actual damages were, the sum named will be treated as liquidated dame
ages, and the builder held answerable therefor. Hennessy ▼. Metzger,
267.

8. PENALTY OR Liquidated DAMAGES.—Where, from the nature of a contract,
the damages cannot be calculated with any degree of certainty, a stipu-
lated sum will usually be held to be liquidated damages when so desig-
nated in the contract. Hennessy v. Metzger, 267.

Bee BUILDING CONTRACTS; JUDGMENTS, 12; LANDLORD AND TENant, 4;
NEGLIGENCE; Nuisance, 4, 5; SLANDER, 3; TRESPASS, 2

DEATH.

See DAMAGES, 3; MECHANICS' LIENS, 3.

DEBTOR AND CREDITOR.

FRAUDULENT CONVEYANCES-WHAT SUFFICIENT TO CREATE RELATION OF.—
The contingent liability of a surety is sufficient to create the relation of
debtor and creditor within the meaning of the statute of frauds against
the fraudulent alienation of property, and a note given for a pre-exist-
ing debt and renewed from time to time by the maker and surety con-
tinues the debt in force as originally made. Reel v. Livingston, 202.

See ASSIGNMENT, 4.

DECLARATIONS.

See EVIDENCE, 9; WILLS, 9.

DEDICATION.

THE DEDICATION TO PUBLIC USE OF A RIVER AND THE LAND COVERED
THEREBY, except for the purposes of navigation, will not be presumed
from the fact that the owner made and filed a plat subdividing his lands
into lots and blocks, and on such plat represented the river as between
parallel lines, and in the space between such lines wrote the name of
the river. Chicago v. Van Ingen, 285.

DEEDS.

1. DELIVERY IN ESCROW.-Delivery of a deed by a grantor to his daugh.
ter for subsequent delivery, upon the happening of a certain event,
to another of his daughters, named as grantee therein, is a good
delivery. Upon the happening of the event named the grantee may
compel the delivery of the deed to her. Brown v. Stutson, 462.

2. A CONVEYANCE OF ALL THe Lands, TeneMENTS, HEREDITAMENTS, AP-
PURTENANCES OF EVERY DESCRIPTION belonging to the grantors, or either
of them, or in which they have, or either of them has, any interest,
wherever such property, or any part thereof, may be situate, is not
void for want of description, and transfers their title to any and all
lands in which they have any interest. McCulloh v. Price, 637.

8. CONVEYANCE.-AN EXCEPTION FROM A CONVEYANCE OF All Property OF
the Grantors, or Either of them, Exempt frOM EXECUTION by the
laws of the state wherein the conveyance is made, does not render it void
for uncertainty. That is certain which may be made certain. McCul
loh v, Price, 637.
RECORD AS EVIDENCE OF EXISTENCE OF. An original record of a
deed is not admissible in evidence to show the existence and execution

-

of the original deed when it is not shown that such original is not
within the custody or control of the party offering such record copy.
Johnson v. State, 172.

5. QUITCLAIM-Liability Under-A grantor conveying by deed of bar-
gain and sale all his right, title, ciaim, and interest in and to a tract
of land is not responsibls for defects in the title beyond the covenants
in his deed. Reynolds v. Shaver, 36.

6. DEEDS OF ALL TITLE AND INTEREST-EFFECT OF COVEnant of War-
RANTY.—If a deed purports in terms to convey only the right, title, and
interest of the grantor to the land described, instead of conveying in
terms the land itself, a general covenant of warranty is limited to that
right or interest, and cannot be broken by the enforcement of a pnra
mount title outstanding against the grantor at the time of the convey.
ance. Reynolds v. Shaver, 36.

DEFAULT.

See JUDGMENTS, 16.

DEFINITIONS.

"Attestation." Wickersham v. Johnson, 118.

"Body." Walker v. State, 186.

"Copy." Wickersham v. Johnson, 118.

"Due process of law." State v. Billings, 525.

"Forthwith render judgment." Sorenson v. Swensen, 472.
"Immediately." Kentzler v. American etc. Accident Assn., 934.

"Legal disability." King v. Carmichael, 303.

"Night-time," What is. In the absence of statutory definition it is
"night-time" so long as a man's face cannot be discerned; otherwise,
without taking moonlight into consideration, it is daytime. Hence,
an instruction fixing the end of night and the commencement of day at
exactly one hour before sunrise is erroneous. Klieforth v. State, 875.

"Open and gross lewdness." State v. Juneau, 877.

