Augustus John Cuthbert Hare.

The Central law journal, Volume 28 online

. (page 115 of 151)
Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 115 of 151)
Font size
QR-code for this ebook


queated it resided in another State.— State v. Datrymple,
Md., 17 Atl. Rep. 82.

21. CONSTITUTIONAL LAW— Attachment. Our stat-
ute, which provides that an attachment may be
sued out in equity for the recovery of damages for a
wrong, is constitutional. A suit in equity may, under
the provisions of said statute, be maintained to recover
damages for the breach of a marriage contract. — Mc-
Kinsey v. Squires, W. Va., 9 S. E. Rep. 65.

22. Constitutional Law— Occupation Tax. Acts

Tex. March 11, 1881, and April 4, 1881, prohibiting the
occupation of selling liquors in quantities less than one
qoart, etc., are not unconstitutional, because, as a con-
dition precedent to engaging In such occupation, they
require the tax thereon to be paid in advance for the
term of a year, but permit the tax on other occupations
to be paid quarterly, and require a license to pursue
such occupation, but permit others to be pursued with-
out a license.— FoAey v. State, Tex., 11 S. W. Rep. 108.

28. Constitutional Law —Amendments. Section

I, art. 15, of the constitution of Nebraska, does not
prescribe the form in which propositions by the legis-
lature to amend the constitution shall be made, whether
by bill or Joint resolutions.— In re Senate FUfi, Neb. 41 N.
W. Rep. 981.

24. Constitutional Law— License. Acts Va. 1888-

84, ch. 450, § 65, imposing a tax on the business of selling
coupons out from the bonds of the State is constitu-
tional.— Cu<AMi< V. Commonwealth, Va., 9 S. E. Rep. 16.

26. CONTRACTS— Interpretation. A county adver-
tised for bids per head for taking care of and boarding
"the blind and helpless paupers" of the county, and
"all other paupers" at the poor- farm: Held, that the
county was entitled to show by parol evidence that the
words "other paupers" included only such as were
supported at the poor-farm.— JTirifc v. Brazos County, Tex.,
11 S. W. Rep. 148.

26. Contract— Performance. A party cannot be

excused from performing his contract simply because
performance will be a hardship. — St. Joseph County v.
South Bend, etc. By. Co., Ind., 20 N. B. Rep. 499.

27. Contracts — Orders Payable on Condition.

Where orders drawn on the owner of a building by a
contractor engaged in its construction are made pay-
able when the contractor has completed his contract
up to a certain point, and before such point is reached



Digitized by



Google



428



THE CENTRAL LAW JOURNAL



No. 19



an agreement i:s made between the contractor and
owner by which, on account of the Inability of the
former to go on with the work, he is permitted to dis-
oontinue, and all the liabilities between the parties to
the agreement are canceled, the payee of such orders
cannot sue the owner on them. ~ Lirmehan v, MattJieits,
Mass., 20 N. £. Kep. 463.

28. CoiiTRAOT— Rescission. Construction of con-
tract to build a bridge it being stipulated that for any
reason deemed sufficient to the company it was to have
the privilege by giving one month's notice to annul the
contract, etc. — Hendenon Bridge Co. v. O* Connor ^ Ky.,
11 8. W. Eep. 18..

39. COUNTBROLAIM— Unliquidated Damages. In

an action for the price of merchandise, damages aris-
ing from the non- performance by plalntlflofa build-
ing contract with defendant are not available, by way
of counter claim, under Civil Code Ky. § 96, defining a
"counter claim" as a cause of action in favor of a de-
fendant against a plaintiff, which arises out of the
contract or transaction stated in the petition as the
foundation of plaintifTs claim, or which Is connected
with the subject of the action. — Forbes v. Cooper, Ky., 11
8. W. Bep. 24.

80. OouMTiss— Officers. When a new county la

created by the division of a larger one, the county com-
missioners elected at an election ordered by the
governor in such new county for the election of officers,
merely continue in office until the next general election
for such officers, and until their successors are elected
and qualified. —State v. Fielde, Neb., 41 N. W. Rep. 988.

