See CONSTRUCTION OF STATUTES, 1.
EXPERT.
See EVIDENCE, 5, 6.
Where it is stipulated in a deed-poll that the grantee, his heirs and assigns, shall build
and perpetually maintain a fence on the line between the land granted and other lands
owned by the grantor, and the parties to such deed, at the time of its execution, con-
template the subdivision of the granted premises into building or town lots, and their
subsequent sale, the burden of maintaining such fence will not attach to, or run with,
lots which do not abut on the line of the proposed fence. Walsh v. Barton, 341.
The right of fishing in a river is subordinate to that of navigation, but this does not
excuse the master of a vessel from running into and damaging a net of a fisherman,
where he could change the course of the vessel without prejudice to the reasonable
prosecution of his voyage, and thus avoid the net. Cobb v. Bennett, 172.
Where the name of the agent with whom a contract for the purchase of real estate was
made appears in the written memorandum of the agreement signed by the purchaser,
who is the party to be charged, the statute of frauds is satisfied, although the names of
the principals are not disclosed therein. Walsh v. Barton, 341.
1. A man of wealth and having no family dependent on him, under guardianship as
insane, should be allowed those luxuries which he desires and can enjoy, which are
unobjectionable in themselves and would be proper and reasonable expenditures for a
sane man in a similar position. May v. May, 123.
2. A guardian of an insane man whose estate was worth over $200,000 spent four hours
three times a week in visiting and dining with his ward, and superintending the man-
agement of his house and grounds; and the ward's spirits and condition were much
improved by the visits. Held, that a monthly charge of $100 for personal services,
besides the commission of five per cent. on the income collected, should be allowed to
the guardian; but that an additional charge of $100 for attending court should be dis-
allowed, as should also a charge of $200 for attending the ward on two journeys of a
fortnight each, which were undertaken partly on account of the guardian's own busi-
ness. Ib.
3. The additional compensation, if any, allowed to a guardian for changing investments
of his ward's property, or making repairs thereon, should not be by way of commis-
sions on the amount invested or expended. Ib.
4. A guardian who makes up his accounts monthly may charge his ward's estate each
month with his commissions on the amount collected in that month, and with a month's
interest on a balance from the preceding month in his own favor, and may carry the
balance to the next month. Ib.
The supreme court of the United States has authority to issue a writ of habeas corpus,
accompanied by a writ of certiorari, to bring before it the proceedings of a circuit
court for the purpose of ascertaining whether such court has exceeded its powers.
And in a criminal case it may release the prisoner. In re Lange, 256.
1. Where a party waived his right of homestead exemption in a negotiable promissory
note, and was subsequently adjudged a bankrupt, it was held that the homestead was
not exempt as against the holder of the note. In re Solomon, 351.
2. A statute which permits the head of a family to waive an exemption of homestead is
not an infraction of a constitutional provision by which such exemption is created. Ib.
HUSBAND AND WIFE.
See MARRIED WOMAN.
1. The act of the State of California is such that a sale of realty for taxes casts a cloud
upon the title, and if the tax for the collection of which the sale is about to be made
is unlawful, equity will enjoin the sale. Huntington v. Cent. Pac. R. R. Co. 94.
2. Where a tax is invalid, and other equitable circumstances are shown to exist, an in-
junction may issue, in effect restraining the collection of the tax. Ib.
3. In a case of necessity a court may issue a writ of injunction on Sunday. Langebar
v. Fairbury, &c. R. R. Co. 101.
4. A court has no power to restrain the treasurer of a state from paying out money in
pursuance of law upon the ground that an earlier appropriation for a specific purpose
has been misapplied. The treasurer as an agent of the state is bound only to pay its
debts when required to do so by law. Self v. Jenkins, 368.
5. An injunction will not be granted to restrain the collection of a tax, when the deed
issued upon a sale for taxes would not cloud the title. Minturn v. Smith, 507.
1. Held, that in an action against an insurance company to compel it to issue a policy
upon an alleged contract of insurance, there must be conclusive proof that such con-
tract was actually made. McCann v. Ætna Ins. Co. 232.
