In indictment, see Indictment, etc., 3, 4. DURESS. 1. A conveyance of property by a debtor to his creditor is void where a criminal warrant is issued the principal object of which is to enforce the collection of the debt due to a corporation of which the magistrate issuing the warrant is the president, and the defendant is imprisoned under such warrant, and the conveyance is made in order to secure the release of the debtor. Jordan v. Beecher, L.R.A.1915D, 1122, 84 S. E. 549, Ga. -. 2. A tax sale to real estate does not cut off easements of light, air, and access in it belonging to adjoining property owners, although the latter were made parties to the foreclosure proceeding and the judgment provided that each defendant be barred of all right, claim, lien, and easement in the property, if the complaint did not show that plaintiff sought to bar their superior easements. Tax Lien Co. V. Schultze, L.R.A.1915D, 1115, 106 N. E. 751, 213 N. Y. 9. (Annotated) EJECTMENT. By husband for wife's property, see ELECTIONS. Vote of municipality for incurring indebtedness, see Municipal Corporations, 13. Right of election officials to maintain action to prevent waste of public funds, see Parties, 4. Who may maintain action to determine result of election, see Parties, 6. ELECTRICITY. 2. The conveyance by a wife whose fears and affections are worked upon through criminal proceedings instituted One maintaining heavily charged against her husband, to her husband's cred-wires in a city street, 29 feet from the itors through the medium of her husband, ground and 12 feet from the adjoining of her property to pay the husband's debt building, is not liable for the death of the and obtain his release from imprisonment, janitor of the building, who, in attempting, is a conveyance under duress as to the wife, while on the ground, to substitute a wire and a purchaser from the husband's cred- for a rope on a flagstaff on the building, itor with notice of the wife's equity cannot walks toward the street far enough to bring prevail in an action to recover the land the wire in contact with the current, therefrom her. Jordan v. Beecher, L.R.A.1915D, by causing his death, since there is no duty to anticipate such an accident. Geroski v. 1122, 84 S. E. 549, Ga. 3. A deed secured for a grossly inadequate consideration, threats to send the grantor's father to the chain gang for an alleged offense, will be set aside for duress. Embrey v. Adams, L.R.A.1915D, 1118, 68 So. 20 Ala. (Annotated) DUTY. Presumption of performance of, see DYING DECLARATIONS. Admissibility of, see Evidence, 31. EASEMENTS. Duty of purchaser at tax sale to comply with bid for property subject to easements, see Taxes, 3. 1. A grant by metes and bounds of a parcel of land over which a visible right of way exists in favor of remaining land of the grantor which is located on a public highway, by a deed containing full covenants of warranty and no express reservation, does not reserve the right of way by implication, although it is reasonably necessary for the full enjoyment of the grantor's remaining land, since under such circumstances a reservation of easement is implied only in case of strict necessity. Howley v. Chaffee, L.R.A.1915D, 1010, 93 Atl. 120, Vt. Allegheny County Light Co. L.R.A.1915D, 560, 93 Atl. 338, 247 Pa. 304. ELEVATORS. Error in admitting evidence in action negligence, see Evidence, 17, 18. Husband's liability for wife's negli gence as to, see Husband and Wife, 1. Attempt of insured to operate as increase of risk, see Insurance, 23. 1. The liability of the owner of an elevator in an office building to those right fully using it is that of a common carrier to passengers. Dibbert V. Metropolitan Invest. Co. L.R.A.1915D, 305, 147 N. W. 3, 158 Wis. 69. 