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and void as to her. (Walker v. Walker, 616.)

3. HUSBAND AND WIFE.— CONVEYANCES OF REAL ESTATE
MADE BY A HUSBAND during coverture for the pui-pose of defeat-
ing the wife's marital rights are fraudulent and void as against her.
{Walker v. Walker, 616.)

4. ESTOPPEL.— A WIFE IS NOT, AS AGAINST CREDITORS OF
HER HUSBAND, estopped from claiming that lands standing in
hlB name were purchased with her separate estate, and with the
Intention of then vesting the title in her, and that the conveyance
to him was made by inadvertence or mistake, if he was not engaged
in any hazardous undertakings or in any business prosecuted on
credit (De Berry v. Wheeler, 538.)

6. HUSBAND AND WIFE-GIFTS BY HUSBAND.-A husband
has power to dispose of his personal property in good faith, by gift or
otherwise, during coverture, free from all postmortem claims thereon
by his widow. (Walker v. Walker, 61G.)

6* HUSBAND AND WIFB.-A CONVEYANCE BY A HUSBAND
to his wife is not fraudulent, as against his creditors, if The property
BO conveyed was purchased with her separate estate, and she then
Intended to take title in her own name, though the deed, through
inadvertence and mistake, was taken in the name of her husband.
In subsequently making the conveyance to her be but performed
bis duty. (De ilerry v. Wheeler, 538.)

7. MARRIED WOMEN— VOID CONVEYANCE— ESTOPPEL.— A
deed executed by husband and wife, not acknowledged nor recorded^
granting to a railway company a strip of the wife's land as ti right of
way, does not divest her title nor estop her from asserting title thereto^
though without fraud she may have thus induced the company to
build its road along the route taken. (Louisville etc. Ry. Co. v.
Stephens, 303.)

8. MARRIED WOMEN— VOID CONVEYANCE BY— ESTOPPEL.—
If, after a husband and wife have granted a railway company a right
of way across her land by a conveyance void because not acknowl-
edged or recorded, she stands by and allows the road to be built upon
her land without objection, she cannot require the company to tear up
its track and quit the occupancy of the premises, but she is entitled to
recover damages. (Louisville etc. Ry. Co. v. Stephens, 303.)

9. ENTIRETIES. — A CONVEYANCE TO A HUSBAND AND
WIFE, providing that, in the event of her surviving him, she shall
hnve the use of the property, and at her death an estate in remainder
is to go to her children by such husband, vests the fee in the estate
by the entireties in the grantees, but the wife's fee is determinable
upon her outliving her husband and subsequently dying leaving
children by him. (Cole Mfg. Co. v. Collier, 921.)

10. ENTIRETIES, ESTATE BY.— A DIVORCE CONVERTS an es*
tate which the purchaser held by entireties into a tenancy in com-
mon. (Donegan v. Donegan, 53.)

11. ENTIRETIES, ESTATE BY. — IF A STATUTE INVESTS
MARRIED WOMEN with capacity to acquire and hold estates, a con-
veyance to a husband and wif^ vests title in them as tenants in com-
mon, and not as tenants by the entireties. (Donegan v. Donegan, 53.)
12 ENTIRETIES— EXECUTION SALE.— Though a sale under an
execution against the husband of property held by him and his wife
by the entireties divests his interest, and vests it in the purchaser at
the snlo. tlie ri»j:hts of such purchaser are subordinate to those of the
wife, and if the statute declares that the interest of the husband in



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1014 Iron.

the real estate of hla wife sball not be sold or dJqKNWd of lor Tirtiie of

any judgment, nor shall the husband and wife be ejected from sncb real
estate by virtue of any Judgment, such purchaser is no^ as against
the wife, entitled to be put in possession of any part of such property,
nor to receive any of the rents or profits thereof. (Oole Mfi^ Go.
T. Corner, 82L)

(See Eqnity, 2.

IMPEACHMENT.
See Witneflses, S.

INCEST.

1. INCEST WITH RELATIVES OP THE HALF-BLOOD. — The
term "sister," as used In the statute defining incest, includes half-
sister, and if such statutes make it incest for a man to have sexual
intercourse with the daughter of his sister, they will sustain his con-
viction on a charge of such intercourse with a daughter of his half-
sister. (Shelly T. State, 926.)

