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sonal representative by Mansf. (Ark.) Dig. | DEPOSITIONS.
Depositions taken in the presence of tho an injured party in his lifetime; nor does it de-accused may be used on trial when, on acprive a father of his right
to maintain his count of death or other good cause, the pres. common-law action for loss of services of his ence of the witness cannot be had. This is minor child. Therefore in case of the death not in violation of the 6th Amendment to the of a minor the three actions may be prosecuted Constitution of the United States. Territory
V. Evans (Id.)
646 at the same time and recoveries had in each and all of them. Davis v. St. Louis, I, M. & 8.
NOTES AND BRIEFS. R. Co. (Ark.)
Depositions; taken in foreign State; effect of. 3. The Arkansas Act of 1883 (Mansf. Dig.
265 $S5225, 5226) embodying the provisions of
646 Lord Campbell's Act in regard to suits to re
Admissibility of, upon trial. cover damages for death resulting from the
DISTRICT ATTORNEYS. wrongful act, neglect, or default of another, applies to all cases in wbich a recovery may 1. Under Mont. Comp. Stat. p. 870, § 847, be bad under that Act, regardless of the agency providing that a county'attorney shall receive by wbich the injury was inflicted, and super certain fees to be taxed as costs for collections sedes the Act of 1875 relating to suits for in: made for the county, such fees may be taxed juries by railway trains. Hence such suits must in a proceeding by writ of mandate to compel be brought by the personal representative for the payment of money into the treasury as well the benefit of the widow and next of kin. Id. as in an action brought for recovery of the
money. Territory, Choteau County, v. Cascade NOTES AND BRIEFS. County (Mont.)
105 Death; right of action for damages. 154 2. A county attorney not being entitled, un
Who may recover damages for death from der Mont. Comp. Stat. p. 870, $ 847, to more negligence.
283 than $1,200 in fees, the amount of fees already
received by him must be deducted from $1,200 DECLARATIONS. See EVIDENCE, IV.
and the balance only taxed in his favor, wbere
the percentage allowed would make the total DEED.
more than that sum.
Id. 1. An estate granted by deed cannot be ex- DIVORCE. See HUSBAND AND WIFE, 12panded by recitals or statements of the gran- 14, NOTES AND BRIEFS. tor made in a later deed, to the injury of an intervening title. Whitney v. Wheeler Cotton DOMICIL. See ATTACHMENT, 1. Mills (Mass.)
DOWER. See also MORTGAGE, 6. 2. A reservation, in a conveyance of right of way, of any use to the grantor, will not be
A conveyance by a man of bis real estate presumed in the absence of any provision there during the period in which the common-law for. Herrman v. Roberts (N. Y.) 226 right of married women to dower was sus
3. The grantee of the beirs of one who pended barred all claim of his wife thereon, al. has made an upacknowledged deed not a though she did not join in the conveyance. "purchaser," within 1 N. Y. Rev. Stat. 738, Odom v. Riddick (N. Č.)
118 $ 137, declaring that an unacknowledged and unattested deed "shall not take effect as against DRAFTS. See BILLS AND NOTES. a purchaser or incumbrancer until so acknowledged. Strough v. Wilder (N. Y.) 555 DRAINS 'AND SEWERS. See EASE
MENTS, 4; MUNICIPAL CORPORATIONS, 8. NOTES AND BRIEFS. Deed; attestation and delivery of; presump
DURESS. tion as to delivery; effect when lands in pos- Papers executed to shield the maker's son session of third parties.
556 from a threatened prosecution for a felony of Quitclaim deed as notice.
524 which he is guilty are pot executed under du
ress so as to require their cancellation. ShatDEFINITIONS. See also CORPORATIONS,
tuck v. Watson (Ark.)
551 12; PEDDLERS, 1; TAXES, 4; WILLS, 1.
NOTES AND BRIEFS. 1. The relation of husband and wife, or
Duress; what constitutes.
551 that of parent and child, is not necessary in order to constitute a “family.” Moyer v.
EASEMENTS. See also DEED, 2; No.
Drummond (S. C.)
