GENERAL INDEX ΤΟ OPINIONS, NOTES AND BRIEFS. (Separate Index to Notes precedes this.) 6. An election by a servant wrongfully discharged, to sue upon a quantum meruit for services actually rendered, is a bar to a subsequent action for breach of the contract. ld. 7. Where parties who are entitled to resciud a contract for fraud apply for and obtain an attachment against the other party as their debtor, knowing of the fraud, they thereby elect their remedy and waive the right to disaffirm the contract; and a subsequent discontinuance of the attachment suit will not restore such right, especially where, before discontinuance, part of the money levied on was paid over to them. Conrow v. Little (N. Y.) 693 8. The claimant of an office the title to which is disputed is a necessary plaintiff in the action, and the officer de facto in actual possession is the necessary defendant. Guillotte v. Poincy (La.) 403 9. The receiver of a railroad company is not, after his discharge, either a proper or necessary party defendant to an action for a rebate of freight under a contract made by him. Bayles v. Kansas P. R. Co. (Colo.) 480 1. The provision of the Colorado Code abolishing the different forms of actions does not affect the principles controlling in different actions, but they remain the same; and the law to be administered in each case depends as much as formerly upon its nature and form. Omaha & G. Smelt. & R. Co. v. Tabor (Colo.) 236 2. A promise made by one person to an other, for the benefit of a third person who is 10. Under the Texas constitutional provision a stranger to the consideration, will not sup for the bringing of an action for exemplary port an action by the latter. One who is not damages by "the surviving husband, widow, a party to a contract cannot sue upon it. Mars- or the heirs of his or her body," of one who has ton v. Bigelow (Mass.) 43 been killed by gross negligence, no one else can 3. The provision of the charter of Lansing, bring such action. Hence such an action by a that claims against the city shall be presented parent cannot be maintained. before suit, and a reasonable time be given the national & G. N. R. Co. (Tex.) council to investigate them, is complied with by presentation to the council, reference to the city attorney, and return of the claim to the council, which lays it on the table for three months before suit is brought. Dundas v. Lansing (Mich.) 143 Winnt v. Inter 172 11. A right to recover for injuries to real property is not affected by the act of the owner in selling the land after commencement of the action. Seymour v. Cummins (Ind.) 126 12. A cause of action accruing during the lifetime of decedent, which is survivable, survives to his personal representatives, and not to his heirs. ld. 4. The requirements of notice in the Massachusetts Employers' Liability Act, § 3, only apply, so far as 1 is concerned, to the 13. A cause of action for personal! injuries cases lying outside the common-law rule but does not survive at common law; and the adembraced by § 1, unless the plaintiff, although ministrator of the injured person cannot mainhaving a common-law remedy, insists on rely-tain an action in Rhode Island for injuries ocing upon the statute alone. Ryalls v. Mechan- curring in Massachusetts, unless there is a ics Mills (Mass.) 667 Massachusetts statute providing for the survival 5. The only remedies of a servant wrong- of such action. O'Reilly v. New York & N. E. fully discharged are: either to treat the contract R. Co. (R. I.) as continuing, and bring a special action for breaking it by discharging him,-which he may bring whether his wages are paid up to the time of his discharge or not; or, if his wages are not paid up to the time of discharge, to treat the contract as rescinded and sue upon a quantum meruit for services actually rendered. Keedy v. Long (Md.) 759 NOTES AND BRIEFS. 364 Action; on promise to third person. 43 352 Election of remedy; inconsistent remedies; election once made conclusive. 693 Election; remedies of discharged servant. 759 By assignee of chose in action. Survival of, ADMIRALTY. 430 II. HEARING AND DETERMINATION. 365 1. The United States courts as courts of admiralty have jurisdiction of all cases of admiralty cognizance when the thing or parties are within the reach of their process, without reference to the nationality of either. The City of Carlisle (D. C. D. Or.) 52 2. The joinder of causes of suit not enumerated in Admiralty Rules 12 to 20 inclusive is not governed thereby, but by Rule 46; and where the facts in a case establish a liability against the master and a lien on the ship for the same claim, such liability and lien may be enforced in one libel. ld. 3. An affidavit on behalf of respondents cannot be considered on a hearing on an exception to a libel. Prince Steam Shipping Co. v. Lehmann (D. C. S. D. N.Y.) 464 1. A judgment in favor of one tenant in common against an adverse claimant whom he sues to recover possession of the entire land makes his possession thus acquired relate back to the beginning of the action and inure to the benefit of his cotenants, as against whom no adverse possession can be acquired during the pendency of the action. Newman v. California Bank (Cal.) 467 2. The possession of the soil by the owner for the purposes of tillage, etc., gives him no possession of gas under the surface, as against parties to whom he has leased the land for gas purposes, and who remain in possession of a well which gives them the sole control of the gas so far as its utilization is concerned, and the sole possession of which it is capable, apart from the land. Westmoreland & C. Natural Gas. Co. v. Dewitt (Pa.) NOTES AND BRIEFS. Adverse possession of tenant. By one tenant in common. ALIENS. 