had no jurisdiction, either of the person or of the subject matter, is
absolutely vold. (Moyer v. Bucks, 251.)
2. JUDGMENTS.-NOTICE BY PUBLICATION, made in the ab-
sence of any law authorizing it, is the same in effect as no notice, and
Judgment based upon it is void. (Moyer v. Bucks, 251.)
3. NOTICE BY UBLICATION.-A personal judgment rendered
against a defendant in a bastardy proceeding, without his having
been arrested or taken into custody, and upon whom no process was
served except unauthorized notice by publication, is void. (Moyer
v. Bucks, 251.)
4. RES JUDICATA.—A judgment denying the right of the plain-
tiff to compel the issuing to him of a certificate of stock in lieu of
one which has been lost, because he has not given a bond of indem-
nity, is not conclusive against him in another suit brought for the
same purpose, without first giving a bond, when more than four years
have intervened between the two suits, during which time the alleged
lost certificatė bas not been heard from, and no other claimant has
appeared therefor, and the legislature has enacted a law providing
for the renewal of stock certificates which have been worn out, lost,
or destroyed. (Guilford v. Western Union Tel. Co., 407.)
5. RES JUDICATA.-THE FINDING OF THE JURY UPON
ONE PARAGRAPH ONLY of the complaint, where there is evidence
tending to support another paragraph, precludes an action on the
cause averred in the paragraph as to which no finding was made.
(Adams v. Main, 266.)
6. JUDGMENTS - MODIFICATION-EXTENDING TIME OF
PAYMENT.-A judgment prescribing a time within which money must
be paid to one party to entitle the other party to the benefit of the judg
ment, may, in furtherance of justice, be modified by the court, after the
expiration of such time, by extending the time for payment, and pro-
viding that it may be made to the clerk of the court for the benefit of
such former party. (Tyler v. Shea, 660.)
7. JUDGMENT, RELIEF FROM. WHILE PERJURY of the
plaintiff in testifying falsely upon an issue disclosed by the com-
plaint will not, of itself, entitle defendant to relief from a judgment
procured thereby, if the facts testified to were not peculiarly or ex-
clusively within the knowledge of the plaintiff, yet such perjury
may be considered in connection with other circumstances tending
to disclose a fraudulent scheme on the part of the defendant to put
It out of the power of the plaintiff to defend the action, and as giv-
ing color to his prior acts, which are alleged to have been fraudu-
lent. (Colby v. Colby, 420.)
8. A JUDGMENT BY DEFAULT can be taken only when it ap-
pears that the defendant has been duly served with the summons, and
has failed to answer the complaint. (White v. Johnson, 726.)
9. JUDGMENT, VACATING FOR EXCUSABLE NEGLIGENCE.
It is proper to open a default against a defendant, upon the ground of
his excusable negligence, where his attorney was informed by the clerk
that no business would be transacted by the court until after a certain
date, and, relying upon this statement, he did not appear until such
date, when he found that his pending demurrer had been over-
ruled. (Anaconda Min. Co. v. Saile, 472.)
10. JUDGMENT BY DEFAULT, VACATING-TERMS-STATUTE
OF LIMITATIONS.-In opening a default against a defendant upon the
ground of his excusable negligence, the court commits no error in refus-
ing to impose any terms interfering with his right to interpose the de-
fense of the statute of limitations. (Anaconda Min. Co. v. Saile,
472.)
11. JUDGMENT BY DEFAULT, VACATING-NEGLIGENCE.-
It is not negligent, within the meaning of the law as to defaults, for s
defendant's attorney not to withdraw a frivolous demurrer, and file an
answer, before the demurrer has been disposed of in the ordinary course
of practice. (Anaconda Min. Co. v. Saile, 472.)
See Equity, 4; Evidence, 14; Process, 3, 4; Scire Facias.
JUDICIAL NOTICE.
See Evidence, 3.
JUDICIAL SALE-OBJECTIONS TO TITLE.-Though the
property sold has a frontage somewhat less than that stated in the no-
tice of sale, the purchaser will not be released from his bid on that
account, if there was a plat referred to in such notice as being in the
commissioner's office, which showed distinctly the true frontage. If he
saw this plat, he would not be relieved on proving that he did not ex-
amine it. (Carneal v. Lynd, 819.)
JURISDICTION-COLLATERAL ATTACK.-If, after a pro-
ceeding in court confirming an assessment-roll, an application is
made to the court for an order authorizing the sale of delinquent
property, evidence will not be received to prove that an affidavit of
the publication of a notice required to authorize such confirma-
tion was not true. (Hertig v. People, 162.)