747 2. The terms "railway” and “railroad” 1. The conveyance of a right of way gives have the same meaning. Millvale v. Evergreen the grantee, not only the right to unobsiructed R. Co. (Pa.)
369 passage at all times, but also such rights as are
incident or necessary to the enjoyment of such DELIVERY. See INSOLVENCY AND As- right of passage. Herrman v. Roberts (N. Y.) SIGNMENT FOR CREDITORS, 4.
2. The grantor of a right of way over DEMURRER. See PLEADING, 9-11. rough rocky land, which is used as a passage.
way to a highway from the residence of the tition for damages for such taking, as prescribed grapiee, who bas expen led money in preparing by such Act, estopped from instituting prothe roadway, cannot ceposi stone or other ob- ceedings to dispute the validity of the taking struction thereon, or cut it ip by drawing and test the constitutionality of the Act, at beavy loads over it, or iɔ any way materially east if they have not voluntarily proceeded to obstruct or injure the roadbed. Herrman v. judgment upon their petition. Moore v, SanRoberts (N. Y.) 226 ford (Mass.)
151 3. The use of stairways in a building 6. Although the determination of the Legiserected by several owners of I nd as a single lature is not conclusive that a purpose for structure, upon a single plan and under a sin- which it directs property to be taken is a pubgle contract, no matier whether the land was lic use, yet it is conclusive, if the use is public, iben partitioned or not, cannot be denied by that a necessity exists which requires the propthe owners of that part wbich includes the erty to be taken.
Id. stairways to the owner of another part the up- 7. The reclamation of flats situated upon per floors of which can be reached in no other Boston Harbor and substantially useless in their way. Pierce v. Cleland (Pa.)
752 original condition, for the avowed purpose of 4. The expiration of a license given to a improving the harbor and of providing better town to maintain a drain over lands of the li- and more complete accommodations for the censor will not relieve the town from liability railroad and commercial interests of the city of for injuries caused by the subsequent obstruc- Boston, by filling such fats with solid earth, tion of the drain, wbep such drain is the neces. is a matter of such public benefit that the sary outlet of the sewerage system of the town, flats may be taken by the Commonwealth for and there is nothing to show abandonment such purpose, under the power of emitent dothereof on the part of the town, but its use con- main, notwithstanding a possible pecuniary tinues the same after as before the license ex- benefit to the Commonwealth inay be contempires, and the town afterwards obtains the plated by the sale of the flats when filled. further right to continue it. Bates v. Westbo- Hence Mass. Acts 1884, chap. 290, wbich prorough (Mass.)
156 vides for such taking, is not unconstitutional NOTES AND BRIEFS.
as authorizing the taking of land for a use not public.
Id. Easement; wbat passes by grant of right of 8. The specific mention of and including way.
226 in the same perition riparian rights in respect
to other lands belonging to other persons does ELECTION. See EsTOPPEL, 8.
not affect the construction of the petition and
proceedings in respect to the land in question. EMBEZZLEMENT. See PRINCIPAL AND 'Hanford 7. St. Paul & D. R. Co. (Minn.) 722 AGENT, 2.
9. A clause of a charter authorizing land EMINENT DOMAIN. See also DAM countable to the owners thereof for all dam
to be taken, which makes the corporation acAGES, 5-7; HIGHWAYS, 1; RELEASE; Waages,” does not include consequential injuries. TERS AND WATERCOURSES, 3.
Brooks v. Cedar Brook & S. C. R. Imp.Co. (Me.) 1. The taking of money by a private cor
460 poration created to administer a public charity 10. Incidental injuries to land by the washis not a taking of property for a public use ing away of the soil of the banks and bottom which may be authorized under the power of of a stream, caused by a reasonble increase of eminent domain. Cary Library v. Bliss (Mass.) the flow of water at certain times, produced
765 by a dam authorized by the Legislature to 2. The taking of property which is held by facilitate the driving of logs, is not a taking one person for a public use by another person, of the property of a riparian owner for which to be held in the same manner for precisely the compensation is necessary.