2. CRIMINAL LAW — ACCOMPLICE IN INCEST. — A WOMAN
WHO CONSENTS to the crime of incest knowingly, voluntarily, and
with the same intent which actuated the man, is his accomplice;
otherwise, if she was the victim of force, threats, fraud, or undue in-
fluence. (Shelly V. State, 926.)

8. INCEST-ACCOBiPLIGB, TESTIMONY OF.— A conviction for
incest cannot be sustained if based on the uncorroborated testimony
of the woman who, if such testimony be true, was an accomplice,
voluntarily yielding herself to the Incestuous interoonrse. (Shelly r.
State, 926.)

INDEBTEDNESS.
See Oorporationa, 11-17; Mnnicipal Corporations, 85; Statsi,

INDICTMENT.

1. INDICTTMENT-nJOINDER OF OFFENSES.— At common law,
several felonies or misdemeanors could be joined in several counts
of the same indictment, but a felony and misdemeanor could not be
BO joined. (State v. Fitssimon, 766.)

2. INDICTMENT-nJOINDER OF FELONY AND MISDEMEANOR.
By virtue of statutory provisions, two offenses committed by the same
person, though one is a felony and the other a misdemeanor, may be
Included in the same indictment, where they are of the same general
nature, and belong to the same family of crimes, and where the
mode of trial and nature ot punishment are also the same. (Stats
V. Fitzsimon, 766.)

8, INDICTMENT-BURGLARY AND ASSAUI/T TO RAPE-JOIN-
DER.— The offenses of burglary and an assault with an intent to eom*
mit rape are not cognate offenses, and cannot be joined by separate
counts in the same indictment (State v. Fitzsimon. 706»)
See New Trial, 1; Crimiiua Law.

INDORSEMENT.
See Checks, lOi

INFANTS.
CONTRACrrS TAINTED WITH FRAUD-EFFECT ON MINOR.
If heirs make an illegal contract regarding the estate of their ances-
tor, and one of them afterwards dies, his minor child claiming under



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Index. 1015

the contract by rigbt of representation, bftfl no greftter rights than
those possessed by his deceased parent. (Bfllhans y. Bally, 804.)

See Master and Seryant, S, 8; Negligence, 11-16; Railroads, 80, 36:

38-40.

INJUNCTIONS.

1. A ICANDATORY INJUNCTION to compel the abatement of a
nuisance will not issue ez parte before the trial of the cause, or be
used to oust a party in possession. (State y. King, 374.)

2. INJUNCTION-STATUB OP DECEASED PERSON, RIGHTS
OF RELATIVES.— Persons concerned in getting up a proposed statue
or bust in honor of a deceased woman cannot be restrained by her
suniring relatiyes from so doing, upon the ground that the persons
80 acting were not friends of the deceased, and did not know her, if
the motiye of the act is to do honor to her, and the worlc is to be done
in an appropriate manner. (Schuyler y. Curtis, 071.)

3. INJUNCTION-MENTAL INJURY OR DISTRESS.— The erection
of a statue to the honor of a deceased woman will not be enjoined
bccnnse of any alleged mental injury or distress to a suryiying rela-
tiye, grounded upon the idea that the action proposed in honor of his
ancestress would haye been disagreeable to that ancestress during her
life. The plaintiff must show some right of his own yiolated, and
that proof is not made by eyidence that the proposed action of the
defendant would haye caused the deceased pain if she were Hying.
(Schuyler y. Curtis, 071.)

4. INJUNCTION-MENTAL INJURY OR DISTRBSS.-The erec-
tion of a statue to a deceased person will not be restrained merely be-
cause a llying relatiye's feelings may be injured. There must, in ad-
dition, be some reasonable and plausible ground for the existence of
this mental distress and injury. It must not be the creation of mere
cai»rice nor of pure fancy, nor the result of a supersensitlye and mor-
bid mental organization, dwelling with undue emphasis upon tha
exclusiye and sacred character of the right of priyacy. (Schuyler
y. Curtis, 071.)

