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ChapeU v. Schuee, Ind., 30 N. E. Bep. 417.

41. DB80BNT AND DiSTBIBDTION— Adopted Child.

Under Pub. St. Mass. ch. 148, §{ 6, 7, a grandson adopted
by his grandfather can only inherit from the Utter as
his adOl)ted son, and not by representation of his de-
ceased father also. — DeUmg v. Bruerton, Mass., 30 Pac
Bep. 808.

43. DoMioiLB — Lunatic — Probate. An alleged

lunatic, for the anpolntment of a guardian for whom a
petition is pending, can. If mentally capable, change
his domicile to another State, though the guardianship
resulting from such proceedings continues until his
death, and the courts of the new domicile have original
probate Jurlsdiotion of his estate.— Toifrol v. Chambtrla/kn^
Mass , 20 N. B. Bep. 806.

48. EJBOTMBNT— Title. A decree In chancery that

defendant's possession of the tocus In quo is not adverse
to plaintiffs title estops him to deny such title. — Brmm-
eon V, Morgan, Ala., 6 South. Bep. 496.

44. EQUITY— Cancellation of Deed. As a deed by

husband and wife of her separate estate, abaolute In
form, reciting a valuable consideration, and purport-
ing on its face to conform to statutory requirements,
divests the wife of the legal title, she has no adequate
remedy at law, and it is error to dismiss for want of
equity a bill by her to have the deed canceled as a cload
upon the title to her separate estate.— ^rsMlrcm^ v. Con-
ner, Ala., 6 South. Bep. 461.

46. EQamr— Bill to Set Aside Deed. A biU in equity

to set aside a deed to land, where there has been ae-
quiescence in an adverse possession for ten years
before suit, is barred, under Code Ala. 1886, f 8419, unless
there are excusable circumstances taking the case oat
of the operation of the statute.- 5orM^y« v, DeoaWir MBm-
eral ^ Land Co., Ala., 6 South. Bep. 440.

46. EquiTT— Beformatlon of Deed. — When a mistake
Is made in the description of land in a deed and mort-
gage, equity will reform the conveyances so as to make
them express the real agreements. — Houeton v. Fimml,
Ala., 6 South. Bep. 438.

47. Equitt- Accounting. Money was advanced to

a person to be used by him In raising sunken treasure,
upon his promise to return a large sum, if sucoeasfnL
It appearing that the further prosecution of the work
by the person had become impossible: iieltf, that he
must account for the moneys received, and, after cer-
tain allowances, pay back the unexpended balance. —
Thomae v, Hortehom, N. J., 16 AtL Bep. 916.

48. EviDBNOB. In an action for work done In the

construction of a brick-kiln, where the main Issue con-
cerns the number of bricks laid, it is not necessary that
plaintiff should prove the number laid with mathemat-
ical certainty. — Birmingham Fire Brick Worke v. AUm^

I Ala., 6 South. Bep. 464.



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48. EviDiHOB — Parol to Vary Writing. Where

parties haye made a written (arm lease, complete on
Its faoe with minute provisions as to the rights and ob-
ligations of both parties, parol evidence is inadmissible
to prove that at the date of its execution, the lessors
orally agreed to drain the land. — Divem v, Jokn$on, Ind.,
10 N. B. Bep. 428.

60. BviDBNOB— Bxamination of Accounts. Where

evidence is the result of voluminous facts, or of the
Inspection of many books and papers, the inspection
of which cannot conveniently take place in court, or
where a witness has Inspected the accounts of parties,
though not allowed to give evidence of their particular
contents he will be allowed to speak of the general
balance or result of such examination. — Ma$(mie ihU,
Bm. 8oe. v. Lackltmd, Mo., 10 fl. W. Bep. 806.

61. BxoBPnov8-Blll of ~ Abssence of Judge. A

bill of exceptions not presented to the trial judge, nor
deposited with the clerk of the trial court, within the
Ume fixed by statute or order, though such judge is
absent from the State, and the bill is tendered to an
associate judge, who marks the date of tender thereon,
but declines to sign and seal It, cannot afterwards be
properly authenticated by the presiding judge. — Feoh-
htHmer v. TrcungtUme^ Colo., 20 Pac. Bep. 704.

