not be reversed unless a clear case of abuse is shown. Hull v. Alexander, 569.
14 ATTORNEY AND CLIENT. A motion under section 3422 of the Revision to compel an attorney to pay over money collected for his client, is heard and disposed of without written pleadings. Mans- field v. Wilkerson, 482.
See APPEAL.
DEMURRER. INSTRUCTIONS.
1. DAMAGES FOR KILLING STOCK: PLEADING. In an action before a jus- tice of the peace against a railroad company for double damages for stock killed, under section 6, chapter 169, Laws of 1862, it is not necessary to plead the fact of the notice and affidavit, therein
provided for, having been served, in order to make them admissi- ble in evidence on the trial. Brandt v. The Chicago, Rock Island and Pacific Railroad Company, 114.
2. SERVICE. In an action against a railroad company, service of such notice and affidavit may be made upon any station or ticket agent employed in the management of its business. Id.
3. PROOF OF SERVICE. Proof of such service may be established by a return of the sheriff, through his deputy, indorsed on the notice and affidavit and verified by the officer. Id.
4. TENDER. In such action, it is to no extent a defense, that the com- pany, through its agent, within thirty days of the killing of the stock, in good faith tendered to the paintiff an amount nearly as large as that found in the action, and which the agent then believed was the full value of the stock. The principle, that a debtor, whether upon contract or for injuries done, is bound at his peril to tender enough to discharge his liability, held to apply. Id.
5. DUTY TO PROVIDE STATION ACCOMMODATIONS. There exists a common law duty on the part of railway companies to provide reasonable accommodations at their station, for passengers who are invited and expected to travel on their roads. McDonald v. The Chicago & N. W. R. R. Co., 124.
6. If the station room is full, or if it is intolerably offensive by reason of tobacco smoke, so that a passenger has good reason for not emaining there, it will justify his endeavor to enter the cars at as early a period as possible, and if in so doing he receives an injury from the unsafe and dangerous condition of the platform or steps, in a place where passengers would naturally go, the company are liable therefor, if the passenger used proper care, and violated no rule or regulation of the company of which he had actual knowl- edge, or which, as a reasonable man, he would be bound to pre- sume existed. Id.
7. RULES OF COMPANY AS TO ENTERING CARS. Railroad companies are held to a strict accountability for the safety of passengers. To enable them to properly discharge this duty, they have power to make reasonable rules and regulations respecting the time, mode, and place of entering cars; and these, when known to the passenger, he is bound to conform to, and he cannot violate them by pursuing another course and hold the company liable for damages thus occa- sioned, though the jury may believe that an ordinarily prudent man might have adopted the same course. Id.
8. INJURY FROM DEFECTIVE PLATFORM: LIABILITY OF COMPANY AS COMMON CARRIERS. In the present case, which was an action by a husband and wife against a railroad company, as common carriers, to recover damages for injuries to the wife, caused by defective steps to a platform to which the train had backed, and which was not the usual place for passengers to get on and off the cars, the jury should have been instructed to ascertain from the evidence whether the company had designated or set apart the platform in front of the depot as the place where it required all passengers to enter the cars; if so, and this was known to the plaintiffs, and they, in disregard of such requirement, in advance of time, and without any justification, sought to enter the cars at another place, and in so doing, met with the injury, then the company would not be liable as common carriers. Id.
9. But if, on the other hand, there was no such rule or regulation known to the plaintiffs, and they in good faith, and using reason- VOL. XXVI. — 81
able care, were seeking to find and enter the cars, the company would be liable, as the plaintiffs would have a right to presume, that the platform and its approaches were in a safe condition. The authorities sustaining the foregoing principles collated by DIL LON, Ch. J. Id.
10. GENERAL RULE. As a general rule, railroad companies are bound to keep in a safe condition all portions of their platforms and approaches thereto, to which the public do or would naturally resort, and all portions of their station grounds reasonably near to the platforms, where passengers or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go. Id.
