Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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sault and battery sufficient.

36 AM. REP. 126, HARRIS t. TYSON, 63 GA. 620.
Survival of action for tort.

Cited in notes in 63 A. D. 648; 3 L.R.A. 213; 9 L.R.A.(N.S.) 1023,— on abate-
ment of action or cause of action for breach of promise of marriage; 2 E. R. C.
17, on survival of actions of tort and contract.

36 AM. REP. 128, AfELSON v. DICKSON, 63 GA. 682.
Disqualification of Judge or Juror by relationship to counsel.

Cited in Crockett v. McLendon, 73 Ga. 85, on competency of juror who is
second cousin of attorney for plaintiff having fee conditional on recovery;
Roberts v. Roberts, 115 Ga. 259, 90 A. S. R. 108, 41 S. E. 616, holding that judge
related within fourth degree of consanguinity or affinity to counsel for applica-
tion for alimony and counsel fees is disqualified.

Cited in note in 9 A. S. R. 755, on disqualification of juror by affinity.

Right of litigant to Impartial Jury.

Cited in Pearcy v. Michigan Mut. L. Ins. Co. Ill Ind. 69, 60 A. R. 673, 12
N. E. 98, holding it is of high importance to litigant that the triers of his cause
should be impartial and disinterested men; Atlantic Coast Line R. Co. v. Bunn,
2 Ga. App. 305, 58 S. E. 538, holding refusal of proper request that disqualified
jurors be excused is ground for new trial.
Challenge to Jurors.

Cited in notes in 20 L. ed. U. S. 660, on causes of challenge of jurors and
their qualifications; 41 L. ed. U. S. 105, on challenges to jurors and to the array.
Malice and want of probable cause as essentials of malicious prosecution.

Cited in Wilcox v. McKenzie, 75 Ga. 73, holding action to recover damages for
suing out and levying an attachment, and for instituting proceedings to obtain,
and serving summons of garnishment, not maintainable without proof of mal-
ice and want of probable cause; Lanier v. Kelly, 6 Ka. App. 738, 65 S. E. 692,
to the point that if eviction is accomplished by legal process tenant cannot sue
in trespass, but might sue in malicious prosecution by showing malice and want
of probable cause.
"False" imprisonment.

Cited in Joiner v. Ocean S. S. Co. 86 Ga. 238, 12 S. E. 361, holding where
arrest is by valid process regularly sued out, action for malicious prosecution ii
only remedy; Page v. Citizens' Bkg. Co. 11 Ga. 73, 78 A. S. R. 144, 51 L.R.A.
463, 36 S. E. 418, holding imprisonment resulting under valid warrant is not
false imprisonment; Michael v. Bacon, 6 Ga. App. 331, 63 S. E. 228, holding
that imprisonment from arrest under valid warrant cannot be false imprison-
ment.
Equitable ground of set-off in proceeding at law.

Cited in Hecht v. Snook & A. Furniture Co. 114 Ga, 921, 41 S. E. 74, on right
of defendant to set up to proceeding at law any equitable ground of set-off hs
may have by reason of insolvency.
Am. Rep. Vol. XVH.— 67.



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86 AM. REP.] NOTES ON AMERICAN REPORTS. lOM

36 AM. REP. 129, HOFFMAN T. BARTHELMESS, 63 GA. 759.
I>etectlTe*8 right to Hen on property obtained from wron^nl holder.

Cited in Jones' Liens, 2d ed. § 495, on detective officer's right to lien on prop-
erty of which he obtains possession by compelling the wrongful holder by ar-
rest, to recall it before delivery to the owner to whom he has sent it.

36 AM. REP. 182, ANGELO v. PEOPIiE, 99 UjIj. 209.
Criminal liability of children.

Cited in reference notes in 40 A. R. 750; 4 A. S. R. 210,— on infant's capaci-
ty to commit crime.

Cited in notes in 70 A. D. 497, on infant's responsibility for crime between
ages of seven and fourteen; 36 L.R.A. 197, on criminal liability of children;
36 L.R.A. 200, on prima facie presumption as to nonliability of children crim-
inally.

Presamption of incapacity to commit crime In Infants between seTcn
and fourteen.