2. Held, that due notice of loss, and statements supported by affidavits, are conditions
precedent to recovery. Ih.
See CONSTRUCTION OF STATUTES, 1.
A mortgagee, who has insured his mortgage interest at his own expense and for his own
indemnity, without any agreement with the mortgagor, may, in case of loss, call upon
the insurer without first exhausting his remedy under his mortgage. Excelsior Ins. Co.
v. Royal Ins. Co. 331.
1. Where the local agent of a life insurance company, on receiving payment of the first
premium due on a policy, represented to the assured that the company was in the habit
of giving thirty days' notice to its policy holders of the time when each premium falls
due, and promised that he would give such notice, and the assured died two days after
the second premium fell due, no such notice having been given to him, and the proof
failed to show that the agent had any authority to make such an agreement, it was
held that the beneficiary could not recover on the policy. Morey v. N. Y. Life Ins.
2. Where the company's receipt for the premium was not received by the local agent to
whom it was to be paid until two days after the death of the insured, it was held,
under the circumstances above stated, that the beneficiary could not recover on the
policy; otherwise if the premium had been tendered before it fell due. Ib.
3. Where by express agreement, or by the course of business between the parties, it is
understood that payment will be made to the local agent, and no notice has been given
in sufficient time that payment shall be made at the office and principal place of busi-
ness stipulated in the contract, a tender of payment to the local agent, whether re-
ceived by him or not, will excuse the policy holder and prevent a forfeiture. Ib.
4. Held, that to make the insurer liable the mind of the deceased must have been so far
deranged that he was incapable of using a rational judgment in regard to the act of
self-destruction; that if the insured was impelled by an insane impulse which his
remaining reason did not enable him to resist, or if his reasoning powers were so far
overthrown that he was unable to exercise them on the act he was about to perform,
the company is liable; that there is no presumption of law that self-destruction arises
from insanity, and if, by reason of sickness, or distress of mind, or a desire to provide
for his family, the insured takes his own life in the exercise of his usual reasoning
faculties, the company is not liable, and that the burden of proof lies upon the com-
pany to show that the death was caused by suicide and not by accident. Coverston v.
Conn. Mut. Life Ins. Co. 239.
5. Construction of the words "die by his own hand" in a policy of life insurance.
Moore v. Conn. Mut. Life Ins. Co. 319.
6. Presumption as to death and sanity of the deceased. Ib.
7. Insanity defined, and discussion of the degree of derangement that is necessary to
avoid a policy of life insurance containing a provision that the insurer shall not be
liable in case of suicide. Ib.
8. It is for the jury to determine what is meant by the term disease, as used in the
application for insurance. Substantial truth is alone required in the answers of the
assured. Manhattan Life Ins. Co. v. Francisco, 56.
INTEREST.
See NATIONAL BANK, 1.
1. When a judgment obtained in one state is sought to be enforced in another, it is com-
petent for the courts of the latter, under a plea of nul tiel record, to determine whether
such service was made upon the defendant in the original action as to give the court
jurisdiction of his person. Barnett v. Oppenheimer, 118.
2. A sale of lands under an execution issued upon a judgment which had been fully paid
is void. Lee v. Rogers, 218.
3. W. had a judgment against C., which was the first lien on his property. T. also had
a judgment, which was the second lien on the property. C. paid W.'s judgment
in full, but took an assignment of it in the name of his hired man, who paid nothing for
it. Afterwards, to avoid an attachment, C. confessed a judgment in favor of L., for a
debt previously due him, which became a lien upon the property, and in order to give
L. a preference over T., C. procured an assignment to him of W.'s judgment, for which
no additional consideration was paid; but L. was not aware that it had been paid. C.
afterwards confessed a judgment in favor of F., which also became a lien on the prop-
erty. L. afterwards sold the lands on W.'s judgment and became the purchaser.
Afterwards F. became purchaser of the same lands under his own judgment. Held:
1. That as to F., L. was not a bonâ fide assignee of W.'s judgment for a valuable con-
sideration; and that his sale was void. 2. That by his purchase F. acquired the title
to the land. Ib.