6. INJUNCTION— ERECTION OF IDEAL 8TATUB.-The erection
of an ideal statue, not intended as a likeness, for exhibition as the
statue of a deceased woman who is chosen as the representatiye of a
class of woman philanthropists, is not a fraud upon the public, and
Its exhibition will not be enjoined at the suit of suryiying relatiyes,
upon the ground that it is a fraud. (Schuyler y. Curtis, 071.)

6. INJUNCTION— ERECTION OF STATUE-JUXTAPOSITION
OF STATUES.— The erection of a statue to the honor of a deceased
iroman as a representatiye of women philanthropists, will not be en-
joined at the suit of her suryiying relatives because an association of
^'omen propose to place the statue in the same room of a building on
public grounds with that of a representatiye of women reformers, aa
this does not tend to show that the deceased philanthropist was in
sympathy with or belieyed in the ^'woman's rights" moyement
•(Schuyler y. Curtis, 071.)

7. INJUNCTION— ERECTION OF STATUE— MISTAKE IN CIR-
-CULAUS.— The erection of a statue or bust of a deceased woman by
an asFociation of individuals will not be enjoined, on the ground
that the association, in a circular issued by it, represented the de-
ct^sed to have been the founder of the Mount Vernon Association,
formed to secure the preservation of the home of Washington, when,
Iq fact, she was only a vice-regent from her state, if there Is nothing
to show that the misstatement was iutentional and would not be cor-
cected if attention were called to it. (Schuyler v. Curtis, 0710



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1016 Izn>BZ.

8. INJTTNOTTON-BHBCTTON OF STATTTB-CONSENT OF DB-
8CENDANT8.— If the object of erecting a statne is to do honor tj the
Dicmory of a deceased person, and is to be carried out In an appro-
priate and orderly manner, by reputable indiyiduals and for worthy
ends, the consent of the descendants of such deceased person Is not
necessary, and they have no right to prevent, for their own personaH
gratification^ any action of the nature described. (Schuyler y. Ciuv
tls, 671.)

See Contacts, 10; Prohibition.

INSOLVENCY.

1. INSOLVENCY-DISCHARGE AS BAR TO ACTION BY CITI-
ZEN OF ANOTHER STATE.— A discharge In insolyency granted by
a court of one state to one of its citizens is not a bar to an action i&
that state by a citizen of another state, who has not Yoluntarlly sub-
mitted himself to the jurisdiction of the court In the Insolvency pro*
ceedings. (Stlm y. McQuade, 62S.)

2. INSOLVENCY — ASSIGNMENT IN — EFFECT IN OTHER
STATES.— An assignment in insolvency made under the law of one
state is not a bar to a subsequent attachment of the insolvent's prop-
erty situated In another state by a citizen thereof, or of a third ctata.
(Sturtevant t. Armsby Co.» 627.)

See Corporations, 24-2&

INSTRUCTIONS.

1. JURY TRIAL.— AN INSTRUCTION GIVEN AT THE REQUEST
OF A PARTY cannot be complained of by him. (Loulsrille ete.
R. R. Oa T. Markee, 21.)

2. JURY TRIAL.— AN ABSTRACT INSTRUCTION inapplicable to-

any evidence in the case is likely to be raisleadinj^, and should not be
given. (Louisville etc. R. R. Co. v. Markee, 21.)

8. NEGLIGENCE-ERRONEOUS INSTRUCTIONS.-It under tt»

pleadings, the plaintiff is entitled to recover only for gross negligence,
It is error to Instruct the Jury that he may recover upon proof of ordi-
nary negligence, and a verdict based upon such negligence Is not suffi-
cient to support a Judgment for. damages. (Louisville etc R. R. Co..
V. Brantley, 291.)

4. JURY TRIAL.— INSTRUCTIONS AS TO PARTICULAR
PHASES OF THE TESTIMONY may be denied If the Judge gives full
and sufficient Instructions which will enable the Jury to understand
the law applicable to all branches of the case. He need not take up
each fragment of the testimony and state the conclusions applicable
to a possible finding upon each. (Hicks v. New York etc. R. R. 0>.,
471.)

6. JURY TRIAI^DRAWING ATTENTION OF JURY TO ONE:
QUESTION.— An instruction directing the attention of the Jury to
the question whether the motorman might have stopped the car In
time to prevent an accident cannot be regarded as prejudicial to the
plaintiff, as taking away from the Jury the question whether the
accident might have been averted by an increase In the speed of the^
car, when there Is no evidence tending to show that by such Increase
the accident might have been avoided. (Bamberger v. Oitiseiiaf etc.
By. Ck>., 909.)

