Imágenes de páginas



only for corresponding specific benefits con- 2. A tax sale to real estate does not ferred. Wilkins v. Hillman, L.R.A.1915D, cut off easements of light, air, and access 249, 145 Pac. 1111, Okla.

in it belonging to adjoining property own

ers, although the latter were made parties DROWNING.

to the foreclosure proceeding and the judy. Of children, liability for generally, see ment provided that each defendant be Negligence, 4.

barred of all right, claim, lien, and ease

ment in the property, if the complaint did DUE PROCESS OF LAW.

not show that plaintiff sought to bar their See Constitutional Law, 7-16.

superior easements. Tax Lien


Schultze, L.R.A.1915D, 1115, 106 N. E. 751, DUPLICITY.

213 N, Y. 9.

(Annotated) In indictment, see Indictment, etc., 3, 4.


By husband for wife's property, see 1. A conveyance of property by a debt.

Husband and Wife, 6. or to his creditor is void where a criminal warrant is issued the principal object of

ELECTIONS, which is to enforce the collection of the

Vote of municipality for incurring indebt due to a corporation of which the

debtedness, see Municipal Corporamagistrate issuing the warrant is the presi

tions, 13. dent, and the defendant is imprisoned under such warrant, and the conveyance is

Right of election officials to maintain

action to prevent waste of public made in order to secure the release of the

funds, see Parties, 4. debtor. Jordan v. Beecher, L.R.A.1915D, 1122, 84 S. E. 549,

Who may maintain action to determine Ga.

result of election, see Parties, 6. 2. The conveyance by a wife whose fears and a flections

worked upon ELECTRICITY. through criminal proceedings instituted against her husband, to her husband's cred wires in a city street, 29 feet from the

One maintaining heavily charged itors through the medium of her husband, ground and 13 feet from the adjoining of her property to pay the husband's debt Building, is not liable for the death of the and obtain his release from imprisonment, janitor of the building, who, in attempting, is a conveyance under duress as to the wife, while on the ground, to substitute a wire and a purchaser from the husband's cred: for a rope on a flagstaff on the building, itor with notice of the wife's equity cannot

walks toward the street far enough to bring prevail in an action to recover the land the wire in contact with the current, therefrom her. Jordan v. Beecher, L.R.A.1915D, by causing his death, since there is no duty 1122, 84 S. E. 549, Ga. 3. A deed secured for a grossly inade. Allegheny County Light Co. L.R.A.1915D,

to anticipate such an accident. Geroski v. quate consideration, threats to send the 560, 93 Åtl. 338, 247: Pa. 304. grantor's father to the chain gang for an alleged offense, will be set aside for duress.

ELEVATORS. Embrey v. Adams, L.R.A.1915D, 1118, 68

Ala. So. 20


Error in admitting evidence in action

for injury to passenger on, see Ap

peal and Error, 21. DUTY. Presumption of performance of, see

Presumption and burden of proof as to

negligence, see Evidence, 17, 18. Evidence, 20.

Husband's liability for wife's negli

gence as to, see Husband and Wife, DYING DECLARATIONS.

1. Admissibility of, see Evidence, 31.

Attempt of insured to operate as in

crease of risk, see Insurance, 23. EASEMENTS. Duty of purchaser at tax sale to com

1. The liability of the owner of an eleply with bid for property subject fully using it is that of a common carrier

vator in an oflice building to those rightto easements, see Taxes, 3.

to passengers.

Dibbert v. Metropolitan 1. A grant by metes and bounds of a Invest. Co. L.R.A.1915D, 305, 147 N. W. 3, parcel of land over which a visible right 158 Wis. 69. of way exists in favor of remaining land 2. The owner of an elevator in an office of the grantor which is located on a public building is liable for injuries to passengers highway, by a deed containing full cove- because of the negligence of the manufacnants of warranty and no express reserva- turer of the apparatus in using an unsafe tion, does not reserve the right of way by bolt to unite the cables to the car. Dibimplication, although it is reasonably nec- bert_v. Metropolitan Invest. Co. L.R.A. essary for the full enjoyment of the grant- 1915D, 305, 147 N. W. 3, 158 Wis. 69. or's remaining land, since under such cir

(Annotated) cumstances a reservation of easement is implied only in case of strict necessity. EMERGENCY BRAKE. Howley v. Chaffee, L.R.A.1915D, 1010, 93 Injury to passenger by application of, Atl. 120, Vt.

see Carriers, 2-4.