See Actions; Appeal, 1; Judgments, 1; Process.
JUSTICE OF THE PEACE-EXCESSIVE FEES.-A justice of
the peace who demands and receives excessive fees is liable in an action
for the statutory penalty therefor; and it is no defense that he had no
corrupt motive or intent in collecting them; or that he was ignorant of
the fact that the fees were illegal; or that, upon discovery of his extor-
tion, he tendered back the fees; or that the person paying them knew
that they were excessive, and kept silent. The question as to voluntary
payment, in such a case, is immaterial. (Leggått v. Prideaux, 498.)
See Definitions; Execution, 5, 6.
1. VALIDITY OF COVENANT-PUBLIC POLICY.-A covenant
in a lease, providing that the lessor shall not be liable for damage
caused by fire, is valid and not opposed to public policy as increas-
ing the risks and dangers to the public as to the destruction of its
property by fire. (Stephens v. Southern Pac. R. R. Co., 17.)
2. LANDLORD AND TENANT-COVENANT AGAINST LOSS
BY FIRE.-Under a covenant in a lease between a railroad com-
pany and its lessee of land adjoining its depot grounds, providing
that the lessor shall not be liable for damage by fire arising from
any cause, the lessee cannot recover for the loss of a warehouse
erected by him on the leased premises, caused by fire negligently
set on adjoining lands of the lessor for the purpose of burning grass
and rubbish. (Stephens v. Southern Pac. R. R. Co., 17.)
3. BREACH OF COVENANT TO REPAIR.-Upon a breach of a
covenant by a landlord to repair, the tenant may repair, and recover
the cost thereof from the landlord; or he may rely upon the cove-
nant, and recover all damages proximately flowing from a breach
thereof, regardless of the expense or trouble required to make such
repairs. (McCoy v. Oldham, 208.)
4. BREACH OF COVENANT TO REPAIR-MEASURE OF
DAMAGES-SETOFF.-In an action by a landlord to recover rent
due, the tenant may set off against his claim the decreased rental
value of the premises caused by the breach by the landlord of his
covenant to repair the leased premises. (McCoy v. Oldham, 208.)
1. LAPCENY.-PROOF OF EMBEZZLEMENT will, under the
statutes of Virginia, sustain a common-law indictment for larceny.
(Pitsnogle v. Commonwealh, 867.)
2. LARCENY.-PROOF THAT A GOLD WATCH was stolen is
made out by evidence that the owner gave thirty dollars for it, and that
it was represented when he purchased it, as a gold watch. (Pits-
nogle v. Commonwealth, 867.)
3. LARCENY BY BAILEE.-Proof that the defendant, after receiv
ing a watch as security for a loan, appropriated it to his own use, and
by falsely and fraudulently substituting another and different paper
from the one given by him to his bailee, he attempted to vest the prop-
erty in himself as owner, sustains his conviction of the larceny of such
watch. (Pitsnogle v. Commonwealth, 867.)
See Evidence, 14; Landlord and Tenant.
CONSTITUTIONAL LAW.-THE LEGISLATURE CANNOT
DELEGATE to any person or body the power to determine what
the law shall be, except when authorized by the constitution to do
60. (Anderson v. Manchester etc. Assur. Co., 400.)
LETTERS.
See Evidence, 9.
See Railroads, 28, 29; Real Property, 2, 3.
MISTAKE. A LIEN discharged by mistake is, in contempla-
tion of equity, still in existence. (Kern v. Hotaling, 710.)
1. THE STATUTE OF LIMITATIONS is an honorable defense
and one to which all men are entitled as of right. (Anaconda Min.
Co. v. Saile, 472.)
2. LIMITATION OF ACTION.-The fraudulent concealment, by
the principal on a bond, of a cause of action against himself, not
only prevents the running of the statute of limitations in his favor,
but it also stops the statute from running in favor of his surety,
(Eising ▼. Andrews, 75.)
See Homesteads, 4; Judgments, 10.
LIGHT AND AIR.
See Highways, 1.
See Carriers, 19; Railroads, 15, 16.
MANDAMUS cannot issue to control the discretion of officers,
unless some abuse thereof is shown. (State v. Rickarda, 476.)