See False Imprisonment, %

INSURANCE.
1. INSURANCE.— IN ORDER TO BIND THE PARTIES by a con-
tract of Insurance, all the essential elements of the contract must or»



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Index. 1017

dlnarily be agreed upon, but If It Is at tbe time Impossible to obtats
Important facts affecting tbe snbject of tbelr dealing, they may make
a j?eneral agreement to accomplish their purpose as well as they can.
(Scammell v. China etc. Ins. Co., 462.)

2. INSURANCE, CONTRACT . FOR WHEN BECOMES COM-
PliETB.— The fact that the amount of premium is not fixed does not
necessarily prove that the contract of insurance had not become oper-
aiive. Therefore, a memorandum statins; in j;enornl terms the nniouut
of insurance desired on chartered freight of a designated vessel, "Pre-
mium, open for particulars." marked -bimliiiK" before the signature
of the parties, and "Send policy to Walker & Hughes, 63 Wall street.
New York,** is an obligatory policy of insurance. It is equivalent to
an agreement that the insurance shall be upon a reasonable rate of
premium until the assured shall have an opportunity to furnish fur-
ther particulars, and that he will furnish them within a reasonable
time. His failure to do so avoids the contract (Scammell v. China
etc. Ins. Co., 462.)

8. INSURANCE-PRESUMPTION IN FAVOR OP ASSURBD.-Ad
nnexpired policy of fire insurance, regularly issued and remaining un-
canceled, is presumed to be valid. The insured is prima facie entitled
to recover if a loss occurs and the steps necessary to establish it have
bten taken. The conditions precedent in such policy, performance of
which plaintiff la required to plead, include only those affirmative acts
necessary to perfect his right of action on the policy, such as giving
notice and making proof of loss, furnishing the certificate of a magis-
trate, or other steps of like nature required by the terms of the policy.
(Moody V. Insurance Ck)., 689.)

4. INSURANCB-CONSTRUCJTION OF POLICY. -Conditions usu-
ally contained in policies of insurance, providing that they shall be
suspended, or the Insurer relieved wholly or paitially from liability,
upon the happening of some event, or the doing or omission to do some
act, are not conditions precedent, but mattera of defense, which, to-
gether with their breach, must be pleaded and proved by the insurer.
(Moody V. Insurance Co., 699.)

6. INSURANCE, FORFEITURE FOR FAILURE TO FURNISH
PARTICULARS.— Where a contract is made in the absence of definite
particulars, it is the duty of the assured to furnish them within a rea-
sonable time, and a breach of this duty annuls the contract (Scam-
mell V. China etc. Ins. Co., 462.)

6. INSURANCE.- A VOLUNTARY ASSIGNMENT FOR THE
.BENEFIT OF CREDITORS executed in the mode prescribed by stat-
ute is a breach of a condition in a policy of insurance providing that
if the property or any interest therein be sold or transferred, or
any change takes place, other than by the death of the assured, in
the interest, title, or possession, whether by legal process or judicial
decree, or voluntary transfer by the assured, then in such case the ix>l-
icy shall be void. (Orr v. Hanover etc. Ins. CJo., 146.)

7. INSURANCE-LIMITATION OF ACTION FOR LOSS.— A con-
dition in a fire insurance policy requiring the bringing of an action
for a loss within one year after such loss occurs, Is waived if the in-
surer makes an assignment for the benefit of creditors within such
year, and the claim is not barred as to the fund in court, although
not filed with the assignee until more than a year after the loss.
On re St Paul etc. Ins. Co., 497.)

8. INSURANCE— VACANT PREMISES.— To constitute occupancy
of a dwelling-house within the meaning of a fire insurance policy, it
need not be used continuously. The family may be absent for health,
pleasure, business, or convenience for reasonable periods. (Moody
V. Insurance Co., 699.)



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1018 Inbbz.

0. TNSmstANOB— VAOAMT FR]9Ml{nSS.-Clondltloii8 aTotdtngr a pol-
icy of fire inannmce became tbe premises become vacant or nnoocn-
pied Bbould receive a strict construction, and, when ambigruous, be
construed most strongly against the Insurer. (Moody v. Insurance
Co., 689.)