Id. same public use, is not a matter of such public 11. The building by a railroad company, of necessity that it can be authorized by the Legis- a side track in a street along and upon which lature under the power of eminent domain. it has a right of way and has a single track in
Id. operation, constitutes no additional burden up3. A mere change in the use of land from on property abutting upon the street, for which agricultural to city purposes is not taking pri-damages may be recovered by its owner, where vate property for public use. Callen v. Jünc- the statutes enabled the company to locate its tion City (Kan.)
736 tracks upon the street and to appropriate a 4. A statute requiring any railroad com-right of way 6 rods wide, and it gave notice pany to build, at its own expense, a crossing that its appropriation would be made "in as for any individual whose residence is sepa
full and ample and perfect a manner as may be rated by the railroad from a public bighway, required” for railroad purposes, and it paid the is, if such crossing is to be considered as for a assessed damages, which were duly accepted. public use, unconstitutional in taking the White v. Chicago, St. L. & P. R. Co. (Ind.) 257 property of the company for public use with.
12. The construction of a telegrapb and out compensation. People v. Detroit, G. H. & telepbone line on a railroad company's right of M. R. Co. (Mich.)
way imposes an additional servitude or burden 5. The owners of land taken under tbe on the land, for wbich the owners are entitled provisions of Mass. Acts 1884, chap. 290, au- to compensation, unless it is constructed by iborizing the taking of certain lands for the use the railroad company in good faith for its own of the Commonwealth, are not, by filing a pe- I use and benefit in the operation of the road and to facilitate its business, or is reasonably neces. 2. A covenantee who, with the means at sary for that purpose. Annerican Teleph. & hand of knowing all the facts, accepts his share Teleg. Co. v. Smith (Md.)
200 of money paid by the covenantor for a release 13. The use of electricity by a street railway from his obligation, will be precluded from afcompany as a motive power will not render its terwards proceeding to enforce the covenant. use of the street an imposition of an additional Wood v. Bullard (Mass.)
304 servitude thereon, which will require the mak. 3. Procecdings by an administrator of a ing of additional compensation therefor to the deceased covenantee to carry out an agreement owner of the fee, where it does not appear that by sucb decedent to release, and to procure the the occupation of the street is any more exclu- other covenanlees to release, the covenantor sive than though the road was operated by from his obligation, will not estop Lim from horse-power. Taggart v. Newport Street R. Co. setting up an independent right belonging to (R. I.)
205 him as a covenantee to enforce the covenant, if NOTES AND BRICF8.
he has not ratified or profited by the agree
ment, although they may preclude him from Eminent domain ; taking for private, com- exercising any right to enforce the covenant bined with public, use.
152 wbicb be may claim through or on bebalf of Vested rights subordinate to. 765 the decedent.
Id. Exercise of right a political, not a judicial, 4. Where the inbabitants of a town voted question.
151 and agreed that a person might purchase from Telegraph line along railroad right of way. the Indians and peaceably enjoy certain tracts
200 of land, on his acquainting them of an intent Compensation to be made only for such whether the town luid any claim thereto or not,
to purchase them, and requiring to know taking as transfers title.
and in the following year, when a patent obAssessment of damages; rule for. 409 tained by bim was publicly read, voted and
agreed to acquiesce in the limits and bounds of EQUITY.
bis patent and the privileges therein contained, 1. A suit by a vendor for specific perform the town is estopped from claiming, many ance of a fair contract for the sale of land can. years afterward, that it bad title to the lands not be defeated on the ground that there is a purchased by him when be obtained bis patent.
755 remedy at law. Hodges v. Koring (Conn.) 87 Brookhaven v. Smith (N. Y.)
2. A remedy at law, to defeat a suit in 5. A false representation or concealment equity, must be as complete and beneficial as of material facts, or a design to mislead, is not the latter.
Id. necessary to constitute an equitable estoppel by 3. Where an illegal appropriation has been mislead, and actually has misled, another act
an act which was voluntary and calculated to made by a town council and warrants drawn
ing in good faith.