2. The owner of an elevator in an office building is liable for injuries to passengers because of the negligence of the manufacturer of the apparatus in using an unsafe bolt to unite the cables to the car. Dibbert v. Metropolitan Invest. Co. L.R.A. 1915D, 305, 147 N. W. 3, 158 Wis. 69. EMERGENCY BRAKE. (Annotated) Injury to passenger by application of, see Carriers, 2-4. EMINENT DOMAIN. Amount of recovery, see Damages, 7. That part of the expense of constructing a drainage ditch assessed against a county for the benefits accruing to such county by virtue of the drainage of public highways cannot legally be paid out of funds collected by special assessments made against the property owners of said drainage district, since this would be taking private property for public use without just compensation, in violation of the Constitution and laws of the state. Wilkins v. Hillman, L.R.A.1915D, 249, 145 Pac. 1111, Okla. EMPLOYEES. See Master and Servant. EMPLOYER'S LIABILITY. ENACTMENT. Of statutes, see Statutes, 1. ENCUMBRANCES. Covenants against, see Covenants and ENROLLED BILL. Absence of signature of Speaker ENTIRETY. recover the possession while the lessee complies with his agreement. Calkins v. Pierce, L.R.A.1915D, 467, 92 Atl. 529, 112 Me. 474. (Annotated) 2. The officers of a bank will not be heard to deny the entries on the books of the bank, their sworn published statements, and their sworn representations to the state examiner of state banks concerning a deposit to the credit of another insolvent bank, where the state examiner, the depositors and creditors of the insolvent bank, and the public, have accepted and acted upon such sworn published statements. Kennedy v. Young, L.R.A.1915D, 935, 67 So. 547, · La. (Annotated) 2. The court takes judicial notice that X-ray machines sometimes inflict serious burns. State v. Lester, L.R.A.1915D, 201, 149 N. W. 297, 127 Minn. 282. 3. The court does not judicially know that a caboose car 24 feet long with adjustable and oscillating four-wheeled trucks is not more safe than one 18 feet long with of two-wheeled rigid ones, so as to declare a statute requiring a change from the one to the other unconstitutional as taking property without due process of law. Pittsburgh, C. C. & St. L. R. Co. v. State, L.R.A. Of insurance contract, see Insurance, 1915D, 458, 102 N. E. 25, 180 Ind. 245. 15. Presumptions and burden of proof. Instructions as to, see Trial, 11. 4. The court will, in the absence of evidence to the contrary, presume, in support of an order by a Railroad Commission directing railroad companies to procure land within certain limits and construct thereon a union station, that such land for that scribed limits at a reasonable price. Railpurpose can be obtained within the preroad Commission v. Alabama G. S. R. Co. L.R.A.1915D, 98, 64 So. 13, 185 Ala. 354. 5. To avoid the penalty provided by the hours of service act, a carrier which is shown to have kept an employee on duty more than sixteen consecutive hours has the burden of showing facts which bring it within the conditions under which the proviso makes the act inapplicable. Great Northern R. Co. v. United States, L.R.A.1915D, 408, 218 Fed. 302, — C. C. A. -. 6. In the absence of evidence as to the character of the accused, the jury cannot consider the presumption of good character as evidence in his favor upon the question of guilt or innocence. Price v. United States, L.R.A.1915D, 1070, 218 Fed. 149, 132 C. C. A. 1. 7. An absentee is presumed to live until the contrary is proved; otherwise the absence must be such that the life of a man, who may live one hundred years, should be presumed to have ended. Quaker Realty Co. v. Starkey, L.R.A.1915D, 176, 66 So. 386, La. 8. Sanity is presumed, and the taking of one's own life does not, in itself, establish insanity. Ledy v. National Council of K. & L. of S. L.R.A.1915D, 1095, 151 N. W. 905, 129 Minn. 137. 9. A mere fitful or temporary mental disorder will not be presumed to continue. Broz v. Omaha Maternity & G. H. Asso. L.R.A.1915D, 334, 148 N. W. 575, 96 Neb. 648. 10. In an action for breach of promise to marry, an unequivocal intention on defendant's part not to perform his contract may be inferred from his conduct. Corduan v. McCloud (N. J. Err. & App.) L.R.A.1915D, 1190, 93 Atl. 724, N. J. 11. Failure of a railroad company to produce in response to a subpoena the record of the cars with which an employee in a yard was at work when injured does not amount to a suppression of evidence which will raise a presumption against the company, if the evidence is uncontradicted that no such record was kept. Hench v. Pennsylvania R. Co. L.R.A.1915D, 557, 91 Atl. 1056, loss was occasioned by an act of God, the burden is upon the carrier to show that such loss was the proximate result of the act of God, but, when this is done, the burden then shifts to the shipper to show that negligence on the part of the carrier cooperated with the act of God in bringing about the damage to the shipment. St. Louis & S. F. R. Co. v. Dreyfus, L.R.A. 1915D, 547, 141 Pac. 773, 42 Okla. 401. (Annotated) 16. The rule of res ipsa loquitur does not establish negligence against the owner of property upon which a tank of gas explodes, in the absence of anything to show that it was in his control. Conley v. United Drug Co. L.R.A.1915D, 830, 105 N. E. 975, 218 Mass. 238. 