DESCENT.

ESTATES-RIGHT OF WIDOW TO SHARE IN PERSONAL PROPERTY OF HUS.
BAND.-Under the Michigan statute a widow takes a share of the per-
sonal property of her husband as distributee, and not as dowress, and
is an heir as to such property. Lyons v. Yerex, 452.

See HUSBAND and Wife, 3.

DIVORCE.

See MARRIAGE AND DIVORCE.

DOCKS.

See WATERS, 6; WHARVES.

DOWER.

1. EFFECT OF DIVORCE.-A decree of divorce from the bonds of matrimony
bars the wife's claim of dower. Wood v. Wood, 42.

2. TAX TITLES-EFFECT ON DOWER INTEREST.-A wife's inchoate dower in
terest in land is not divested or affected by a tax sale of the land in the
absence of a statute so providing. Thompson v. McGorkle, 334.
See CLOUD ON TITLE; LIMITATIONS OF ACTIONS, 3; TAXES, 1, 2;

DUE PROCESS OF LAW.

See CONSTITUTIONAL LAW; INSANE PERSONS.

DURESS.

1. NEGOTIABLE INSTRUMENTS-DURESS AS A DEFENSE.-The defense of da
ress is not, as a general rule, available in an action upon a promissory
note given to prevent the prosecution of another person; but one excep.
tion to this rule is, that a wife may avoid her note made under duress
of threats of criminal prosecutiou against her husband, as it is for that
reason void. City National Bankv. Kusworm, 880.

2 DISAFFIRMANCE OF CONTRACT WITHOUT RESTORATION OF CONSIDERA.
TION.-A wife may avoid her contract for duress without any ref.
erence to formal restoration if she has received no benefit, as there
is nothing to restore. Hence, if, under duress of threats of criminal
prosecution of her husband on the charge of forging notes deposited
as collateral security for his own notes to a bank, a wife gives her
note to the bank for the amount of her husband's notes, and the cashier
of the bank delivers the husband's notes and the collaterals to a friend
of the wife, who immediately hands them to her, with the request for
her to deliver them to her husband, which she does, she may avoid her
note, in an action upon it by the bank, upon the ground of duress,
without restoring her husband's notes or the collaterals to the bank, as
she has received no benefit. City Nat. Bank v. Kusworm, 880.

EIGHT HOUR LAW.

See STATUTES, 2, 3,

EJECTMENT.

1. PLEADING-PRIMA FACIE CASE. -Under a statute requiring the defend.
ant in ejectment to plead the estate or license, under which he holds
possession, an answer by way of general denial creates no issue under
which evidence of his title is admissible, and, if the plaintiff pleads
and proves any legal title to the premises, he thereby establishes a
prima facie case. Allen v. Higgins, 847,

2 EQUITABLE DEFENSE.-A plea on equitable grounds may be interposed
in an action of ejectment, provided the matter set up authorizes the
defendant to enjoin the judgment, should one be recovered against
him. The facts alleged in such plea must not, however, make such s
defense as is available in the common-law action, or the court is justi
fied in refusing to allow the plea to be filed, or in striking it out if
filed. Johnson v. Drew, 172.

See COTENANCY; MUNICIPAL CORPORATIONS, 8; Patents, 1.

ELECTIONS.

Bee CORPORATIONS, 3-5; INTOXICATING LIQUORS; WITNESSES, 6-7.

ELECTRICITY.

See NEGLIGENCE, 4, 5.

ELEVATORS.

ELEVATORS-Master and Servant-Carriers.—If a person using a whole
building for his business permits, but does not require, his employees

to ride up and down on a freight elevator used therein, they are, while so riding in going to and from work, employees, and not passengers. The degree of care required of a master toward his servant is imposed upon the employer in such a case, and not that of common carrier of passengers. McDonough v. Lanpher, 541.

ENTIRETIES.

See HUSBAND And Wife, 6; PARTITION.

EQUITY.

1. JURY TRIAL.-THE VERDICT OF A JURY IS NOT CONCLUSIVE upon court in an equity case by virtue of section 250 of the Code of Civil Procedure of Montana. It will not be presumed from any devious and uncertain language that the legislature undertook to prune away one of the most distinctive and important jurisdictional functions of the equity courts. Kleinschmidt v. Greiser, 652.

2. IF A LOSS MUST BE BORNE BY ONE OF TWO INNOCENT PERSONS, it shall be borne by him who occasioned it. City Nat. Bank v. Kusworm, 880. 3. EQUITY JURISDICTION. THE TITLE TO AN OFFICE cannot be tried in equity. State v. Van Beek, 397.

