be merely a mortgage in effect, though ab- | Payment and release. 4. In an action of ejectment, the plaintiff's grantors claimed title by descent from G., their father. It appeared from the records that G. conveyed the lands by a deed absolute on its face to one W., who never sold it. Three witnesses, relatives of the plaintiff, testified that the deed was given as security for money due W., and three witnesses for the defendant testified that G., during his life, after the deed was made, and since his death his heirs, disclaimed any interest in the land. Held, that the evidence was sufficient to warrant the verdict that the instrument was not a mortgage, but an absolute deed.-Id.* 5. Where, in ejectment, the question is as to whether a deed, absolute on its face, executed during the grantor's life-time to W. by G., from whose heirs the plaintiff deraigns title, is a mortgage, an instruction "that a mortgage of land is to secure the payment of money owed by the mortgagor to the mortgagee. If, when G. made this deed to W., it was understood between the parties that G. was under no obligation or promise, either verbal or written, to pay W. anything, but W. gave him the option to repurchase the land, if he chose, then the transaction was not a mortgage, and the jury must regard W. as the owner of the land," is not objectionable as misleading.-Id. Transfer of property mortgaged. 6. A purchaser of mortgaged property does not, by the mere assumption of the mortgage, become the debtor of the mortgagee. To establish novation, there must be a contract whereby the mortgagee agrees to accept the purchaser as his debtor, and to look to him for the payment of the debt.-Edler v. Hasche, (Wis.) 57.* Assignment of mortgage. 7. Where a mortgage is assigned by an indorsement upon the back thereof, in which it is described simply as "the within mortgage, a record of the assignment in the same volume of the records as the mortgage, but on a different page, with crossreferences by the recorder, calling attention on the record of the mortgage to that of the assignment, and on the assignment record to the mortgage record, is a legal record of the assignment of such mortgage.-Soule v. Corbley, (Mich.) 785. 8. It is the duty of a garnishee to interpose any defense upon the merits which he knows the principal defendant might interpose; and where the purchaser of property subject to a mortgage, upon being garnished by a creditor of the mortgagee, discloses an indebtedness in the amount of the mortgage, and pays the money into court, such payment does not operate as a bar to the right of the mortgagee to foreclose.-Edler v. Hasche, (Wis.) 57. Foreclosure. 9. In an action to foreclose a mortgage reasons founded on irregularities in making the sale are not available, upon an application after the final decree. to set aside the sale, decree of confirmation, and final decree, unless a sufficient excuse is shown for failure to present such reasons in opposition to the application to confirm the sale.-Coles v. Yorks, (Minn.) 353. 10. Where the property mortgaged consists of a building worth $750, located on a lot of the value of $50 only, a purchaser of the equity of redemption, who removes the building from the lot, is guilty of waste, and is personally liable for any deficiency on foreclosure.-Edler v. Hasche, (Wis.) 57. 11. The strictly formal delivery of a sheriff's deed, under a foreclosure sale, is not essential to its validity, as in a transaction the conveyance of real estate; yet where between individuals as private parties to a deed was signed by a sheriff, and six years thereafter the purchaser at the sheriff's sale made an affidavit that no deed had ever been delivered by the sheriff to him, and upon such affidavit procured an order of court requiring the execution of the deed by a successor of the sheriff who made the sale, and the judgment debtor testifies that after the sale he paid the amount of the decree to the plaintiff in the cause,-who was the purchaser at the sheriff's sale,and that the money was received by the plaintiff and purchaser as a full payment and satisfaction of the decree, the finding of the alleged deed by a custodian of plaintiff's papers, among them, 11 years after the alleged execution thereof, will not, in an action of ejectment by the purchaser against the subsequent grantees of the mortgagor, raise a conclusive presumption that the deed was delivered by the sheriff to the purchaser.-Kingman v. Applegate, (Neb.) 235. 