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.
B. 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 para
mount title outstanding against the grantor at the time of the convey.
ance. Reynolds v. Shaver, 36.
DEFAULT.
See JUDGMENTS, 16.
"Attestation." Wickersham v. Johnson, 118,
"Body." Walker v. State, 186.
"Copy." Wickersham v. Johnson, 118.
"Due process of law." State v. Billings, 525.
"Forth with 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 i
“night-tiine” 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.
ESTATES-RIGHT OF WIDOW TO SHARE IN PERSONAL PROPERTY OF HUL
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 MARRIAGE AND DIVORCE.
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.
1. NEGOTIABLE Instruments—Duress as a DEFENSE.-The defense of du-
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 prosecution against her husband, as it is for that
reason void. City National Bankv. Kusworm, 880.
DISAFFIRMANCE OF CONTRACT WITHOUT RESTORATION OF CONSIDERA.
гION.-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,
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 a
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.
See CORPORATIONS, 3-5; INTOXICATING LIQUORS; WITNESSES, 6-7.
ELECTRICITY.
See NEGLIGENCE, 4, 5.
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.
See HUSBAND And Wife, 6; PARTITION.
THE VERDICT OF A JURY IS NOT CONCLUSIVE upon
court in an equity case by virtue of section 250 of the Code of Civil Pro-
cedure 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 blainable. Lane v. Holmes,
50S.
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; SPECIFIO PER
ERROR, WRIT OF.
See CERTIORARI.
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.
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
toppel. City Nat. Bank v. Kusworm, 880.
See CORPORATIONS, 11, 19; ESTATES; INSURANCE, 7; OFFICERS, 4.
See LANDLORD AND TENANT, 24.
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
wrong has been committed in obtaining information possessed by a wit-
Cluett v. Rosenthal, 446.
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 wit-
ness 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 attach-
ment 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.
5. JUDICIAL NOTICE is taken of the fact that a bank, when it makes
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.
6. 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 propo-
sition, 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
applies to England, as well as to sister states of the American union.
Wickersham v. Johnston, 118.
& FOREIGN LAW MUST BE PLEADED AND PROVED.-A foreign law is a mat-
ter of fact, which the courts of this country cannot be presumed to be
acquainted with, or to have judicial knowledge of. Therefore it must
be pleaded and proved. Wickersham v. Johnston, 118.
9. DECLARATIONS OF DECEDENT.-Statements made by a grantor that he
had delivered a deed to his daughter to be delivered to another of his
daughters, named as grantee therein, are admissible in evidence in
an action, subsequent to the grantor's death, to compel a delivery of
the deed to the grantee. Brown v. Stutson, 462.
10. PAROL EVIDENCE IS ADMISSIBLE TO FILL OUT INCOMPLETE CONTRACT.
If a written order for the purchase of a chattel is incomplete, parol evi-
dence is admissible to show what the whole agreement was that the
article was ordered upon condition that it should be of a certain qual
ity, and that performance on the buyer's part depended upon a com-
pliance with the condition. Aultman v. Clifford, 478.
11 JUDGMENT-Roll of Another State Court—EVIDENCE.—The judgment
roll of another state court, or an authenticated copy of it, is evidence
of all that it properly contains, including the judgment; and is, at
least, prima facie evidence that the judgment was properly rendered
and entered so as to have effect. In re Ellis' Estate, 514.
12. BOOKS OF ACCOUNT of a partnership which has executed a chattel mort.
gage on its goods in trust to secure an alleged indebtedness to the
mortgagee and others are admissible in evidence as tending to show
the mala fides of the transaction, if they tend to prove that part of the
alleged indebtedness never in fact existed, and that the mortgagee was
so familiar with the business of the mortgagors as to support the in-
ference that he had examined the books. Cluett v. Rosenthal, 446.
Bee CONTRACTS, 11; Deeds, 4; Extortion, 3; Judgments, 23; Nuisance,
2, 3; PATENTS, 1.
EXCUSABLE NEGLECT.
See JUDGMENTS, 19.
1. EXEMPTION.-WAGES EARNED IN ANOTHER STATE, by the laws of which
they are exempt from execution, are nevertheless subject to garnish.
ment in this state. The exemption laws of another state cannot be
pleaded or relied on as a defense by either the garnishee or the judg
ment debtor. Lyon v. Callopy, 396.
2. THE INTEREST OF A BENEFICIARY UNDER A TRUST DEED IS NOT
SUBJECT to execution nor to garnishment when the estate is held by
trustees with the power to take and keep possession thereof, and to
apply the income and increase to the support, comfort, and education
of such beneficiary, so far as may be required for such purposes. Her
creditors can have no greater interest in the property than she possesses,
and she cannot control the disposition of the trustees, nor require them
to turn the property over to her. That result cannot be indirectly
secured through the action of her creditors attempting to reach the
property or its proceeds under process against her. Meek v. Briggs,
410.
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