DIVORCE PROCURED BY FRAUD, RELIEF AGAINST.—
If a husband, for the purpose of fraudulently procuring a divorce
from his wife, and of preventing her from defending any action be
may bring, persuades her to go to a foreign country for the benefit
of her health, and, while she is in that country, without funds with
which to return, serves a summons on her in a suit for divorce, in
which her impotency is alleged as a cause for divorce, and knowing
her to be unacquainted with the meaning of the word "impotency,"
he writes to her by letter that the ground of the divorce is barren-
ness, and that such ground is sufficient to require the granting of
divorce by the laws of the state, and he thereafter procures such
divorce, upon her default, by fraudulently testifying that she had
ever after her marriage been incapable of sexual intercourse, she
is entitled to relief from such judgment of divorce, and it will be set
aside in equity by the statutes of Minnesota. (Colby v. Colby, 420.)
1. EMPLOYÉS.-This term embraces laborers and servants, and
those occupying inferior positions. (Johnston v. Barrills, 717.)
2. MASTER AND SERVANT-ASSUMPTION OF RISKS.-A
servant is bound to know, and assumes the risk of, all defects in ap-
pliances about which he is employed that are open to observation,
or can be ascertained by the ordinary exercise of the senses. (Tay.
lor v. Wootan, 200.)
3. ASSUMPTION OF RISKS.-MINOR OR INEXPERIENCED
SERVANTS, as well as ordinary servants, in their contract of em-
ployment assume all risks ordinarily incident to the service, and
this includes all of which they have notice and all that are patent
and obvious to them. (Taylor v. Wootan, 200.)
4. MINEOWNERS-FELLOW-SERVANTS.-A MINING FORE-
MAN is a fellow-servant of the other employés of the same master, em-
ployed in a common business, and he cannot be made liable to them for
the negligence of such foreman, if he was a competent man to direct
the operations of the mine, and if he was further subject to examina-
tion by a board appointed by law, which issued to him a certificate of
competency, and his duties were also prescribed by statute; such statute
cannot impose upon his employer liability for his negligence or incom
petency resulting in injuries to his fellow-servants. (Durkin ▼,
Kingston Coal Co., 801.)
5. A MINING FOREMAN IS LIABLE to his fellow employés for
injuries received by the latter from the negligence or incompetency of
the former. (Durkin v. Kingston Coal Co., 801.)
6. INSTRUCTIONS TO INEXPERIENCED SERVANTS, in order
to relieve the master from liability for injury to them, must be
such as to enable them to comprehend the dangers of their situa-
tion, and appreciate the necessity of adopting prudent methods for
their protection. (Taylor v. Wootan, 200.)
7. MENTAL CAPACITY OF SERVANT-DUTY OF MASTER.-
It is an actionable wrong for a master to expose in a hazardous em-
ployment a servant whom he knows to be lacking in capacity to
understand and appreciate the dangers surrounding him, however
much he may have been instructed. (Taylor v. Wootan, 200.)
8. INFANT EMPLOYÉS.-A master may employ an infant in
a hazardous occupation, on condition that he shall furnish such in-
fant with such information relative to the perils of his situation as
will enable him to comprehend such dangers, and understand how to
avoid them. (Taylor v. Wootan, 200.)
9. MINOR SERVANTS.-TO JUSTIFY A MASTER IN THE
EMPLOYMENT of an ignorant and inexperienced infant in a haz-
ardous employment, such infant must possess at least sufficient
capacity to understand the dangers of the situation and to appre-
ciate the importance of heeding prudent warnings for his own safety.
(Taylor v. Wootan, 200.)
See Instructions, 3; Police Power; Railroads, 25; Statutes, 11, 12.
1. THE MAXIM THAT WHERE THE EQUITIES ARE EQUAL
the law will prevail has no application where the equities are unequal
by reason of the fact the plaintiff has a prior and superior equity. * In
such a case, the plaintiff's superior equity will prevail. (Kern v.
Hotaling, 710.)
2. NEGLIGENCE.-IF ONE OF TWO INNOCENT PARTIES
MUST SUFFER, he who by his conduct has enabled a wrongdoer to
perpetrate a wrong must bear the loss, rather than the party without
fault. (Union Pac. Ry. Co. v. Johnson, 540.)
See Master and Servant, 4, 5; Railroads, 1, 11, 12; Statutes, 8, 10;
See Guardian and Ward; Master and Servant, 3, 8, 2
MISREPRESENTATIONS.
See Evidence, 1; Vendor and Purchaser, 11-16.
CONTRACTS MADE UNDER MISTAKE OF FACT.-Where
certain facts are assumed by both parties as the basis of a contract, and
it subsequently appears such facts did not exist, the contract is inopera-
tive. (Fink v. Smith, 750.)
See Liens; Public Lands, 8, 9.
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