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29. Criminal Law— Larceny. Defendant's lessor

sold him two calves, the title in them to remain in the
lessor until they were paid for. A dispute arose as to
the debt, and the lessor broke open defendant's corn-
crib, and appropriated the corn, whereupon defendant,
after consultation with an attorney, openly, and in the
day time, sold the calves: Held, that he was not guilty
of larceny.— i^ttcAonan v. State, Miss., 6 8outh. Bep. 617.

80. Criminal Law — Forgery. Defendant is not

guilty of forging tax receipts (alleged to have been
forged by him) which receipts. If true, could not Injure
or defraud, either the 8tate, county or other person. —
Cox 9. State, Miss., 6 8outh. Bep. 618.

31. Criminal Law— Murder. Under the Montana

statute defining murder in the first degree, a charge in
an indictment that defendant feloniously, willfully,
etc., assaulted B, and feloniously, willfully, and of his
deliberately premeditated malice aforethought inflicted
upon E a mortal injury or a mortal sickness of which B

died, is not defective as falling to charge an intent to
kiU.— Territory v. Oodaa, Mont., 21 Pac. Bep. 26.

82. Criminal Law— Habeas Corpus. A writ of error

does not lie in a suit ot the State to review a judgment
in habetu corpus proceedings discharging from Impris-
onment one who has been convicted of a crime, and it
is immaterial whether the court rendering such judg-
ment Issued the writ of habeas corpus in the first instance^
or whether it adjudicated the matter on certiorari to an
inferior court. — State v. Orottkau, Wis., 41 N. W. Bep.

88. Criminal Prosrcution — Limitations. In a

criminal case, when the statute of limitations may be
interposed, the prosecution may show on the trial that
defendant comes within the exception to the statute^
without an averment in the Indictment of the facta
relied upon to toll the statute. — Blackman v. Common-
wealth, Penn., 17 Atl. Bep. 194.

84. Dedication. The vital principle of a common-
law dedication of land for public use is the intention^
which must be unequivocally manifested, and clearly
and satisfactorily appear.— Village of fFhite Bear v, Ste»'
art, Minn., 41 N. W. Bep. 1046.

86. Dbbd. A deed to real property cannot be in-
validated by parol evl:lence showing that there was no
consideration for Its execution, when it contains a re-
cital that a consideration had been received by the
grantor.— ^n/ayton v. Finlityson, Greg., 21 Pac. Bep. 67.

86. Dbbd— Description. The settled rule is that a

deed will not be pronounced void for uncertainty of
description. If by the aid of parol evidence of extrinsic
facts the land intended to be conveyed can be located.
^Dorgan v. Weeks, Ala., 6 South. Bep. 581.

87. Distribution. An heir or devisee of an estate

cannot maintain an action for distribution or partition
until the debts, allowances, and < xpenses against said
estate have been paid or provided for, unless he gave a
bond, with approved sureties, to pay the same. — Alex-
ander v. Alexander, Neb., 41 N. W. Bep. 1066.

88. DDRB88— Levy of Void Tax. Where a tax asses-

ment upon land is void, because the property has not
been described in the assessment roll, the tax collec-
tor's levy and threat to sell to satisfy the tax do not
constitute duress. — Cooper v. Chamberlain, Cal., 21 Pac.
Bep. 14.

89. EJBCTMBNT— Mortgage. Where the evidence

In ejectment shows that the aeed, absolute on its face»
under which plaintiff claims, was in fact given to secure
a debt, and is therefore merely a mortgage, he has
failed to show either title or right of possession.— ^SMttit
V. Smith, Cal., 21 Pac. Bep. 4.

40. EMINENT Domain— Principal and Surety. Code

Civil Proo. Cal. 1872, { 1264, relating to proceedings in
eminent domain, authorizes the plaintiff to take pos-
session, pending the pioceedings upon the execution
of a bond, etc. : Held, that it is not necessary to make a
demand on the principal In order to maintain an action
against the sureties on such bond. — Cobum v. Brooks,
Cal., 21 Pac. Bep. 2.