17. The owner of an elevator in an office building which falls to the injury of a passenger because of the breaking of the bolt which unites the cables to the car has the burden of showing that the manufacturer made a test of the tensile strength of the bolt if that would have disclosed its weakness, or if the apparatus had been used so long that the manufacturer's negligence might not have been the cause of the accident, he must show that he examined and tested the parts to ascertain whether or not they had been weakened by use. Dibbert v. Metropolitan Invest. Co. L.R.A. 1915D, 305, 147 N. W. 3, 158 Wis. 69. 18. Proof by a passenger in an elevator in an office building that he was injured by its fall due to a defective bolt casts upon its owner the burden of showing that he took all the precautions to safeguard passengers which the law required him to take. Dibbert v. Metropolitan Invest. Co. L.R.A.1915D, 305, 147 N. W. 3, 158 Wis. 69. 19. A certificate of the auditor whose duty was to assess the cost of a street improvement on abutting property, that he had made the assessment in proportion to benefits, is presumed to be true. Reiff v. Portland, L.R.A.1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. 20. One seeking to recover damages for the death of an employee injured at a place where he was forbidden to be by the rules of his employer has the burden of showing that he was there in the performance of some duty owing to the employer. Hobbs v. Great Northern R. Co. L.R.A.1915D, 503, 142 Pac. 20, SO Wash. 678. Documentary evidence. 21. A letter of recommendation given a workman discharged at the request of fellow workmen, on the day of his discharge, stating the reasons therefor, is admissible as res gesta in an action for damages by such employee against those who secured his discharge. Bausbach v. Reiff, L.R.A. 1915D, 785, 91 Atl. 224, 244 Pa. 559. 22. Mortality tables are not rendered inadmissible in evidence by proof of disease or ill health of the person whose expectancy of life is under consideration, such facts going only to the probative effect of the tables. Broz v. Omaha Maternity & G. H. | of the hospital, while in the performance of Asso. L.R.A.1915D, 334, 148 N. W. 575, 96 Neb. 648. Parol and extrinsic evidence concerning writings. 23. Parol evidence may be introduced in an action at law as well as in a suit in equity, to show a misdescription of land on which crops insured against hail are growing, by reason of a mistake of the insurance agent in writing down such description. French v. State Farmers' Hail Ins. Co. L.R.A.1915D, 766, 151 N. W. 7, 29 N. D. 426. Opinions and conclusions. 24. Expert testimony is not admissible upon the question whether or not the fire which is the basis of an indictment for arson was set. People v. Grutz, L.R.A. 1915D, 229, 105 N. E. 843, 212 N. Y. 72. 25. Upon trial for burglary evidence is inadmissible that witness learned that someone other than accused had placed the stolen property near the house of accused to cast suspicion on him. Lawson v. Com. L.R.A. 1915D, 972, 169 S. W. 587, 160 Ky. 180. Hearsay; declarations; res gestæ. 26. Declarations by a person since deceased, of relationship to a particular family, are not of themselves sufficient to establish such relationship, so as to render admissible evidence of his declarations with respect to the pedigree of persons claiming to be members of such family. Aalholm v. People, L.R.A.1915D, 215, 105 N. E. 647, 211 N. Y. 406. (Annotated) 27. Communications made by a complaining witness to the prosecuting attorney concerning his knowledge of matters relat ing to the probable guilt or innocence of the defendant are privileged, and cannot be given in evidence over his objection in an action against him for malicious prosecution. Matson v. Michael, L.R.A.1915D, 1, 105 Pac. 537, 81 Kan. 360. 