MODIFICATION.
Bee Equity, 4; Judgments, &
1. MORTGAGES.-A DEED ABSOLUTE IN FOXM is, in fact,
a mortgage, when given to secure the payment of money, although the
parties may have agreed that, upon default in payment, the deed should
become absolute. (State Bank v. Mathews, 565.)
MORTGAGES-DELIVERY.-The delivery of an instrument is
a question of fact, but this may be inferred from circumstances. The
fact that a mortgage has been returned to the mortgagor, for safekeeping,
after it has been delivered to the mortgagee, does not defeat its delivery.
(Bradtfeldt v. Cooke, 701.)
3. MORTGAGES-NEGLIGENCE OF MORTGAGEE-WAIVER
OF SECURITY.-If a mortgagee, by his own act or neglect, deprives
himself of the right to foreclose his mortgage, he at the same time
deprives himself of a right to an action on the mortgage note. He
cannot, without the consent of the mortgagor, release the mortgage,
or waive the security for the purpose of bringing an action upon
the note. (Hiberuia Sav. etc. Soc. v. Thornton, 52.)
4. MORTGAGES-ASSIGNMENT OF NOTES.-If the holder of
notes secured by the same mortgage transfers part of them to one party
by general indorsement, and the remainder to another without recourse,
all of the notes are entitled to share pro rata in the distribution of the
fund realized upon foreclosure; and the fact that some of them were
transferred before the others does not imply any agreement that the
notes first transferred shall have priority. (State Bank v. Math-
ews, 565.)
5. MORTGAGES-ASSIGNMENT.-If the grantee in a deed given
to secure the payment of notes sells the notes to a third person, and
gives him a mortgage on the land named in the deed to secure their pay-
ment, the last mortgage constitutes an assignment to such third person of
the mortgage deed. (State Bank v. Mathews, 565.)
6. MORTGAGES-ASSIGNMENT OF PART OF NOTES SE-
CURED.-If a mortgage secures several notes, the assignment of one of
them is an assignment, pro tanto, of the mortgage, and, in the absence of
any stipulation to the contrary, all of the notes so secured share pro
rata in the distribution of the fund upon foreclosure. (State Bank
7. Mathews, 565.)
7. MORTGAGES-PAYMENT.-Nothing short of actual payment
of the debt, or an express release, will operate to discharge a mort-
gage. (Kern v. Hotaling, 710.)
8. PAYMENT.-THE ACCEPTANCE OF A NEW NOTE AND
MORTGAGE in renewal of an old indebtedness, and without any un-
derstanding that such indebtedness shall be discharged, is not a pay-
ment or discharge of the old indebtedness. (Kern v. Hotaling,
710.)
9. MORTGAGES-FORECLOSURE-DISTRIBUTION OF SUR-
PLUS.-A mortgagee holding two mortgages on the same land
against the same mortgagor, and a certificate of purchase under a
foreclosure sale of the second mortgage, at which he bid the amount
of the principal, interest, and costs, is entitled to a lien for the pay-
ment of the amount secured by such mortgage upon the surplus
arising from a subsequent sale under the first mortgage, although the
decrees foreclosing the mortgages were obtained at the same time,
without provision made in either for the distribution of any surplus
arising from a foreclosure sale. (Clapp v. Hadley, 308.)
See Equity, 1, 2; Homesteads; Injunctions, 6; Penalties, 2.
1. MUNICIPAL CORPORATIONS-RIGHT TO QUESTION EX-
ISTENCE OF.-A private citizen cannot question the right of a munici-
pal corporation to exercise the authority, powers, and functions of an
incorporated city; nor can he, in a private action, question the due
annexation to it of territory over which it has assumed to exercise
jurisdiction for several years, under proceedings taken to effect such an-
nexation. (Kuhn v. Port Townsend, 911.)
2. ESTOPPEL TO DENY MUNICIPAL AUTHORITY.-One who
participated in proceedings for the annexation of territory to a munici-
pality, and subsequently recognized the jurisdiction of the municipal
authorities, and acquiesced for several years in their claim that such
annexation had been effected, is estopped from thereafter question-
ing it. (Kuhn v. Port Townsend, 911.)
8. ANTEDATING MUNICIPAL BONDS to a time anterior to the
election which authorized their issue is not such an irregularity as
affects their validity, if the object is not to evade the operation of any
law, and the result cannot impose a greater or different liability than
that sanctioned by the election and other proceedings taken for the
issuing of the bonds. (State v. Moore, 626.)
4. MUNICIPAL CORPORATIONS RATIFICATION OF VOID
INDEBTEDNESS.-Though the constitution of the state declares that no
municipality shall become indebted to an amount exceeding one and a
half per cent of its taxable property without the assent of three-fifths
of the voters thereof, nor, with such assent, in an amount exceeding five
per cent of such value, a statute authorizing the voters to ratify indebted-
ness which, when created, was void, because in excess of one and a half
per cent of the taxable property, is not unconstitutional. Subsequent
assent is equivalent to precedent authority. (West v. Chehalis,
896.)