41. Equity. When a debtor's property Is subject

to be lawfully sold under judicial process, and it Is sold
in an Illegal manner, the sale may be held void ; yet if
the debtor sue to recover the property, he can only
succeed by offering to pay the purchase money which
has gone to extinguish his debt. — Oalveston, H, <f S. A»
By. Co. V. Blakeney, Tex., 11 8. W. Bep. 174.

42. BQun-T— Mistake. Where the grantor In a deed

seeks to have the description reformed so as to cover a
smaller quantity of land, the evidence must show be-
yond reasonable controversy that the mistake alleged
was xnxktxul.—Andrews v. Andrews, Me., 17 Atl. Bep. 166.

48. Evidbncb— Production of Papers. Where the

adverse party or bis counsel has a letter with him In
court, he may be called on to produce it, without pre-
vious notice, and, in the event of his refusing, the
opposite party may give secondary evidence.- OveHocib
9. HaU, Me., 17 AU. Bep. 169.

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44. Byidsnos— Mortgage.-

-The evldenoeof a sub

floribing witness to a mortgage, based on an examina-
tion of the record of such mortgage, and tending to
proTe that a copy of the instrument annexed to his
interrogatories corresponds with the record, is not ad-
missible as against the mortgagees, without first
accounting for the original.— Solomon v. Creech, Ga., 9 S.
E. Rep. 166.

46. G^RHIBHMBKT— Lien. Under Rev. St. Tex. arts.

181, 198, a claim for house rent which accrued in favor
of a principal debtor from the garnishee between
the service of the writ of garnishment and the date of
the answer of the garnishee could not be assigned by
the debtor as against the plaintiff. — Oauae v. Cone, Tex.,
11 8. W. Rep. 162.

46. Guardian and Ward. Under Code Civil Proc.

Cal. S 1747, relating to the appointment of a guardian
for an infant, the appearance by petition of the mother
of the minor, in whose care the minor was, and of all
the relatives to whom notice would be requisite, by
their written consent filed in the cause, is proof that
they all had notice of what was in progress, and waived
any more formal notice.— Smith v, BUcailuz, Cal., 21 Pao.
Rep. 16.

47. Highways.. By appealing from the award of

damages In highway proceedings, the land-owner
waives all question as to the regularity of their assess-
ment by the supervisors. — State r. Marland, Wis., 41 N.
W. Rep. 1060.

48. HiQHWATS— Dedication. Where the owner of

land has dedicated it as a public street, and conveyed
lots as bounded by it, he cannot afterwards exclude the
public from using it, or demand compensation for the
land, though there has been no formal acceptance by
the authorities.— ^arH«on County v. Seat, Miss., 5 South,
Rep. 622,

49. HOMBSTBAD— Exemption. Where the purchaser

of a homestead pays the purchase price, and obtains a
title- bond and possession, such person, in order to de-
feat an alleged prior judgment lien against the property,
may show, that at the date of his purchase the prop*
erty was occupied by the grantor and his family as a
homestead.— ^/weU v. Hitchcock, Kan., 21 Pac. Rep. 109.

60. HosBAND AND WiVB— ConveyaQCCs. The courts

of Tennessee will enforce the liability of a married
woman domiciled in Kentucky, on a note payable in
that State, and executed by her there as surety for her
husband, after she had been emancipated according to
the laws of that State from all the disabilities of cover-
ture, and clothed with all the powers of a feme sole, so
far as the right to contract and to sue and to be sued
was concerned.- /2o6er«m v. Queen, Tenn., 11 S. W. Rep.

51. HUSBAND AND WiFB— Wife's Separate Estate.

A husband, with the knowledge and consent of his wife,
receives the proceeds of the sale of her realty, gives
her no note or written obligation to repay it, mingles
it with his means, uses it in his business for years,
keeps no written account of such moneys, then be-
comes insolvent, and some eight or ten years after his
receipt of the money purchases real estate in the name
of his wife, and it is alleged by him and her that it was
paid for with the money so received, and before such
purchase a Judgment is rendered against him for a
debt. The lot is liable to the judgment. — Kanawha
Valley Bank v, Atkinson, W. Va., 9 S. E. Rep. 176.