31. Criminal Law— Rape. On a prosecution for

rape, the issue being defendant's identity, the State
Improperly asked a witness on cross-examination if he
had received a letter from defendant after the commis-
sion of the crime, asking if defendant was accused of
It; as the loss of the letter should first be established.^
Johneon v. State, Tex , 11 8. W. Rep. 106.

82. CRDiniAL Law— Verdict. Though Code Grim.

Proc Tex. art. 716, authorizes an informal verdict, with
consent of the Jury, to be reduced to proper form, the
Jury cannot be recalled, after they have been dis-
charged, to substitute a valid for an invalid verdict. —
£Uis «. State, Tex., 11 8. W. Bep. 111.

38. Criminal Law— Sodomy. On a trial for sodomy,

the testimony of the person on whom the offense was
committed must be corroborated, if he consented, and
the Jury should be so instructed where the question of
consent is In doubt.— Medie «. State, Tex., 11 8. W. Rep.
112.

84. Criminal Law— Larcency. A conviction of

larceny cannot be sustained where the only evidence
tending to connect defendant with the commission of
the crime is that of an accomplice, and the other evi-
dence is merely that larceny was committed. — Smith v.
State, Tex., 11 8. W. Rep. 118.

35. Criminal Law. On an indictment under acts

Hd. 1868, ch. 179, § 2, for knowingly using, and causing
to be used, certain means for causing abortion, letters
from defendant to the girl, containing instructions to
take ergot, a bottle of which was sent with one of the
letters, and minute directions as to ho^ it must be
taken, and naming other means to be employed, are
admissible in evidence.— Jonu v. State, Md., 17 Atl. Rep.
89.

36. Criminal Law— Disorderly House. Bvldence

admissible as tending to show that house was kept for
the resort of lewd persons. — Hereinger v. State, Md., 17
Atl. Rep. 81.

87. Criminal Law— Homicide— Negligence. Under

Pen. Code Tex. art. 579, defining negligent homicide, the
offense is sufficiently charged by an indictment alleg-
ing that defendants, while engaged In running an
engine, did back the engine negligently, without giving
warning, and without looking to see if any one was
likely to be injured, and by said negligence one M was
struck and killed, and that his dangerous position
might have been known by defendants If they had



used that care and caution which one of ordinary pru-
dence would use under like circumstances. — Andereon
V, State, Tex., 11 8. W. Rep. 33.

88. Criminal Law — Murder — Co conspirator.

Where the evidence of one Jointly indicted with de-
fendant for murder which would acquit the latter, if
believed, is excluded on the ground that witness was a
CO conspirator, a conviction will be reversed on appeal,
when the record does not show with reasonable cer-
tainty that witness was aoo-oonsplrator.- Xetcfo v. Com-
monwealth, Ky., 11 8. W. Rep. 27.

89. Criminal Law— Rape. In a prosecution for

assault with Intent to commit rape. It Is not error to
allow the mother of the prosecutrix to testify that
when she first met her daughter after the assault,,
which was on the next day, the daughter made com-
plaint of the outrage.— Zee «. State, Wis., 41 N. W. Rep.
960.

40. Criminal Law — Embezzlement. Under Rev.

St. Wis. § 4667, providing that in a prosecution for em-
bezzlement evidence may be given of **any such embez-
zlem3nt committed within six months next after the
time stated in the indictment," an information for
embezzlement cannot be sustained by evidence of act»
committed before the time stated therein. — State «.
Comkaueer, Wis., 41 N. W. Rep. 968.

41. Criminal Law— Homicide. To sustain a con-
viction of murder in the first degree it is necessary to
show premeditation and deliberation on the part of the
person convicted; therefore, where the proof shows
that the person convicted killed another purposely^
there being no proof of deliberation and premeditation,
a verdict of murder in the first degree cannot be sus-
tained.— y4iidertoi» «. State, Neb., 41 N. W. Rep. 061.