5. MUNICIPAL BONDS.-AN ELECTION FOR THE PURPOSE
OF RATIFYING WARRANTS ISSUED WITHOUT AUTHORITY
RELATES to the date of such issue, and makes such warrants valid, if,
at such issue, they, added to the other indebtedness, did not exceed the
amount which the municipality was authorized to incur, though, at the
date of the election, they, with other existing indebtedness, did exceed
such amount. (West v. Chehalis, 896.)
6. ELECTRIC LIGHT COMPANIES-SERVITUDE.—A pole used
for electric light purposes is within an urban servitude, where it appears
that the pole in question is intended to serve public interests.
(Loeber v. Butte etc. Electric Co., 468.)
7. ELECTRIC LIGHT COMPANIES-ERECTION OF POLES IN
STREET.-If an electric light company, under a contract with a city to
light its streets and public buildings, finds it necessary, by reason of the
existence of telephone poles, and ordinances requiring it to erect new
poles throughout the city, to erect one of its poles at the corner of an
alley at the rear of plaintiff's premises, it will not be enjoined from so
doing, where it does not seriously interfere with access to such property,
or with the air or light to it. Such a use of the streets is not unreason-
able, and does not substantially interfere with any right of the plaintiff.
(Loeber v. Butte etc. Electric Co., 468.)
8. EMINENT DOMAIN.-THE DAMAGES RECOVERABLE FOR
THE OPENING OF A STREET, where they constitute an indivisible
claim, include all elements of damage already existing, but do not in-
clude rights of action which are yet inchoate, or damages which may
not follow from such opening. (Clark v. Philadelphia, 790.)
9. THE RIGHT TO RECOVER DAMAGES FOR THE GRADING
OF A STREET IS NOT WAIVED by disclaiming all damages for the
opening of such street, because the right to damages for the change of
grade does not accrue until the actual change is made on the
ground. (Clark v. Philadelphia, 790.)
10. THE DAMAGES RECOVERABLE BY A PROPERTY OWNER
FOR THE GRADING OF A STREET in front of, or running through,
his property are not part of the damages recoverable for the opening of
the street. Therefore, if the grading occurs as a separate act, so long
after the opening of the street that the assessment of damages at the
time of the appropriation could not have included those resulting from
the grading, the latter may be ascertained and recovered in a second
action or proceeding. (Clark v. Philadelphia, 790.)
11. MUNICIPAL CORPORATIONS-DRAINAGE.-Negligence may
be imputed to a city, and it may be held liable for damages resulting
therefrom, if its officers, acting in good faith, adopt an insufficient or de-
fective plan of drainage. (Beatrice v. Leary, 546.)
12. WATERS, SURFACE. THE ACTS OF A CITY in cutting ditches
along streets and in building dikes, are ministerial acts, for which it may
be held liable, in case of negligent omission to provide sufficient outlets
for surface water. (Beatrice v. Leary, 546.)
WATERS-SURFACE-ESTOPPEL.-Petitioning a city to grade
and pave a street does not estop a property owner from claiming dam-
ages for the negligent omission of the city to provide suitable outlets for
surface water. (Beatrice v. Leary, 546.)
14. WATERS-SURFACE.-A CITY, in protecting its streets from
surface water, must exercise ordinary care to prevent obstructing a ditch
which will result in injury to lotowners by overflow of such water.
(Beatrice v. Leary, 546.)
15. WATERS-SURFACE.-A city has the right to take such steps,
and perform such acts, as, in its judgment, are necessary to protect its
streets from surface water; but it must perform such work with ordi-
nary care, and, if guilty of negligence which is the natural and proximate
cause of injury to an adjoining lotowner, it is liable therefor.
(Beatrice v. Leary, 546.)
See Nuisance, 1; Taxes, 1.
IDEM SONANS.-If two names may be sounded alike without
doing violence to the power of the letters found in the variant orthogra-
phy, the variance is immaterial. Therefore, an indictment for stealing a
watch from Edmond Bolden may be supported by evidence of its theft
from Ed. Bolen. (Pitsnogle v. Commonwealth, 867.)
1. NEGLIGENCE WHEN QUESTION OF LAW.
facts in a negligence case are specially found, either by the court or
the jury, it is then for the court to decide whether such facts
amount, prima facie, to negligence. (Brummit v. Furness, 215.)
2. NEGLIGENCE, CONTRIBUTORY, BREAKING OF DAM |
DAMAGES.-Though one lives on a stream below a dangerous dam, and
has knowledge of its condition, his failure to institute statutory pro-
ceedings to have it judicially examined, and made secure, or abated as a
nuisance, is not contributory negligence, and does not defeat his right to
recover damages resulting from its subsequent breaking. (Hollen-
back v. Dingwell, 502.)
3. NEGLIGENCE, CONTRIBUTORY.—THE TWO ESSENTIAL
ELEMENTS in contributory negligence are a want of ordinary care on
the part of the plaintiff, and a causal connection between that and the
injury complained of; the rule being, that a plaintiff cannot recover
damages for an injury he has sustained, if the injury could have been
avoided by the exercise of ordinary care on his part. (Hollen-
back v. Dingwell, 502.)