10. INSURANCE — OCCUPANCY, WHAT CONSTITUTES. — A
dwelling ifi not unoccupied, within the meaning of a fire insurance
policy, merely because it has ceased to be used as a family residence,
if household goods remain in it ready for use, and it continues to be
occupied by one or more members of the family, or a tenant having
access to the entire building for the purpose of caring for it, and it is
cared for and some use made of it as a place of abode. (Moody v.
Insurance Ck>., 699.)

11. INSURANCE-VACANT PREMISES-INCREASE OF RISK.
Under a statute regulating contracts of fire insurance, and providing
"that, in the absence of any change increasing the risk without the
consent of the insurer, and also of intentional fraud on the part of the
insured," the Insurer shall be liable for the loss suffered and named
in the policy, the insurer, to avoid liability for loss on the ground of a
breach of a condition In the policy that he shall not be liable for
*'loss or damage in or on vacant or unoccupied buildings, unless con-
sent for such vacancy or nonoccupancy be indorsed** on the policy,
must allege and prove that such breach of condition has Increased
the risk, when there is no question of intentional fraud on the part of
the insured. (Moody v. Insurance Co., 699.)

12. INSURANCE-VACANT PREMISES.— The risk under a fire in-
surance policy is not necessarily, or priuia facie, increased, by tbe
property becoming vacant or unoccupied. (Moody v. Insurance Co.,
699.)

13. INSURANCE— PROOFS OF LOSS.— APPARENT AUTHORITr
on the part of local agents to receive proofs of loss is implied from a
custom among Insurance corporations to prepare proofs of loss and
send them to the officers. (Hamden v. Milwaukee etc. Ins. Co., 467.)

14. INSURANCE — PROOFS OF LOSS. — THE DELIVERY OF
PROOFS TO A LOCAL AGENT constitutes a delivery to the com-
pany, if the commission of such agent gives him "full power to receive
proposals for insurance against loss or damage by fire, to receive
moneys and countersign, issue, renew, and consent to the transfer of
policies, subject to the rules and regulations of the company, and to
such other instructions as may, from time to time, be given by its ofll-
cers." Especially is this true if the agent had apparent authority by
custom to receive such proofs. (Hamden v. Milwaukee etc. Ins. Co.
467.)

15 INSURANCE— 'TORTHWITH** STATEMENT OF LOSS, WHEN
RENDERED.— Whether a statement of loss is rendered "forthwith**
depends on all the circumstances, and is a question of fact for the
Jury. A failure to render such statement until about two months after
the loss occurred is not necessarily a failure to render it "forthwith"
within the meaning of the policy, If the delay is accounted for by tho
ill-health of the assured, the confusion attending the fire, and other
obstructions encountered by him. (Hamden v. Milwaukee etc Ins.
Co., 467.)

16. LIFE INSURANCE-SUICIDE.-PROOFS OF LOSS ondera poK
icy of life insurance showing that the death was caused by suicide^
are admissible, but not conclusive, against the insured. (Leman v.
Manhattan etc. Ina Co., 848.)

17. LIFE INSURANCE-SUICIDE-BURDEN OF PROOF.-If sui-
cide is relied upon as a defense to an action to recover on a life insov-



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Index. 1019

Anc« policy, the borflen of proof Is upon the Insurer to establish the
suicide, and» If drcnmstantial evidence alone is relied upon, it must be
of such character as to exclude, with reasonable certainty, any other
cause of death. (Leman y. Manhattan etc. Ins. Ck>., 84&)
8ee Witneflses, i,

INTEREST.
Bee Usury.

INTERMENT.
Bee Burial Rights.

INTOXICATION.
Bee Homicide, 8, 4

JOINDER.
Bee Indictment, 1-8.

JUDGES.
Bee New Trial, X

JUDGMENTS.

!• JUDGMBNT8.-OPFICB OF NUNC PRO TUNC ENTRY Is to
record some act of the court done at a former term, which was not
then carried Into the record, but it cannot be employed to secure, at a
eubeequcnt term, a performance by the court of some act which the
applicant failed to haye the court do at the term in which final Judg-
ment was rendered and entered. (Cleyeland Leader Printing Co. y.
Green, 725.)