62. Husband and Wifb— Community Property.

Where a husband, unknown to the wife indorsed notes
belonging to her and delivered them as collateral secu-
rity: Held, that while property acquired by the wife
during coverture is presumptively community estate,
and a sale or mortgage thereof for valuable considera-
tion by the husband to one ignorant of the wife's indi-
vidual rights is valid, the pledgees being Ignorant of
the relationship, could not have given credit in reliance
on that presumption and could not, therefor *, be pro-
tected by it,— Kempner v. Comer, Tex., ll S. W. Rep. 194.

68. Injunction— Trespass. Equity will enjoin the

erection of a fence the effect of which would be to

entirely close the windows of plaintiff's house exclud-
ing both light and air and rendering the house unfit for
habitation.— 5aRJtey v. St, Mary's Female Academy, Mont.,
21 Pao. Rep. 23.

64. IN8UBANGB— Mutual Benefit Society. Held, that

a change of plan on the part of a benefit insurance
society was within the scope of defendant's powers
and not a violation of the contract with plaintiff. — Su-
preme Lodge v, Knight, Ind., 20 N. E. Rep. 479.


"unjust discrimination," under § 2, of the interstate
commerce act (24 U. S. St. at Large, p. 879), is not con-
fined to discrimination by means of some device, as by
a special rate, rebate, or drawback, but is committed
by directly giving different rates to different persons.—
United States v. Tozer, U. S. D. C. (Mo.), 87 Fed. Rep. 636.

66. Joint Tbnanot — Adverse Possession. The

doctrine that |a purchase of an outstanding title by
one joint tenant will be held to be for the benefit of his
co-tenants, and not adverse to them, has no applica-
tion to a case where the tenant buys the Interest of his
CO tenants at a public sale, and thereby obtains, or
attempts and claims td obtain, their title.— Pecjb v. Lock-
ridge, Mo., 11 S. W. Rep. 246.

67. JUDOMBNT. On a bill to review a judgment for

error apparent on the record, no question can be made
as to the correctness of an entry of default, unless the
record shows that a motion to set aside the default was
made and overruled, and an exception taken.— Baker v.
Ludlam, Ind., 20 N. E. Rep. 648.

68. JUDOMBNT— Recitals. A recital, in the record

of proceedings for the sale of a decedent's lands, that
plaintiff, being anon-resident, was notified of the ap-
plication for the sale, by publication in a newspaper
published in the county. Is conclusive on collateral
inquiry unless falsified by the record itself.— Ooodtein v.
Sims, Ala., 6 South. Rep. 687.

60. JuBTiOES OF THE Pbaob— Set-off. When a plea

of set-off claiming a balance of more than |200 is
tendered in a justice's court, the justice should over-
rule the plea for want of jurisdiction, and proceed with
the trial of plalntlfTs demand.— State v, Neumeyer, N. J.,
17 Atl. Rep, 164.

60. JusTiOB OF THB PBAOB — Jurisdiction. The

charter of the city of Kansas provided that suits on tax-
bills might be brought before the city recorder, "or any
justice of the peace in said city, as in other civil cases."
The city of Kansas had been, and was at the time of the
suit on the tax bill in question, a part of Kaw township,
and bad no justices of the peace, except the justices
elected for the township, who had their offices In the
city: Held, that such justices were the justices contem-
plated by the charter. — Harris v. Hunt, Mo., US. W.
Rep. 236.

61. Landlord and Tbnant — Landlord's Lien. A

landlord has a lien upon every part of the crop raised
upon the leased premises.— Knowles v. Sell, Kan., 21 Pac.
Rep. 102.

62. Landlord and Tbnant — Rent. Where a

lessee becomes insane, and a committee is appointed,
and his estate is insolvent, the landlord is entitled to
the rent accruing on a sublease after, but not before,
the time to which the rent on the original lease has
been pald.-Otis v. Conway, N. Y., 20 N. £. Rep. 628.

