(CIVIL REMEDIES; PRACTICE AND PROCEDURE.) Res ipsa loquitur. A servant injured by a sudden and erratic movement of an elevator is held bound to show that it was due to a defect in the mechanism known, or which should have been known, to the master, and neglected by him. The mere fact of the accident is not deemed sufficient. 677. pickets of a labor union is upheld, and it | crossing by a train is held insufficient to is said that any statute to prevent such in- sustain an action for his death, without junction would be unconstitutional. 460. proof that he was in the exercise of due An injunction against a change of school care. 832. books by a committee under an unconstitutional statute is denied, because of an adequate remedy at law by mandamus. 124. Injunction will not lie to prevent a railroad company from according preferential privileges to a hackman at its station, in the absence of the insolvency of the corporation, or other equitable ground for relief. 1027. The right of trustees of a church to enjoin strangers from trespassing upon the property, changing the locks upon the doors, and interfering with their control of the property and of public worship in the building, is upheld. 1031. Damages. The measure of damages for fraud in an exchange of property is held to be the difference between the value of that received and that parted with, and not the difference between the value of that received and what it would have been worth if the representations had been true. 804. Damages for loss of a manuscript which has no market value are held to be based upon its value to the owner, considering the cost of production. 369. Evidence as to the average earnings of an insurance solicitor during periods corresponding with that during which he was incapacitated, held admissible Re ages for a personal injury. 1228. Profits on possible sales at an exposition are held not recoverable as damages for breach of contract to exhibit a machine. 255. covery for mental anguish because of negligence in sending a telegram is held not to extend to one who is not mentioned in the message, and whose interest is not fact for his benefit and he paid the charges. 249. The measure of damages for a purchaser's refusal to take land is held not to be the amount of deficiency on a resale, but the difference between the contract price and the market value at the time of the breach. 137. Pleadings. A complaint in an action upon a judgment of a justice of a sister state, which fails to allege specifically the facts showing that such justice had jurisdiction of the subject-matter and of the person of the defendant, or that such judgment was "duly given or made," held insufficient. 1099. A complaint merely alleging the vio-upon the question of the measure of damlation of a penal ordinance forbidding the blocking of a street crossing by railroad trains, and the running away of plaintiff's team as a proximate consequence thereof, without anything to show how the fright of the team resulted therefrom, held insufficient. 987. New matter in a reply, which is required to meet an answer, is held not a departure if it does not contradict the peti-known to the company, although it was in tion, and is not a new basis for relief. 292. Evidence. Operating a street car at a speed in excess of that prescribed by ordinance, held to be of itself no evidence of negligence, in an action for injuries caused by a car to a pedestrian. 1093. A municipal ordinance prescribing the care to be used in fastening horses on the street held Limitations. A sale of unoccupied land to be admissible on the question of negli- for taxes under an apparently valid judggence in leaving a team in the street un- ment void for lack of jurisdiction is held attended. 1001. The use of a phonograph not subject to attack more than three years before the jury reproduce sounds made afterward, where a part of the taxes for by a business complained of is held proper, which it was sold were valid. 157. A new on proof of the accuracy of the reproduc- promise to pay a barred judgment is held, tion. 306. Evidence of an experiment held in Iowa, sufficient to revive it under a statadmissible, although the existence, at the ute permitting the revival of debts by new time of the occurrence in question, of one promise. 439. But in Minnesota the conof the conditions of the experiment, is not trary is held, on the ground that a judgment directly shown, but can only be inferred is not a contract within the meaning of the from circumstances. 974. One seeking to statute. 444. An action on an implied close a passway over his land after forty promise of a devisee to pay an annuity years' use of it is held to have the burden which is a lien on the land is held to come of showing that the use was permissive, under the statute of limitations governing and not under claim of right. 149. A phy-parol contracts generally, though the lien sician suing for the value of services ren- may still continue and be enforced. 393. dered, held not bound in the first instance to show that he had a license to practise medicine. 1238. The presumption of due care on the part of one killed at a railroad Sales of land void for want of notice to heirs are held to be within the limitation of a statute as to actions by heirs for land sold in administration. 