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(CIVIL REMEDIES; RULES AND PRINCIPLES.)

a river are held not to be destroyed or im- | lute and freed from all parol conditions. paired by the construction of an embank- vesting the title at once. (Idaho) 572. ment across the mouth of the cove. (Conn.) 929.

Fixtures.

The owner of property bordering on a mill pond is held to have no right to enjoin the owner of the dam and water privilege from drawing the water down to its natural level, when it becomes necessary for the utilization of the power, although a portion of the bottom of the pond is thereby uncovered and exposed to the sun, rendering it unhealthful and injurious to the abutting owner. (Conn.) 933.

A mortgage of a lot on which stands a partially completed building is held to pass cut stone and structural iron prepared for

the building and located on the lot mort

Surface waters which, by natural drainage, collect in a natural basin and depres-gaged and that adjoining, if the intention sion upon the premises of a dominant ten

ement, and escape therefrom only by percolation or evaporation, forming thereby a lake or pond, permanent in its character, are held to lose the character of surface waters when so collected, so that they may not, by artificial means, other than that incident to the cultivation of the soil, be drained to the damage of a servient tenement without liability for such acts. (Okla.) 460.

Trees.

The right to recover punitive damages for the cutting of trees upon a sidewalk for the accommodation of electric-light wires, in entire disregard of the rights of the abutting owner, and against his protest, is sustained. (N. C.) 631.

Deeds.

A deed without power of revocation, from a parent who is incapacitated physically and weak mentally, to his daughter who has for some time had the care of him, made without the benefit of competent and independent advice, is held to be properly set aside by equity. (N. J. Err. & App.)

393.

The mere finishing material, such as

doors, mantels, casings, etc., which have been purchased for an unfinished building and placed therein, but not affixed thereto is held not to pass by a sale of the real propis not mentioned or deemed a part of the erty under a mortgage foreclosure, where it sale. (Tenn.) 892.

Where the body of a will is written on horizontal lines on several pages of foolscap paper, so that all its items the end of the last page, under which the and provisions are in consecutive order to testator's signature appears, but there is also written in the margin of the last the body of the instrument, a dispositive page, to the left of, and separated from, clause extending lengthwise of the page from near the bottom to near the top, and in no manner connected with the body of the instrument by any words or marks to indicate where the marginal matter is to be read in relation to the other provisions; and it is established by testimony that the marginal matter was written after all the other provisions, at the request of the testator, and before he atIt is held that a deed absolute on its face tached his signature under the body of the cannot be delivered to the grantee therein will, it is held that the will is not signed named to be held by him in escrow; and at its end, as required by statute, and is that such a delivery will operate as abso-invalid for that reason. (Ohio) 422.

be speedily completed with the material at of the parties is that the building shall

hand. (Mich.) 900.

Bill of review; limitations.

The right to file a bill of review after the lapse of the statutory period for an appeal is denied, except in case of new, or

Wills.

The granting of an absolute divorce is held not to revoke, by implication, a legacy in the will of the husband in favor of the wife. (Pa.) 940.

VIII. CIVIL REMEDIES; RULES AND PRINCIPLES.

A subcontractor is held to be entitled, newly discovered, matter.

to pursue simultaneously a proceeding to App.) 397.
enforce his mechanic's lien against the
property and an action against the con-
tractor for the amount due him, in which
he attaches funds due the contractor from
the property owner. (R. I.) 497.

(N. J. Err. &

Limitation of actions.

Giving a note for interest upon a larger note already barred by the statute of limitations, which does not in any way refer to the earlier note, is held not to revive it under a statute providing that causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid, or

(CIVIL REMEDIES; RULES AND PRINCIPLES.)

by a like new promise to pay the same. | fully put upon the market, and had never (Iowa) 260.

been rightfully negotiated, is held to be no bar to a subsequent suit against the corporation to foreclose the mortgage by which they are secured, since the latter question could not have been determined in the former action. (Or.) 480.

Under a mortgage securing a series of notes due at intervals of one year, and providing that nonpayment of any one of them, together with nonpayment of taxes, should mature the entire debt, it is held that the statute of limitations commences to run at the date of default upon the first note and taxes. (Kan.) 250.

Specific performance.

That the statute of frauds is satisfied, and specific performance of a contract may be decreed, is held where a signed, but undelivered, lease, taken in connection with a previously signed memorandum in writing of an oral agreement for a lease, shows a complete agreement on the terms of the lease. (N. J. Err. & App.) 394. Replevin.

That replevin lies for growing strawberry plants, although they are attached to the soil, is declared since they are fruits of industry, and must be treated as chattels. (Ark.) 827.

The rule that one is adverse possession, under color of title, of a tract of land, is entitled to maintain replevin for logs cut thereon by one claiming to be the true owner, regardless of the true location of the ultimate title to the land, is held to apply where the spot from which the logs were cut is annexed to the actual possession of a portion of the tract because within the boundaries of the paper title. (Tenn.) 732.

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That a party pleading a judgment as an estoppel must sustain the plea by showing that the particular matter in controversy was actually determined in the former litigation, in accordance with his contention, is declared where it appears from the record introduced in support of the plea that several issues were involved in such litigation, and the verdict and judg ment do not clearly show that this particular issue was then decided. (Ga.) 483.

A decree of a probate court having jurisdiction, assigning the residue of the estate of a deceased person, is held to be conclusive upon all persons interested in the estate, whether then in being or not. (Minn.) 785.

Exemptions.