63. Landlord and Tbnant— Rent. An affidavit

for a distress warrant to enforce a landlord's general
lien for rent Is amendable, under the act of October 6,
1887.— ^ryon< v, Merder, Ga., 9 S. E. Rep. 166.

64. LBA8B8— Reservation. A stipulation in a lease

of a plantation for a year, with the right to continue
two years longer, provided the rent is paid, that the
title to the crops shall vest and remain in the landlord
until he shall have been fully paid, is not void as to
crops grown the last year, as being a sale of things not
in esse,—De Vaughn v. Howell, Ga., 9 8. E. Rep. 178.

66. LiBBL— Privileged Communication. It is libel-
ous to falsely publish that a certain witness in a oase»
<* whose idea of an oath appeared in yesterday's Times»

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T^as arrested after his evidence was taken, on account
•of his criminal eyidenoe." and that in default of bail, he
was committed to Jail, though no particular crime Is
-chtirged.—Oodshalk v. Metzgar, Penn., 17 Atl. Bep. 215.

66. LiXNS — Priority. The Hen upon a mare pre-
scribed for the benefit of the owner of a jack by Mansf.
Dig. S 4406, will not take precedence of a prior recorded
mortgage, executed subsequent to the passage of the
statute.— i^ox^er v. Oayne, Ark., 11 S. W. Rep. 212.

67. Limitation of actions. An account due a

firm cannot on dissolution of the firm, and assignment
of the account to one of Its members, be Included by
him in his individual account against the same debtor,
without the latter's consent, so as to avoid the bar of
the statute of limitations as to It, under Gen. St. Colo. §
2167, providing that the cause of action in a mutual and
open account current shall be deemed to have accrued
at the time of the last Item. — King v. Pott, Colo., 21 Pao.
Bep. 88.

68. Limitation of Actions. The defendant, being

indebted to plaintiff on accounts, agreed In writing **to
waive any and all objections to said accounts which
might be brought against them on account of the
statute of limitations, and hereby renew the promise to
pay whatever balance shall be against us :" ffeld^ that
it was a new promise against which the statute would
run.— 7Va«* v. Wtekt, Me., 17 Atl. Bep. 162.

69. Limitation of actions. — ^ — The statute of limit-
ations to an action by an heir to set aside a deed of his
insane ancestor commences to run at the execution of
the deed, and is a complete bar after the lapse of seven
years, unless the action is brought within three years
after the ancestor's death. — ElUngton v. BUingUm, N.
Oar., 9 8. £. Bep. 208.

70. BfASTER AND Sbrvant — Fcllow-servaut. The

•conductor and engineer of a train are not fellow-serv-
ants of a trackman injured in collision. — Northern P<ic.
B, R, V. O'Brien^ Wash. Ter., 21 Pac. Bep. 82.

71. Master and Sbbv ant— Enticing Servant. Under

-Code Ala. §§ 3757, 3768, making it an offense to entice
servant. It is a defense to a prosecution under such
statute that the defendant had, prior to the written
-contract entered into between the prosecuting witness

and the laborer, verbally employed the latter for a
period which had not expired, although the contract
with the defendant was voidable under the statute of
frauds, the parties to It electing to treat it as valid. —
Tartt V, State, Ala., 6 South. Bep. 677.

72. Mechanic's Libn. Under Bev. St. Mo. § 8176,

the statement must be fairly Itemized, showing the
materials used, the work done, and the price charged ;
and a statement filed by a principal contractor lumping
-the contract price on the one side and the credits on
the other and referring to certain plans and specifica-
tions, is not sufficient. — Rude v, MitcheUy Mo., 11 S. W.
Rep. 226.

78. Mines and Mining. The owner of a placer

claim not being required by any law to designate in his
application for a patent the particular use or character
of his claim, the fact that he designated it in his loca-
tion as a *'placer mining or stone-quarry claim" does
not limit him to the stone- quarry found within the
«lalm, but he is entitled to all mineral deposits found
therein.— .FVee^er v. Sioeeney, Mont., 21 Pac Bep. 20.