4 MISTAKE. FOR A MISTAKE OF LAW, pure and simple, there is gen. erally no remedy, but relief may be afforded in equity if the sur rounding circumstances are of such a nature that the adverse party is seeking to avail himself of the opportunities afforded by the mistake, and is attempting to enforce an unconscionable advantage without con. sideration, provided the other party is not blamable. Lane v. Holmes, 508.

5. MISTAKE. EQUITABLE RELIEF can be Granted if there is a mistake of fact, or a mistake of law and fact combined, especially if it does not result in injury to the opposite party. Lane v. Holmes, 508.

6. CONTEST OF WILL-RELEASE OF FUTURE POSSIBILITY-COVENANT NOT TO CONTEST, AND ITS ENFORCEMENT IN EQUITY.-If the subject matter of an existing covenant not to contest a will is in the mind of the contracting parties, and the covenant operates as a release of an expectancy as heir, a court of equity, upon the same principle that it upholds assignments of such expectancies, will sustain such covenant as a release by the presumptive heir of his contingent right to contest the will of his ancestor, and enforce the same, when fairly obtained, and for an ade quate consideration. In re Estate of Garcelon, 134.

See CORPORATIONS, 15-17; JUDGMENTS, 18; MORTGAGES, 11; SPECIFIC PER

FORMANCE.

ERROR, WRIT OF.

See CERTIORARI.

ESCROW.

See DEEDS, 1.

ESTATES.

AN HEIR MAY RELEASE TO THE ANCESTOR HIS EXPECTED SHARE in the ancestor's estate, and thereby estop himself from claiming as heir any

portion of such estate as might otherwise in the future vest in him as such heir. In re Estate of Garcelon, 134.

See DESCENT.

ESTOPPEL.

1. AN ESTOPPEL MUST BE MUTUAL. It must bind both parties, and one who is not bound by it cannot take advantage of it. First Nat. Bank v. Northwestern Nat. Bank, 247.

2. TO CONSTITUte an Estoppel IN PAIS some thing must be said or done by the person estopped. The independent act of another person, even though such other person is her husband, cannot create such an etoppel. City Nat. Bank v. Kusworm, 880.

See CORPORATIONS, 11, 19; ESTAtes; Insurance, 7; OFFICERS, ▲

EVICTIONS.

See LANDLORD AND TENANT, 24

EVIDENCE.

1. EVIDENCE OBTAINED BY TORT.-Courts do not pause in the trial of a case to open up a collateral inquiry upon the question of whether a wrong has been committed in obtaining information possessed by a witCluett v. Rosenthal, 446.

ness.

2 EVIDENCE OBTAINED BY TORT.-One who is in no way responsible for a tort by which information is obtained may introduce evidence of the facts so ascertained, although trespass has been committed by the witness in obtaining the information. Cluett v. Rosenthal, 446.

8. IMPROPERLY OBTAINED CONTENTS OF ACCOUNT-BOOKS. — The fact that knowledge of the contents of account-books was obtained by a witness while they were in the hands of a sheriff under an authorized attachment does not render his testimony as to such contents incompetent if, at the time such knowledge was obtained, he was not acting for the person who seeks to introduce such evidence. Cluett v. Rosenthal, 446. 4. JUDICIAL NOTICE is taken of the fact that wine is an intoxicating liquor. Wolf v. State, 34.

B. JUDICIAL NOTICE is taken of the fact that a bank, when it makes a collection for a foreign correspondent, never, unless specially directed, remits the specie collected, but instead thereof always takes the specie to its own use, and sends therefor its draft or certificate of deposit. Bowman v. Firsl Nat. Bank, 870.

& JUDICIAL NOTICE-DESCRIPTION OF LANDS.-If lands are clearly and distinctly described by the complaint in a judicial proceeding by refer ence to the section, township, and range of the United States govern. ment survey, the court must take judicial notice of the county in which they are situated, without any evidence on that point. This matter must be determined bp the court in the same manner as a legal proposition, and cannot be made an "issue" between the parties to be deter. mined by the court in each case upon conflicting evidence presented in that case. Rogers v. Cady, 101.

7. LAW OF FOREIGN COUNTRY.-The foreign law, as to questions raised in the courts of this state, must be assumed, in the absence of any evidence tending to show what that law is, to be the same there as here. This rule