ACCIDENT POLICY-See LIFE INSURANCE.
ACTION BY MARRIED WOMAN-
Right of action-By married women-Determined by statute in
force when right accrued-Section 4986-A right of action
accrued to H., a married woman, before section 4986, Revised
Statutes, was amended March 26, 1883, so as to remove her dis-
abilities as to actions concerning her separate property: Held,
that her rights must be determined by the statute of limitations
in force at the time her right of action accrued, and the removal
of her disabilities by said amendment did not have the effect
to cause the statute of limitations to begin to run against
her. Ham v. Kunzi, 531.
ACTION CONCERNING TRUST IN LAND-See COMPETENCY
OF TESTIMONY.
Action for libel-Punitive damages-Evidence by defendant as to
his feelings toward plaintiff competent, when-Where, at the
trial of an action for libel, the plaintiff has given evidence tending
to show a right to recover punitive damages, evidence by the
defendant as to his feelings towards plaintiff, and his motives
in the publication, is competent as bearing upon the question
of such damages. Henn v. Horn, 442.
ACTION ON PERSONAL JUDGMENT-
1. Action on personal judgment--Competent to plead in defense
that defendant was not served with process—Though record shows
otherwise-In an action on a personal judgment, whether
rendered by a court of this state or elsewhere, it is competent
to plead and prove in defense, though it be in contradiction of
the record, that the defendant was not served with process, nor
jurisdiction of his person otherwise obtained by the court
rendering the judgment. Kingsborough v. Tousley et al., 450.
2. Rule as to collateral impeachment-Such a defense is not within
the rule which forbids the collateral impeachment of judgments
but is in the nature of a direct attack upon the judgment. Id
3. Answer not defective, when-An answer in such case is not de-
fective because it fails to state a defense to the cause of action
on which the judgment is founded. Id.
Action for Malicions Prosecution--Adulteration.
ACTION FOR MALICIOUS PROSECUTION—
Action for malicious prosecution-May be maintained, when--In
order to maintain an action for malicious prosecution, it must be
shown that the prosecution was legally terminated before the
commencement of the action; but it is not essential that the
plaintiff shall have been acquitted of the charge on a trial of
the merits; the entry of a nolle prosequi, followed by his dis-
charge is sufficient. Douglas v. Allen, 156.
ACTION TO ENFORCE TRUST-See Deed of Land IN TRUST;
COMPETENCY OF TESTIMONY.
ACKNOWLEDGMENT OF SIGNATURE-See Wills, 7.
ADMITTING WILLS TO PROBATE-See WILLS, 1.
ADMISSIBILITY OF EVIDENCE-See COMMON CARRIER;
LIABILITY OF, 5; NUNC PRO TUNC Order; Trial oF BASTARDY
SUIT: ACTION FOR LIBEL.
ADULTERATION OF FOOD AND DRUGS-
1. Pure food law-Authority of U. S. Pharmacopoeia-Provi-
sions of statute-The United States Pharmacopoeia is adopted
by the statute providing against the adulteration of food and
drugs, (81 O. L., 67, and 87 O. L., 248,) as an authoritative compi-
lation comprising accepted and known articles of drugs, with a
description of their characteristics and qualities, and an
approved standard of their strength and purity. The State v.
Hutchinson, 82.
2. Whiskey-Drug within the statute-Whiskey is recognized by
that name in the Pharmacopoeia, where its proper standard of
purity and strength is laid down, and is a drug within the
meaning of the pure food and drug statute. Id.
3. Object of the statute-While that statute is mainly designed
for the better perservation and promotion of the public health,
it is also directed against frauds resulting from the sale of
inferior articles for prices which entitle the purchaser to those
that are of the required standard. Id.
4. Scope of the provisions of the statutes-The provisions of the
statutes relating to the sale of drugs, are not limited in their
application, to sales by druggists and pharmacists, nor to sales
for medicinal or pharmaceutical use, but they extend to all
persons without regard to their vocation, and make no distinc-
tion on account of the use intended to be made of the article. Id
5. Sale of adulterated whiskey an offense within statute-The sale
of whiskey which is adulterated within the meaning of the
statute, is an offense against its provisions, though it be sold as
a beverage or commercial commodity, and by one who is
neither a druggist nor pharmacist. Id.
Agency-Bequest to University.
AGENCY-See COMPETENCY OF TESTIMONY.
AGREEMENT BY ATTORNEY TO PREVENT INDICTMENT
-See ILLEGAL CONTRACTS.
AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR-
See LAW OF CONTRACTS, 3.
APPEAL FROM PROBATE TO COMMON PLEAS-See WILLS, 2.
APPEAL TO COURT FROM DECISION OF ADVISORY COM-
MITTEE-See RELIEF DEPARTMENT OF RAILWAY COMPANY.
APPLICATION TO PROBATE WILL-See Wills.
APPOINTMENT OF BOARD OF EQUALIZATION-See CON-
STITUTIONAL LAW, 1.
ASSESSMENT BY BOARD OF EQUALIZATION-See CONSTI-
TUTIONAL LAW, 1.
ASSESSMENT BY CITIES FOR WATER RENT-See CONSTI-
TUTIONAL LAW, 4, 5; CONFLICT OF LAWS, 2.
ASSESSMENT FOR CONSTRUCTION OF DITCHES-See
STATUTE OF LIMITATION; ASSESSMENT UPON LANDS,
ASSESSMENT ON NATIONAL BANK SHARES-See TAXATION
OF PERSONAL PROPERTY.
ASSESSMENT UPON LANDS-See TAXATION OF LAND, SUIT TO
ENJOIN.
Assessment upon lands-For construction of township ditch-Suit
to enjoin-Premature if trustees have taken no steps to make the
assessment —A suit to enjoin the assessment upon the lands of
the plaintiff of a portion of the costs of constructing a town.
ship ditch upon the ground that his lands will not be benefited
thereby, is prematurely brought if the trustees have taken no
steps to make such assessment; and unless the trustees in their
answer assert the right or admit their intention to make such
assessment, a judgment in favor of the plaintiff for an injunction
for costs, is erroneous. Lutman et al. v. Railway Co., 433
ASSIGNMENT FOR BENEFIT OF CREDITORS—See EXECUTION
AGAINST PERSONAL PROPERTY.
ASSIGNMENT OF ERROR-See WILLS, 5.
ATTACHMENT, MOTION TO DISCHARGE-See MOTION TO DIS-
CHARGE, ETC.
BASTARDY SUIT, TRIAL OF-See TRIAL OF BASTARDY SUIT.
BENEFICIARY FEATURE OF RAILWAY COMPANY-See RE-
LIEF DEPARTMENT OF RAILWAY COMPANY.
BEQUEST TO UNIVERSITY-See WILLS, 8.
Board of Equalization-Building Contract.
BOARD OF EQUALIZATION—See CONSTITUTIONAL LAW, 1.
BUILDING CONTRACT-
1. Building contract-One seeking recovery -Must show substan-
tial performance-The general rule is, that one who seeks to
recover on a contract must show substantial performance on his
part, and this rule applies to a "building contract" as to any
other. But slight omissions and inadvertences should be
disregarded. Where there has been an honest effort by the
contractor to perform, and not a willful omission, substantial
performance is all that is required. Ashley v. Henahan, 559.
2. Written contract-Payment on estimates by architect in writing
-Effect of conditions on recovery—The plaintiff below entered
into a written contract with the defendant to make the excava-
tions and construct the foundation walls, of a building she
was about to construct for a certain sum. It provided for pay-
ment from time to time on estimates made by the architect, and
that the final payment should be made in a certain time after
the contract is completely finished, on the certificate of the
architect in writing, that the work has been done to his satis-
faction. Held: That without this certificate, or a waiver of it
by the owner, no recovery can be had. Id.
3. Stipulations as to excavations and foundations—Implied obliga-
tions-The contract provided that the contractor should make
the excavations and put in the stone foundations of the proposed
building, according to the plans and specifications, including
all labor and material incident thereto. In order to make
the excavations of the required depth, which was some 22
or 23 feet, it became necessary to underpin a house standing on
the line of one of the foundations, and to use a certain quantity
of lumber for the purpose of sustaining the sides of the
trenches. Held: That the underpinning of the house and the
lumber used in the trenches, are a part of the work to be done
included in the terms of the contract; and that a recovery there-
for cannot be had on an implied obligation to pay what it is
reasonably worth. Id.
4. Claim for additional work-Recovery under claim-The con-
tract contained the following clause: The contractor shall
make no claim for additional work unless the same shall be done
in pursuance of an order from the architect, and notice of all
claims shall be made to the architect in writing within ten days
of the beginning of such work." Held: That under this provi-
sion no recovery can be had for work in addition to that pro-
vided in the contract, where the work done is necessary to the
performance of the contract, unless the work was done in pursu-
ance of the order of the architect, and notice of the claim be
|