should pursue his remedy by appeal before applying to a court of equity for relief. Employers' Liability. Ibid. 13. A policy insuring an employer against liability for injuries to or death of employees expressly provided that "upon the occurrence of an accident, and also upon receipt of notice of any claim on account of an accident, the assured shall give immediate notice in writing of such accident or claim," etc. Held, that the giving of notice, both when the accident occurred and when the claim therefor was made, was a condition precedent which the employer was bound to perform in order to maintain an action on the policy, even though there was no forfeiture clause therein. Underwood Veneer Co. v. London G. & A. Co. 378 14. Notice of an accident, given for the first time when a claim for damages therefor was made nine months after it occurred, is not a compliance with the requirement that immediate notice shall be given of the occurrence of an accident. INSURANCE AGENTS. See SURETYSHIP. INTOXICATING LIQUORS. See EXCISE LAWS. Ibid. Of parties. See EQUITY, 3. MUNICIPAL CORPORATIONS, 15. PARTIES. SURETYSHIP 2. JOINT DEBTORS. 1. Assumption of a joint debt by one of the debtors and a promise to hold the other harmless therefrom, do not render the latter a surety merely, as between him and the creditor, where the creditor did not consent to any change of liability, and received no consideration for such a consent. First Nat. Bank v. Finck, 446 2. One joint debtor may give his individual note as collateral security for the joint indebtedness, and the taking of it does not affect any rights of the creditor upon the original debt; nor does the prosecution of the collateral note to judgment affect the right of action upon the original debt, at least until satisfaction is obtained. Ibid. 3. Where a debtor is liable upon a joint note and also upon an individual note, the amount realized on an execution against him, levied under a judgment embracing the entire indebtedness, may properly be applied by the creditor exclusively to the payment of the individual note. JUDGES: Disqualification. See APPEAL, 15-18. Ibid. JUDGMENT. Reforming written instrument. See CONTRACTS, 4. Transferring title to land. See Courts, 6. Void judgment: Disqualification of judge: Vacating. See APPEAL, 16-18. On being affirmed becomes judgment of appellate court. A judgment of the trial court, when affirmed on appeal, becomes the judgment of the supreme court, and the trial court has no jurisdiction thereafter to open it, set it aside, modify it, or do anything in regard to it except enforce it. Crowns v. Forest Land Co. 554 As a bar to other action. See JOINT DEBTORS, 2. Against city, when necessary before granting of mandamus. See Mu- Res adjudicata. See APPEAL, 19. NEW TRIAL, 3. JURORS. 1. Jurors drawn and designated according to law to serve at a term of court will continue legal jurors for the term unless excused or discharged by the court, notwithstanding a change in the method of drawing jurors by a statute taking effect after said jurors were drawn and before the commencement of the term. Welty v. Lake Superior T. & T. R. Co. 128 2. A deficiency of jurors for the term should, under sec. 2537, R. S. 1878, as amended by ch. 126, Laws of 1895, be supplied by drawing names from the box containing the names of petit jurors for the year; but where, in such a case, the court directed the summoning of jurors from the county at large, and the only objection made was to the issuing of the special venire to the coroner instead of to the sheriff, and there is nothing to show that the party objecting was injured by the method adopted for filling the panel, the irregularity is not ground for reversal of the judgment. Union Nat. Bank v. Cross, 174 LAND CONTRACT. See FRAUD, 3. MASTER And Servant, 1. WILLS, 2. LAND GRANTS. See RAILROADS, 1-5. LANDLORD AND TENANT. 1. Evidence of previous annual profits, made while carrying on a theater and saloon business in a leased building, is admissible to show the profits which the lessee might reasonably anticipate from a continuation of such business during the balance of the term, as a basis for estimating the damages recoverable for a wrongful eviction; but profits made on Sundays, resulting from a criminal violation of the Sunday laws, can form no legal basis for the estimate of such damages. Raynor v. Val. Blatz Brewing Co. 414 2. Where, in such a case, the defendant attempted by cross-examination of the plaintiff, and by a question proposed for the special verdict, to ascertain what part of the anticipated profits were based upon the Sunday business, but the trial court held