68. EXBOUnON-Betum. Under Bev. St. Mo. 1879,

1 8S88, an execution may Issue returnable, at plaintiff's
option, either to the first or second term after its issu-
ance; and. In the absence of a showing to the contrary.
It win be presumed that the sheriff who sold under the
execution complied with thelaw.— i)2<Nfy«fl v. Perry, Mo.,
10 8. W. Bep. 801.

68. BzBCUTORS AND ADMiinSTRATOBS — Nou- resident.

Code N. T. § 2662. relative to the grant of letters of

administration, does not effect a repeal of the priority
of right of letters as provided for by statute, and such
right Is not lost by residence In another State, where
the person so entitled is a citizen of the United States.—
Lfbbty 9. Ma$im, N. T., 20 N. B. Bep. 866.

64. ExBHpnoH— Waiver. In Pennsylvania, a waiver

of a debtor's statutory exemption In favor of a lien
creditor whose claim is less than the amount of such
exemption, does not Inure to the benefit of junior cred-
itors, so as to prevent the debtor from claiming the
balance of the exemption after the satisfaction of the
senior lien.— JTal^mon V. ^ottmaii, Penn., 16 Atl. Bep. 871.

66. Factors ahd Brokers— Evidence. Plaintifl

alleged a contract by which he was employed to obtain
for defendant the titles of the latter's co owner of a
mining claim for not more th 'U a certain sum, plaint-
tfPs commission to be the difference between that sum
and the price paid : Held, that evidence of what a witness
said to plain tiff about his understanding ^Ith defend-
ant before plaintiff went to see defendant was irrele-
vant.— ifftmloofi V. Lloyd, Mont., 20 Pac. Bep. 6»8.

66. Faotors and Brokers— Commission. A real-

estate broker induced one P to purchase certain land
of defendant. Afterwards P discovered that there was
a large amount of purchase money due on the land :
Held, that the fact that P refused to complete the con-
tract, on account of a defect in the title, although the
purohaf*e money stipulated to be paid by him would
have enabled defendant to clear off the incumbrance,
oould not defeat the right of the broker to recover his
commission from defendant.- BirmliHgham Land df- Loon
Co, V. Thompmm, Ala., 6 South. Bep. 478.

67. Forcible Bntrt. To constitute the offense of

I6rcible entry, under Code N. O. f 1028, the premises
must be In the actual, not merely constructive, posses-
sion of the person whose possession is charged to have
been interfered with. — State v, Brytmt, N. Car., 9 S. B.
Bep. L

68. Fraui>— Burden of Proof. A charge that "fraud

is never presumed, but the burden rests upon one
claiming fraud to make It out by clear and convincing
proof," is not misleading, as conveying the impression



that fraud must be proved beyond a reasonable doubt.
^WalUice 9. MaUice, Ind., 20 N. B. Bep. 497.

60. Gamino— Securities. Where one transfers cer-
tain bonds in his possession, but of which he is not the
owner, to A to obtain money for the purpose of buying
"cotton future ," there being no intention that any
cotton shall be delivered, but simply that the difference
In price shall be settled according to the market fiucta-
tions, and A advances the money with knowledge of
the purpose for which It is to be used, he cannot hold
the bonds as against the real owner.— Lee v. Bopd, Ala.
6 South. Bep. 489.

60. HiOHWATS— Sidewalks— Duty of Abutter. A

land-owner is under no legal obligation to build or
keep up a walk along the highway adjoining bis land,
and is not liable for personal Injuries sustained by a
party on account of the narrowness of such walk or Its
defective condition. — Fletcher v. Scotten, Mich., 41 N. W.
Bep. 001.

61. Homestead— Conveyance to Wife— Sufficiency.

Under Civil Code CaL § 1266, a declaration of a home-
stead by a husband on his separate property vests a
joint title thereto In himself and wife, and a subsequent
conveyance of the property by him to bis wife is valid,
and passes the complete title to the wife, subject to the
homestead.— /hM-iieff v. Burkett, Cal., 90 Pac. Bep. 716.