354. (CRIMINAL LAW AND PRACTICE.) Election of remedies. Mistakenly bring the contract, which accrued subsequent to ing trover for goods is held not to preclude a subsequent action of assumpsit for their price. 144. So, recovering an uncollectable judgment for the purchase price of property procured by fraud is held to be no bar to an action for fraud. 582. Remedy of discharged servant. One recovery by a wrongfully discharged employee for wages is held to bar any further action of that character. 595. Forcible entry. One in peaceable possession of premises, who is forcibly ousted, is held entitled to an action of forcible entry and detainer, even if the other party was entitled to possession. 426. Replevin. A defendant in an action of claim and delivery, from whom property has been taken, is held not entitled to a similar action against the plaintiff. 216. Actions for death. In case of death from wrongful injury to decedent, actions are upheld under a statute permitting suit for benefit of the next of kin on account of the death, and also another statute permitting executor or administrator to sue for personal injuries to the decedent. 384. The mother of an illegitimate child is held to have no right of action for the child's death, under a statute giving such right to surviving parents. 480. A cause of action for the death of a child, which accrued to the father, is held not to survive to the mother, although the father was injured at the same time with the child, and died soon after and before bringing action. 544. Judgment. For invalid divorce, see supra, IV. A judgment in an action for work done under a continuing contract, held not to bar subsequent actions for breaches in refusing to permit plaintiff to go on with the institution of the first action, but prior to the rendition of the judgment, although the plaintiff might, by amendment, have introduced into that action all causes which arose before it was concluded, but failed to do so. 1197. A judgment probating a lost will is held subject to attack in a suit by an heir for fraud in obtaining it, and, if a lack of jurisdiction is shown, may be vacated. 820. Writ and process. See supra, III., Agencies. The power of the legislature to provide for substituted service of process by publication and mail upon a resident of the state, in an action for tort, who cannot be personally served in the county where the suit is brought, is upheld in an Illinois case. 1186. To give jurisdiction to render a personal judgment against a foreign corporation, it is held that service of summons in the state, or an appearance, is necessary, and that a statute making service on a state officer sufficient is unconstitutional. 537. Restoring lost records. A proceeding to re-establish lost record titles to real estate, which is substantially ex parte because there is no known adverse claim, is held, nevertheless, of a judicial nature, and may constitute due process of law if such notice is given as is reasonable and appropriate to the nature of the case, by publication. 682. Lis pendens. A lis pendens in favor of the defendant is held to begin from the time of the commencement of the action, so far as it relates to merely defensive matters, but, as to affirmative rights and relief on cross action or cross complaint, it is held to begin from the filing of such pleading. 463. IX. CRIMINAL LAW AND PRACTICE. 762. Forgery. Allegations that defendant did | evidence against himself, or the provision "utter and publish" a forged check, held against unreasonable searches and seizures. supported by evidence that he offered to pass the same to another as a genuine instrument, though the offer was not accepted and defendant did not exhibit the forged instrument to the witness. 1175. Procurement of witnesses. The constitutional right of defendant in a criminal case to compulsory process for witnesses is held not violated by a statute prescribing cer cost of the county, and allowing the tria! judge a sound judicial discretion to deter mine as to the compliance with the requirements and the bona fides of the application. 509. Act of servant. One engaged in the gen-tain requisites of their procurement at the eral supervision of blasting, held criminally liable for the firing of a blast contrary to the provisions of a municipal ordinance, although fired by his agent, and contrary to his orders, at a time when he is not actually present. 1104. Evidence. Forcibly taking shoes from an accused person to compare them with his footprints is held not to violate his constitutional right not to be compelled to give Intoxicating liquor. The loan of intoxicating liquor to be returned in kind held to be a sale within the prohibition of the statute, in the absence of an emergency. 937. Rule that when terms of agreement Effect of partial performance of con- Conversion. 1140 1137 Validity of statute imposing special tax 314 Measure of damages for fraudulent rep- 804 880 of compensation 1228 Power of judiciary to fix rates to be Service of process upon foreign corpora- tion not doing business within the Cotenancy. Right of one cotenant who pays mort- Courts. Validity of requirement by mutual bene- |