12. Where, in foreclosure by advertisement, a sale of mortgaged property has been made by a deputy sheriff, the execution of the deed by the successor of his principal is valid, the act of the deputy being the act of the sheriff, and Code Civil Proc. Dak. § 609, authorizing "the officer 1. A condition in a contract for the construction of water-works, and the hiring thereof by a city, that "the payment of said sum of $10,000 per annum to be dependent upon the said second party supplying wholesome water during all the term aforesaid, to-wit, 30 years; ** *water to be taken from wells and springs sufficient to supply all the inhabitants of said city;" and further requiring that the contract shall be complied with and perfected in every respect before being accepted, or before liability for rent or water used shall attach, does not make the taking of water from springs and wells sufficient to supply the city for 30 years a condition precedent to the acceptance of the works, or the attaching of liability for rent; and a declaration in an action for breach of the contract for refusal on the part of the city to accept the works is not demurrable for failure to allege a supply sufficient for all the inhabitants of the city for 30 years to come.-Adrian Water-works v. City of Adrian, (Mich.) 529. Officers. 2. Under Comp. St. Neb. c. 14, no expense can be incurred by a city, except in specified cases, unless an appropriation has been made therefor, whether such expense has been ordered by the city council or not. Therefore, where the mayor and council of a city of the second class drew an order upon the cemetery fund of such city for $716.66, there being at the time $1,000 in such fund in the treasury of such city, and applied the proceeds to the payment of lands purchased as an addition to the cemetery of such city, but no appropriation had been previously made concerning such expense, held, no act or ratification being proved, that the mayor and clerk were liable for the amount drawn on such order.-City of Blair v. Lantry, (Neb.) 790. Liability for defective ways. 3. In an action for damages resulting from a dangerous and improperly con structed highway, evidence that plaintiff knew the nature and location of the road; that it was on a crooked, winding embankment; that there were no guides or barriers: that it was overflowed, and the water had raised since he last passed over it; and that some hazard was incurred in attempting to pass over it.-does not conclusively show that it was negligence for him to make the attempt so as to warrant the judge in directing a verdict for defendant; but the question of plaintiff's negligence is for the jury.-Harris v. Township of Clinton, (Mich.) 425. See, also, McKeigue v City of Janesville, (Wis.) 298.* 4. In such a case, testimony to prove that plaintiff's wife was in ill health, and his anxiety to reach home, when it is admitted that he was able to leave home to attend to his ordinary business, is inadmissible as an element of proof to excuse plaintiff in incurring the risk which he might not otherwise have taken.-Harris Township of Clinton, (Mich.) 425. Notice of injury. 5. The failure to give the notice required by Rev. St. Wis. § 1839, to be given to the city authorities within 90 days after the happening of injuries resulting from a defect in a street, in order to entitle the party injured to recover against the city, will not defeat an action brought by an administrator, under Rev. St. Wis. § 4255, to recover against the city for damages for death from injuries resulting from such a defect, when the death occurs within 90 days from the happening of the injury.-McKeigue v. City of Janesville, (Wis.) 298. 6. In an action against a city for damages for death resulting from injuries caused by a defective cross-walk, it is admissible for plaintiff to prove that one of the aldermen of the city had notice of the defect in the cross-walk before the accident happened, as notice to one of the aldermen is notice to the city council, which body, under the city's charter, is invested with control of the streets.-Id. Bridges. 7. In an action for an injury from a defective bridge, under the Michigan act of 1879. (Laws 1879, p. 223,) requiring town ships, cities, and villages, to keep their out regard to a cash valuation of the prop- 8. In an action to recover damages for 9. The question whether the running of 10. Evidence that the joists were not put 11. Evidence of the shape and thickness the issue.-Id. 12. A witness may testify that he was at 13. Evidence that, a few days before the Public improvements-Streets. 14. The amendment to the Minnesota 15. The city of Des Moines by ordinance 16. The city council has full control over Gutters and sewers. 