62. Homestead- Conveyance. In a conveyance

of homestead executed prior to act Ala. April 28, 1873,
requiring the signature and separate examinations of
the wife in conveyaaoes of the homestead, it is suf-
ficient that the wife voluntarily signed the deed, and It
was attested and probated in the form prescribed by
statute for ordinary conveyances, without any sepa-
rate examination of the wife. — Jonee v, Boper, Ala., 6
South. Bep. 469.

68. HOMBSTBAD— Bxtent. Where part of a tract of

land described in a declaration of homestead Is actually
appropriated for family use by the declarant, but the
remaining portion is used principally for the business
of general blacksmithing and wagon building, carried
on in a building thereon, such latter portion forms no
part of the homestead claim. — Inre Alien, Cal., 20 Pac.
Bep. 679.

04. HuSBAKD AMD WiFB— Wife's Separate Bstate.

Under Code Ala. 1876, § 2706, by which the husband, as
trustee of the statutory separate estate of the wife, had
the right to control It without liability to account to the
wife for the rents, etc, land purchased in the name of
the wife with such rents could not be subjected to the
husband's debts.— Long v, ^/Sard, Ala., 6 South. Bep. 482.

65. HUSBAKD AND WiFB— Wife's Separate Bstate.

Where a married woman has received personal prop-
erty, as a «ift from her father, and, with her husband's
consent, has always managed It as her own, and with It
purchased other property in her own name, the prop-
erty and the proceeds of Its sale remain her property,
and not her husband's. — Botte v, Oooch, Mo., 11 S. W.
Bep. 42.

66. HusBABD AMD WIFE— Conveyance. Under the

Alabama statutes, a deed by a husband and wife of her
separate estate, without fraud In its execution, the
consideration of which was In part a debt for articles of
support furnished the family, and In part a debt due by
the husband, vests a legal title In the grantee, and is a
complete defense to ejectment by the wife. — Ommmt v.
Armttrong, Ala., 6 bouth. Bep. 449.'

67. Husband and Wife— Wife's Separate Bstate.

A married woman cannot bind her statutory separate
estate so as to charge it with a contract in the form of
a will agreeing to convey a portion of It to certain
parties on her death. — Bolman v. Ooerall, Ala., 6 South.
Bep. 466.

68. Husband and Wifb — Wife's Separate Property —

Liability for Husband's Debt. Under Code Miss.

1880, § 1177, a wife Is not liable for debts incurred by a
husband in carrying on a mercantile business in his
own name with money belonging to her. — LtMoamfv,
Bamee, Miss., 5 South. Bep. 402.



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09. iHJUHOnoH— Bond— Estoppel. In a salt on s

bond given for an injunction against tbe further prose*
outlon of a snH therein recited, the obligors aie es-
topped from denying that there was sach a salt pend-
ing.— PerMm V, Thornton, Ala., 5 South. Rep. 470.

70. iHJUifonON. Bqalty will, at the suit of persons

holding the complete equitable title to land, restrain
as to their estate the levy of an execution issued on a
Judgment against the person holding the legal title. —
Parka v, PeopWa Bank, Mo.. 11 8. W. Rep. 41.

7L IMSUKAKOB— Policy. Where a policy provides

that it shall be void it the assured was not the sole and
unconditional owner of the property and when it was
insured plaintiff described It as his, it is a good defense
to show that he had but a leasehold and executory con-
tract to purchase. — Brown v. Cowunerdal Fire Jim. Co.,
Ala., 6 South. Rep. 600.

Ti. INSUBANOB— Accident Policy. Meid, that the

terms "external and yisible signs upon the body of the
insured" only applied to bodily injuries not resulting
in death.— Paia v. Traveler^ In$. Oo„ N. T., 20 N. B. Rep.
847.

78. INSUBANOB— Life Insurance— Creditor. A cred-
itor who takes out insurance certificates ammounting
to 16,600, on the life of his debtor, who owes him fl.OOO,
the Insurance being taken out in the mutual aid associ-
ations, where the amount to be realized depends on the
number and solvency of the members, and the creditor
paying the mortuary dues and assessments, and actu-
ally realizing only |2,124.82 on the oertifloates, on the
debtor's death is entitled to retain tbe balance re-
maining, after deducting the debt, interest and ex-
penses.— RUtler 9. Snith, Md., 16 Atl. Rep. 890.

