all the lumber contained in them, and by the act of consolidation the com-
pany was entitled to all the rights and privileges and subject to all the
restrictions of the former charters. Held, (1) that the company was liable
for loss by insufficiency of the boom, but not for unavoidable dangers or
inevitable accidents; (2) that on proof of loss such insufficiency would be
presumed; (3) that the company was not bound to maintain the lower
boom sufficient to detain all the lumber carried away from the upper boom
by the act of God, but for only such logs as were intended for it. Brown
v. Susquehanna Boom Co. (109 Penn. St. 57), 708.

COVENANT.

1. Against selling liquors —-injunction.] A condition in a deed that no intoxi-
cating liquors shall ever be sold on the premises is valid, and although a
forfeiture will not be enforced for a breach, yet an injunction may issue
against it. Watrous v. Allen (57 Mich. 362), 363.

2. Running with land.] A covenant by a railroad corporation, in considera-
tion of a grant of the right of way through plaintiff's land fifty feet wide
on each side of the track, to erect a flag station at a point convenient to
his house, to permit him to cultivate all the land embraced in the grant
which was not needed for use by the railroad company, and if a depot was
built, not to permit the sale of ardent spirits on the premises, runs with
the land, and is binding on an assignee with notice. Gilmer v. Mobile and
Montgomery Railway Company (79 Ala. 569), 623.

3. To stand seised to uses.] A husband executed to his wife an instrument in
form of a warranty deed, to take effect at his death, and also conditioned
"not to be in full force until I desire to act." Held, valid as a covenant to
stand seised to uses. Watson v. Watson (24 S. C. 228), 247.

*

*

CRIMINAL LAW.

*

1. Bail-indictment for different offense.] On a complaint, charging A. with
the crime of adultery, A. entered into a recognizance with sureties, con-
ditioned that he should appear before the Superior Court at the next term
"to answer to said complaint, and abide the order and sentence of the
court thereon.
and not depart without leave." The
grand jury, at that term, found an indictment against him for lewd and
lascivious cohabitation; he pleaded guilty, but did not appear when called
for sentence. Held, that there had been a breach of the recognizance.
Commonwealth v. Teevens (143 Mass. 210), 131.

2. Betting raffle.] A raffle with dice is a "bet" and a "game." Long v.
State (22 Tex. Ct. App. 194), 633.

3. Bigamy-evidence- proof of former marriage.] On a prosecution for
bigamy the former marriage cannot be established by presumptive evi-
dence; there must be proof of an actual marriage. Green v. State (21
Fla. 403), 670.

4. "Dangerous weapon."] A razor is not a "dangerous weapon" within a
statute specifying "such as bowie-knives, pistols, dirks, or any other
dangerous weapon." State v. Nelson (38 La. Ann. 942), 202.

6. Declarations -

-

CRIMINAL LAW - Continued.

res gestæ.] The statement of the deceased, ten minutes
after he had been fatally shot, that "if he had not been so willing to fight
he would not have been shot by the defendant," is admissible as a part of
the res gesta. State v. Molisse (38 La. Ann. 381), 181.

6. Dying declarations — preliminary examination — exceptions.] On a trial
for murder, dying declarations being offered, the preliminary examination
to ascertain their admissibility was conducted in presence of the jury.
Certain parts of the declarations were allowed to go to the jury and others
were excluded. Held, that exceptions could not be based on the reception
in evidence on the preliminary examination of statements of the deceased
not relating to the immediate circumstances of the death, and which
were not allowed to go to the jury. People v. Smith (104 N. Y. 491), 537.
7. Forgery-what constitutes.] Forgery is predicable of the following
instrument: A polas & Halsal, please let Mr. G. B. Rollins have 4300d.
in goods and oblige. Charge to me. Joel E3ler." Rollins v. State (22

Tex. Ct. App. 548), 659.
8. Former conviction-bar.] A conviction of an aggravated assault, on an
indictment for assault with intent to murder, does not bar a prosecution
for murder for the subsequent death of the assaulted party in consequence
of that assault. Curtis v. State (22 Tex. Ct. App. 227), 635.

9. Homicide-duty to retreat.] Where one is feloniously and dangerously
assailed, he is bound to retreat, if he can do so without danger. (State v.
Donnelly (69 Iowa, 705), 234.