So. 547,



recover the possession while the lessee comAmount of recovery, see Damages, 7. plies with his agreement. Calkins v. Pierce, Right of abutting owner to compensa- L.R.A.1915D, 467, 92 Atl. 529, 112 Me. 474. tion for location in street, see

(Annotated) Highways, 2.

2. The officers of a bank will not be Necessity of exercise of, before laying heard to deny the entries on the books of

street railway tracks across rail. | the bank, their sworn published statements, road, see Railroads, 1.

and their sworn representations to the state That part of the expense of con

examiner of state banks concerning a destructing a drainage ditch assessed against bank, where the state examiner, the de

posit to the credit of another insolvent a county for the benefits accruing to such county by virtue of the drainage of public positors and creditors of the insolvent bank, highways cannot legally be paid out of and the public, have accepted and acted funds collected by special assessments made upon such sworn published statements. against the property owners of said drain. Kennedy v. Young, L.R.A.1915D, 935, 67

La. age district, since this would be taking pri

(Annotated) vate property for public use without just compensation, in violation of the Consti- EVIDENCE. tution and laws of the state. Wilkins v.

First objecting to, on appeal, see ApHillman, L.R.A.1915D, 249, 145 Pac. 1111,

peal and Error, 16. Okla.

Prejudicial error as to, see Appeal and

Error, 20-22. EMPLOYEES,

Judicial notice. See Master and Servant.

1. The supreme court will take judicial

notice of its own record, and will of its own EMPLOYER'S LIABILITY.

motion or at suggestion of counsel inspect See Master and Servant.

such record in a former appeal of the same

Frank v. State, L.R.A.1915D, 817, ENACTMENT.

83 S. E. 645, 142 Ga. 741. Of statutes, see Statutes, 1.

2. The court takes judicial notice that

X-ray machines sometimes inflict serious ENCUMBRANCES.

burns. State v. Lester, L.R.A.1915D, 201, Covenants against, see Covenants and 149 N. W. 297, 127 Minn. 282. Conditions, 3; Damages, 1.

3. The court does not judicially know On insured property, see Insurance, 10. that a caboose car 24 feet long with ad

justable and oscillating four-wheeled trucks ENROLLED BILL,

is not more safe than one 18 feet long with Absence of signature of Speaker of two-wheeled rigid ones, so as to declare a House, see Statutes, 1.

statute requiring a change from the one to Conclusiveness of, see Statutes, 3. the other unconstitutional as taking prop

erty without due process of law. PittsENTIRETY.

burgh, C. C. & St. L. R. Co. v. State, L.R.A. Of insurance contract, see Insurance, 1915D, 458, 102 N. E. 25, 180 Ind. 245. 15.

Presumptions and burden of proof.

Presumption as to intent to perform EQUALITY.

marriage contract within year, see Of immunity, privileges and protection,

Contracts, 3. see Constitutional Law, 2-6.

Instructions as to, see Trial, 11. Of license tax, see License, 3.

4. The court will, in the absence of evi

dence to the contrary, presume, in support EQUITABLE ESTOPPEL.

of an order by a Railroad Commission diSee Estoppel.

recting railroad companies to procure land

within certain limits and construct thereon EQUITY.

a union station, that such land for that Time for objection that cause is of equitable and not of legal cogni- scribed limits at a reasonable price. Rail

purpose can be obtained within the prezance, see Appeal and Error, 14.

road Commission v. Alabama G. S. R. Co. See also Ínjunction; Specific Perform- L.R.A.1915D, 98, 64 So. 13, 185 Ala. 354.

