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The same court holds, that on a trial by the court without a jury, it is not reversible error to deny the party holding the affirmative of the issue the right to open and close the argument, when it is not apparent from the record that he has been prejudiced thereby: Citizens' State Bank v. Baird, 60 N. W. Rep. 551.
Right to Open and Close
According to the Supreme Court of Florida, an affidavit by the defendant in a criminal case for a continuance on account
of the absence of witnesses, should allege that they are absent without the consent of the defendant, either directly or indirectly given: Bryant v. State, 16 So. Rep. 177.
It has recently been decided by the Supreme Court of Wisconsin, in State v. Evans, 60 N. W. Rep. 433, that prohibition will not lie to restrain a magistrate from proceeding in a criminal cause, because the warrant was void, since the legal remedy is adequate, nor on the ground that the accused has been once in jeopardy. It is not the province of the writ of prohibition to supply the place of a writ of error.
The Court of Appeals of Kentucky has lately ruled, that when a railroad company allows two passenger cars to remain on a side track, near the depot and along a public Negligence street, the doors being open, it is negligence to back other cars against them for the purpose of coupling, without secking to ascertain whether there are any persons in such cars, though no one had a right to be therein; and if the company neglects its duty in this espect, it will be liable to a boy injured thereby: Louisville & N. Ry. Co. v. Popp. 27 S. W. Rep. 992. And the Court of Civil Appeals of Texas holds, that a railroad company is liable for injury to mind and body caused by nervous shock and fright, due to Suffering the negligent running of cars off a switch into plaintiff's yard, and within a few feet of her house, though the plaintiff was not actually touched: Yoakum v. Kroeger, 27 S. W. Rep. 953.
The feud between the abstractor of titles and the county officials still continues, and the courts are from time to time obliged to define the limitations of their respective
rights de novo. In the latest case on this subject, Burton v. Reynolds, 60 N. W. Rep. 452, the Supreme Court of Michigan decided that no person has a right to keep a clerk continuously in the office of the county clerk, with free access to the files, for the purpose of making abstracts therefrom, except under such reasonable regulations as the county clerk may prescribe, and that the payment of a fee to provide additional office facilities was such a reasonable regulation. The same court, recently, in Day v. Button, 96 Mich. 600; S. C., 56 N. W. Rep. 3, ruled that an abstractor of titles could not use the office of a county officer to the exclusion of others, or annoy him by the presence of a large working force, or by work at unseasonable hours. See West Jersey Title & Guarantee Co. v. Barber, 49 N. J. Eq. 474, and an annotation on that case, in 31 AM. L.. REG. 769.
The Supreme Court of Oregon recently held, in Philomath College v. Wyatt, 37 Pac. Rep. 1022, that the action of the highest ccclesiastical body of a religious sect, in Societies adopting the report of a committee appointed to determine the validity of a constitutional amendment, and to submit it to the vote of its members, the amendment being adopted by the adoption of the report, is legislative, and therefore not binding as an adjudication upon the civil courts; and the Supreme Court of Nebraska has decided, in Peterson v. Samuelson, 60 N. W. Rep. 347. that when certain members of a church society had withdrawn therefrom and organized another society of the same church, and then returned to the society from which they had withdrawn, there is no presumption that by so withdrawing the seceders forfeited their membership in the church, as parts of which both societies existed, and on reunion the same society existed as had been originally organized.
According to the Supreme Court of Michigan, an action for
slander in regard to a business cannot be maintained by the husband of the owner thereof, though, in addition Slander to his salary, he is entitled to a proportion of the profits, when he has no interest in the corpus of the business: Child v. Emerson, 60 N. W. Rep. 292. The Supreme Court of Louisiana is of opinion that an apothecary is not liable in damages to a physician, merely and only because he has on one or two occasions declined to fill his prescriptions, for reasons not at all impugning the physician's capacity; but that he is liable, if, without the slightest cause, he indulges in public expressions tending to create the impression of the physician's incompetency; as, for instance, that his diploma is not worth a straw: Tarlton v. Lagarde, 16 So. Rep. 180. The same court has also very sensibly held, that when persons mutually engage in bandying opprobrious epithets, an action of slander for words thus uttered is not to be encouraged; and the interchange of such epithets, and mutual vituperation and abuse, will justify a judge in approving a verdict for the defendant, though the slanderous words are proved: Goldberg v. Dobberton, 16 So. Rep. 192.