Cited in Singleton v. State, 124 Ga. 136, holding determination of capacity
of infant defendant to commit crime taken from jury by unqualified instruction
they ought to find him guilty if he was ten years of age and they believed him
guilty as charged; Lammert v. Chicago & A. R. Co. 9 111. App. 388, holding
under statute, infant ten years old is presumably both incapable of crime and
ignorant of the law; State v. Adams, 76 Mo. 356, holding presumption of in-
capacity of infant between ages of seven and fourteen years to commit crime
must be overcome by evidence strong and clear beyond all doubt and contra-
diction; People V. Domenioo, 46 Misc. 309, 92 N. Y. Supp. 390, 19 N. Y. Crim.
Rep. 8; People v. Squazza, 40 Misc. 71, 81 N. Y. Supp. 254, holding imder stat-
ute, presumption of incapacity of infants between ages of seven and twelve
to commit crime can only be overcome by affirmative proof of capacity to un-
derstand act complained of and to know its wrongfulness; State v. Fisk, 15 X.
D. 589, 108 N. W. 485, 11 A. & E. Ann. Cas. 1061, holding under statute pre-
sumption of incapacity cannot be overcome without clear proof accused knew
wrongfulness of act at time of its commission.
Misconduct of counsel in argument of criminal case.

Cited in State v. Martel, 103 Me. 63, 68 Atl. 454, holding defendant's case
not prejudiced where defendant's counsel interrupted remarks complained of
and his criticisms and objections were sustained .by court, and holding also new
trial in such case should be sought by motion, not by exceptions; United Stated
V. Musser, 4 Utah, 153, 7 Pac. 389 (dissenting opinion), on duty of counsel to
refrain in argument from reference to matters in nature of evidence not in proof
before jury,
— Comment on failure of accused to testify.

Cited in Quinn v. People, 123 111. 333, 15 N. E. 46; Jackson t. People. 18 TIL
App. 508; Gilmore v. People, 87 111. App, 128; People v. Morris, 3 Cal. App.
1, 84 Pac. 463, — holding judgment reversible on ground counsel for prosecu-
tion remarked to jury upon failure of defendant to testify; State v. Baldoser,
88 Iowa, 55, 55 N. W. 97, holding under statute new trial must be granted
on ground counsel for state stated to court in presence of jury that defense
had right to put defendant on stand; Reg. v. Corby, 30 N. S. 330, holding de-
fendant in trial for larceny entitled to new trial because prosecutor commented o&
fact that his wife did not testify in his behall.



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1059 NOTES ON AMERICAN REPORTS. [129-135

Distinguished in Petite v. People, 8 Colo. 518, 9 Pac. 622, holding judgment
of conviction not reversihle on ground of comment to jury by attorney for pros-
ecution on fact defendant did not testify; Bradshaw v. People, 153 111. 156, 38
N. E. 652, holding judgment of conviction of abduction not reversible because
prosecutor in his opening argument to jury said: ''The enticing and taking
%way of the prosecuting witness is not denied by the defendant."
Continent by oonrt on failure of accused to testify.

Cited in Miller v. People, 216 111. 309,. 74 N. E. 743, holding it is reversible
error for court to say to jury concerning defendant: "He is here and can an-
swer for himself."

Cited in reference note in 62 A. S, R. 772, on instructions to jury.
Presumption from failure to examine witness.

Cited in reference note in 80 A. S. R. 811, on presxmiption from failure to ex-
amine witness.

36 AM. KEF. 185, PEOPIiE EX. RBL. BRANSOM T. WALSH, 06 UJL.

232.
liegislative control of streets, parks, and other public property.

Cited in Cicero Lumber Co. v. Cicero, 176 111. 9, 68 A. S. R. 165, 42 L.R.A.
696, 51 N. E. 758, holding legislature has authority to confer upon munici-
pality power to limit use of street to particular purpose benefiting entire public
such as its use for pleasure driveway; Harder's Fire Proof Storage & Van Co.
V. Chicago, 235 111. 58, 85 N. E. 245, 14 A. k E. Ann Cas. 536, holding legis-
lature may authorize municipalities to exact license fee for use of their streets;
Chicago V. Illinois Steel Co. 66 111. App. 561, on power of legislature concern-
ing use of streets.

