CRIMINAL LAW-Continued.

40. WITNESSES CHARACTER OF DECEASED

CROSS-EXAMINATION.

In prosecution for murder, wherein accused claimed selfdefense, witnesses as to character of deceased for peace and quiet were properly cross-examined by questions asking whether they knew certain persons and remembered whether deceased had assaulted them; the form of the questions being unobjectionable. Idem.

41. WITNESSES-OBJECTIONS TO QUESTIONS TO WITNESS.

Where one accused of homicide was permitted without objection to introduce evidence attacking deceased's reputation for peace and quiet before he had testified to an overt act of deceased looking toward his claim of justifiable homicide, it was too late for the state to object to questions on crossexamination of character witnesses as to whether they had heard of deceased's acts in testing whether they knew his reputation. Idem.

CROSS-EXAMINATION. See CRIMINAL LAW, 38, 39, 40.

CURE BY OTHER TESTIMONY. See CRIMINAL LAW, 33.
CUSTODY OF PROPERTY. See ATTACHMENT, 3, 5, 6.

DAMAGES. See LIBEL AND SLANDER, 8, 10, 11.

DEBT. See PAYMENT, 1.

DECEASED PERSONS. See WITNESSES, 1, 2.

DEFENDANTS RESIDING OUTSIDE OF STATE. See PROCESS, 1.

DEFENSES. See MASTER AND SERVANT, 1.

DELEGATION OF POWER TO JUDICIARY. See CONSTITUTIONAL LAW, 3.

DEMURRER TO PETITION FOR MANDAMUS. See MANDAMUS, 1. DEPUTY SUPERINTENDENTS OF PUBLIC INSTRUCTION. See SCHOOLS AND SCHOOL DISTRICTS, 1, 2.

DESCENT AND DISTRIBUTION.

1. COMMUNITY PROPERTY.

Stats. 1915, c. 130, does not affect or repeal Rev. Laws, 2164. 2165, relating to descent of community property, and where spouse dies intestate all the community property goes to the surviving spouse. In Re Kattenhorn's Estate, 375.

DESCRIPTION IN LEASE. See EVIDENCE, 2, 3.

DESCRIPTION OF PROPERTY. See VENDOR AND PURCHASER, 1.

"DESERTION." See DIVORCE, 1, 2.

DESTRUCTION OF CANALS. See WATER AND WATERCOURSES, 1.

DISCRETION OF COURT. See CRIMINAL LAW, 8.

DISCRETIONARY ORDERS. See APPEAL AND ERROR, 11.

DISCRETIONARY POWER OF COURT. See CRIMINAL LAW, 4, 5,

10, 11; JURY, 1, 2; PROHIBITION, 1.

DISMISSAL OF APPEAL. See APPEAL AND ERROR, 12.

DISPOSITION OF CASE BY SUPREME COURT. See APPEAL AND ERROR, 1.

DISPOSITION OF PROPERTY. See DIVORCE, 3. 4.

DISSOLUTION OF ATTACHMENT.

See APPEAL AND ERROR, 2;

BANKRUPTCY, 1.

DISTRICT COURT. See CERTIORARI, 1, 2; CONSTITUTIONAL LAW, 3; COUNTIES, 2.

DIVERSITY OF CITIZENSHIP. See REMOVAL OF CAUSES, 1.

DIVORCE.

1. "DESERTION."

When the husband gives up the domicile at one place and establishes another, and in good faith urges the wife to live with him there, her refusal to accept the invitation, if without sufficient reason, amounts to "desertion." Roberson v. Roberson, 276.

2. DESERTION-SUFFICIENCY OF EVIDENCE.

In suit by husband, who was first guilty of desertion, for divorce on the ground of desertion of the wife, evidence held insufficient to show that husband's invitation to the wife to come and live with him was made in good faith. Idem.

3. DISPOSITION OF PROPERTY—STATUTE.

The power of the court given by Rev. Laws, 5841, to make such disposition of the property of the parties as shall appear just and equitable in granting a decree of divorce, is limited by Const., art. 4, sec. 31, Stats. 1864-65, c. 76, and Stats. 1873, c. 119, determining the property rights of husband and wife. Walker v. Walker, 4.