42. Dedication— Acceptance. In order to consti-
tute dedication of land to public use all that is required
is the assent of the owner and the fact of its being
used for public purposes. — PeopU «. Meed, Oal., SO Pac
Rep. 706.

48. Dbbd— Consideration. It Is the settled law of

this State that recital in a deed of the payment of a
valuable consideration for the property therein con-
veyed Is not evidence of such payment as against a
stranger or a creditor of the grantor assailing the deed
as voluntary, and fraudulent as to him.— Ookn v. Wardr
W. Va., 9 6. B. Rep. 41.

44. Dbbd— Notice. A deed to a married woman

and her husband, reciting that it is made in considera-
tion that the heirs and legal representatives of B,.
(whose widow the /erne grantee is) have withdrawn all
claim in and to a certain head -right survey, on which
B had located a head right certificate. Is sufficient to
put prudent persons on Inquiry, and to charge them
with notice of the fact that the /erne grantee's interest
in her separate right in the location of the B certificate
constituted the consideration for which the deed waa
fti^en.— Montgomery v, Noyee, Tex., 11 8. W. Rep. 188.

45. Dbeds— Description. Where a deed containa

two descriptions,— one general, and the other special,-
and they do not agree, the grantee may rely on the de-
scription which is most beneficial to him. — Winter v.
WhiU, Md., 17 Atl. Rep. 84.

46. Dbbd— Trusts. In a deed of trust, in which the

grantor and the cettuie que truetent were mentioned in
their proper places, the name of the trustee was
omitted. He was invested with a discretionary trusty
which he accepted by signing the deed with the
grantor, two days before the acknowledgment by the
latter: Held, that the signatures supplied the blank, and
pointed out the party signing as the person intended
by the grantor to be trustee ; and the omission, being
clerical, should be disregarded in determining the effect
of the deed.— ^oyc€ «. Sikes, Mo., 11 8. W. Rep. 67.

47. DBBD8— Acknowledgment. Where a convey-
ance of land in the republic of Texas was acknowledged
in Ohio before a notary public who was not authorized
by the laws of the republic to take acknowledgments in
such cases, and was registered, the defective aoknow



Digitized by



Google



Vol. 28



THE CENTRAL LAW JOURNAL.



429*



edgment was cured, and the original registration made
valid, by act Texas 1874.— BaJfcer t;. Westcottt Tex., 11 8. W.
Bep. 157.

48. Desobmt and distribution. Where a credkoi

brings an action under a statute permitting actions to
be brought for the debts of a decedent against his heirs,
where there is only a single creditor, an allegation of
the plaintiff that he is the sole creditor of the estate of
defendant's decedent is put in issue by a general de-
nial.— Zwerttemum «. Boienberg, Tex., 11 8. W. Bep. 160.

49. Drainaob— Claims. Construct'on of Laws Oal.

1886, p. 78, providing for payment of claims for work
done and material furnished under drainage act de-
clared unconstitational.— CoZ/oAan v, Dunn, Cal., 20 Pac.
Bep. 787.

60. Ejsctmbnt— Community Property. In eject-
ment by the heirs of a patentee of a head- right certifi-
cate and his wife, claiming the land to have been
community property, against tho grantees of the
patentee alone, the defendants may, to show an out-
standing superior title, introduce a deed from the
patentee to a bona fldt purchaser, executed before the
patent was issued, without connecting themselves with
such grantee. —DamUl v, Bridgei, Tex., 11 8. W. Bep. 181.

51. Ejsotmsnt— Adverse Possession. While it is

true that a plaintiff in ejectment must recover on the
strength of his own title, and not on the weakness
of defendant's, yet long possession and actual and con-
tinued occupancy under claim of title, based upon
deeds of conveyance, are prima fade evidence of title,
even in ejectment. — Hacktrv, JJor/««ttt#, Wis., 41 N. W.
Bep. 966.

68. Blvotions— Service. Under Comp. Laws N. M.

SS 1288 1898, an answer in election contests cannot be
served by posting it on a house once occupied by the
contestant, but vacated before the posting, and fifty
miles distant from his actual place of residence, where
he was publicly living. — VigU v. Pradt, N. Mex., 20 Pac.
Bep. 795.