Cited in reference notes in 35 A. S. R. 536, on state control over property held
by municipality for public purposes; 68 A. S. R. 168, on legislative control over
streets.

— Transfers of power from one body to another.

Cited in McCormick v. South Park, 150 111. 516, 37 N. E. 1075, holding leg-
islature has power to change possession and control of public trust in streets,
regardless of where fee is lodged; Ward v. Field Museum, 241 111. 496, 89 N. E.
731, holding that park boards are creatures of legislature for purpose of ad-
ministering certain functions and legislature may transfer their powers; Chi-
cago v. Pittsburg, C. C. & St. L. R. Co. 242 111. 30, 89 N. E. 648, holding that
legislature may transfer to park board jurisdiction over streets leading to park ;
Simon v. Northrup, 27 Or. 487, 30 L.R.A. 171, 40 Pac. 560, holding legislature
may grant control of city highways to some governmental agency other than
city; Spring Water Co. v. Monroe, 55 Wash. 195, 104 Pac. 202, to the point
that legislature may transfer control of streets to body foreign to corporation
and moneys to repair same.

Cited in reference note in 62 A. S. R. 98, on delegation of control of highways
to municipal corporations.

Cited in note in 16 L.R.A. 695, on authority of legislature to remove muni-
cipality from trusteeship.

— Establishment of parks and park commissions.

Cited in Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207, sustaining constitu-
tionality of law authorizing establishment of parks by cities of designated
class and levy of tax by park commissioners for park purposes; West Chicago



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36 AM. REP.] NOTES ON AMERICAN REPORTS. lOSO

Park V. McMullen, 134 111. 170, 10 L.R.A. 215, 25 N. E. 676, sustaining constito-
tionality of statute giving cities power to vest control of streets in park coen-
missioners for park and boulevard purposes.
liocal control of streets and parkways.

Cited in Chicago v. Carpenter, 201 111. 402, 66 N. E. 362, holding under stat-
ute jurisdiction over and right to improve street running longitudionallT
along and adjoining park rests in park commissioners and not in city; Park ▼.
Adams County, 3 Ind. App. 636, 30 N. E. 147, holding where duty of caring for
streets is placed by legislature upon independent public agencies to be exercised
within municipality but independent of control by it, corporation is not charge-
able with their action, or negligence, in performance of their duty.
Legislative control over political subdivisions.

Cited in McLean County v. Bloomington, 106 111. 209, holding legislature mij
authorize levy of special assessment by city upon county property for improve-
ment of adjacent streets; Richland County v. Richland Center, 59 Wis. [email protected],
18 N. W. 497, holding fund derived frobi liquor licenses in village, even if
granted to county absolutely by legislature may be taken from it by legisla-
ture.
Capacity in which city holds fee of street.

Cited in Holm v. Windsor, 38 111. App. 650; Chicago v. Union Bldg. Assa
102 111. 379, 40 A. R. 698, — ^holding city holds fee of streets for use of entire
public, not for use of citizens of city alone; Smith v. McDowell, 148 111. 51,
22 L.R.A. 393, 35 N. E. 141, holding statutory power of municipal corpora-
tions to vacate streets is not absolute to be exercised in discretion of munici-
pal authorities, without regard to public necessity of such action.
Status of park commissioners.

Cited in West Chicago Park v. Western U. Teleg. Co. 103 111. 33, holding
park commissioners are corporate authorities and have power to condemn land
for purpose of connecting their own park district with that of another board of
commissioners.

Distinguished in West Chicago Park v. Chicago, 152 111. 392, 38 N. E. 697,
holding park commissioners are municipal, not quasi municipal corporations.
Change in uses of public lands.

Cited in Clingman v. Worlds' Columbian Exposition, 3 111. C. C. 462, holding
that legislature has power to divert use of park land to other than park pur-
poses.

Distinguished in Davis v. Nichols, 39 111. App. 610, holding land in use as
public square of village cannot be appropriated for school house site.
Questioning legality of acts of public officers.