17. While a city would not be liable Corporate obligations-Taxation. 18. Where the right of the council of a 19. Under section 69, c. 14, Comp. St. resolutions as may be expedient," an issue of water-works bonds is properly authorized by adopting a motion in the city council submitting the proposi tion to the city voters, and subsequently ordering their issue on the canvass of the election in favor of the proposition, and such submission need not be by ordinance. -Id. 20. Ordinance No. 618, passed by the city council of St. Paul, Minnesota, February 16. 1886. declaring the emission of dense smoke from smoke stacks and chimneys a public nuisance, is unauthorized and void, since the question whether a nuisance or not depends on facts of the case.-City of St. Paul v. Gilfillan, (Minn.) 49. Particular charters-St. Paul, Minnesota. 21. The charter of the city of St. Paul, Minnesota, empowering the city council to remove or abate nuisances, confers no power upon the city council to declare what acts or omissions constitute a public nuisance.-City of St. Paul v. Gilfillan, (Minn.) 49. Mutual Benefit Societies. See Insurance, 4. Rock river, in the state of Wisconsin, is a navigable stream, which it is unlawful to obstruct; but the obstruction of the stream is not a public nuisance which a court of equity will restrain, unless it is also an obstruction of its use; and it appearing that the navigation of the river has long been abandoned, and that it is already so filled with obstructions by dams and bridges at Janesville that it is in fact unnavigable, an injunction will not be granted at the suit of the attorney general to restrain the erection of a building upon piles driven into the river-bed.-State v. Carpenter, (Wis.) 730. Contributory negligence of servant, see Railroad Companies, 18. in use of defective appliances, see Master and Servant, 2. knowledge of defects in street, see Municipal Corporations, 4. Damages-Measure of recovery, see Dan ages, 1. excessive, see Damages. 3. Evidence under the issues, see Evidence, 19. expert testimony on accident, see Eri dence, 9, 10. Highway-Evidence of defects, see Highways, 8. Master and servant-Defective appliances, see Master and Servant, 1. fellow-servant, see Master and Seroant, 4, 5. risks of employment, see Master and Servant, 3. Municipal corporations-Defective streets, see Municipal Corporations, 3. negligence of, in draining surface Railroad companies-Negligence at crosswaters, see Municipal Corporations, 17. ing, see Railroad Companies, 21. duty upon crossing tracks, see Railroad Companies, 19, 20. rate of speed at crossing, see Railroad Companies, 20. absence of flag-man at crossing, see Railroad Companies, 23. "staking" cars across crossing, see Railroad Companies, 16. negligence in management of a train, see Railroad Companies, 17. Weights and measures - Negligence of weigh-master, see Weights and Measures, 1. What constitutes. 1. In an action against a steam-boat company for negligently setting fire to plaintiff's property, the refusal of the court to give an instruction "that, if the only danger arising from the sparks emitted by the steamer was the fact that there were shavings and rubbish about the mill and dock where the fire kindled, then the defendant was not guilty of negligence. though the persons in charge of the boat knew of the existence of such shavings and rubbish, and were not guilty of negligence in proceeding on their voyage," was not erroneous, ignoring as it did all questions as to the strength and direction of the wind at the time, and the dryness of the weather. Atkinson v. Goodrich Transp. Co., (Wis.) 164. 2. The court instructed the jury that it was the duty of the company to keep constantly in use on their boat the most improved machinery that could reasonably be obtained to prevent the fire from spreading from their engine. Held, that the use of the words "constantly in use, " if under = -stood as relating to all times and places, | as represented by himself and his witnesses, was clearly wrong; but as explained by the shows that he was sitting within four or court the jury must have understood that five feet of the door of the railroad car such constant use related only to such when his station was called; that, as soon times and places as rendered it unsafe not as the train stopped, he moved out, preto use such machinery, and the defendant ceded by one person and followed by two was not prejudiced by the instruction.