58. Elsgtioms — Governor. Where neither the

speaker of the house of delegates, nor the Joint as-
sembly of both houses of the legislature convened for
the purpose of opening and publishing the returns of
the election for the office of governor, does in fact
open and publish the returns in respect to said office,
or declare any person elected to that office, this court
cannot by mandamus adjudge the person who appears
from the returns certified to the speaker of the house
to have received the highest number of votes for that
office to be the governor.— Ooffv. Wilson, W. Va., 9 8. E.
Bep. 26.

54. Eubctions — Constitutional Law. Pub. Acts

Mich. 1887, No. 298, providing for election contests by
petition to the probate Judge, and appointment of a
board of examiners to recount the ballots, permits a
candidate to proceed under it only after the decision
of the board of canvassers; and the petition to the pro*
bate Judge should state who had been declared by the
board elected, in order that notice of the contest may
be given to him. — Andrews v, Carney, Mich , 41 N. W.
Bep. 923.

55. Eminent domain— Damages Becoverable. De-
fendant's railroad was properly and skillfully con-
structed along the bank of a stream which supplied
plaintifTs mill pond and water-power below. The
timber of defendant's adjacent land was cut down and
removed for ties, and in consequence the sand of which
the surface was composed washed down Into the
stream, and was deposited in the mill pond, clogging
plaintiff's wheel, and diminishing the retaining capacity
of the reservoir: Held, that plaintiff was not entitled to
damages under Const. Tex. art. 1, § 17.— Trinity ^ S. By,
Co. Meadows, Tex., 11 8. W. Bep. 145.

66. Eminent Domain. Proceedings necessary un-
der North Carolina statute as to eminent domain. —
Allen «. Wilmington <f W. B. Co., N. Car., 9 8. e'. Bep. 4,

57. Estoppel— In Pais. Defendant purchased land

subject to a mortgage thereon previously made by the



grantor. The mortgagee brought suit to foreclose, and
made defendants parties ; but at their instance, and on
their disclaiming any right or interest under their deed,
the case was dismissed as to them: Jleld, that they
could not, after foreclosure. Justify a refusal to sur-
render the premises by setting up a title under the
homestead laws, acquired after they had obtained pos-
session of the premises under the deed from the mort-
gagor.— ^nd«r«m V, Thompson, Ariz., 20- Pac. Bep. 803.

68. Evidence- Parol. Parol evidence held admis-
sible to show deed, note and title bond was intended as-
a conditional sale and not a mortgage. — Wolfe v, Mc-
MUlan, Ind., 20 N. B. Bep. 609.

59. EviDENOB— Parol to Vary Written Agreement.

Bond for a deed mentioning an incumbrance: Held, not
sufficiently definite to exclude parol evidence showing
what kind of incumbrance, when due and payable. —
Bhodes v. Wilson, Colo., 20 Pac Bep. 746.

60. Evidence. The fact that plaintiff, in an actiox^

on a written agreement, has erroneously been allowed
to testify as to some previous negotations, resulting Ixk-
the writing, does not entitle defendant to Introduce
like incompetent evidence as to previous conversations
on the sub]eot,—Oorsuch v. Butledge, Md., 17 Atl. Bep. 76..

61. Executors aud Administrators — Practice.

Under Bev. 8t. Mo. H 170, 228, upon the filing of the an-
nual settlement at the proper time, the court may
during the term order a sale of the realty without peti-
tion and order to show cause.— itey v. Oraham, Mo., II 8»
W. Bep. 65.

62. ExBCUTObs AND ADMINISTRATORS— Judgment.

A Judgment rendered against an adviiiiistratrix, to be
collected out of the assets of the estate anlrnot froii>
defendant personally, in an action biy>ught against the
administratrix Individually under How 8t. Mich. § 5929,
rendering a personal representative liable personally
for failure to pay a debt after a decree of the probate
court directing a distribution of assets is void. — Peck-
Jiam V. Berrien County CircuU Judge, Mich., 41 N. Bep. 926.