4. In 1863 proceedings were instituted in the district court of the U. S. at Alexandria,
under an act of Congress, to confiscate the real estate of M. Before the condemnation,
M. appeared by counsel and filed his answer, which afterwards, on the motion of the
attorney for the U. S., was struck out; and the court, not allowing M. to appear in the
cause, decreed that the property should be sold at auction by the marshal.
This was
done, and the property was conveyed by the marshal to the purchaser. Upon ap-
peal by M. to the supreme court of the U. S., the decree was reversed. And when
the case came back to the district court it was dismissed. In ejectment by M. against
the purchaser, to recover the property: Held, the decree having been made in the
absence of M. was a nullity, and the deed of the marshal passed no title to the pur-
chaser. Underwood v. McVeigh 281.
5. Starr being in possession of certain lots in Portland, Oregon, filed a bill in chancery
against Stark, to determine an adverse claim of title by the latter, in which the com-
plainant, as one ground of relief, alleged title derived to himself through a United
States patent to the city of Portland, and that defendant claimed title adversely under
a subsequent patent to himself. And as another ground of relief, that the legal title
was in defendant under his said subsequent patent; but that through certain transac-
tions set out, complainant had the equitable right, and was entitled to a conveyance of
said legal title. The court, upon motion of defendant, held that the two grounds of
action were inconsistent, and could not be litigated together in the same action, and
required complainant to elect upon which he would proceed, and omit the other;
whereupon complainant, after excepting to the ruling and order, elected to rely on the
first, and withdraw the second. A decree having been rendered in favor of com-
plainant, on the cause of action retained, which was affirmed by the supreme court of
Oregon, it was finally reversed by the supreme court of the United States on the
ground that the patent to the city was void, and the bill subsequently dismissed in
pursuance of the mandate of that court. Complainant then filed a second bill, alleging
the equitable title before set up in the first, and withdrawn in obedience to said order
of the court, and prayed a conveyance of the legal title. Held, that the proceedings
and decree in the former action are not a bar to the second action. Starr v. Stark, 444.
6. There can be no judgment against a non-resident upon substituted service except as a
means of reaching property situated at the time within the state. Galpin v. Page, 534.
A judgment note made more than four months prior to an adjudication of bankruptcy
upon which an execution is issued within four months, is not necessarily fraudulent.
Sleek v. Turner's Assignee, 485.
In proceedings by attachment against M., judgment is rendered against him, and there
is an order for a sale, and a sale and conveyance to the purchasers of the real estate
attached. Held:
1. The judgment and conveyance made under the judgment and order, by the sheriff,
divested M. of his legal title to the property, unless the said sale was fraudulently
made, and the confirmation thereof was procured by fraud, and that the purchaser was
privy to such fraud, or had notice of the same, or of such circumstances as would put
a prudent bonâ fide purchaser upon inquiry in respect thereto. Underwood v. Mc-
Veigh, 281.
2. But if the purchaser combined with others to purchase the property at the attachment
sale, at a sacrifice; and if in pursuance of such combination they so acted as to pre-
vent competition at said sale, or to prevent the said property realizing a fair value, then
such combination and action was fraudulent and the deed of the sheriff passes no title
to the purchaser. Ib.
1. The courts of the United States may take jurisdiction of causes affecting the prop-
erty of a state in the hands of its agents without making the state a party when the
property or agent is within the jurisdiction. Swasey v. N. C. R. R. Co. 359.
2. The company in this case holds the share of its property represented by the stock sub-
scribed by the state, in trust, as well for the bondholders as for the state. The
charter made the company the depository of the pledge to hold it for both parties.
Consequently a suit which seeks to charge the stock as security, and brings the
corporation in to represent it, may be maintained, in the absence of the state as a
party. Ib.
3. It appearing to the court that the stock had been deposited with the company to
secure the payment of interest in which default had been made, a sale of the stock
was directed to be made unless the state should provide by taxation for the amount
due within a reasonable time. Ib.
4. The act of March 30, 1871, of Virginia, Sess. Acts, 1870-71, p. 332, does not give
justices of the peace jurisdiction to try a case of felony; and the conviction and
punishment of a party by a justice for an assault and battery will not bar a prosecution
for wounding with intent to kill, by the same act for which he was punished by the
justice. Murphy v. The Commonwealth, 486.