74. INTOXIOATIKO Liquors— Local Option — Constitu-
tional Law. The local option law of Washington

Territory, giving to "precincts of Washington Terri-
tory" power to repeal tbe existing law, and prohibit
the sale of liquor, is invalid as a delegation of legisla-
tive authority.— TYfrner v. Saxon, Wash. Ter.,20 Pac. Rep.
686.

76. iNToxiOATiKO LIQUORS-— Constitutional Law.

Act Ala. Nov. 27, 1886, entitled "An act to amend an act
approved December 12, 1882, to amend § 1644 of tbe Code
of Alabama, so far as applies to Butler county, Ala., so
as to authorize tbe probate judge of said county to
order an election to determine whether spirituous,
vinous, or malt liquors," etc., "shall be sold, given
away, or otherwise disposed of. In precinct 12 of said
county," is, as the latter part of the title indicates, a
complete law, original In form, providing for a "local
option" election in that precinct, and amends no pre-
vious law, except by implication : Btid^ that the refer
ence in the title to the amended act may be regarded as
surplusage ; and, so regarded, tbe act Is not violative of
Const. Ala. 1876, art. i.—Oandy v. State, Ala., 6 South. Rep.
420.

76. INTOXIOATINQ LIQUORS— Jury — Qualification.

The fact that one, as constable, is specially charged
with enforcing the law for the suppression of intemp-
erance, does not disqualify him from acting as a Juror
on a trial for keeping a liquor nuisance In another
precinct.— 5tato v. Cosgrove, R. I., 16 Atl. Rep. 900.

77. iMTOXiOATiiio Liquors — License Tax— Club.

A club which distributes liquors among its members,
receiving pay for them as they are distributed by the
glass, the proceeds going into the treasury of the club,
to be used in purchasing other liquors, orinpasing
expenses, is taxable as a retail dealer.— People v, Soule,
Mich., 41 N. W. Rep. 906.

78. ISRIOATION— Polutlon of Stream. A complaint

alleging that the relators are owners of land which Is
Irrigated by the waters of a certain creek; that defend-
ants are operating stamp mills and polluting the
stream with mineral refuse therefrom, thus rendering
the water unfit for irrigation purposes, and praying
that defendants be perpetually enjoined from so poUnt-
tog the water, does not present a oaae pubHciJurie, so as
to give the supreme court original Jurisdiction under



Const. Colo. art. 6, f 2. — People v. Sogere, Cok>., 20 Pao
Rep. 702.

79. IRBIOATIOH— Ditches. Under Act Colo. 1881 f 1,

a ditch constructed by one on his land for Irrigating It
cannot be enlarged, against his consent, tor the pur-
pose of oonveylng water to the land of others, where
there are other practicable routes, and especially where
such ditch is not of a uniform grade, and its enlarge-
ment would greatly diminish its usefulness. — Downing
V. Moore, Colo., 20 Pac. Rep. 766.

80. JUDOMBNT— Amendment. An amendment mn9%e

pro tune, of an insufllclent statement by confession will
not be allowed to the prejudice of subsequent Judg-
ment creditors whose executions have been levied. —
Auerbachv. Behuke, Biinn., 41 N. W. Rep. 946.

81. JURT— Drawing. Manner of drawing Jury held

a substantial compliance with the statutes. — Long v.
State, Ala., 6 South. Rep. 443.

82. JusTiCBS OF THB Pbaos— Forcible Detainer.

Neither the title nor right of possession can be made an
issue in an action under the Montana forcible detainer
act, and hence a Justice of the peace properly refused
to certify such action to the district court without trial.
—Sheeheg v. Flaherty, Mont., 20 Pac. Rep. 687.

83. LiBBL AKD Slahdbr — Privileged Commnnieatlon.

Director of a company against which stockholders

file suit alleging fraud on part of officers to control
company stock cannot maintain action for defamatory
matter in petitions though It was false and malicious.-
Rtmge v. Franklin, Texas, 10 S. W. Rep. 721.