63. Factors and Brokers- Commission. — A broker
is entitled to compensation when he procures a pur-
chaser with' whom his principalis satisfied and who
actually contracts for the property but the trade falls
through on account of defect In seller's title. — ConkUn
V. Krakaner, Tex., 11 8. W. Bep. 117.

64. Fraud— Pleading. In an action for damages

for fraud and deceit, an allegation in the complaint
that there was a conspiracy to commit the fraud does
not affect the ground of action, as the gravamen is
fraud and damage, and not the conspiracy.— BracktU v,
Qritwold, N. Y., 20 N. B. Bep. 376.

65. Fraudulent Convbtances. In a suit by a

Judgment creditor to set aside a deed as fraudulent, it
is error to set the deed aside in ioto, as it is valid aad
binding between the parties to the fraud, and only void
as to creditors.— Xove v. Tinsley, W. Va., 9 8. E. Bep. 44.

66. Fraudulent Conveyances- Attachment. An

attaching creditor, having a lien on the property of
his debtor by force of the attachment act, is entitled,
prior to the recovery of Judgment, to the aid of a court
of equity in setting aside a fraudulent conveyance or
incumbrance.— CocXv* Admr. v. Vamey, N. J., 17 Atl. Bep.
108.

67. GUARDIAN AND WARD— Jurisdiction. The pro-
bate court of a county In this 8tate in which real estate
of a ward residing out of this 8tate, under guardianship
by virtue of an appointment of a guardian in another
8tate, is the "probate court having Jurisdiction," upon
an application by the guardian for license to sell such
real estate of the w&rd.— Menage v. Jones, Minn., 41 N. W.
Bep. 972.

68. HOMESTEAD. A homestcad assigned under

Code Tenn. (Mill. & V.) § 2910, upon the death of the
debtor vests in his second wife and their minor child,
though the assignment was made during his marriage
with his first wife. — National Bank of Pulaski v. ShtUon,
Tenn., 11 8. W. Bep. 95.

69. Infancy- Contracts — Batificatlon. Passive



Digitized by



Google



430



THE CENTRAL LAW JOUENAL.



No. 19



acquiescence by a married woman in a deed executed
by her and her hasband, while she was an infant and
<sovert, will not, however long continued amount to a
ratification while ooyerture still exists.— 5^1 v. Barris
Ark., 11 8. W. Rep. 104.

70. IKJUNOTION— Bonds. Where, after a hearing in

equity for an injunction, the ill, on its merits, is dis-
missed, and the dismissal entered on the docket, an
action may be sustained on the bond given to procure
the preliminary injunction, without a formal decree
being signed and filed.— Thurston v. HtukeU, Me., 17 All.
Rep. 78.

71. Injunction— Jurisdiction. A court of equity

has no jurisdiction to enjoin the secretary of State from
•delivering to the speaker of the house of delegates the
sealed returns of an election for governor, properly
transmitted to him, and such injunction, if granted, will
be treated as a nullity.— Fleming v. GuthriCt W. Va., 9 8.
£. Rep. 23.

72. Injunction — Prosecution of 8uit in Sister State.

The Massachusetts courts will not enjoin a citizeQ

of that State from prosecuting a suit in a State court of
South Carolina to foreclose a mortgage of land situated
there, by reason of the fact that the supreme court of
■that State, entertains views of the law which governs
the rights of the parties differing from those held by
the Supreme Court of the United States. — Carson v.
Dunham, Mass., 20 N. E. Rep. 312.

78. INSOLVBNCT — Injunction. In Maryland the

jurisdiction of the circuit and common pleas courts
over insolvency proceedings is of a limited nature, be-
ing prescribed by statute ; and they have no power to
grant injunctions in such proceedings, except in the'
single i^tance provided for by act 1880, ch. 172, where
an inquiry is instituted to determine the insolvency of
a debtor.— Pott^ v. Locust Point Co., Md., 17 Atl. Rep. 77.