Cited in Hogue v. Corbit, 156 111. 540, 47 A. S. R. 232, 41 N. E. 219, on
presumption that public officer has done his duty, when legality of his acts
is questioned collaterally; Aldis v. South Park, 171 111. 424, 49 N. E. 565, hold-
ing legality of action under which park commissioners acquire street may be
tested by quo warranto.

36 AM. REP. 148, CRAW v. TOLONO, 96 UjIj, 255.
Distinction between special taxation and special assessments.

Cited in Illinois C. R. Co. v. Decatur, 147 U. S. 190, 37 L. ed. 132, 13 Sup.
Ct. Rep. 293 (affirming 126 HI. 92, 1 L.RA. 613, 18 N. K. 815), holding



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1061 NOTES ON AMERICAN REPORTS. [135-143

whether called special taxes or special assessments costs laid upon contiguous
property for grading and paving streets are charges for local improvement cast
upon contiguous property upon assumption it has received benefits and they
axe not taxes proper; Enos v. Springfield, 113 111. 65, holding statutory provi-
sions for ascertaining benefits on special assessment proceedings, have no bear-
ing in proceeding by special taxation; Sterling v. Gait, 117 111. 11, 7 N. E. 471,
holding special assessment cannot exceed benefits property will derive from
improvement, and owner has right to have this question passed on by jury, and,
if dissatisfied, to have their decision reviewed by appellate tribunal, while, in
■case of special taxation, jury have nothing to do with amount assessed upon
contiguous property; Davis v. Litchfield, 145 111. 313, 21 L.R.A. 663, 33 N. E.
888, holding special taxation diflTers from assessment for special benefits only,
that in the one benefits are ascertained in mode prescribed by law; in the other,
they are determined by municipal authority; Davis v. Litchfield, 156 111. 384,
40 N. E. 354, holding where local improvement is to be made by special as-
sessment owners of property assessed have right to have question of benefits
passed on by jury, but such right does not exist where proceeding is by special
taxation of contiguous property.

Cited in notes in 3 L.R.A. 472, on special taxation and special assessment;
35 L.R.A. 34, on distinction in meaning between the phrases "local assessment"
and "taxation."
Enforcement of special tax or assessment In personam.

Cited in Virginia v. Hall, 96 111. 278, holding cost of sidewalk constructed by
municipality cannot be made personal charge against abutting property owners;
Owners of Lands v. People, 113 111. 296, holding special assessment upon prop-
erty specially benefited by proposed improvement, is not charge against person,
but only against property specially assessed; Shepherd v. Sullivan, 166 111.
78, 47 N. E. 720, holding action of debt will not lie against abutting property own-
er by city to collect cost of constructing sidewalk; Job v. Alton, 189 111. 256, 82
A. S. R. 448, 59 N. E. 622; Illinois C. R. Co. v. People, 170 111. 224, 48 N. E.
215, — holding statute, providing modes of determining cost of sidewalks and
of collecting special taxes therefor, constitutional except in regard to provi-
sions making lot owner personally liable; Hoover v. People, 171 111. 182, 49
X. £. 367, holding judgments for special taxes are in rem; Lemont v. Jenks,
197 III. 363, 90 A. S. R. 172, 64 N. E. 362, holding neither special tax nor
special assessment is personal charge; Marshall v. People, 219 111. 99, 76 N.
E. 70, holding special tax warrant void in so far as it authorizes an execu-
tion; Louisville N. A. & C. R, Co. v. State, 8 Ind. App. 377, 35 N. E. 916,
holding tax levied for making public improvements such as roads, streets, side-
walks, alleys, drains, sewers, etc., contiguous to, or of special benefit to par-
ticular lands, is not personal; Edward C. Jones Co. v. Perry, 26 Ind. App. 554,
57 N. E. 583 (dissenting opinion), on constitutionality of statutes authorizing
personal judgment against property owners for street improvement; Raleigh v.
Peace, 110 N. C. 32, 17 L.R.A. 330, 14 S. E. 521, holding that statute author-
izing personal judgment for special assessments for local improvements is un-
constitutional.

Cited in notes in 42 A. S. R. 660, on personal liability for assessments:
133 Am. St. R. 936, as to whether a personal liability may be created for an
assessment; 35 L.R.A. 62, on power to create personal liability for local-im-
provement assessments.