74. Mortgages. Where one has a contract for a

-conveyance of land to him and procures another to
complete the payments for him, and such other person
does so and takes the deed In his own name for his ad-
Tances, the transaction constitutes a mortgage between
the parties. — McPherson v. Haytoard, Me., 17 Atl. Bep.

76. Mortgage— Foreclosure. Money received by

a master in chancery in payment of property sold upon
the foreclosure of a mortgage ought, in pursuance of
Bev. St. U. S. § 996, to be deposited with a designated
depositary of the United States, and the clerk is en-
titled to his commission thereon.— Thomas v. Chicago ^
<?. 5. Jty. Co., U. S. 0. 0. (Mich.), 37 Fed. Bep. 648.

76. MOBTQAGB- Assignment. JTeZtf, under the facts

that though there was no clause of defeasance in in-
strument in dispute and the possession of the property
was delivered to the trustee, such instrument must be
deemed a mortgage for the security of the creditors
named in it, and not an assignment for the l>enefit of
creditors, inurring to the benefit of all the creditors of
the grejiiOT.—JIargardine v. Henderson, Mo., 11 S. W. Rep.

77. MUNICIPAL Corporations. A city contracting

for and authorizing the quarrying and disposal of stone
from a ledge in a street, and below the grade thereof*
for unauthorized purposes, becomes liable to the
owner of the soil for the value of the stone as it lay in
the ledge.— Ff;i«A:i v, CUy of MiwneapoUs, Minn., 41 N. W.
Rep. 1060.

78. Municipal Corporations — Ordinances. A

municipal ordinance, authorizing the depot marshal,
or any police officer, to prescribe the place where
omnibuses, hacks, and other vehicles shall stand at a
railroad depot while waiting for passengers, and re-
quiring drivers to obey the directions of the police
officer with reference thereto, is valid. — Ventmamv,
Jones, Ind., 20 K. E. Rep. 644.

79.. Municipal Corporations- Que Warranto. An

officer of a de facto municipality cannot be ousted, at
the Instance of a private relator in quo warranto, on the
ground that such public corporation has no legal ex-
iatence.—StaU v. Vickers, N. J., 17 Atl. Rep. 163.

80. Negligence — Railroad Crossing. Plaintiffs

right to recover barred by his failure to stop, look and
listen before crossing track, though company was neg-
ligent in failing to have the gates down or watchman
present at passing of train. — Oreemoood v. PhU. W, ^ B.
By. Co., Penn., 17 Atl. Rep. 188.

81. Negotiable Instruments- Indorsement. A

negotiable promissory note payable to '*order" must
be transferred, by indorsement of the payee thereof, to
an innocent holder for value, before maturity, in order
to invest the holder with the legal title thereto, and
deprive the maker from pleading his equities and de-
tenBOB.— Calvin v, Sterrit, Kan., 21 Pac. Rep. 108.

82. Negotiable Instrument — Trustees. When

trustees of an estate under a will indorse a promissory
note in their own names, adding thereto the words,
"Trustees Estate of," without a. stipulation that the
trust- estate alone should be responsible, they are per-
sonally liable upon the indorsement. — Roger WUUatns
Nat. Bank v. Groton Manufg Co., R. I., 17 Atl. Rep. 170.

83. Negotiable Instrument — Delivery.


maker of a negotiable promissory note cannot inter-
pose the defense against an innocent purchaser for
value before maturity that the note was not delivered,
when he allowed the payee to deposit it In a table
drawer in an hotel, to be given to the landlord by his
wife, to be held for both parties. — MoCormick v. Holmes,
Kan., 21 Pac. Rep. 108.

84. Negotiable Instruments— Bill of Exchange.

The following instrument: "1866.74. Moss Point, April
16, 1888. Received on board schooner Robert Delmas,
from E. B. Smith, 2,244 barrels of charcoal, for which I
promise to pay to the order of John J. Driscoll, at New
Orleans, the sum of $866.74. Louis Cromer, Master,"— is
not a bill of exchange, and an action may be maintained
thereon against the maker without presenting it in
New Orleans for payment. — Smith v, Cromer, Miss., 6
"South. Rep. 619.