5. Presumptions of law in favor of the acts of courts of general jurisdiction, their extent
and limitations, defined and expounded. Galpin v. Page, 534.
See DIVORCE; HABEAS CORPUS; JUDGMENT, 1; PATENT, 7.
1. Where a lessee is, by his lessor, wrongfully evicted from a portion of the demised
premises, he is thereby excused from the payment of any of the rent, although he
remains in possession of the remaining portion of the premises to the end of the term.
Hayner v. Smith, 508.
2. But to constitute an eviction, there must be more than a mere trespass by the land-
lord. There must be something of a grave and permanent character done by the land-
lord with the intention of depriving the tenant of the enjoyment of the premises - the
question of eviction or no eviction depending upon the circumstances, and being a
matter for the jury to decide. Ib.
3. Some acts of interference by the landlord with the tenant's enjoyment of the premises
may be mere acts of trespass, or may amount to an eviction, the question whether they
partake of the latter character depending upon the intention with which they are done;
if clearly indicating an intention on the landlord's part that the tenant should no
longer continue to hold the premises, they would constitute an eviction. Ib.
LIVERY-STABLE KEEPER.
See BAILOR AND BAILEE.
1. In order for the plaintiff to recover in an action for malicious prosecution, the burden
of proof is upon him to show clearly, by a preponderance of evidence, that the defend-
ant did not have probable cause to institute the criminal prosecution against him.
Good faith on the part of the prosecutor is always a good defence, unless it appear that
he closed his eyes to facts around him which would have been sufficient to convince a
reasonably cautious man that no crime in fact had been committed by the person about
to be prosecuted. Palmer v. Richardson, 163.
2. The fact that the defendant, before instituting a prosecution alleged to be malicious
and without probable cause, had honestly laid all the facts before counsel and followed
his advice, is pregnant evidence to show the existence of probable cause. Ib.
Mandamus is the appropriate remedy to restore an attorney disbarred where the court
below had exceeded its jurisdiction in the matter. In re Robinson, 326.
See MUNICIPAL CORPORATION; PLEADING AND PRACTICE, 4.
1. The deed of a married woman, to be operative as a valid conveyance, must be exe-
cuted in strict conformity with all the statutory requirements. Heaton v. Fryberger,
2. Where the name of a married woman is omitted in the body of a deed, equity cannot
supply the omission, even if the execution and acknowledgment are legally sufficient. Ib.
See BANKRUPTCY, 1, 9; PLEADING AND PRACTICE, 8.
1. One employed by a railroad corporation to drive a locomotive engine over its road may
recover damages against the corporation for personal injuries caused by a defect in the
engine, which was due to the neglect of the agents of the corporation charged with
keeping the engine in proper repair, although the directors and superintendent had no
reason to suspect negligence or incompetence on the part of such agents. Ford v.
Fitchburg R. R. Co. 501.
2. One employed by a railroad corporation to drive a locomotive engine over its road is
not debarred from recovering damages against the corporation for injuries from an
explosion caused by a defect in the boiler of the engine, by the fact that he was acting
in intentional violation of the rules of the company, unless the accident was due, in
whole or in part, to such violation; nor by the fact that such rules provided that the
driver of an engine should be held responsible for the condition of his engine, must be
sure that it was in good working order, and must immediately stop, draw his fire, sta-
tion his signal men, and procure assistance, whenever any defect was detected in an
engine that would make it in his judgment unsafe to proceed; nor by the fact that he
knew the engine was not in good working order, if he did not know and ought not to
have known that it was unsafe. Ib.
A bill in equity, to declare the plaintiff entitled to redeem land, which the defendant
holds by an absolute conveyance from him, may be maintained upon parol proof that
he bought the land with money borrowed from the defendant, and, though he executed
his absolute deed intelligently, yet both parties understood that it was intended as
security for the loan. Campbell v. Dearborn, 107.
1. Held: that mandamus will not lie against a county to compel the levy of a tax to pay
a judgment recovered upon ordinary county warrants where the power to levy a tax
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