84. LiBBL AKD Slandbr. Words Charging a wife

with deserting her husband in his sickness are action-
able per M.—5mttA r. SmUh, Mich., 41 N. W. Rep. 490.

86. LIBBL ABD SLANDBR. -^ In an action for libel, a

charge that plain tiff had been "tried for conspiracy
and libel, and convicted," is Justified, if literally true,
though plaintiff, after the conviction and before tbe
publication, had succeeded in having one case against
him dismissed, and had taken an appeal In the other.— t
Boogher v. Knapp, Mo., 11 S. W. Rep. 46.

86. Loos AND LoooiKQ- Obstruction of Stream.

Where defendants, having a right to construct a boom
for logging purposes. In a stream that had been made a
public highway for the purposes of logging, continue It
a reasonable time, tbey are not liable for damages
caused by an obstruction made by a logjam, if they ex-
ercise due care to prevent it, or to break It when
formed.— i7aro/d v. Jones, Ala., 6 South. Rep. 438.

87. Malicious Probbcdtion— Custom and Usage.

Plaintiff, an architect, when prosecuted at the instance
of defendant, for larceny from the latter of plans for a
building, could show, in an action for malicious prose-
cution, that the property of the drawings was in him by
a universal custom, and that the builder was entitled to
them only during the time of construction ; and that
defendant had erected buildings by such plans. — Lun$-
ford V. Deiirich, Ala., 6 South. Rep. 461.

88. Mandamus. Mandamus will only He when there

is a clear legal right and not in behalf of one who seeks
to have certain shares transferred to him on books of
corporation where the assignor claims the right to re-
deem. — BruneviUe Turnpike Co v. State, Ind., 20 N. R.
Rep. 421.

89. Mandamus. Determining whether relator Is or

not entitled to a peremptory numdamme compelling the
respondent Judge to grant him a writ of injunction de-
pends upon whether the law entitles him to it as of
right. If the law gives the respondent the discretion to
grant or refuse It, the w%andamu$ will not go. — State v,
Btghtor, La., 6 South. Rep. 416.

90. Mastbrand Sbrtant— Fellow -servant. Where

the regulations of a railroad company provide that, In
case a train becomes divided, the front breakman shall
go to the rear of the front portion, and signal the en-
gineer which way to move, etc., and also thai In ease
the conductor Is out off from the train, tbe rli^ to
command shall devolve on the engineer, the engineer



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411



and breakman are only fellow* servants. In case of the
breaking of a train, when the engineer does not assume
the command, and both are acting in the line of their
separate duties. — LtmUnUU <f N, B, v, MarHn, Tenn., 10
S. W. Rep. 772.

91. HA8TSB AHD siBRYANT— Contract of Hiring. An

employee cannot recover on a contract of hiring, by
the terms of which he is to work a certain number of
hours per day, for parts of days less than the prescribed
number of hours, where his failure to work is not due
to any interference or neglect on the part of the em-
ployer; though such contract provides that the
employee is to be paid a certain amount per hour. —
mUon V. LyU, Penn., 16 Atl. Rep. 861.

92. ICastsbahd Sbrvamt — Liability of Lessor Rail-
road Oompany. One employed as conductor by a

railroad company operating as lessee, without author-
ity of statute, a railroad belonging to another corpora-
tion, cannot recover of the latter corporation for injuries
sustained on account of a defect in an engine owned
and controlled by the lessee. — Satt Line if Red Biver R,
Co. V. Culbenon, Tex., 10 8. W. Rep. 706.

96. MS0HAMI08' LiXNS— Subcontractors. Mechan-
ics' lien exists in favor of subcontractors and others,
nothwlthstanding prior payment of the full contract
price, in good faith, by the owner to his contractor;
also that such liens are not limited to the amount
agreed to be paid by the owner to his contractor. —
JSrenry ^ Coaitwarth Co, v, Evane, Mo., 10 8. W. Rep. 868.

94. MBOHAino's LiBN— Notice. Under the Oolorado

lien act of 1881, § 4, unless a statement is served as re-
quired, the claimant Is not entitled to a decree estab-
lishing his lien. — Qreetey, 8. L, \^ P. R. Co. v, MarrU,
Oolo., to Pac. Rep. 764.