5. To avoid the penalty provided by the

hours of service act, a carrier which is ESTOPPEL,

shown to have kept an employee on duty Of insurer, see Insurance, 20, 21.

more than sixteen consecutive hours has the As to validity of local improvement assessments,

burden of showing facts which bring it withPublic Improve in the conditions under which the proviso ments, 4, 5.

makes the act inapplicable. Great Northern 1. A lessor of an estate by a lease pur- R. Co. v. United States, L.R.A.1915D, 408, porting to be for life, but invalid as a life 218 Fed. 302, — C. C. A. estate because not under seal, upon con- 6. In the absence of evidence as to the sideration of support, cannot, where the character of the accused, the jury cannot statute does not require an ordinary lease consider the presumption of good character to be under seal, maintain a real action to as evidence in his favor upon the question



of guilt or innocence. Price v. United loss was occasioned by an act of God, the States, L.R.A.1915D, 1070, 218 Fed. 149, burden is upon the carrier to show that 132 C. C. A. 1.

such loss was the proximate result of the 7. An absentee is presumed to live un- act of God, but, when this is done, the burtil the contrary is proved; otherwise the den then shifts to the shipper to show that absence must be such that the life of a man, negligence on the part of the carrier cowho may live one hundred years, should operated with the act of God in bringing be presumed to have ended. Quaker Realty about the damage to the shipment. St. Co. v. Starkey, L.R.A.1915D, 176, 66 So. Louis & S. F. R. Co. v. Dreyfus, L.R.A. 386, La.

1915D, 547, 141 Pac. 773, 42 Okla. 401. 8. Sanity is presumed, and the taking

(Annotated) of one's own life does not, in itself, estab- 16. The rule of res ipsa loquitur does not lish insanity. Ledy v. National Council of establish negligence against the owner of K. & L. of S. L.R.A.1915D, 1095, 151 N. W. property upon which a tank of gas ex905, 129 Minn. 137.

plodes, in the absence of anything to show 9. A mere fitful or temporary mental that it was in his control. Conley v. United disorder will not be presumed to continue. Drug Co. L.R.A.1915D, 830, 105 N. E. 975, Broz v. Omaha Maternity & G. H. Asso. 218 Mass. 238. L.R.A.1915D, 334, 148 N. W. 575, 96 Neb. 17. The owner of an elevator in an office 648.

building which falls to the injury of a 10. In an action for breach of promise to passenger because of the breaking of the marry, an unequivocal intention on defend bolt which unites the cables to the car has ant's part not to perform his contract may the burden of showing that the manufacbe inferred from his conduct. Corduan v. turer made a test of the tensile strength of McCloud (N. J. Err. & App.) L.R.A.1915D, the bolt if that would have disclosed its 1190, 93 Atl. 724, N. J.

weakness, or if the apparatus had been 11. Failure of a railroad company to used so long that the manufacturer's neg. produce in response to a subpæna the record ligence might not have been the cause of the of the cars with which an employee in a accident, he must show that he examined yard was at work when injured does not and tested the parts to ascertain whether amount to a suppression of evidence which or not they had been weakened by use. Dibwill raise a presumption against the com- bert v. Metropolitan Invest. Co. L.R.A. pany, if the evidence is uncontradicted that 1915D, 305, 147 N. W. 3, 158 Wis. 69. no such record was kept. Hench v. Pennsyl. 18. Proof by a passenger in an elevator vania R. Co. L.R.A.1915D, 557, 91 Atl. 1056, in an office building that he was injured 246 Pa. 1.

by its fall due to a defective bolt casts 12. Where, in an action on a policy of upon its owner the burden of showing that accident insurance, it is claimed that death i he took all the precautions to safeguard was due to one of the causes excepted from passengers which the law required him to the operation of the policy, it is for the in take. Dibbert v. Metropolitan Invest. Co. surer to plead and prove such fact. Union L.R.A.1915D, 305, 147 N. W. 3, 158 Wis. Accident Co. v. Willis, L.R.A.1915D, 358, 69. 145 Pac. 812, Okla.