28. Evidence of communication by a man to his wife in the presence of others is not inadmissible on the ground of confidence or privilege. Pilcher v. Pilcher, L.R.A.1915D, 902, 84 S. E. 667, Va. 29. Upon the question of liability of a railroad company for injury to an employee through the negligent collision of two engines, evidence of his statements soon after the injury as to why he was at the place where the injury occurred is not admissible as res gestæ, because they do not in any way explain or characterize the main facts under investigation. Hobbs v. Great Northern R. Co. L.R.A.1915D, 503, 142 Pac. 20, 80 Wash. 678. (Annotated) her duties, how the patient got poison, and who was referred to the patient with directions to go to his room and ask "how and where he got it and what it was," and such nurse afterward assented to statements made by the patient in answering these questions when promptly repeated to her by the inquirer. Broz v. Omaha Maternity & G. H. Asso. L.R.A.1915D, 334, 148 N. W. 575, 96 Neb. 648. 31. Dying declarations are admissible as such only in case of felonious homicide. Hobbs v. Great Northern R. Co. L.R.A. 1915D, 503, 142 Pac. 20, 80 Wash. 678. Relevancy and materiality. Of unreasonableness of statute, see 32. The practice of others engaged in the same business is evidence upon the question of negligence in not maintaining an elevation of a warehouse above the possible reach of tides, so as to render the owner liable for injury by tides to property stored therein. Hecht v. Boston Wharf Co. L.R.A. 1915D, 725, 107 N. E. 990, 220 Mass. 397. 33. To show intent of an employee charged with burglary of his employer's store, evidence is admissible that he padded the inventory, concealed articles about his work bench which were subsequently taken from the building, and entered the building at an unusual hour and took articles therefrom at a time different from that charged in the indictment. State v. Corcoran, L.R.A. 1915D, 1015, 143 Pac. 453, 82 Wash. 44. 34. In an action to recover damages for injuries to a woman through fright at an explosion on adjoining property, evidence is not admissible of a promise that no explosion should occur while her husband was away from home. Salmi v. Columbia & N R. R. Co. L.R.A.1915D, 834, 146 Pac. 819, Or. 30 Statements made by a patient in a 37. Upon trial for arson in which defendhospital as to where he obtained poisonant is alleged to have consented to procure tablets which he took thinking them to be medicine are admissible in evidence as admissions or declarations tending to prove negligence on the part of the hospital in an action subsequently brought for his wrongful death resulting from such poison, where the statements were made to one who had previously inquired of the head nurse insurance on buildings, burn them, and collect the insurance, evidence is not admissible of a fire in his own building before the conspiracy existed, and which was not started by the one who started those under the alleged conspiracy, or shown to have been connected with the one for which the indictment was found. People v. Grutz, L.R.A.1915D, 229, 105 N. E. 843, 212 N. I moral and mental fitness to practise law. Y. 72. State Bar Commission ex rel. Williams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. Weight, effect, and sufficiency. 38. Evidence of fires which had taken place from time to time under agreement between two persons to get the property insured and one to set it on fire and the 44. A verdict by a jury may be based on other collect the insurance and to share in an auditor's finding, unless it is not supportthe proceeds is not admissible upon a trialed by the facts found, or they are so inconof an indictment for causing one of the fires, if each was a separate transaction, with no such relation between them in respect to time, place, or circumstances that the mere evidence of the origin of one would tend to prove the origin of another. People v. Grutz, L.R.A.1915D, 229, 105 N. E. 843, 212 N. Y. 72. 