Id. thereon, some of which have been paid, equity bas jurisdiction of a suit to cancel the unpaid
6. If one is induced to purchase land by warrants, to compel repayment of the money the acts or representations of another, designed paid, and to annul the appropriation; and the to influence his conduct, and creating a reasonrecalling and cancellation of the unpaid war- able belief on his part, under which he acts, rants after suit is brought will not oust the ju- that he is thereby acquiring a valid title to the risdiction. In such case the court may grant same, the party who has thus influenced him attirmative, as well as injunctive, relief. “Rus- is estopped frem setting up his own title existsell v. Tate (Ark.)
180 ing at the time of the purchase, against that of the purchaser.
Id. NOTES AND BRIEFS.
7. Borrowing from a forger money which he Equity; remedy at law defeats jurisdic. bas obtained upon the security of a forged tion.
67 mortgage upon property of the borrower will Jurisdiction to sell infant's lands, 534
not estop the latier from setting up the forgery
to defeat the collection of the mortgage, unless ESCHEAT. See also CORPORATIONS, 22, 26. he participated in or was privy to the illegal
acts. Shattuck v. Watson (Ark.)
551 The penalty of escbeat is removed, al- 8. One who has elected to take a devise unthough the Act imposing it is not repealed in der & will requiring him to convey to others terms, when, before any inquisition is taken, a certain land of which he bolds the title cannot statute has declared that the land should be refuse to make sucb conveyance, and claim held “indefeasibly as to any right of escheat” that the land belongs to him. McQuerry v. in the Commonwealth. Com. Attorney-Gen. Gilliland (Ky.)
454 cral, v. New York, L. E. & W.R. Co. (Pa.) 634
9. The widow of a deceased partner, who ESTATE. See REAL PROPERTY, NOTES
bas received all the proceeds of real estate in
excess of the amount necessary to pay firm AND BRIEFS.
debts, is estopped from claiming any interest ESTOPPEL. See also Bonds, 4; CHECKS, Walling v. Burgess (Ind.)
in the real estate as against the purchasers.
NOTES AND BRIEFS. 1. One who bas taken the benefit of a building regulation cannot repudiate the conditions
Estoppel; requisites of.
754, 757 on which it is given. Fowler v. Saks (D. C.) Equitable; fraud as an element; silent ac649 | quiescence.
10. A carrier has the burden of proving I. JUDICIAL NOTICE.
tbat goods were not in good condition when
received from a connecting carrier. Beard v. II. PRESUMPTIONS AND BURDEN OF PROOF. Illinois C. R. Co. (Iowa)
280 III. BEST AND SECONDARY; DOCUMENTARY; III. BEST AND SECONDARY; DOCUMENTARY; DEMONSTRATIVE.
DEMONSTRATIVE. IV. OPINIONS; DECLARATIONS.
11. A written proposition accepted with a V. RELEVANCY; SUFFICIENCY.
parol modification is the best evidence of so NOTES AND BRIEFS.
much of the resulting contract as the writing See also DAMAGES, 4; HUSBAND AND WIFE, 2. contains. Ohio 8. R. Co. v. Morey (Obio) 701
12. A written statement of a depositor's acI. JUDICIAL NOTICE.
count, made by an expert bookkeeper from 1. Courts will take judicial notice of the the books of a bank, may be given in evidence contents of the Bible, and that the religious and read to the jury, where such bookkeeper world is divided into sects, and of the general is introduced as a witness and opportunity doctrincs maintained by each sect. State, given for cross-examination. Culrer v. Marks
489 Weiss, v. School Dist. No. 8 (Wis.) 2. The court will not take judicial notice
13. Original entries made in the books of a that electricity as used hy a street-railway com- bank are admissible in evidence to show the pany for the propulsion of its cars is dangerous state of a depositor's account at a certain past Taggart v. Neroport Street R. Co. (R. I.) 205
time, where they were made in the usual course
of business by authorized bookkeepers in the II. PRESUMPTIONS AND BURDEN OF PROOF. discharge of their duties, and were correct
ld. 3. The presumption that when a connec
14. Ad instrument purporting to be the ex. tion between parties is illicit it continues as it emplification of a record in the Imperial Royal began, whether it is a presumption of fact or District Court of Findland, in the Province of of law, is rebuttable. While v. White (Cal.) 799 Bobemia, in the Empire of Austria, which
4. The possession by a bank of a check does not contain intrinsic evidence of a judg. which is not indorsed does not raise a presump: ment or decree of that court, and which is not tion that it was paid to the pavee named shown by extrinsic evidence to have been in therein, when such payment is denied by the the form of a judgment or decree of such court, payee, and the only other proof of payment is is inadmissible in a Louisiana court. Re a custom of the bank to pay checks without Lorenz (La.)
