Lawyers' Reports Annotated

14. An instrument purporting to be the exemplification of a record in the Imperial Royal District Court of Findland, in the Province of Bohemia, in the Empire of Austria, which does not contain intrinsic evidence of a judg ment or decree of that court, and which is not shown by extrinsic evidence to have been in the form of a judgment or decree of such court, is inadmissible in a Louisiana court. Re Lorenz (La.)

265

3. The presumption that when a connection between parties is illicit it continues as it began, whether it is a presumption of fact or of law, is rebuttable. White v. White (Cal.) 799 4. The possession by a bank of a check which is not indorsed does not raise a presumption that it was paid to the payee named therein, when such payment is denied by the payee, and the only other proof of payment is a custom of the bank to pay checks without indorsement only when presented by the 15. Unless a judgment of a foreign country payee. Pickle v. People's Nat. Bank (Tenn.) be clothed with the form required to prove its 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. sumed, in the absence of anything to the contrary, to have been drawn upon the first national bank of such place, where it appears that such bank exists and no other bank or place appears on the check. Culver v. Marks (Ind.) 489

6. Where the amount of attorneys' fees called for by a promissory note is fixed by the contract, it will be presumed to be the reason able value of the services rendered, unless the contrary appears. Exchange Bank v. Tuttle (N. M.) 445

7. One who has been duly elected and in ducted into an office, and who institutes proceedings to determine his right to continue therein after an attempt has been made to oust him therefrom for failure to file a special bond, need not prove himself eligible to the office. Knox County v. Johnson (Ind.)

684

8. To establish contributory negligence of a servant, the burden of proof as to his knowledge of latent danger is on the master. Myhan v. Louisiana Electric Light & P. Co. (La.) 172 9. The presumption of negligence on the part of a railroad company, which prevails in case of an injury to its passenger, does not obtain in case of injuries to the horse of traveler upon a highway, which are received while the traveler is attempting to cross the railroad track. Terre Haute & I. R. Co. v. Clem (Ind.)

588

Id.

16. Mortuary tables contained in How. (Mich.) Stat. § 4245, are admissible in evidence to show a person's expectancy of life at a certain age. Hunn v. Michigan C. R. Co. (Mich.)

500

17. The exhibition by plaintiff of an injured shoulder to the jury may be permitted in an action for unskillful treatment. Hess v. Lowrey (Ind.)

Dwy

478

ing out a law enacted by the Legislature some | it did not intend to ratify that contract. provision of the Constitution may possibly be er v. Gulf, C. & S. F. R. Co. (Tex.) 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 his loss and the cause that occasioned missible on the question of his professional it and rested, plaintiff may rebut by offering skill. Hess v. Lowrey (Ind.) 90 affirmative evidence to meet that introduced in support of the special defense. Louisville Underwriters v. Durland (Ind.) $99

22. Declarations of a partner in the course of a transaction on which an alleged liability of the firm is based may be proved against the other partner. ld. 23. Agency cannot be proved by the declarations of the alleged agent. Pepper v. Cairns (Pa.) 750 24. Where a corporation invests an agent with general authority to adjust claims against it, the declarations of that agent, made while endeavoring to secure an adjustment of the claim, are competent evidence against his principal. Adams Exp. Co. v. Harris (Ind.) 214 25. Declarations as to the ownership of property, made by a person in possession thereof, are admissible in evidence upon an issue as to such ownership, as part of the res gesta. Lowman v. Sheets (Ind.) 784

V. RELEVANCY; SUFFICIENCY.

26. On the question of damages for injury to a spring which is not totally destroyed, evidence that the owner had previously sold

water from it is inadmissible. Kinnaird v. Standard Oil Co. (Ky.) 451

34. Evidence as to the extent of the property of the family, and of an incumbrance thereon, is inadmissible in an action for the death of plaintiff's husband. Hunn v. Michigan C. R. Co. (Mich.) 500

35. Evidence of specific acts of lewdness are inadmissible in an action for false arrest as a prostitute. Pinkerton v. Verberg (Mich.) 507 admissible to show a marriage, in all cases 36. Evidence of cohabitation and repute is where there is no question of a public offense involved. White v. White (Cal.)