86. Nuisance— Findings. Where the findings are

contradictory a judgment for defendant cannot stand.
- Learned v. Castle, Cal., 21 Pac. Rep. 11.

86. Nuisance- Pollution of Water. The construc-
tion and use of gas-works, the percolations from the
refuse of which pollute and make the water in the wells
of an adjoining land owner unfit for household pur-
poses, and unfit for the use of stock, is a nuisance, and
the party injured thereby is entitled to damages. —
Pensaoola Gas Co, v. Pebley, Fla., 6 South. Rep. 693.

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87. KUISAMOB— Municipal Ck>rporation8. St. Paul

Man. CkMle art. 82, p. 41, doea not confer upon the ooun-
oil the exolualye jurisdiction to determine what con-
stitutes a nuisance, but only authorizes the abatement
of that which is in fact a common nuisance. ~ ffenneatp
V. CU^ of St, Paul, U. 8. 0. 0. (Minn.), 87 Fed. Bep. 665.

88. Pjlbtibs— Publication—Decree. Infants named

as defendants to a bill for the sale of their ancestor's
land to pay debts, against whom an order of publica-
tion is made upon an affidavit of thair non residence,
must show the falsity of such affidavit in direct pro-
ceedings to avoid the decree rendered in the cause, and
cannot attack it collaterally. — Lawaon v, Moorman, Va.,
9 8. E. Bep. 150.

89. Pabtmsbbhip. If one who is a member of a

copartnership, borrows money on his own account, the
credit being given to him, the fact that he afterwards
applies the money to the purposes of the firm will not
render the latter liable therefor. — Ndiional Bankv,
Meader, Minn., 41 K. W. Bep. 1043.

90. Pabtnsrbhip— Exemption. After dissolution

of a firm (but not before it) a partner may, there being
no fraud, claim exemption out of the firm property. —
Qowdy V, Werbe, Ind., 19 K. E. Bep. 784.

91. PABTinBRBHiP — Evidence. In an action to

charge defendant as a member of an alleged partner-
ship, evidence that it was a matter of common notoriety
that a certain business was carried on in the name of
the alleged partnership Is not admissible, in the ab-
sence of evidence that the debt sued for was contracted
because of such notoriety. — Tanner (f Delaney Engine
CO, V. ffaUf Ala., 6 South. Bep. 684.

92. Partnsbship. Plaintiff, a member of a firm,

conveyed to his wife his entire interest in the partner-
ship property, except claims due to it, with the consent
of the defendant, the other partner: Held, that the
partnership interest in the property as between them •
selves was destroyed, although business was carried
on as before.— ffaiton v, McKinnon, Tex., 11 S. W. Bep.

93. Plbadino— Contracts. Where the law requires

a contract to be In writing, an allegation that it was
made will be held to imply that it was made In lawful
form,— StIUweU v. Hamm, Mo., 11 8. W, Bep. 252.

94. Pbbsumptiow— Marriage. A marriage con-
tracted by a woman after the absence of her husdand
for seven years, under such circumstances as raise the
presumption of his death, is void, if he is in fact alive
at the time, though she had good reason to believe and
did believe, that he was dead.— T%oma« v. Thoma$,¥enn.,
17 Atl. Bep. 182.

96. Pbinoipal AMD AGENT— Batiflcation. The facts

held to show ratification by railroad company of con-
ductor's act in employing physician to attend a man
injured in accident. — Terre Haute (f /. Ky. Co. v. Stock-
well, Ind., 20 N. E. Bep. 650.

96. PBmciPAL AND SURBTT. A Creditor who, by

the same contract, has personal security and a mort-
gage upon personal property, having, after maturity of
the debt, received the mortgaged property, by contract
with the principal debtor, in part payment, at more
than its full value at the time ho received it, may pro-

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 126 of 151)