10. Indictment - caption — amendment.] An indictment, headed with the
name of the State and county, alleged the same county as the county
where the court was holden, and then alleged "that the jurors of and
for the county of
aforesaid," did present, etc. Held, (1) that
the omission might be supplied; (2) that it was not material.
Moore (24 S. C. 150), 241.

State v..

11. Insanity-burden of proof.] Where insanity is pleaded in excuse of
homicide it must be proved by a preponderance of evidence. State v.
Bundy (24 S. C. 439), 262.

12.

.] Mere drunkenness is no excuse for crime.

Id.

13. ] The test of criminal responsibility is the knowlege that the act
was wrong. Id.

14.

test of.] An irresistible impulse to commit a crime does not excuse
if the person knew what he was doing, and that it was wrong. Leache v.
State (23 Tex. Ct. App. 279), 638.

15. Continuance.] The continuance of insanity is not presumed. Id.

16.

rule of evidence.] Where insanity is pleaded as a defense in a crim-
inal case it must be proved beyond a reasonable doubt. Danforth v. State
(75 Ga. 614), 480.

17. Larceny-trick.] The taking of money by confederates on a sham bet
contrived by them to defraud a person who advances the money and takes
part in the transaction, is larceny. People v. Shaw (57 Mich. 403), 372.

CRIMINAL LAW - Continued.

18. Privileged communications to attorney.] Communications made by a
client to his attorney before the commission of a crime, and for the pur-
pose of being guided or helped in its commission, are not privileged,
although the attorney was innocent. Orman v. State (22 Tex. Ct. App.
604), 662.

19. Rape-previous attempt - complaint - delay in making.] On a trial
for rape, evidence of an unsuccessful attempt by the defendant a few days
previous is competent. People v. O'Sullivan (104 N. Y. 481), 530.

-.] Evidence of the first complaint of the prosecutrix, ten months
after the offense, is incompetent. Id.

-] The delay is not excused by threats of the defendant, a priest, to
the prosecutrix at confession, that if she told of him she would go to
hell. Id.

- declarations — details.] In case of rape, the victim's complaints of
the commission of the offense may be proved, but not the details nor the
name of the ravisher. State v. Robertson (38 La. Ann. 618), 201.

-

23. Sabbath-breaking — constitutionality.] An indictment lies against one
laboring on Sunday, although he belongs to a sect who observes another
day as the Sabbath, and conforms to their practice. Scales v. State (47
Ark. 476), 768.

24. Trial-comments of counsel.] The abuse of counsel's privilege of
argument, in order to warrant a new trial, must have been so gross as to
prejudice the prisoner's rights. McConnell v. State (22 Tex. Ct. App. 354),
647.

25.

exclusion of witnesses from court-room.] Expert witnesses as well
as others may be excluded from the court room, except when testifying, in
the discretion of the court. Leache v. State (23 Tex. Ct. App. 279), 638.
See WITNESS, 218.

CROPS.

-

See LANDLORD AND TENANT, 467.

CURTESY.

See MARRIAGE, 85, 752.

DAMAGES.

1. Cutting timber - mistake.] In an action of damages for trover of timber
cut from the plaintiff's lands and hauled to a steamer, three and a half
miles distant, the cutting having been done by mistake, the measure of
recovery is the value at the time and place of cutting. Ayres v. Hubbard
(57 Mich. 322), 361.

-

2. Measure of landlord and tenant-breach of contract to put in posses-
sion.] In an action by a lessee against a lessor for a breach of a covenant
to give possession, although there was no fraud or wrong conduct, the
measure of damages is the value of the lease. Snodgrass v. Reynolds (79
Ala. 452), 601.

DAMAGES - Continued.

3. Remote.] In an action by the purchaser of a saw-mill and outfit to recover
damages against the vendor because the property was inferior to that con-
tracted for, losses sustained by the purchaser from abandoning planting
operations, improvements made in order to carry on such business, losses
of profits by reason of having received an inferior outfit, additional pur-
chases of timber, stock, vehicles, etc., to run a mill of the capacity of
that bargained for, and personal services of himself and assistant while
he was running the mill, or until its capacity had been fully tested, do
not form proper elements of damage. Willingham v. Hooven (74 Ga.
233), 435.