the inquiry immaterial, exceptions to such rulings properly raised, for review on appeal, the question as to such profits. Ibid. 3. It was not necessary, in such a case, for the defendant to plead the violation of the Sunday laws, the question as to the proper elements of damage being one of evidence. Ibid. 4. A provision in a lease that if, during the term thereof, the lessor should rent any office fronting on a certain street for a less rate per square foot than the lessees were to pay, "such reduction shall also be made to lessees for term of this lease," is not a covenant to refund any portion of the rent paid before the lessees became entitled to a reduction, but refers only to rent accruing thereafter during the remainder of the term. Copeland v. Goldsmith, 436 5. At the time of the assignment of such lease by the lessor, said lessees were not entitled to any reduction in rent. Afterwards an agree ment was made between the assignee and the lessees, reciting that disputes had arisen as to the leasing of portions of the building at lower rentals, that claim had been made against the lessor on account thereof, and that both parties desired to agree upon a fixed sum so as to avoid disputes, which sum should be in lieu of the rent reserved under the lease, and fixing the lessee's rent at a certain reduced sum. Held, that such agreement was a substitute for, and entirely abrogated, the covenants of the original lease as to the rent reserved and the rights of the parties thereunder. Ibid. LICENSES to sell liquors: Transfer. See EXCISE Laws. LIEN on land. See EQUITY, 1. LIFE INSURANCE. See INSURANCE, 1–12. LIMITATION OF ACTIONS. See WILLS, 1. Under sec. 4231, R. S. 1878 (providing that if, when a cause of action accrues against any person, he shall be out of the state, an action may be commenced thereon within the statutory time "after such person shall return to or remove to this state; but the foregoing provision shall not apply to any case where, at the time the cause of action shall accrue, neither the party against or in favor of whom the same shall accrue, is a resident of this state"), the statutes of limitation do not run in favor of a nonresident, so long as he continues to reside outside of this state, where, at the time the cause of action accrues, the party in whose favor it accrues is a resident of this state. National Bank of Oshkosh v. Davis, LIQUORS: Licenses to sell: Transfer. See Excise Laws. 240 MANDAMUS. See COMMON SCHOOLS. ELECTIONS, 1, 2. MUNICIPAL CORPORATIONS, 23. Mandamus is not the proper proceeding in which to test the question of the relator's title to an office which another is occupying under claim of right or title. Board of Education v. State ex rel. Reed, MANSLAUGHTER. See CRIMINAL LAW, 2, 12–16. See EVIDENCE, 5. FRAUDULENT CONVEYANCES. MASTER AND SERVANT. 455 Contract of employment: Termination. See COMMON SCHOOLS. 1. By a written contract, plaintiffs agreed to move to a village being built up by defendant; to keep a boarding house and hotel there; to purchase of defendant not less than eighty acres of land, upon which they were to make monthly payments in services at the rate of $300 per annum; to "perform such labor as may be necessary in the superintending the clearing of land, building of roads, con struction of buildings, or any other labor that may be required of him" by the defendant; and to furnish a span of horses, etc. A contract for the purchase of the land, made on the same day, fixed the consideration at $600, and recited that it was to be paid "according to the terms of a certain contract made by the parties, bearing even date herewith." Held, that the contracts should be construed together as one instrument, and that the plaintiffs thereby became bound for a term of at least two years' service, and the defendant bound to accept payment in the manner indicated. Wright v. C. S. Graves Land Co. 269 2. The contract first mentioned plainly required plaintiff to superintend "the clearing of land," etc., and also to superintend "any other labor" the defendant might have done there, but did not require him to do any work other than superintendence. It was error, therefore, to permit the jury to determine the construction to be given to the words "or any other labor;" but the error was not prejudicial to the defendant. Ibid. 3. To justify a termination of such a contract of employment on the ground of plaintiff's refusal to work, there should be at least a reasonable showing of a demand and refusal to do some kind of work not inconsistent with other duties he had contracted to perform. Ibid. 4. A party to a contract who insists upon a technical forfeiture of it upon certain specified grounds is deemed to have waived other breaches. Ibid. Injuries to servants: Negligence: Fellow-servants. See RAILROADS, 15–21. 