11. INJURIES TO EMPLOYEES: MASTER AND SERVANT. A railroad com- pany and an employee occupy the relation of master and servant, and, independent of the statute, the company would not be liable for an injury sustained by one employee through the negligence of another. Hunt v. The Chicago & N. W. R. R. Co., 363. 12. LIABILITY UNDER THE STATUTE. While section 7, chapter 169, Laws of 1862, gives to an employee the right to recover of a rail- road company for injuries occasioned by the negligence of a co- employee, the liability of the company is nevertheless measured by a different standard and rule as to negligence from what it is in the case of injuries to passengers. Id.
13. While extraordinary care and caution are due from the company to passengers, ordinary care is only due to the employee. WRIGHT, J., dissenting in the two last points, and holding, that, under the statute, the same rule is applicable to both. Id.
14. STOCK KILLED ON DEPOT GROUNDS: ACT OF 1862. Chapter 169, section 6, Laws of 1862, providing that if a railroad company fails to fence its road against live stock, at all points where it has a right to fence, it shall be liable for all stock killed, etc., does not extend or apply to depot grounds, and in the absence of negligence, the company are not liable for stock killed thereon. Davis v. The Burlington & Missouri River Railroad Co., 549.
15. The absolute liability of the company under the statute, does not attach at all places where it has the strict or abstract right to fence, but only where, in the particular case, it is fit, proper and suitable that the fence should be built. Id.
16. STOCK KILLED IN TOWN: ACT OF 1862. Under the construction given to the act of 1862, chapter 169, section 6, in the case of Davis v. The Burlington & Mo. River R. R. Co., immediately preceding the present one, a railroad company was held not liable under said act for stock killed within the limits of a town, and getting on the track at a street crossing thereof, where the same was not fenced. Rogers v. Chicago & Northwestern R. R. Co., 558.
17. LIABILITY FOR STOCK KILLED: DEPOT GROUNDS. There is no obli- gation on the part of a railroad company to fence its road within its depot grounds, in order to avoid the liability contemplated by section 6, chapter 169, Laws of 1862. Following Davis v. The Bur- lington & Mo. River R. R. Co., and Rogers v. The Chicago & North- western R. R. Co., ante, 549, 558; Durand v. Chicago & North western R. R. Co., 559.
RECORDING ACT. See JUDGMENT LIEN.
1. DEMAND. A demand in replevin is not necessary where the taking was wrongful. Delancey v. Holcomb, 94.
2. It was accordingly held, where both parties claimed ownership of a steer, and the defendant, knowing that plaintiff denied his asserted ownership, separated the steer from plaintiff's drove, and took him away, that no demand was necessary in order for the plaintiff to maintain replevin for the animal. Id.
3. TAKING BY DEFENDANT'S WIFE. Nor would the case be varied by the fact that the animal was driven off by the defendant's wife and sons, if he claimed the benefit of, and defended the act. Id.
SALE OF CHATTELS.
See TENANCY IN COMMON, 1, 2
CONTRACTS BY BOARD OF DIRECTORS. The board of directors of a dis- trict township have no power to make contracts for the purchase of maps, charts and other school apparatus, without being first authorized thereto by a vote of the electors. Taylor v. The District Township of Otter Creek, 281.
EVIDENCE. The proper time to raise the objection that an instrument is insufficiently stamped, is when it is offered in evidence; and if the instrument be once admitted without objection, it cannot be urged, for the first time, in an instruction to the jury, that the instrument is invalid for want of a stamp. Thomson v. Wilson, 120.
1. RETROSPECTIVE LAWS. There is nothing in our Constitution pro- hibiting in terms the enactment of retrospective laws; and such laws, when not invasive of private and vested rights, will be up- held. Bennett et al. v. Fisher et al., 497.
2. ROADS: CURATIVE ACT OF 1868. The curative act of 1868, entitled "An act to legalize the establishment of county roads," is held valid, as falling within that class of legislation whereby the law making power, from a regard to the paramount rights of the com- munity, has undertaken by a general law to confirm and legalize the irregular or defective proceedings of public officers and tribu- nals, rather than within that class judicially condemned as invasive of private and vested rights. Id.
See CONSTITUTIONAL LAW, 3, 4, 6, 7.
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