1. Delivery

See EMINENT DOMAIN, 321.

DEDICATION.

See HIGHWAY, 143.

DEED.

intention.] A father executed a deed of land to his two young
children, but retained it in his own possession and continued to occupy
and enjoy the premises until his death. Held, not alone sufficient to pass
title. Fain v. Smith (14 Oreg. 82), 281.

2. Escrow delivery before performance of condition — estoppel.] Where
a deed is put in the hands of a third person, to be delivered only on pay-
ment of the purchase-money, the grantee being already in possession of
the land, and subsequently obtaining the deed without payment, by fraudu-
lent representations to the custodian, and deeding the land to a purchaser
in good faith, the original grantor is estopped as to such purchaser.
Quick v. Milligan (108 Ind. 419), 49.

3. Insanity of grantor - disaffirmance.] E., a person of unsound mind and
unable to comprehend the transaction, without any consideration conveyed
her real estate to T. by deed, which was duly recorded. To secure a loan
of money with which to pay off delinquent taxes and other liens against
the land, T. executed a mortgage thereon to H., who had no knowledge of
E.'s unsoundness of mind, but advanced the money and accepted the se-
curity in good faith, relying on the public records. E. received no benefit
from the money, either in person or estate. Held, that H. could not main-
tain an action to foreclose the mortgage as against E. Hull v. Louth (109
Ind. 315), 405.

4. Reservation

-

"clays."] An exception and reservation in a deed of all
"metals and minerals," etc., and of "all valuable earths, clays, stones.
paints and substances for the manufacture of paints," covers clay for mak-
ing bricks. Foster v. Runk (109 Penn. St. 291), 720.

Evidence to contradict.] 135.

See COVENANT, 247.

DELIVERY.

See CARRIER, 468; DEED, 281; INSURANCE, 458.

DEVISE.

See WILL.

DOWER.

See MARRIAGE; WILL, 494.

EJECTMENT.

Ejectment does not lie for flooding lands by a dam.
Gold Mining Co. (74 Ga. 520), 445.

ELECTIONS.

See CONSTITUTIONAL LAW, 375.

EMINENT DOMAIN.

1. Damages.] A railway company, having obtained a right of way by agree-
ment from the tenant, supposing him to be the owner, and having con-
structed its road thereon, the owner is not entitled to have the value
thereof considered in assessing the damages. Oregon Railway & Naviga-
tion Co. v. Mosier (14 Oreg. 519), 321.

-

2. Taking mortgaged property — mortgagee entitled to damages.] The
mortgagee of land taken by a city for a public street may recover from the
city the damages awarded, notwithstanding the amount has already been
paid to the mortgagor. Sherwood v. City of Lafayette (109 Ind. 411), 414.
3. Levee - railroad station.] Lands in a city bordering upon water and dedi-
cated as a public levee, or landing, may be condemned by legislative au-
thority for the use of a railroad company, subject to the restriction that it
shall not charge wharfage. Portland and Willamette Valley Railroad
Co. v. City of Portland (14 Oreg. 188), 299.

ESCROW.
See DEED, 49.

ESTOPPEL.

Of married women by acknowledgment.]

1. Declarations

See MARRIAGE, 5.
See DEED, 49, WAREHOUSEMEN, 417.

EVIDENCE.

of agent-res gestæ.] In an action for an injury by a rail-
way accident, declarations of the locomotive engineer in charge of the
train, to whose negligence the accident is attributed, made five minutes
afterward, are incompetent as evidence. Durkee v. Central Pacific Rail-
road Co. (69 Cal. 533), 562.

2. Parol

-

to contradict deed as to assessments.] In an action for breach of
a covenant against incumbrances in a deed of land, parol evidence that a
few days before the execution of the deed the parties orally agreed, that
in consideration of the execution of the deed for a certain sum, the plain-
tiff would assume a liability to an assessment upon the land for better-
ments, is inadmissible. Flynn v. Bourneuf (143 Mass. 277), 135.
Dying declarations.] See CRIMINAL LAW, 537.

See CRIMINAL LAW, 181; NEGLIGENCE, 527.

VOL. LVIII — 113