265 indorsement only when presented by the payee. Pickle v. People's Nat. Bank (Tenn.) be clothed with the form required 10 prove its
15. Unless & judgment of a foreign country 93
authenticity in the country in which it was 5. Checks dated at a certain place and drawn pronounced, a copy cannot be admitted in upon the “First National Bank” will be pre- evidence in the courts of Louisiana. Id. sumed, in the absence of anything to the con
16. Mortuary tables contained in How. trary, to have been drawn upon the first pa. (Mich.) Stat. $°4245, are admissible in evidence tional bank of such place, where it appears that to show a person's expectancy of life at a cer: such bank exists and no other ban or place tain age. Hunn v. Michigan C. R. Co. (Mich.) appears on the check. Culver v. Marks (Ind.)
17. The exhibition by plaintiff of an injured 6. Where the amount of attorneys' fees shoulder to the jury may be permitted in an called for by a promissory note is fixed by the action for unskillful treatment. Hess v. Lourey contract, it will be presumed to be the reason-|(Ind.) able value of the services rendered, unless the contrary appears. Exchange Bank v. Tuttle
18. A personal examination by physicians (N. M.)
or matrons skilled in such matters may be or. 445
dered of a woman suing for divorce on the 7. One who has been duly elected and in ground of malformation or abnormal physical ducted into an office, and who institutes pro- proportions amounting to physical incapacity, ceedings to determine his right to continue and a similar examination of defendant may therein after an attempt has been made to oust be ordered if he contests her rigbt to relief. him therefrom for failure to file a special bond, Anonymous (Ala.)
425 need not prove himself eligible to the office. Knox County v. Johnson (Ind.)
IV. OPINIONS; DECLARATIONS. 8. To establish contributory negligence of 19. A physician will not be permitted to a servant, the burden of proof as to his know- testify regarding answers to inquiries proledge of latent danger is on the master. Myhan pounded to an injured person whom he had v. Louisiana Electric Light & P. Co. (La.) 172 been called to visit professionally, concerning
9. The presumption of negligence on the matters in which he had no interest or concern part of a railroad company, which prevails professionally, or which were made for the in case of an injury to its passenger, does not purpose of qualifying himself as a witness, at obtain in case of injuries to the horse of a least where they in any way relate to the injury traveler upon a highway, which are received or to the patient's former condition. Pennsylwhile the traveler is atiempting to cross the vania Co. v. Marion (Ind.)
687 railroad track. Terre Haute & I. R. Co.v.Clem 20. The testimony of expert or other wit. (Ind.)
588 1 nesses is not admissible to show that in carry.
ing out a law enacted by the Legislature some it did not intend to ratify that contract. Droyprovision of the Constitution may possibly be er v. Gulf, C. & 8. F. R. Co. (Tex.) 478 violated. People, Kemmler, v. Durston (N. Y.) 31. Where the defendant in a suit on an
715 insurance policy sets up a special defense, and 21. Evidence that a physician devotes a offers evidence to support it, after plaintiff has considerable share of his time to farming is ad, shown bis loss and the cause that occasioned missible on the question of his professional it and rested, plaintiff may rebut by offering skill. Hess v. Lotorey (Ind.)
90 affirmative evidence to meet that introduced in 22. Declarations of a partner in the course support of the special defense. Louisville Unof a transaction on wbich an alleged liability derwriters v. Durland (Ind.)
S99 of the firm is based may be proved against the 32. A petition charging negligence of a other partner.
Id. carrier in not taking proper precautions to pre23. Agency cannot be proved by the decla- serve butter will admit evidence of a custom to rations of the alleged agent. Pepper v. Cairns put the butter into cold storage until refrigera(Pa.)