799

repute may be made in a suit for divorce on 37. Proof of marriage by cohabitation and the ground of adultery, as well as in other

cases.

Id.

38. The possession of a deed by the grantee is prima facie evidence of delivery, where there is nothing to impeach the bona fides of his possession. Strough v. Wilder (N. Y.) 555.

39. Evidence supporting one of several counts setting out the same cause of action will sustain a finding for plaintiff in respect to such cause. Culver v. Marks (Ind.)

489

27. Where the applicant stated that no application by him for insurance was ever rejected, and it is shown that his application for membership in a mutual benefit society was rejected, plaintiff may show that the company's agent informed the insured that such societies were not regarded as life insurance companies, and need not be considered as such by him. Equitable L. Assur. Soc. v. Hazlewood (Tex.) 217 28. Where a life insurance company contests payment of a policy upon the ground that it was taken out by the beneficiary as a wagering policy, and proves that the beneficiary loaned the insured the money with which he paid the premium, testimony of the agent of the corporation is admissible as to negotiations preceding the application, tending to show that both the beneficiary and the insured were urged by the agent to apply for the insurance; that the premium was paid by insured; and that he thought of taking the policy for the benefit of the minor children of the beneficiary, but did | EXECUTION. See LEVY AND SEIZURE; not do so because the beneficiaries could not then be so easily changed in case such change became desiralde.

ld.

NOTES AND BRIEFS.

690

Privileged communications. Declarations of agent; how far binding on principal.

215

Agent's declarations admissible against prin 751

cipal.

Repairs as evidence of negligence.

PENSIONS; TIME, 2.

588

EXECUTORS AND ADMINISTRA-
TORS. See also DEATH, 1; SET-OFF
AND COUNTERCLAIM, 1-3.

1. A sale of land by executors, under a will giving them power to sell and convey it

either at public or private sale, with or without appraisement, on such terms as to them shall seem best, is not affected by a statute regulating the conduct of sales of land directed by will to be sold, and prescribing the manner of giv ing notice, conveying, etc., "unless by the terms of the will different directions are given." Valentine v. Wysor (Ind.)

788

FAMILY.

507

See DEFINITIONS, 1; HOME

2. The sale of a deceased partner's interest | vocation of a prostitute. Pinkerton v. Ver. in partnership real estate is authorized by a berg (Mich.) will giving power to settle, adjust, and compromise all debts owing by the testator, to make settlements with his former partners, and to sell and convey any or all of his real estate in order to pay and satisfy debts against his es tate. Valentine v. Wysor (Ind)

788

STEAD, 1.

NOTES AND Briefs.
Family; defined.

FENCES. See RAILROADS, 4.

3. An executor may convey his testator's interest in partnership real estate to his surviv- FEES. See DISTRICT ATTORNEYS, ing partner, in consideration of an agreement by the latter to pay partnership debts, where the will authorizes him to make settlements with testator's partners of all matters pertaining to the partnership business, to adjust, settle, and compromise all debts, claims, and demands against the estate, and in his discretion to sell and convey so much of the testator's real estate as should be deemed necessary to satisfy his debts. ld.

4. The general lien of a judgment creditor of a legatee upon lands charged with the lega cy, or upon the proceeds of a sale thereof, is subject to any equities that may exist in favor of the estate against the legatee. Koons v. Mellett (Ind.) 231

5. An incumbrance consisting of a vendor's lien, which is expressly assumed by a subsequent purchaser as part of the purchase price, is as much his personal debt as the remainder of the purchase money which is payable directly to his immediate vendor; and in case of his death it is a charge primarily upon his personal estate, and not a burden on the land in the hands of the heirs. O'Conner v. O'Conner (Tenn.)

6. In a proceeding to put heirs in possession of an estate, an issue must be joined with the administrator in possession, and proof be taken, and judgment rendered contradictorily, recognizing their capacity. Re Lorenz (La.)