19. A certificate of the auditor whose 13. To hold one liable for a physical con- duty was to assess the cost of a street im. dition alleged to be due to negligent in provement on abutting property, that he had juries, but which might have resulted from made the assessment in proportion to beneanother cause, plaintiff has the burden of fits, is presumed to be true. Reiff v. Portshowing that it is more probable that the land, L.R.A.1915D, 772, 141 Pac. 167, 142 condition was due to the negligent act than Pac. 827, 71 Or. 421. to the other alleged cause. Blair v. Seit- 20. One seeking to recover damages for ner Dry Goods Co. L.R.A.1915D, 524, 151 the death of an employee injured at a place N. W. 724, Mich.

where he was forbidden to be by the rules 14. Where shipper sues a common car- of his employer has the burden of showing rier upon its common-law liability for in- that he was there in the performance of jury to or loss of the property, and the de- some duty owing to the employer. Hobbs fendant pleads and proves a special contract v. Great Northern R. Co. L.R.A.1915D, 503, limiting its liability to losses occurring 142 Pac. 20, 80 Wash. 678. through its negligence, the burden is upon Documentary evidence. the defendant to prove that the loss was not 21. A letter of recommendation given a caused by its negligence, and not upon the workman discharged at the request of felplaintiff to prove that it was so caused. low workmen, on the day of his discharge, McGrath v. Northern P. R. Co. L.R.A.1915D, stating the reasons therefor, is admissible 644, 141 N. W. 164, 121 Minn. 258. as res gestæ in an action for damages by

(Annotated) such employee against those who secured 15. In an action for damages occasioned his discharge. Bausbach v. Reiff, L.R.A. by a delay in shipment, the burden is upon 1915D, 785, 91 Atl. 224, 244 Pa. 559. the plaintiff to make out a prima facie case 22. Mortality tables are not rendered that the shipment was delivered to the car inadmissible in evidence by proof of disease rier in good order and received from the or ill health of the person whose expectancy carrier in damaged condition; and where of life is under consideration, such facts the carrier denies liability because such'going only to the probative effect of the



tables. Broz v. Omaha Maternity & G. H. , of the hospital, while in the performance of Asso. L.R.A.1915D, 334, 148 N. W. 575, 96, her duties, how the patient got poison, and Neb. 648.

who was referred to the patient with diParol and extrinsic evidence concern- rections to go to his room and ask "how ing writings.

and where he got it and what it was," and 23. Parol evidence may be introduced in such nurse afterward assented to statements an action at law as well as in a suit in made by the patient in answering these equity, to show a misdescription of land on questions when promptly repeated to her by which crops insured against hail are grow- the inquirer. Broz v. Omaha Maternity & ing, by reason of a mistake of the insurance G. H. Asso. L.R.A.1915D, 334, 148 N. W. agent in writing down such description. 575, 96 Neb. 648. French v. State Farmers' Hail Ins. Co. 31. Dying declarations are admissible as L.R.A.1915D, 766, 151 N. W. 7, 29 N. D. such only in case of felonious homicide. 426.

Hobbs v. Great Northern R. Co. L.R.A. Opinions and conclusions.

1915D, 503, 142 Pac. 20, 80 Wash. 678. 24. Expert testimony is not admissible Relevancy and materiality. upon the question whether or not the fire

Of unreasonableness of statute, which is the basis of an indictment for

Statutes, 4. was set. People v. Grutz, L.R.A.

32. The practice of others engaged in the 1915D, 229, 105 N. E. 843, 212 N. Y. 72.

same business is evidence upon the ques25. Upon trial for burglary evidence is tion of negligence in not maintaining an eleinadmissible that witness learned that some- vation of a warehouse above the possible one other than accused had placed the stolen reach of tides, so as to render the owner property near the house of accused to cast liable for injury by tides to property stored suspicion on him. Lawson v. Com. L.R.A. therein. Hecht v. Boston Wharf Co. L.R.A. 1915D, 972, 169 S. W. 587, 160 Ky. 180.

1915D, 725, 107 N. E. 990, 220 Mass. 397. Hearsay; declarations; res gesta.