-Id. others; that, on reaching the door, he went 3. In an action to recover damages for out and down the steps, on the platform death, where the plaintiff's testimony side, to alight, when his coat was caught shows that the deceased was standing on a by somebody or something, and he fell, railroad track inspecting a car of lumber and his foot was crushed; that the cars belonging to him; that several flat cars were moving, but that others got off after moved along the track, and, striking the him safely, the question of plaintiff's confurther end of the lumber car, moved it so tributory negligence should be submitted that it ran over the deceased, and caused to the jury.-Strand v. Chicago & W. M. the injuries from which he died, but it is Ry. Co., (Mich.) 184. not shown what force set the flat cars in 8. In an action growing out of an accimotion, that any of defendant's servants dent, which arose through a railroad car were employed upon the track, what the being left on a crossing so that it obstructed grade was, or what the customary manner the highway, and frightened a horse, it apof using the track was,-the evidence is peared that the plaintiff was driving a lumnot sufficient to raise a presumption that|ber wagon, which had no box, and was sitthe railroad company's employes were ting on the hounds of the wagon; that one negligent, and a nonsuit is properly di- of the horses shied at the car just before rected.-Miller v. Chicago, M. & St. P. Ry. | reaching the track, but plaintiff urged him Co. (Wis.) 479. on. Held, that it was a question for the jury, under all the circumstances, whether plaintiff used due care in attempting to cross the track; and an instruction particularly directing the jury to take into consideration the character of the horses, their behavior on approaching the track, and the position in which plaintiff was riding, sufficiently guarded defendant's rights. without instructing them positively that plaintiff could not recover if he knew that one of the horses was young, tough-bitted, and skittish, and if plaintiff's position was such that he could exercise but little of his ordinary strength in keeping control of the horses.-Peterson v. Chicago & W. M. Ry. Co. (Mich.) 548. 4. It is not negligence per se on the part of a railroad company to pile coal up above the top of a tender, even if the company knew that such was the usual method of loading the tenders on their road; and a nonsuit is properly granted in an action by a track-walker to recover for injuries caused through a piece of coal falling upon him from a passing tender.-Schultz v. Chicago & N. W. Ry. Co., (Wis.) 321. 5. In an action for damages for injury to plaintiff's horse through the negligence of defendants' servant, it appeared plaintiff was driving along a street, when defendants' servant crossed in front of him, driving a horse dragging behind it a long chain with a hook at the end. Plaintiff's horse stepped upon the hook, which caught in the cork of its shoe, and was thrown down and fatally injured, before defendants' servant, who was driving with slack reins, could pull his horse up. Plaintiff swore that he did not see the hook. Held, there was evidence of negligence sufficient to warrant a verdict against defendants.Bueck v. Lindsay, (Mich.) 768. Proximate and remote cause. 6. If a car is left at a crossing so that it obstructs the highway for a time longer than allowed by statute, and frightens a horse attached to a passing wagon, and the horse runs away and injures its driver, the company is liable if the driver used due care, and the accident is not ascribable to any vice of the horse.-Peterson v. Chicago & W. M. Ry. Co., (Mich.) 548. Contributory negligence. 7. Where, in an action against a railroad company for damages, the plaintiff's case, 9. A switchman who has been employed for a week about a switch-engine which has a different kind of coupling at either end, and, having been coupling at one end, uses the other without examining it, and receives an injury to his hand by reason of assuming the coupling to be the same, and handling it as he did the other, is guilty of contributory negligence, and cannot recover.-Goulin v. Canada Southern Bridge Co., (Mich.) 44. Of child. ride upon a freight train, with or without 10. A boy 12 years of age, who steals a the knowledge of the train-men, and gets upon the front of an engine, where he is killed by a collision in which no one else is hurt, is guilty of contributory negli gence, which will defeat a recovery of damages for his death.-Ecliff v. Wabash, St. L. & P. Ry. Co., (Mich.) 180. 11. If permission is granted or implied by the action of men in charge of a train |