See Husband and Wife, 7, 8; Innkeepers; Telegraph Companies.
1. NEGOTIABLE INSTRUMENTS-NOTE OR WILL.-A writ-
ten instrument in which the maker expresses a desire "to advance
the cause of missions, and to induce others to contribute to that pur-
pose," and promises, absolutely and unconditionally, to pay a certain
sum of money, the payment to be made out of his estate one month
after his death, is a promissory note, and not a will, and, having a
good and valid consideration, it may be enforced by suit. (Garri-
gus v. Home etc. Missionary Soc., 262.)
2. NEGOTIABLE INSTRUMENTS, THOUGH FOUNDED UPON
AN ILLEGAL CONSIDERATION, are enforceable by bona fide hold-
ers for value. (Lynchburg Nat. Bank v. Scott, 860.)
3. NEGOTIABLE INSTRUMENTS-REASONABLE ATTORNEY
FEE.-If a note provides for a reasonable attorney fee, in case of suit, and
there is an issue as to what is such a fee, the statutory attorney fee only
will be allowed, unless some evidence is taken as to what constitutes a
reasonable attorney fee. (Bradtfeldt v. Cooke, 701.)
4. DELIVERY. - The payee's
raises a presumption of delivery.
ary Soc., 262.)
possession of a promissory note
(Garrigus v. Home etc. Mission-
5. DEATH.-A promissory note payable after the death of the
maker is a valid obligation. (Garrigus v. Home etc. Missionary
Soc., 262.)
6. NEGOTIABLE INSTRUMENTS.-AN ACCOMMODATION IN-
DORSER cannot recover from the maker until he has paid and satisfied
the demands of the indorsees. (Sheahan v. Davis, 722.)
7. NEGOTIABLE INSTRUMENTS-LIABILITY OF MAKER TO
ACCOMMODATION INDORSER.-The maker of a negotiable promis-
sory note is liable to one who, without his request, indorses it for the
accommodation of another, if such indorser is compelled to pay it upon
default of the maker, although the indorser, after his indorsement, dis-
covered that there was, originally, a want, or failure, of consideration for
the note. (Sheahan v. Davis, 722.)
8. NEGOTIABLE INSTRUMENTS-TITLE OF INDORSER-RE-
LATION.-If an indorsement has been made in good faith, and the in-
dorser has been compelled to pay a negotiable promissory note at or
after its maturity, his title relates back to the date of his indorsement,
and he thus becomes the lawful holder for value and without notice,
although after his indorsement he may learn of the want or failure of
the original consideration. (Sheahan v. Davis, 722.)
See Checks; Evidence, 11; Mortgages, 3-5; Usury.
NEWSPAPERS.
See Contempt.
NEW TRIAL.-Except in cases where no remedy can be had
by appeal, it is bad practice to resort to motions for a new trial,
under the provisions of chapter 51 of the Public Acts of Connecti-
cut of 1893, which involve large expense to the state from the cost
of printing the entire evidence, when the real grievance arises
from the instructions which the jury received from the court. No
verdict will, therefore, be treated, under the statute, as against the
evidence in the cause, which is warranted, on the evidence, by the
terms of the charge, however erroneous it may have been. (Ward
V. Metropolitan etc. Ins. Co., 80.)
NOTARIES PUBLIC.
See Affidavits, 2; Evidence, &
NOTICE.-MEANS OF KNOWLEDGE, with the duty of using
them, are, in equity, equivalent to notice. (Carneal v. Lynch, 819.)
See Banks; Corporations, 10; Insurance, 14, 15; Trusts, 4; Vendor and
Purchaser, 1, 3, 5–7.
1. A NUISANCE CANNOT BE AUTHORIZED BY A CONTRACT
between a municipality and a cemetery association, to the injury of
a third person. (Barrett v. Mt. Greenwood Cemetery Ass'n. 168.)
2. NUISANCES - CUMULATIVE REMEDIES. — The equitable
remedy to prevent the creation or continuation of a nuisance is not
taken away by a statute giving a remedy by indictment. (Barrett v.
Mt. Greenwood Cemetery Assn., 168.)
See Definitions; Elections, 4.
OBSTRUCTIONS.
See Highways.
1. OFFICERS, DISCRETION OF, IN AWARDING STATE CON-
TRACTS.-Under a statute directing the state furnishing board to let to
the "lowest responsible bidder" a contract for the publication and an-
notation of the state codes, the contract not to exceed a certain amount,
the board, in awarding the contract, has discretionary powers, and it is
its duty to wisely and honestly determine the question of responsibility.
(State v. Rickards, 476.)
2. STATE CONTRACTS-LOWEST "RESPONSIBLE" BIDDER.
The term "responsible," used in a statutory direction to state officers to
let a state contract to the "lowest responsible bidder," means something
more than pecuniary ability. It includes judgment, skill, ability, capac
ity, and integrity. Hence, officers intrusted with the duty of awarding
a state contract to the "lowest responsible bidder" must exercise official
discretion in determining the question, and cannot be compelled, by
mandamus, to award such a contract to a particular bidder merely upon
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