5. Failure of an employer to instruct an inexperienced employee in regard to a particular danger of the employment does not constitute actionable negligence unless it was reasonably to be apprehended that the circumstances requisite to set that danger in motion might probably occur. Dahlke v. Illinois Steel Co. 431 6. The contract of employment, by implication, includes an assumption by the employee of all the ordinary risks incident to the employment, such as the risk of a co-employee's failing to exercise ordiIbid. nary care. 7. An employer is not liable for the death of an employee caused by the blowing off of the door of a stove connected with a blast furnace while he was engaged in tightening a nut on such door, where there was no danger in working at the door unless the blast was on, and of the fact that it was on he was ignorant solely through the neglect of a co-employee. Ibid. 8. A stove-tender in a blast furnace was a fellow-servant of a common laborer who, by direction of their common employer, was assisting him and working under his direction in repairing the stove. Ibid. MAXIMS. Judicia sunt tanquam juris dicta, et pro veritate accipiuntur, 337, 338. Noscitur a sociis, 52. Stare decisis, et non quieta movere, 340, 590. MEASURE OF DAMAGES. See DAMAGES. MILLS AND MILL-DAMS. A deed of a portion of a water power, describing the volume of water conveyed as “water to the full extent and capacity of the bulkhead now there," referring to an old flume or bulkhead 13.07 feet wide, 6.89 feet deep measuring from the crest of the dam, 12 feet in length with the stream, and obstructed by a rack to keep débris out of the flume, made of one-inch by five-inch oak boards set edgeways in the water about one inch apart, with the upstream edges sharpened, and worn by ten years' use, the flume not having been in use for some time before the grant, is construed as follows: (1) That the particular bulkhead referred to, with all the conditions existing at the date of the grant, in any way influencing the flow of water through the same, were designated by the language of the grant as instruments of measurement by which to determine the amount of water conveyed thereby. (2) That the term "full extent and capacity," as used in the grant, permitted the grantee to take water only in a proper way, and that a proper way requires such taking to be in such manner as not to draw down the head of water so as to materially diminish the amount of power obtainable from a given volume thereof. (3) That plaintiff is entitled, under such grant, to have the amount of water, in cubic feet per minute, that will flow through a flume such as the one mentioned in the grant, under all the conditions existing at the date thereof in any way influencing such flow, the velocity of the water to be limited, however, to such as will not so materially draw down the head as to use the water in a wasteful way, and when such amount is so determined, plaintiff is entitled to use such amount for the creation of power in any way it sees fit. Appleton Paper & Pulp Co. v. Kimberly & Clark Co. 195 MISTAKE. See ATTORNEYS AT LAW. CONTRACTS, 2-4. NEW TRIAL, 4. MORTGAGES. See BUILDING AND LOAN ASSOCIATIONS, 6, 7. CHATTEL MORTGAGES. The appointment of a receiver, pending the foreclosure of mortgages, to collect and apply the rents of the premises, is held to have been proper, where the mortgagor was insolvent and had made a general assignment, and the assignee was in possession, taking the rents and profits of the mortgaged premises, but the taxes had not been paid or the insurance kept up, and there was a question whether the premises would be found to be adequate security for the amount of the mortgage debts and subsequent incumbrances. Winkler v. Magdeburg, MUNICIPAL CORPORATIONS. Defective incorporation: Legalizing. See VILLAGES. Officers: Elections. See ELECTIONS, 5. Adoption of general charter provisions: Notice. 421 1. Sec, 72, ch. 312, Laws of 1893, provides that any city organized under a special charter may by ordinance adopt any part of the general charter act, but before action shall be taken on such ordinance "it shall be published at least once in each week for three successive weeks in the official city paper, together with a notice of the time said ordinance will be considered." Held, that in respect to such notice the statute is mandatory, and a failure to comply therewith renders nugatory the passage of such an ordinance. Herman v. Oconto, 391 |