96. MnnM AHD MnmiG. A relocation of a mining

claim is an implied admission of the validity of the
original location, and an assertion that the relooator
claims a forfeiture by reason of a failure on the part of
the original locator to make his annual expenditure. —
Wms V. BkOn, N. Mez., 20 Pac. Rep. 798.

96. MniBS Awo MiHiNO— Parol Evidence. Under

Rev. St. U. S. § 2824, as to a location of a mining claim
parol evidence is admissible to show that a natural
object or monument referred to in the location, but
not designated therein as a permanent monument. Is in
fact permanent.— Seidler v. Lafave, N. Mex., 20 Pac. Rep.
789.

97. MOBTOAGBS— Assignment. In Alabama, an as-
signment of a mortgage, to be effectual to convey the
mortgagee's legal title and enable the assignee to main-
tain ejectment, must be by such a conveyance in form
and words as is required to convey the legal title to
land in ordinary cases.— 5amfert v, Cauadtft Ala., 5 South.
Rep. 606.

98. MOBTOAOB— Foreclosure — Statute of Frauds.—^ —
Sales of land under foreclosure are not within the stat-
ute of frauds.— ilndrftM v. 0'3faAon«y,N. T., 20 N. B. Rep.
874.

99. MOBTGAOBS— Foreclosure— Limitation. A pur-
chaser at sheriff's sale, under a Judgment pending fore-
closure of a senior mortgage, is not a necessary party
to the foreclosure, and, when Joined by an amended
complaint, cannot set up a limitation which had not
run when the original complaint was filed. — Wtae v.
GriJUh, Oal., 20 Pac. Rep. 675.

100. NBOLIGBNOB— Drunkenness. Question under

the evidence as to negligence of railroad company in
killing intoxicated main.— Cotumbut <f W. Ry. Co. r. Wood^
Ala., 6 South. Rep. 468.

101. Nbqugbngb— Jurisdiction. When the statute

In a State where a death is caused by wrongful act gives
a right of action to the personal representative, that
right may be enforced In another State having a simi-
lar statute, in a court having Jurisdiction of defendant.
— CkwkmuUi, H. ^ D. R. Co. v. McMulUn, Ind., 20 N. B.
Rep. 287.

lOJ. Nbg otiablb iBSTRUMBirrs— Note. On© who



has given a note in part payment of certain timber can-
not, after be has received all that he is entitled to un-
der the contract, defend against the note on the ground
that such timber at the time of the sale was on land be-
longing to the wife of the vendor, and that he had no
right to sell It. — MeKenzie v. Wh^berly, Ala., 6 Sout. Rep.
468.

108. Nbgotiablb Instbumbnts. The payee of a

note transferred it to a creditor In consideration of the
discharge of a debt owing to the creditor, but, as the
amount of such debt was not fixed, the creditor agreed
that, if the debt fell short of the amount of the note, he
would pay the difference to such payee: Held, that the
creditor became the absolute owner of the note. — WU-
eon V. Law, N. Y., 20 N. E. Rep. 899.

101. Nbootublb Instbumbnts- Lost Note. Evi-
dence sufficient to account for non production of note
so as to put defendant on his defense.— C2</K v. Mo$ee, N.
Y., 20 N. B. Rep. 892.

106. NBGOTIABLB INSTBUMBNTS — Oouuty Wairants.
A county warrant has not the qualities of a nego-
tiable paper, and the plaintiff stands In the shoes of his
assignor, the original bolder. — Bank of Sania Cruz
County V. Bartleit, Oal., SO Pac. Rep. 682.

106. Pabtition- Equity. As incidental to a par-
tition between heirs, a court of equity may adjust and
equalize advancements, though Jurisdiction of contro-
versies as to advancements is conferred on the probate
oouTt.—Mar0haU v. Marshall, Ala., 6 South. Rep. 475.

107. Pabtibs — Real Party in Interest. A suit

brought by one In bis individual name, but in reality
for the benefit of non residents, as owners of the claim
sued on, must be viewed as instituted by the constitu-



Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 110 of 151)