750 tor cars are ready to receive it. Beard v. Ili. 24. Where a corporation invests an agent nois C. R. Co. (Iowa)
280 with general authority to adjust claims against 33. Evidence of repairs made after an init, the declarations of that agent, made wbile jury has been sustained is incompetent to show endeavoring to secure an adjustment of the antecedent negligence. Terre Haute & 1. R. claim, are competent evidence against bis prin- Co. v. Clem (Ind.)
588 cipal. Adams Exp. Co. v. Harris (Ind.) 214 34. Evidence as to the extent of the prop
25. Declarations as to the ownership of erty of the family, and of an incumbrance property, made by a person in possession there thereon, is inadmissible in an action for the of, are admissible in evidence upon an issue as death of plaintiff's husband. Hunn v. Mich. to such ownership, as part of the res gesta. igan C. R. Co. (Mich.)
500 Lowman v. Sheets (Ind.)
35. Evidence of specific acts of lewdness are V. RELEVANCY; SUFFICIENCY.
inadmissible in an action for false arrest as a 26. On the question of damages for injury
prostitute. Pinkerton v. Verberg (Micb.) 507
36. Evidence of cobabitation and repute is to a spring which is not totally destroyed, evidence that the owner had previously sold admissible to show a marriage, in: all cases water from it is inadmissible. Kinnaird v.
where there is no question of a public offense Standard Oil Co. (Ky.)
involved. White v. White (Cal.)
799 451 27. Wbere the applicant stated that no ap
37. Proof of marriage by cohabitation and plication by him for insurance was ever re- repute may be made in a suit for divorce on jected, and it is shown that his application for the ground of adultery, as well as in other
Id. membership in a mutual benefit society was rejected, plaintiff may show that the company's
38. The possession of a deed by the grantee agent informed the insured that such societies is prima facie evidence of delivery, where were not regarded as life insurance companies, there is nothing to impeach the bona fides of and need not be considered as such by bim his possession. Strough v. Wilder (N. Y.) 555. Equitable L. Assur, Soc. v. Hazlewood (Tex.) 39. Evidence supporting one of several
217 counts setting out the same cause of action 28. Where a life insurance company contests will sustain a finding for plaintiff in respect to payment of a policy upon the ground that it such cause. Culver v. Marks (Ind.)
489 was taken out by the beneficiary as a wagering
NOTES AND BRIEF8. policy, and proves that the beneficiary loaned the insured the money with which he paid the
690 premium, testimony of the agent of the corporation is admissible as to negotiations pre
Declarations of agent; how far binding on
215 ceding the application, tending to show that principal. both the beneticiary and the insured were urged Agent's declarations admissible against prin: by the agent to apply for the insurance; that cipal.
751 the premium was paid by insured; and that he Repairs as evidence of negligence. 588 thought of taking the policy for the benefit of the minor children of the beneficiary, but did EXECUTION. See LEVY AND SEIZURE; pot do so because the beneficiaries could not PENSIONS; TME, 2. then be so easily changed in case such change became desiralde.
ld. EXECUTORS AND ADMINISTRA. 29. What was usually and habitually done TORS. See also DEATH, 1; SET-OFE in the running of trains may be proved to re- AND COUNTERCLAIM, 1-3. but a claim that an employee was negligent in running a train in violation of rules. Hunn v. will giving them power to sell and convey it
1. A sale of land by executorg, under a. Michigan O. R. Co. (Mich.)
either at public or private sale, with or without 30. The original waybill is admissible in appraisement, on such terms as to them shall evidence in a suit against a connecting carrier seem best, is not affected by a statute regulat. for refusal to deliver the goods on tender of the ing the conduct of sales of land directed by will charges agreed on in the bill, where other evi- to be sold, and prescribing the manner of give dence bas been given to show that the carrier ing notice, conveying, etc., “unless by the had paid accrued charges amounting to as much terms of the will different directions are given." as the sum specified, as tending to show that I Valentine v. Wysor (Ind.)
788 7 L. R. A.