The exemption from execution of the proceeds of insurance policies is held not to be limited to claims against the insured but to extend to those against the beneficiary, under a statute providing that all moneys, benefits, privileges, or immunities growing out of life insurance are exempt from execution. (Cal.) 67.

Set-off.

In an action against the maker and indorser of a promissory note, joined in the same suit, it is held that the indorser may set off an individual claim against plaintiff growing out of the transaction which gave rise to the execution of the note. (Ga.)

97.

Injunction.

A judgment of a justice of the peace, rendered within less than the time prescribed by statute after service of summons, is held not to be so far void that its execution can be enjoined. (S. D.) 499.

Equity.

That equity will not prevent a forfeiture of an estate for breach of a condition subsequent is held where the performance of the condition was made of the very essence of the contract, and the damages for the breach cannot be measured in money, while the failure to perform was not caused by mistake, nor the result of mere negligence. ( (Wis.) 833.

Pleading.

Where a complaint is indefinite and uncertain because the pleader has confused the element of ordinary negligence with

(CRIMINAL LAW AND PRACTICE.)

gross negligence, and the attention of the trial court is called thereto, it is held that the court should compel the plaintiff to proceed upon one theory or the other, or to give such permissible construction to the pleadings as to confine plaintiff's claim to one species of wrongdoing. (Wis.) 601.

Evidence.

Damages.

The measure of damages for false and fraudulent representations by which à party had been induced to exchange real property for stock in a corporation, but who had affirmed the contract after discovering the deceit, is held to be, in the absence of a claim for special or exemplary damages, the

difference in the value between what was received or parted with, as the case may be, and what would have been received or parted with had the representations been true. (N. D.) 409.

If the memoranda of inspection of engines prepared by the men in charge of that work, and filed in the office of the railroad company, have been lost, and the facts with regard to the inspection forgotten by them, it is held that such facts may be proved by the introduction in evidence of a transcript of such memoranda, entered by the proper clerk in a book kept for that purpose, accompanied by his testimony, and that of the inspectors, showing that inspec-manding rents for any part of the time. tions were made and properly entered ir

(Tenn.) 760.

the book. (Or.) 475.

Parol evidence to show that one who signed a memorandum for the sale of goods necessary to satisfy the statute of frauds acted as agent for the one who is seeking to enforce the contract, so as to permit him to maintain the action, is held to be admissible. (N. H.) 629.

In an action on a contract to convey unimproved land with warranty of title, to recover damages for failure to convey, the vendor's title proving defective, it is held that the value of buildings placed on the land by the vendee without the request of the vendor, before the time fixed for the conveyance has arrived, cannot be recovered by the vendee. (N. J. Err. & App.) 764. Right of plaintiff in contempt to proceed

with trial.

Mere disappointment and regret are held not to be included in the rule allowing damages for mental anguish upon failure of a telegraph company promptly to deliver a death message. (N. C.) 403.

Homicide by officer.

A police officer who kills a person whom he is attempting to arrest is held to be guilty of a criminal offense if he uses more force than is reasonably necessary to effect his purpose. (Mo.) 381.

Burglary.

The fact that the owner of a building, to whom a detective disclosed that it was prob ably about to be burglarized by a person

The rental value of the premises during the possession of the vendee is held to be properly deducted from his recovery for breach of a covenant of seisin, which is made by an outstanding contingent remainder, where his deed gave him at least a life estate, and the life tenancy has continued as to preclude the remainder-men from de

A plaintiff in an equity case, who is in contempt of court for refusing to obey an order which can be enforced by mandamus. is held to have no absolute right to proceed with the trial. (Mass.) 311.

IX. CRIMINAL LAW AND PRACTICE.

The arrest at their own instigation, for | named, with the feigned assistance of the the purpose of preventing a trial elsewhere, detective, for the purpose of securing eviof persons accused of crime, in the county dence of the intended burglary and other where the commission of the crime is com- crimes, did not take steps to prevent the menced, and binding them over to await the burglary, but passively allowed it to go on, action of the grand jury, are held not to is held not to be a consent to the burglary prevent proceedings against them in the that will be a defense in a prosecution therecounty where the crime is consummated, for. (N. D.) 405. under a statute providing that, if the jurisdiction of any offense be in two counties, the accused shall be tried in the county in which he is first arrested. (Ky.) 270.

Soliciting bribe.

The solicitation of a bribe is held not to constitute an attempt to accept or receive a bribe. (Kan.) 176.

Betting.

Playing pool under an agreement that the one losing the game shall pay for the use of the table is held to be betting at a pool table, within the meaning of a statute making such betting a misdemeanor. (Ga.)

117.

Lottery.

The fact that each member is entitled

(CRIMINAL LAW AND PRACTICE.)

to be necessary to due process of law, so as to preclude the institution of a criminal prosecution by information. (Or.) 466.

to trade out the amount he has paid in whenever he chooses to withdraw from the club is held not to prevent a suit club, which is a scheme by which a certain number of persons pay a small sum per week and choose by lot each week one of the number who shall receive a suit of clothes worth much more than such weekly payment, upon receipt of which he ceases to be a member of the club, from being a lottery.

(Mich.) 505.

Instruction to jury.

A plea of guilty of theft, to commit which a burglary is alleged to have been committed, is held not to relieve the court to the law governing convictions on circumof the necessity of instructing the jury as stantial evidence, where the fact of the burglary itself depends on circumstantial evi

Indictment or information.

Indictment by a grand jury is held not dence. (Tex. Crim. App.) 193. 69 L. R. A.

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