731 248 467 a. What Questions will be Considered. b. Errors Warranting Reversal. NOTES AND BRIEFS. I. OBJECTIONS AND EXCEPTIONS. 1. A general objection to the introduction of a map in evidence on the question of a town boundary is not sufficient to raise an objection to the lack of proof that it was a genuine map published by order of the Legislature. Com. v. King (Mass.) 536 2. An exception to a decision of the court overruling an offer of evidence or excluding a defense must state the ground upon which the offer was made. Dale v. See (N. J.) 583 3. An exception to the admission of evidence is not available in the New York Court of Appeals, where the objection to such evidence was not made until after it had gone to the jury, and where there was no motion to strike out. Hangen v. Hachemeister (N. Y.) 137 II. HEARING AND DETERMINATION. a. What Questions will be Considered. 4. Where it appears on the examination of a juror that he was placed on a jury as one of a it was done by order or direction of the court regular panel, and the record fails to show that for the purpose of filling out a deficient panel, the court will presume, where a challenge has been sustained on the ground that the juror has served during the preceding year, that the juror was not one of the regular panel, and that the challenge was properly sustained. Goshen v. England (Ind.) 253 8. On an appeal to the New York Court of Appeals from an order of the General Term of the Supreme Court denying a motion for a new trial, made under N. Y. Code Civ. Proc. § 1001, only the questions of law presented can be considered. Id. 9. An objection that damages are too remote, to which no allusion was made on the trial, will not be considered on appeal. O'Neill v. New York, O. & W. R. Co. (N. Y.) 591 10. If a party whose pleading is demurred to, instead of applying for leave to amend, procures a ruling in his favor, he does so at his peril that such ruling will be reversed on appeal. Johnson v. Robinson Consol. Min. Co. (Colo.) 769 23. The judgment will not be reversed on account of an erroneous instruction which was more favorable to the party objecting thereto than he had a right to expect. Kircher v. MilId.waukee Mechanics Mut. Ins. Co. (Wis.) 779 11. Since the Colorado Code is liberal in allowing amendments, if applied for in apt time, ordinary defects in pleadings and proceedings will not be considered when objected to for the first time on appeal. 12. Parties excepting to a refusal by the court to hold that a given state of facts, if proved, would constitute a complete defense in law, cannot insist on appeal that the facts offered to be proved would have been competent evidence upon an issue of fact not distinctly presented. Dale v. See (N. J.) 583 13. A party cannot complain of an instruction which is more favorable to him than he had a right to expect. Treadwell v. Whittier (Cal.) 498 Certificates of architects to whose decision, by a contract, all differences are to be referred, with no right of appeal therefrom, are binding upon the parties, in the absence of bad faith on their part or concealment of defects by the builder. Boettler v. Tendick (Tex.) 270 NOTES AND BRIEFS. b. Errors Warranting Reversal. 14. A judgment will not be reversed for the refusal of the court to withdraw from the jury the consideration of the question presented by one charge in an indictment, as to which there has been a failure of proof, where the verdict and sentence are fully justified by the proof of another charge contained in the same indictment. ¦ ASSIGNMENT. See CORPORATIONS, 21; People v. Budd (N. Y.) 559 Conclusiveness of decision of architects and engineers; submission. MORTGAGE, 2, 5. NOTES AND BRIEFS. 15. A judgment will not be reversed because of the admission of incompetent evidence, where there is sufficient uncontradicted and See also ACTION OR SUIT. admissible evidence to uphold it. Re Crawford (N. Y.) 71 19. An error in admitting testimony which was immaterial upon any of the issues submitted, and which affected no substantial right, is not ground of reversal. Kircher v. Milwaukee Mechanics Mut. Ins. Co. (Wis.) 779 20. An error in admitting improper evidence is cured where the court, in its general charge, placed the matter before the jury in a manner which relieved the defendant of any effect such testimony might have had in enhancing plaintiff's damages. Cadman v. Markle (Mich.) 707 21. Orders suppressing portions of the evidence, allowing the retaking of depositions, and regulating preparation of the cause for hearing, must, on appeal therefrom, appear by the face of the record to be not only erroneous, but prejudicial to appellant, to warrant reversal. Boggs v. Bodkin (W. Va.) 245 22. An erroneous instruction is not prejudicial error where the jury find in favor of the excepting party on the issue as to which the instruction was given. Omaha & G. Smelting & R. Co. v. Tabor (Colo.) 273 122 Of future contingent interest. Of chose in action; assignee subject to prior equities. ASSUMPSIT. 620 See also CONTRACTS, 6; LANDLORD AND TENANT, 11. 1. An action for money had and received will not lie against a corporation in favor of one who has loaned money to its treasurer for authority to borrow it, although the money the company in the mistaken belief that he had where the treasurer was a defaulter, having was used in paying debts of the corporation, embezzled money which otherwise would have sumed to have borrowed the money to cover paid such debts, and may reasonably be preup his default and escape detection. Craft v. South Boston R. Co. (Mass.) 641 1. It is the duty of a bailee of goods to do 236 i work upon them for a reward, to return them |