NOTES AND BRIEFS.

265

747

FIRE. See INSURANCE, 1; NEGLIGENCE, 5.
FISHERIES. See also NUISANCES, 10.

The taking of fish with nets in specified waters may be prohibited by the Legislature, and the setting of nets for that purpose declared to be a public nuisance. Lawton v. 134 Steele (N. Y.)

NOTES AND BRIEFS.

Fisheries; power of Legislature to regulate. 134 FIXTURES.

1. A mortgagee in possession may lawfully take down or carry away buildings erected with his own moneys, and which are Lot so connected with the soil that they cannot be removed without prejudice. Cook v. Cooper (Or.)

273

2. A party in possession of premises who is entitled to remove structures may exercise the right without resort to equity.

FOREIGN

CORPORATIONS.

CORPORATIONS, V.

Id.

See

FORGERY. See BANKS AND BANKING, 3;
ESTOPPEL, 7.

FREIGHT. See CASE,

1. A valid gift causa mortis is made where one confined to his bed by a sickness which soon proves fatal, and who is fully apprised of the probable termination of the malady, instructs a person to whom he has entrusted the keys to a private box in a bank vault, which box contains money, etc., to count therefrom a certain amount in gold coin and bank bills. and place it in a separate package labeled as the property of a certain third person, and to deliver it to him, together with a package already so labeled, in the event of the donor's death, and upon being informed that the packages are prepared replies approvingly, and never again takes possession of the keys, although the money is permitted to remain in the donor's box until his death, and although the donee never constitutes the depositary his trustee, or even knows of the intended gift or of the delivery. Devol v. Dye (Ind.) 439

2. A promissory note will pass by delivery without indorsement as a gift inter vivos. 387 Hopkins v. Manchester (R. I.)

NOTES AND BRIEFS.
Gift of promissory note.
Causa mortis.

388

439

HIGHWAYS. See also NEGLIGENCE, 6;
RAILROADS, 3; STATUTES, 11; STREET
RAILWAYS.

1. An abutting owner has an easement in a street dedicated to the public when his lot was purchased, his right to which cannot be taken away, even by the Legislature, without compensation; a sale cannot be made of all of it except an alley, for the benefit of the town, even if it owns the fee. Moose v. Carson (N. C.) 548 2. Power given to a railroad company by the Legislature to construct and operate its road in the streets of a town or city is altogether independent of the municipality. Millvale v. Evergreen R. Co. (Pa.) 369

HOLIDAYS.

The approval, on a legal holiday, of the bond of an assignee for creditors by a court commissioner, even if it is a judicial act, is not prohibited by a statute declaring that "no court shall be opened or transact any business on any legal holiday," except to instruct or discharge a jury, or receive a verdict and render judgment thereon. Spaulding v. Bernhard (Wis.) 423

NOTES AND BRIEFS.

Holidays; approval of bond upon; validity. 423, 424

HOMESTEAD.

1. A brother who lives with a sister in a house belonging to her, where they live together as one family, she being dependent upon him for means of living, is the head of a family, within the meaning of the South Carolina homestead laws. Moyer v. Drummond (S. C.) 747

ld.

2. A homestead exemption is allowable in partnership property, under the South Carolina Constitution as amended in 1880. HUSBAND AND WIFE. See also CONFLICT OF LAWS, 1-3; DAMAGES, 8; EVIDENCE, 3, 18, 37; INDIANS, 1.

duct of the parties, where the habit and repute 1. Marriage may be proved by the conto show that the marriage status has been assumed is all uniform and undivided, although the connection of the parties was in its beginning illicit. White v. White (Cal.)