4. DISPOSITION OF PROPERTY-STATUTE-IMPLIED REPEAL.

Rev. Laws, 2166, determines the rights of the parties to the community property on dissolution of the marriage, though the earlier statute, section 5941, empowering the court to dispose of the property on granting a divorce, has not been amended or repealed in terms. Idem.

5. EFFECT ON PROPERTY RIGHTS-STATUTES.

Under Const., art. 4. sec. 31, Stats. 1864-65, c. 76, and Stats. 1873, c. 119, fixing the property rights of husband and wife, the dissolution of the marriage does not of itself operate to change the property rights. Idem.

6. JURISDICTION OF DISTRICT COURT-ACTS COMMITTED IN ILLINOIS--STATUTE.

Under Rev. Laws, 5838, providing that divorce may be obtained by complaint under oath to the district court of the county in which the cause shall have accrued, or in which defendant shall reside or be found, or in which plaintiff shall reside, if the latter be either the county in which the parties

DIVORCE-Continued.

last cohabited, or in which plaintiff shall have resided six months before suit, for wilful desertion for a year, or for extreme cruelty, a district court had jurisdiction to grant divorce for extreme cruelty and desertion to a husband resident in the county for a year, though the acts complained of all occurred in another state, under whose statutes there was no cause of action for divorce on those grounds, since the law of the forum controls; it being the legislative intent that the district court have jurisdiction to determine the marriage status of parties whose residential qualifications meet the requirements of the statute, regardless of where the cause of action may have arisen; marriage, though a civil contract, constituting an exception to the rule of lex loci contractus. Blakeslee v. Blakeslee, 235.

7. PROPERTY RIGHTS-POWER OF COURT-RIGHT OF GUILTY PARTYWIFE'S SEPARATE PROPERTY.

Where a husband whose wife was granted a divorce for his misconduct had settled on her at the time of the marriage property of the value previously agreed on, which had in the meantime enormously increased in value, and which left the husband without property of his own, the court can, under the power to dispose of the property as shall appear just and equitable given by Rev. Laws. 5841, protect any equity of the husband in such property notwithstanding his guilt, which is only one of the factors to be considered in determining the property rights. Walker v. Walker, 4.

8. PROPERTY RIGHTS-POWER OF COURT-WIFE'S SEPARATE PROPERTY STATUTE.

The declaration of Rev. Laws, 2172, that neither husband nor wife has any interest in the property of the other, is subject to the exceptions of section 2173, allowing either to enter into any contract with the other subject to the general rules which control the actions of parties occupying relations of confidence and trust towards each other, and under the latter provision, one spouse inay acquire an interest, legal or equitable, in the separate property of other which the court, in granting a divorce, can protect under section 5841. Idem.

9. RESIDENCE OF PLAINTIFF QUESTION OF FACT.

Blakeslee v.

In a husband's divorce suit, the question of his residence was one of fact to be determined by the trial court. Blakeslee, 235.

10. SUITS TO SET ASIDE DECREE-COMPLAINT SUFFICIENCY.

In a suit to set aside a divorce decree, a complaint alleging that the decree was void, because plaintiff therein was not a bona-fide resident of the county wherein the decree was granted, was insufficient, since under Stats. 1915, c. 28, relating to jurisdiction of divorce actions, jurisdiction might have been obtained on another ground than that of the residence of the plaintiff, and it was not alleged that jurisdiction was not dependent on such other grounds. Wade v. Wade, 533.

11. SUITS TO SET ASIDE DECREE-COMPLAINT SUFFICIENCY.

In a suit to set aside a decree of divorce, on the ground that

it was obtained by a conspiracy between plaintiff's husband and her attorney, a complaint, alleging such conspiracy by way of conclusion merely, and failing to set out facts showing that by reason of such conspiracy the plaintiff was prevented from making her defense, is insufficient. Idem.

DIVORCE SUIT. See INSANE PERSONS, 2.

DOMICILE. See DIVORCE, 1.

DUE PROCESS OF LAW. See CONSTITUTIONAL LAW, 4, 5.

DUTIES OF EXECUTORS AND ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS, 1, 2.

EFFECT OF ADOPTION. See ADOPTION, 1.

