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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