The Supreme Court of Indiana, in Stephenson v. Boody, 38 N. E. Rep. 331, has recently decided, that when the Supreme Court overrules its former decisions, construing a statute, and gives it a new construction; contracts affected by that statute, and made while the former construction obtained, will be given the same effect, after the change in construction, as if no such change had been made.
The Supreme Court of Michigan holds, that when the maker of a note executes a chattel mortgage to a trustee to indeninify an indorser against liability thereon, a subsequent mortgagee is not entitled, on tender to the trustee of the amount duc on the mortgage, to be subrogated to the rights of the holder of the note, as against the indorser: Schmittdiel v. Moore, 60 N. W. Rep. 279.
In a recent case in the Appellate Court of Indiana, it was
ruled, that when a surety pays a judgment obtained against him and two co-sureties, one of whom is insolvent, Contribution he may recover in equity from the solvent surety one-half of the amount so paid: Newton v. Pence, 38 N. E. Rep. 484. The same doctrine prevails in courts of law, wherever the distinctions between actions at law and in equity have been abolished, or equity powers have been conferred on common law courts: Michael v. Allbright, 126 Ind. 172; S. C., 25 N. E. Rep. 902; Faurot v. Gates, 86 Wis. 569; S. C., 57 N.W. Rep. 294. But the share of the insolvent surety cannot be recovered from the others, when all the sureties have agreed among themselves to raise a common fund to pay the debt, some contributing more than their adequate share, and others less, but the former agree to release the latter from any further liability: Cummings v. May, 91 Ala. 233.
The Chancery Division has lately held, that when a testator gives all his property to trustees, upon certain trusts, and directs that certain specified sums of money should be invested for the bene it of his four sons on their attaining the age of twenty-one years, such sums to be applied as the trustees in their discretion may think fit; and further directs that the sums specified should be very judiciously invested, as they were intended specially for the advancement in life of the respective recipients; the sons are nevertheless absolutely entitled to the legacies, on attaining the specified age, freed from the exercise of any discretion on the part of the trustees: In re Johnston,  3 Ch. 204.
The same court, in Noyes v. Paterson,  3 Ch. 267, has ruled, that a person who has contracted to purchase land is not entitled to repudiate his contract, merely because one link in the vendor's title consists of a voluntary conveyance to a person under whom the vendor claims by purchase for value.
According to a recent decision of the Supreme Court of
Missouri, a verdict cannot be impeached, solely on the affidavit of a juror that the time of imprisonment was fixed by each juror writing on a piece of paper the number of years he was in favor of, and then dividing the sum by 12: State v. Woods, 27 S. W. Rep. 1114. It is high time that the courts abandoned this useless technicality, and permitted the evidence of such gross violation of duty, from whatever source, to have its proper weight; and not to cling to an absurd presumption in favor of the sanctity of a verdict, that is as unreasonable and as ill-founded as the maxim that "the king can do no wrong."
The Supreme Court of Iowa has just decided a very interesting and novel case, in which it held that no one of several persons, whose wells tap the same subterranean Waters stream, can make an artificial use of the water therefrom, so as to entirely deprive the others at any time of the ability to make such use of it; that the use of water taken from such a well for city purposes is an artificial use, as is also its use by an individual for a bath-house; and that, therefore, the city cannot deprive the owner of the bathhouse of the use of the water, without paying damages therefor: Willis v. City of Perry, 60 N. W. Rep. 727. It is also actionable to divert water from a stream, either surface or subterranean, by dams, wells or pumps, by which the flow of water is diminished, though such diversion is by the owner of land through which the stream flows or percolates, and on his own premises: McClellan v. Hurdle, 3 Colo. App. 430. But one is not prevented from lawful digging on his own land, though he thereby drains a spring on the land of another : Elster v. Springfield, 49 Ohio St. 82. This, however, scems questionable, and is a stretching of the damnum absque injuria doctrine to the very last point of tension. The distinction, if there be any, which seems doubtful, lies in the fact that in the actionable cases the act of the owner of the land is intended to interfere with the water, while in the non-actionable cases that interference is only an incidental consequence of an otherwise lawful act.