EFFECT OF FRAUDULENT ACTS. See EXECUTORS AND ADMINISTRATORS, 3.

EFFECT OF RECEIPT FOR RENTS. See LANDLORD AND TENANT. 8.

EFFECT OF RELEASE. See ATTACHMENT, 1.

EFFECT OF STIPULATION FOR ARBITRATION. See ARBITRATRATION AND AWARD, 1.

EFFECT ON PROPERTY RIGHTS. See DIVORCE, 5.

ELECTIONS.

1. VOTING-PERSONS ENGAGED IN "MILITARY SERVICE."

Stats. 1917, c. 197, providing for taking of votes of electors in the military service of the United States, is a compliance with Const. art. 2, sec. 3, and is not void for discrimination against electors in the naval service, or conscripted men in the military service, since "military service" includes every branch of service in either the army or the navy of the United States. Maclean v. Brodigan, 468.

ELECTORS IN MILITARY SERVICE. See STATUTES, 3.

ELEMENTS OF EMBEZZLEMENT. See CRIMINAL LAW, 12.

EMBEZZLEMENT. See CRIMINAL LAW, 6, 12, 13, 14, 17, 28.

ENFORCEMENT OF COURT RULE. See Costs, 2.

ENTRIES NUNC PRO TUNC. See JUDGMENT, 1.

ERRORS NOT APPEARING PREJUDICIAL FROM RECORD. See CRIMINAL LAW, 15.

"ESTATE OR INTEREST IN LAND." See LANDLORD AND TENANT, 7.

ESTATES OF DECEASED PERSONS. See EXECUTORS AND ADMINISTRATORS, 1, 2, 3, 4, 5, 7.

EVIDENCE.

1. CIRCUMSTANTIAL EVIDENCE-QUANTUM.

When circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed. Horgan v. Indart, 228.

2. DESCRIPTION-"ANY PART."

A lease authorizing the lessee to purchase "any part" of certain premises held too indefinite to be aided by parol evidence, and to afford the lessee no defense in a forcible entry and detainer action. De Remer v. Anderson, 287.

3. LEASE-PAROL EVIDENCE.

Land covered by a lease may be identified by parol evidence, but such evidence cannot supply an entire absence of description. Idem.

See CRIMINAL LAW, 6, 13, 14, 23, 24, 33, 35, 36; DIVORCE, 2: MONEY LENT, 1; LANDLORD AND TENANT, 1, 2, 5; VENDOR AND PURCHASER, 1; WILLS, 1; SPECIFIC PERFORMANCE, 1.

EVIDENCE OF ACQUIESCENCE. See LANDLORD AND TENANT. 10. EVIDENCE OF OTHER OFFENSES. See CRIMINAL LAW, 16, 17.

EXECUTORS AND ADMINISTRATORS.

1. DUTIES-SURETIES-LIABILITY.

An administrator is bound to the exercise of care and diligence, such as prudent and judicious men ordinarily bestow upon their own important affairs, and it is his duty to settle and distribute the estate with as little delay as practicable; and whenever he does what the law prohibits, or fails to exercise reasonable care and diligence in the endeavor to do what the law enjoins, he and his sureties are liable for the damage consequent upon such act or omission. In Re Delancy's Estate, 384.

2. DUTIES OF ADMINISTRATOR.

Under Rev. Laws, 5963, 5964, 5967, 6041, as to duties of an administrator, expedient administration is required, and where an estate had cash on hand to meet all indebtedness, and everything was present to facilitate a speedy discharge of the trust. but the administrator permitted the estate to drag on for nearly seven years without an accounting and without any attempt to secure an order for expenditure of money, he was guilty of a breach of his duties. Idem.

3. FRAUDULENT ACTS-EFFECT.

No matter how many fraudulent acts an administrator is guilty of, he is not divested of contractual rights under a valid mortgage which he has purchased. Guisti v. Guisti, 349. 4. FUNDS-INTEREST.

Where the estate at all times had sufficient money on deposit under certificates of deposit to pay indebtedness, but the administrator made no accounting for nearly seven years, he was chargeable with interest on the moneys, although there was a suit to establish heirship. In Re Delaney's Estate, 384.