799

2. A marriage between a man and his

housekeeper was held to be established, although they never had any marriage ceremony performed, and illicit intercourse began between

them within one week after she came into his house, without any promise of marriage, and for several years thereafter and until their re3. One who has signed an agreement pro- moval to another place she was not regarded in vided for in an Act authorizing street improve the community as his wife, where several chilments, that in consideration of the right to pay dren were born to them, and after their rehis assessment in installments he will not ques-moval she was treated by him in all respects as tion its validity, cannot attack the provision of his wife, and so introduced by him to the peothe Act prohibiting the questioning of the as-ple of the community, and so regarded and sessment by one in such position. Quill v. treated by all their acquaintances in the limited Indianapolis (Ind.) 681 circle in which they moved. White v. White 4. To stand in a public street at night, en- (Cal.) gaged in conversation, heedless of horses and vehicles that are passing, is such negligence as will prevent recovery for injuries resulting from being thrown down by a wagon the driver of which did not see the person injured, although the driver also was negligent. Evans v. Adams Exp. Co. (Ind.)

678

799

3. By the settled policy of the State of Georgia, marriage relations between white persons and persons of African descent are forever prohibited, and by the statutes of the State such marriages are declared null and void. State v. Tutty (C. C. S. D. Ga.)

4. Marriage is more than a contract. is an institution which is the foundation of the family and of society; the rights and qualifications of the parties thereto depend upon the legislation of the State as controlled, for the benefit of the entire community, by principles of public policy.

Id.

5. A married woman is personally liable for her civil torts, including such frauds as do not grow out of, or are not directly connected with, or a part of, a contract which she has undertaken to make. Prentiss v. Paisley (Fla.) 640

6. Wherever coverture avoids a contract

name (Ind.)

ld.

An equitable claim for unauthorized improvements by part owners of land held in' common may be allowed to them on a sale for purpose of partition, as well as in any case of actual division. Moore v. Thorp (R. I.) 731 NOTES AND Briefs.

Improvements; allowance for, on partition.
731

INCOMPETENT PERSONS. See IN-
SANE PERSONS, NOTES AND BRIEFS.
INDIANS.

1. An Indian tribe within the State, rec

9. A married woman's right to carry on business on her own account does not prevent her from giving her services to her husband in carrying on his business, or prevent him, in that case, from recovering the value of such services, in an action for personal injuries sustained by her. Citizens Street R. Co. v. Twi-ognized as such by the United States government, is to be considered as a separate community or people, capable of managing its own affairs, including the domestic relations; and those persons belonging to the tribe, who are recognized by the customs and laws of the tribe as married persons, must be so treated by the courts; and the children of such marriages cannot be regarded as illegitimate. Earl v. Wilson (Minn.)

352 10. The power of a married woman to sell and transfer any of the loans of the Commonwealth of Pennsylvania, or of the city of Philadelphia, with like effect as if she were unmarried, under the Pennsylvania Act of March 18, 1875, extends to foreign or nonresident married women owning such securities. Farmers & M. Nat. Bank v. Loftus (Pa.) 313

(Ind.)

125

782

2. An Indian is not incapable of giving a 11. A married woman is not empowered to valid promissory note by the fact that he bebind herself by a judgment note, by the provi-longs to a band which is governed by ancient sions of the Pennsylvania Married Person's Indian customs and retains a tribal organizaProperty Act of June 3, 1887 (Pa. Pub. Laws, tion, unless it grows out of some contract pro332); at least if it is not given in the manage-hibited by law. Ke-tuc-e-mun-guah v. McClure ment, or for the benefit of, her separate estate, or in the prosecution of any business in which she is engaged, or for necessaries. Roop v. Real Estate Invest. Co. (Pa.) 211 12. The words " physically and incurably incapacitated from entering into the marriage state," in Ala. Code 1886, § 2322, stating a cause of divorce, mean impotency to consummate the marriage. Anonymous (Ala.)

425

13. Cruelty, which is a statutory ground of divorce, may be set up by a plea of recrimina tion as a bar to a bill for divorce on the ground of adultery. Church v. Church (R. I.) 385

14. A decree a mensa et thoro, under Minn. Gen. Stat. 1878, chap. 62, § 30 et seq., does not bar an action for a divorce a vinculo matrimonii upon any of the grounds specified by statute. Evans v. Evans (Minn.)

NOTES AND BRIEFS.

Libros

Lawyers' Reports Annotated, Libro 7