33. To show intent of an employee 26. Declarations by a person since de charged with burglary of his employer's ceased, of relationship to a particular fam store, evidence is admissible that he padded ily, are not of themselves sufficient to es- the inventory, concealed articles about bis tablish such relationship, so as to render work bench which were subsequently taken admissible evidence of his declarations with from the building, and entered the building respect to the pedigree of persons claiming at an unusual hour and took articles thereto be members of such family. Aalholm v. from at a time different from that charged People, L.R.A.1915D, 215, 105 N. E. 647, in the indictment. State v. Corcoran, L.R.A. 211 N. Y. 406.

(Annotated) 1915D, 1015, 143 Pac. 453, 82 Wash. 44. 27. Communications made by a

34. In an action to recover damages for plaining witness to the prosecuting attorney | injuries to a woman through fright at an concerning his knowledge of matters relat. explosion on adjoining property, evidence is ing to the probable guilt or innocence of not admissible of a promise that no explothe defendant are privileged, and cannot be sion should occur while her husband was given in evidence over his objection in an away from home. Salmi v. Columbia & N. action against him for malicious prosecu. R. Ř. Co. L.R.A.1915D, 834, 146 Pac. 819, tion. Matson v. Michael, L.R.A.1915D, 1, 105 Pac. 537, 81 Kan. 360.

35. Evidence as to the dèbris deposited 28. Evidence of communication by a man on adjoining premises by an explosion is ad. to his wife in the presence of others is not missible in an action to recover damages inadınissible on the ground of confidence or for injury to a woman on the premises beprivilege. Pilcher v. Pilcher, L.R.A.1915D, cause of a swoon from fright at the explo902, 84 S. E. 667, · Va.

sion. Salmi v. Columbia & N. R. R. Co. 29. Upon the question of liability of a L.R.A.1915D, 834, 146 Pac. 819, Or. railroad company for injury to an employee 36. In an action by a mail carrier to hold through the negligent collision of two en- a street car company liable for injury due gines, evidence of his statements soon after to collision with its car, the fact that at the injury as to why he was at the place the time of the collision the car was being where the injury occurred is not admissible operated in violation of an ordinance giving as res gesta, because they do not in any mail wagons the right of way may be way explain or characterize the main facts shown as tending to establish negligence. under investigation. Hobbs v. Great North-Bain v. Fort Smith Light & Traction Co. ern R. Co. L.R.A.1915D, 503, 142 Pac. 20, L.R.A.1915D, 1021, 172 S. W. 843, Ark. 80 Wash. 678. (Annotated)

(Annotated) 30. Statements made by a patient in a 37. Upon trial for arson in which defendhospital as to where he obtained poison , ant is alleged to have consented to procure tablets which he took thinking them to be insurance on buildings, burn them, and col. medicine are admissible in evidence as ad lect the insurance, evidence is not admis. missions or declarations tending to prove sible of a fire in his own building before negligence on the part of the hospital in the conspiracy existed, and which was not an action subsequently brought for his started by the one who started those under wrongful death resulting from such poison, the alleged conspiracy, or shown to have where the statements were made to one who been connected with the one for which the had previously inquired of the head nurse' indictment was found. People v. Grutz,



L.R.A.1915D, 229, 105 N. E. 843, 212 N. I moral and mental fitness to practise law. Y. 72.

State Bar Commission ex rel. Williams v. 38. Evidence of fires which had taken | Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, place from time to time under agreement | 35 Okla. 745. between two persons to get the property Weight, effect, and sufficiency. insured and one to set it on fire and the 44. A verdict by a jury may be based on other collect the insurance and to share in an auditor's finding, unless it is not support. the proceeds is not admissible upon a trial ed by the facts found, or they are so inconof an indictment for causing one of the sistent as to neutralize each other, or are fires, if each was a separate transaction, overcome by other evidence. Hecht v. Boswith no such relation between them in re- ton Wharf Co. L.R.A.1915D, 725, 107 N. spect to time, place, or circumstances that E. 990, 220 Mass. 397. the mere evidence of the origin of one would 45. Upon the question of the right to retend to prove the origin of another. People cover for the death of an employee, the jury v. Grutz, L.R.A.1915D, 229, 105 N. E. 843, cannot speculate as to what he might have 212 N. Y. 72.