74. Insurance— Reformation. Where it is sought

to show that a policy of insurance on the property of,
and in favor of, a corporation was so drawn by mistake,
and was really intended to cover merely the interest
of a stockholder in such corporation, it is incumbent
on the insurance company to prove the mistake by evi-
■dence entirely plain and convincing, beyond reason-
able controversy.— .BfaJte Opera-house Co. «. Home Ins. Co.,
Wis., 41 N. W. Rep. 968.

76. INSURANCB— Waiver. By laws of a mutual in-
surance company, providing that all agents shall be
appointed by the secretary, and that no insurance shall
be binding until the cash premium shall have been
actually paid to some *'duly authorized and commis-
sioned" agent of the company, are for the benefit of
the company, and may be waived. — Susquehanna Mut.
lire Ins. Co. v. Elkins, Penn., 17 Atl. Rep. 24.

76. Intoxicating Liquors. A complaint charging

the unlawful keeping of ale, wine, and rum, for sale,
also of "strong and malt and intoxicating liquors," is
not defective for failure to inform defendant as to
whether he is accused of keeping unlawfully liquors in
fact intoxicating, or those deemed by law to be intoxi-
cating.— ^Stote V. McKenna, R. I., 17 Atl. Rep. 61.

77. Intoxicating Liquors — Constitutional Law.



Const. R I. amend. 6, requiring the general assemby to
enact laws to prevent the sale of Intoxicating liquors
**to be used as a beverage," does not take away from
the general assembly the power which it previously
had to restrict the sale, for other purposes, to certain
persons or classes.- 5to^ v. Kennedy, R. I., 17 Atl. Rep.
51.



78. Judgment— Vacation.



In California the trial



court has no power to review its own order setting
aside a judgment for want of service of summons,
where the order was regrularly made after hearing and
consideration.- Hanson v. Hanson, Cal., 20 Pac. Rep. 786.

79. JoDGMBNT- Dismissal. An agreement by a

plaintiff to transfer to another all his interest in the
land which is the subject of litigation, upon being paid
a certain sum, which has not been paid, does not con-
stitute an executed transfer of such interest, so as to



justify a dismissal of the action. — Moloney v. Finnegau,
Minn., 41 N.W. Rep. 979.

80. Judgment- Neg'ligence. In an action under

Rev. St. Tex. art. 2899, by surviving children against a
railroad company for the death of their mother caused
by the alleged negligence of defendant, plaintiffs were
not concluded by a judgment rendered in a suit brought
by their father, for himself only, upon the same cause
of action, to which they were not made parties. — Oal-
veston, H. <f 8. A. R. Co. v. Kutac, Tex., 11 8. W. Rep. 127.

81. Judgment by confession- Partnership. A

confession of judgment under seal, in the name of a
partnership and of a member of the firm, is binding
only upon such member. — Perth Amboy Co. v. Wood,
Penn., 17 Atl. Rep. 4.

82. Landlord and Tbnant— Lease. Construction

of lease providing that "should the premises be rend-
ered partially untenantable by fire or the elements:"
Held, under the facts that the premises were not un-
tenantable within the meaning of the lease. — Harris v.
Corliss, Minn., 41 N. W. Rep. 940.

88. Ltbel— Pleading. In an action for libel, where

plaintiff sets out the parts of the writing oonstltuting
the alleged libel, together with the averments as to its
publication, by reducing the libelous matter to writing,
and reading the same to various persons, it is improper -
to require him to either set out the whole writing, or
file it with the petition. — WaMs v. Walker, Tex., 11 8. W.
Rep. 123.

84. Limitations Under Rev. St. Tex. art. 1868,

where a plaintiff took a voluntary nonsuit, and then
had the judgment set aside, and the cause reinstated
upon the payment of costs, that such nonsuit did not
have the effect to set the statute of limitations in oper-
ation.— CAa<2« V. Mayo, Tex., 11 8. W. Rep. 164.

86. Married Woman— Feme Sole Trader. Where

a married woman has been declared a/nne sale trader,
under act Pa. May 4, 1865, which expressly authorizes



Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 115 of 151)