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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.

Jolinson 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 INTEBEST-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. anon. Reynolds v. Shaver, 36.

DEFAULT.
See JUDGMENTS, 16.

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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 elc. Accident Assn., 934.

Legal disability.” King v. Carmichael, 303. “Night-time,” What is. In the absence of statutory definition it is

“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, 876. “Open and gross lewdness." Slate v. Juneau, 877.

DESCENT. ESTATES-RIGHT OF WIDOW TO SHARE IN PERSONAL PROPERTY OF Hur

BAND.-Under the Michigan statute a widow takes a share of the por. sonal property of her husband as distributee, and not as dowreas, 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.

Soo CLOUD ON TITLE; LIMITATIONS OF ACTIONS, 3; Taxes, 1, 2;

DUE PROCESS OF LAW.
See CONSTITUTIONAL LAW; INSANE PERSONI.

DURESS.
2 NEGOTIABLB 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 excepe
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.
& DISAFFIRMANCE OF CONTRACT Wrrhout RESTORATION OF CONSIDERA.

rion.—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 iminediately 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, us
she has received no benefit. City Nut. Bank v. Kusworm, 880.

EIGHT HOUR LAW.
See STATUTES, 2, 3.

EJECIMENT.
1. PLEADING-Prima Facie Case. -Under a statute requiring the defende

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

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
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
filedJohnson v. Drew, 172.

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

ELECTIONS.
Seo CORPORATIONS, 3-3; INTOXICATING LIQUORS; WITNESSES, 6-7.

ELECTRICITY.
See NEGLIGENCE, 4, 6.

ELEVATORS.
ELEVATORS—MASTER AND Servant-CARRIERS.—If a person using a wholo

building for his business permits, but does not require, his employees

to ride ap 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
apon 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 18 nor CONCLUSIVB upon a

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
oncertain language that the legislature undertook to prune away ono
of the most distinctive and important jurisdictional functions of the

equity courts. Kleinschmidt v. Greiser, 652.
2 Ir 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.
8. Equrry JURISDICTION.—THE TITLE TO AN OFFICE cannot be tried in

equity. State v. Van Beek, 397.
• 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,

505.
& MISTAKE.-Equitable RELIEF CAN BE Granted if there is a mistake of

fact, or a inistake of law and fact combined, especially if it does not
result in injury to the opposite party. Lane v. Holmes, 503.
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 PEB-

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FORMANCE.

ERROR, WRIT OF.

See CERTIORARI.

ESCROW.
See Deeds, L.

ESTATES.
AN HEIR MAY RELEASE TO THE ANCESTOR Ars EXPECTED SHARE in the

ancestor's estate, and thereby estop himself from claiming as beir any
portion of such estate as might otherwise in tho faturo vost In him us such beir. In re Estate of Garcelon, 134.

See DESCENT.

ESTOPPEL. 1. AN ESTOPPEL MUST BE MUTUAL It inust bind both parties, and one who

is not bound by it cannot take advantage of it. First Nah Bank v.

Northwestern Vat. 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, oannot create such an at toppel. City Nat Bank v. Kusworm, 880. Soo CORPORATIONS, 11, 19; ESTATES; INSURANOE, 7; OFFICERS, 4

EVICTIONS,
Soe LANDLORD AND TENANT, 24

Dess.

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EVIDENCE 1. EVIDBNOB OBTAINED BY Tort.-Courts do not pause in the trial of

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 Torr.–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 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. Cluelt v. Rosenthal, 446. A JUDICIAL Notice is taken of the fact that wine is an intoxicating liquor.

Wolf v. State, 34. 8. 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 deposito

Bowman v. Firsl Nat. Bank, 870. & JUDICIAL Notice-DESCRIPTION OF LANDS. - If lands are clearly and applies to England, as well as to sister states of the American anion.

distinctly described by the complaint in a judicial proceeding by reforence 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 horo. This rule

Wickersham v. Johnston, 118.
FOREIGN LAW MUST BE PLEADED AND PROVED. -A foreign law is a mato
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

bad 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. Stulson, 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 adınissible to show what tho whole agreement was that the
article was ordered upon condition that it should be of a certain qual.
ity, and that performance on tho buyer's part depended upon a come

pliance with the condition. Aultman v. Clifford, 478.
II JUDGMENT-ROLL OF ANOTHER Srate Courr-Evidence. The judgment

roll of another state cour', 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 whic'a has executed a chattel morto

gage on its goods in trust to secure an alleged indebtedness to the
mortgages 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
80 familiar with the business of the mortgagors as to support the in-

ference that he had examined the books. Cluett v. Rosenthal, 446.
See CONTRACTS, 11; DEEDS, 4; EXTORTION, 3; JUDGMENTS, 23; NUISANCE,

2, 3; PATENTS, 1.

EXCUSABLE NEGLECT.

See JUDGMENTS, 19.

EXECUTION.
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 stato cannot be
pleaded or relied on as a defense by either the garnishes or the judge

ment debtor. Lyon v. Calloj y, 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.

See Deeds, 3.

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