been doing or why he was at the place where 39. Upon a prosecution for statutory the injury happened, contrary to the posirape, evidence of subsequent acts of inter- tive testimony in the case. Hobbs v. Great course between prosecutrix and accused is Northern R. Co. L.R.A.1915D, 503, 142 Pac. admissible if they are so related by brevity 20, 80 Wash. 678. of time, continuity of lewdness, or other- 46. To disbar an attorney, his guilt of wise, to the principal act, as to justify the the charges presented against him need not inference or indicate that the mutual dis- be proven beyond a reasonable doubt. State position of the parties evidenced by them ex- Bar Commission ex rel. Williams v. Sulliisted at the time of such act. People v. van, L.R.A.1915D, 1218, 131 Pac. 703, 35 Thompson, L.R.A.1915D, 236, 106 N. È. 78, Okla. 745. 212 N. Y. 249.

47. That the evidence of theft is wholly 40. Upon the question of breach of war- circumstantial does not defeat recovery on a ranty that fertilizer contains certain in- policy of insurance against loss by theft, gredients in certain proportions in a con although it provides that assured shall protract which provided that the vendor should duce direct and allirmative evidence that the not be liable for results evidence of the loss was due to theft; disappearance of the effect of the fertilizer upon crops is admis articles not to be deemed such evidence. sible in connection with proof of the kind Miller v. Massachusetts Bonding & Ins. Co. of soil, manner of cultivation, accidents of L.R.A.1915D, 615, 93 Atl. 320, 247 Pa. 182. season and other pertinent facts to prove

48. In an action by a municipal corporathat it did not contain the ingredients stated tion for the penalty for transacting a busior in the proportion specified. Hampton ness without license, a preponderance of Guano Co. v. Hill Live Stock Co. L.R.A. the evidence is sufficient to show violation 1915D, 875, 84 S. E. 774, 168 N. C. 442. of the ordinance, and the proof need not

(Annotated) be direct. Portland v, Western U. Teleg. 41. Upon the question of the guilt of Co. L.R.A.1915D, 260, 146 Pac. 148, Or. one accused of arson through the agency of another, evidence is admissible of conver- 49. One with whom a bet is made is not sations between accused and such person, an accomplice of the other party to the tending to show a conspiracy between them transaction, who is under prosecution for to insure buildings and set them on fire to violating the statute against betting, within procure the insurance. People v. Grutz, the rule that a conviction cannot be had upL.R.A.1915D, 229, 105 N. E. 843, 212 N. Y. on the unsupported testimony of an accom72.

plice. Paylor v. United States, L.R.A. 42. Upon the question of liability of di. 1915D, 682, 42 App., D. C. 428. rectors of a corporation for distributing Admissibility under pleadings. funds among themselves as salaries, evi- 50. To justify evidence of conditions dence is not admissible that the predecessor within the exception to the Federal hours of the complaining stockholder consented to of service act relating to employees on insuch practice, if his consent related to a terstate railroads, the facts concerning them predecessor of the corporation with respect must be pleaded. Great Northern R. Co. v. to which complaint is made, at a time when United States, L.R.A.1915D, 408, 218 Fed. there was no attempt at discrimination be. 302, C. C. A. tween shareholders. Godley v. Crandall & Godley Co. L.R.A.1915D, 632, 105 N. E. 818, 212 N. Y. 121.

EXAMINATION. 43. Under Okla. Comp. Laws 1909, § 266,

Of witnesses, see Witnesses, 2. an attorney cannot be suspended or disbarred for the filing of any pleading or ex- EXCEPTIONS. hibit in the courts of this state, but a

Negation of, in indictment, see Indict. petition, with a pamphlet attached thereto

ment, etc., 2. as an exhibit, falsely and maliciously at. tacking the courts of this state and the judges thereof, may be considered as evi. EXCISE. dence upon the question of the attorney's See License.

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