Distinguished in Colfax Highway Comrs. v. East Lake Fork Special Drainage



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86 AM. REP.] NOTES ON AMERICAN REPORTS. lOO

Dist 127 111. 581, 21 N. E. 206, holding benefits of drainmge assessed agaiBift
public roads, though assessed because of ownership of the property are not charge
against that or any other specific property, but simply charge against mmie^
ipality in which roads lie, to be paid from its revenues; Dewey v. D«
Moines, 101 Iowa, 416, 70 N. W. 605, sustaining c<m8titutionality of statute
authorizing personal judgment against property owner for amount of special
assessment for street improvements; Storrie v. Ck>rte8, 00 Tex. 283, 35 L.RJL
666, 38 8. W. 154, holding cost of street improvement may be made perscma)
charge against person of property owner.

Limited in Illinois C. R. Co. v. East Lake Fork Special Drainage Dist. 129
111. 417, 21 N. B. 025, holding personal judgment could not be levied against
corporation for amount of special assessment for drainage.
lilmitation of special tax or assessment to benefits accruing.

Cited in Bloomington v. Chicago & A. R. Co. 134 IlL 451, 26 N. £. 366, hold-
ing special taxes for local improvements like special assessments are justified
on ground that subject of tax receives an equivalent; Kuehner v. Fre^>ort, 143
111. 02, 17 L.RJL 774, 32 N. E. 372, holding special taxation is justifiaUe oalj
upon basis of benefits to property taxed by making of improvement for whidi
levied; Lightner v. Peoria, 150 111. 80, 37 N. E. 69, holding imposition of spe-
cial tax to defray cost of improvement is, of itself a determination that bene-
fits to contiguous property will be as great as imposed burden; Rich v. Chicago,
152 111. 18, 38 N. E. 255, holding in making special assessments for local im-
provements measure of benefits assessed is to be determined by increased market
value of res against which assessment is made; Gauen v. Moredock & I. L.
Drainage Dist. No. 1, 131 111. 446, 23 N. E. 633, on limitation of assessments
by drainage districts to property benefited.

Cited in notes in 14 L.R.A. 759, on right to charge burden of street improve-
ments on abutting lot directly; 17 L.R.A. 330, on constitutionality of frontags
rule of assessment; 28 L.R.A.(N.S.) 1153, 1169, 1196, on assessments for im-
provements by front-foot rule.

Limitations on power of municipality to tax or assess for local improve*
ments.

Cited in Wilbur v. Springfield, 123 111. 395, 14 N. E. 871; Springfield v. Green,
120 111. 269, 11 N. K 261, — holding ordinance requiring assessment upon abut-
ting property of cost of improving street or sidewalk according to proportional
frontage not unconstitutional where cost is to be raised by special taxation;
Bloomington v. Chicago & A. R. Co. 134 III. 451, 26 N. E. 366, holding power
of city council to declare what shall be a local improvement is an implied pow-
er and ordinance exercising it must be reasonable, otherwise it is void; Bloom-
ington V. Latham, 142 111. 462, 18 L.R.A. 487, 32 N. E. 506, holding ordinance
requiring judgment in condemnation for land taken, and damages for land not
taken to be assessed back by special taxation upon abutting property in propor-
tion to frontage is unreasonable; People ex rel. Gleason v. Yancey, 167 HI.
255, 47 N. E. 621, on power of cities to impose special taxation upon con-
tiguous property for local improvements; Job v. Alton, 189 111. 256, 82 A. S. R.
448, 69 N. E. 622, holding property owner protected against abuse of power of
cities and villages to impose special taxation upon contiguous property for
local improvements by requirement that ordinances must be reasonable to bo
valid.



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1068 NOTES ON AMERICAN REPORTS. [143-147

C^ted in note in .35 L.R.A. 38, on liability to local assessment for benefits,
of public property exempt from taxation.

Limited in McLean County v. Bloomington, 106 111. 209, holding city may
levy special assessment upon county property for improvement of adjacent
streets.
Ck>nclusiTeness of amounts of special tax or assessment.