2. JUDGMENTS-NUNC PRO TUNC BNTRY-^URISDICTION.-
If the record of a court falls to show that It has acquired Jurisdiction
of the person of the defendant and the plaintiff has neglected at the
hearing of the case to require the court to inquire into and adjudicate
that question, the court cannot, at a subsequent term, inquire into its
Jurisdiction oyer the defendant, and, by a nunc pro tunc order, cause
the record to state that the inquiry was made at the term when final
Judgment was rendered. (Cleyeland Leader Printing Co. y. Green,
725.)

S. JUDGMENTS AS BSTOPPBLr-SEPARATB 0AU8B8 OF AC-
TION.— If a plaintiff sets up two causes of action in his complaint
and the defendant fails to require him to separate them, or to elect
upon which to proceed, he is estopped after Judgment on his com-
plaint from separating the causes of action, and bringing a separate
suit thereon. (Cartin y. South Bound R. R. Co., 829.)

4. RB8 JUDICATA.-THB PLAINTIFF HAS NO AB80LUTB
RIGHT TO WITHDRAW one of the claims sued upon, and. If his
application for leaye to withdraw it is refused by the court, the de-
fendant may treat the claim as still proper for consideration, but it is,
neyertheless, not res Judicata, if the eyldence shows that it was not
presented nor considered by the court (Nashua etc R. R. Corp. y.
Boston etc. R. R. Corp., 454.)

5. RES JUDICATA.— A DEMAND OR CLAIM IS NOT RB8 JUDI-
CATA, THOUGH IT WAS INTERPOSED in a prior suit along with
other claims and leaye to withdraw it was denied by the court, if the
final Judgment of the court appeared to be upon the other claims, and
there Is no eyldence that the claim, the right to withdraw which was



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1020 Index.

refaaed, mm In fact argned, consldeTed, or determined bj the court.
(Naabua etc. B. R. Ck>Tp. t. Boeton etc. R. R. Corp., 464.)

6. RIS8 JUDIOATA-OVBRRULBD DEFBNSB.— A means of do>
fenae oyermled in a past litigation does not except under peculiar
clrcnmatancea, preclude the facta paaaed on In the prevloua litigation
from uae in a future suit (WilllamB t. Hewitt, 804.)

7. JUDGMENTS-NONSUIT— RBS JUDICATA.— Nonsuit granted,
not for a failure of evidence, but on tbe merits, and becauae plain-
tiff haa no cause of action, ia rea Judicata and binding in a aubaequent
•uit between the aame partiea baaed upon the aame cauae of action.
<Gartin t. South Bound R. R. Co., 829.)

g. A JUDGMENT OF NONSUIT BASED UPON THE CONSTRUC-
TION OF A DEED ia rea Judicata in a subsequent action between
the same partiea baaed upon the aame deed. (Cartin y. South Bound
R. R. Co., 829.)

9. A JUDGMENT OF ACQUITTAL IN A CRIMINAL PROSECU-
TION IS NOT ADMISSIBLE in favor of tbe accused in a ciTil acUon
to prove that he waa not guilty of the crime with which he wa»
charged. (Fowle y. Child, 451.)

See Appeal, 8, 9; Partnership, i»

JUDICIAL NOTICE.
See Carriers, I ; Evidence, 1, 2.

JURY TRIAL.
See Trial.

LACHES.
See Checka, 4, 7, 14.

LANDLORD AND TENANT.

1. LANDLORD AND TENANT.— TO CONSTITUTE EVICTION
there must be something of a grave and permanent character done by
the landlord for the purpose and with the intention of depriving the
tenant of the enjoyment of the leased premises. (Barrett r. BoddlCr
172.)

2. LANDLORD AND TENANT.- NO EVICTION SUCH AS EN-
TITLES a tenant to resist an action to recover rents exists unless
the premises are rendered useless by the positive act of the landlord,
or the tenant has been deprived in whole or in part of the possession or
enjoyment of the premises, actual or conatructive, by the landlord.
(Barrett v. Boddie, 172.)

3. LANDLORD AND TENANT— EVICTION.— The fact that a flue
in a building leased for use as a restaurant becomes filled up with brick



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