39. Upon a prosecution for statutory rape, evidence of subsequent acts of intercourse between prosecutrix and accused is admissible if they are so related by brevity of time, continuity of lewdness, or otherwise, to the principal act, as to justify the inference or indicate that the mutual disposition of the parties evidenced by them existed at the time of such act. People v. Thompson, L.R.A.1915D, 236, 106 N. E. 78, 212 N. Y. 249. 40. Upon the question of breach of warranty that fertilizer contains certain ingredients in certain proportions in a contract which provided that the vendor should not be liable for results evidence of the effect of the fertilizer upon crops is admissible in connection with proof of the kind of soil, manner of cultivation, accidents of season and other pertinent facts to prove that it did not contain the ingredients stated or in the proportion specified. Hampton Guano Co. v. Hill Live Stock Co. L.R.A. 1915D, 875, 84 S. E. 774, 168 N. C. 442. (Annotated) 41. Upon the question of the guilt of one accused of arson through the agency of another, evidence is admissible of conversations between accused and such person, tending to show a conspiracy between them to insure buildings and set them on fire to procure the insurance. People v. Grutz, L.R.A.1915D, 229, 105 N. E. 843, 212 N. Y. 72. 42. Upon the question of liability of directors of a corporation for distributing funds among themselves as salaries, evidence is not admissible that the predecessor of the complaining stockholder consented to such practice, if his consent related to a predecessor of the corporation with respect to which complaint is made, at a time when there was no attempt at discrimination between shareholders. Godley v. Crandall & Godley Co. L.R.A.1915D, 632, 105 N. E. 818, 212 N. Y. 121. 43. Under Okla. Comp. Laws 1909, § 266, an attorney cannot be suspended or disbarred for the filing of any pleading or exhibit in the courts of this state, but a petition, with a pamphlet attached thereto as an exhibit, falsely and maliciously attacking the courts of this state and the judges thereof, may be considered as evidence upon the question of the attorney's sistent as to neutralize each other, or are overcome by other evidence. Hecht v. Boston Wharf Co. L.R.A.1915D, 725, 107 N. E. 990, 220 Mass. 397. 45. Upon the question of the right to recover for the death of an employee, the jury cannot speculate as to what he might have been doing or why he was at the place where the injury happened, contrary to the positive testimony in the case. Hobbs v. Great Northern R. Co. L.R.A.1915D, 503, 142 Pac. 20, 80 Wash. 678. 46. To disbar an attorney, his guilt of the charges presented against him need not be proven beyond a reasonable doubt. State Bar Commission ex rel. Williams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35 Okla. 745. 47. That the evidence of theft is wholly circumstantial does not defeat recovery on a policy of insurance against loss by theft, although it provides that assured shall produce direct and affirmative evidence that the loss was due to theft; disappearance of the articles not to be deemed such evidence. Miller v. Massachusetts Bonding & Ins. Co. L.R.A.1915D, 615, 93 Atl. 320, 247 Pa. 182. 48. In an action by a municipal corporation for the penalty for transacting a business without license, a preponderance of the evidence is sufficient to show violation of the ordinance, and the proof need not be direct. Portland v. Western U. Teleg. Co. L.R.A.1915D, 260, 146 Pac. 148, Or. 49. One with whom a bet is made is not an accomplice of the other party to the transaction, who is under prosecution for violating the statute against betting, within the rule that a conviction cannot be had upon the unsupported testimony of an accomplice. Paylor v. United States, L.R.A. 1915D, 682, 42 App., D. C. 428. Admissibility under pleadings. 50. To justify evidence of conditions within the exception to the Federal hours of service act relating to employees on interstate railroads, the facts concerning them must be pleaded. Great Northern R. Co. v. United States, L.R.A.1915D, 408, 218 Fed. 302, C. C. A. - EXAMINATION. Of witnesses, see Witnesses, 2. EXCEPTIONS. Negation of, in indictment, see Indictment, etc., 2. EXCISE. See License. |