Cited in Hull v. People, 170 111. 246, 48 N. E. 084, holding prior to amendment
of 1895, to City and Village Act, question whether special tax was based on bene-
fits equivalent thereto could be conclusively determined by city council; Pier-
son V. People, 204 III. 456, 68 N. E. 383, holding determination by city council
that sidewalk should be constructed by special taxation is determination that
property specially taxed is benefited to extent of special tax; Harris v. Peo-
ple, 218 m. 439, 75 N. E. 1012, holding same as to same determination by vil-
lage board; Palmer v. Danville, 154 III. 156, 38 N. E. 1067, holding validity of
ordinance levying tax for local improvement, also of proceedings thereimder,
subject to attack in and review by courts; East St. Louis v. Illinois C. R. Co.
238 111. 296, 87 N. E. 407, holding that courts can review apportionment of spe-
cial assessments for local improvements.
Reassessment of speecial assessment.

Cited in note in 6 L.RJL 803, on reassessment of special assessment for local
improvement.

What constitutes tax.

Cited in East St. Louis ▼. Trustees of Schools, 102 111. 489, 40 A. R. 606, hold-
ing license is not a tax within meaning of constitution and statutes.

36 AM. REP. 147, COMPTON v. BUNKER HILIj BANK, 96 ILL. SOI.
Duress by threat of imprisonment or arrest.

Cited in Loan & Protection Asso. v. Holland, 63 111. App. 58, holding threat
must be of unlawful use of process in order to be coercion; Sanford v. Sorn-
borger, 26 Neb. 295, 41 N. W. 1102, holding contracts made under fear of un-
lawful imprisonment can be avoided for duress while those made under fear of
lawful imprisonment cannot be; Phillips v. Henry, 160 Pa. 24, 40 A. S. R. 706,
28 Atl. 477, as to whether threat of lawful arrest constitutes duress.

Cited in reference note in 15 A. S. R. 463, on essentials of duress.

Cited in notes in 26 L.R.A. 52, on relief in equity against contracts procured
by threats to prosecute relative; 26 L.R.A. 60, on contracts procured by threats
to prosecute husband or wife.
Duress by third person.

Cited in Schultz v. McLean, 93 Cal. 329, 28 Pac. 1053, holding equity will
cot relieve a partaker in wrong doing as against a third person ; Cason v. Cason,
116 Tenn. 173, 93 S. W. 89, holding duress by third party will not avoid deed
as to grantee having no knowledge of the duress; Rock ▼. Mathews, 35 W. Va,
631, 14 L.R.A. 508, 14 S. E. 137, on validity of security taken by a surety when
obtained by duress by party not acting for surety.

Cited in reference note in 30 A. S. R. 338, on duress per minas.

Distinguished in Thompson ▼. Niggley, 53 Kan. 664, 26 L.R.A. 803, 35 Pac
290, holding one has no right to enforce civil demand by threats of prosecution
for offenses in no wise connected with such demand.
Validity of deed given in consideration of stay of prosecution.

Cited in Gregor v. Hyde, 10 C. C. A. 290, 27 U. S. App. 75, 62 Fed. 107,



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86 AM. REP.] NOTES ON AMERICAN REPORTS. IW

holding under local statutes deed could not be set aside on ground of threat to
prosecute grantor's son, where threat was of lawful prosecution if made u
alleged; Shattuck v. Watson, 63 Ark. 147, 7 L.R.A. 661, 13 S. W. 516, holdinf
relief cannot be granted to father against notes and mortgage executed bv
him in consideration that his son, who was guilty of felony, would not be prosf-
cutcd; Burton v. McMillan, 62 Fla, 228, 11 L.R.A.(N.S.) 159, 42 So. 879,
holding neither party can assert any right imder deed illegal because given in
consideration of compounding a felony; Turley v. Edwards, 18 Mo. App. 676,
holding if mother knowingly, and without compulsion executes notes and deed
of trust in consideration that her son be not prosecuted, she can have no stand-
ing in equity for affirmative relief.
— Deed by wife to save husband.

Cited in Barhydt v. Clark, 12 111. .App. 646, on execution of deed of ber
separate property by wife to save her husband from arrest or prosecution-
Cited in note in 38 A. R. 624, on avoidance of deed executed by married



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 103 of 123)