Графични страници
PDF файл
ePub

WEEKLY DIGEST.

01 ALL the Current Opinions of ALL the State and Territorial Courts of Last Resort, and of the Sapreme, Circuit and District Conrts of the United States, except those that are Published to Fall or Commented apon in our Notes of Im. portant Decisions and except those Opinions to which po Important Legal Principles are Dio. cassed of Interest to the Profession at Large.

proof of the paternal descent of natural children may be made ing the following ways: 1. By all kinds of private writings in wbich the father may have acknowledged the bastard as his child, or may have called it so. 2. Wben the mother of the child was living in a state of corcubinage with the father and resided as such in his house at the time the child was conceived. 3. When the father, either in public or İD private, has acknowledged it as bis child, or has habitually called it so in conversation, or has caused it to be educated as such. Badillo v. Tio, 6 La. Ann. 129. Statements made by one charged with being the father of a child born out of wedlock, that he bad a boy somewhere, that the mother of the boy had been ruined by bim, that the mother was pregnant, and that he was going to send her money, do not constitute the general and nocorious recognition of the child necessary, under the statuts, to entitle it to in. herit from the father. McCorkendale v. McCorken. dale (Iowa, 1900), 82 N. W. Rep. 754. In Maine no illegitimate child can inherit the estate of his fatber as beir, unless the written acknowledgment required by the statute has been properly executed. Hunt v. Hunt, 37 Me. 333. When an illegitimate child claims the right to 10 herit from bis father under a statute giving such children that right when they have been recognized by the father as his children, and such recognition has been "general or notorious," though declarations of the putative father are competent to show such recogoition, such evidence must be carefully scrutinized. Watson v. Richardson (Iowa, 1899), 80 N. W. Rep. 407. Evidence showing that a putative father recognized an illegitimate child as his own in the home of its foster parents during tbe first year of its life, and occasionally thereafter, is not sufficient to establish such "general and notorious" recognition by the father as will entitle the child to inherit from him. Watson v. Richardson, supra. Under a statute providing that every illegitimate child shall be considered as an heir to the person who sball, in writing signed in the presence of competent witnesses, have acknowledged himself to be the father of such child, the acknowledgment need not be made by the parent for the express purpose of admitting sucb cbild to heirship, but a collateral ac. knowledgment is sufficient. In re Robrer (Wash. 1900), 60 Pac. Rep. 122. The right of an illegitimate child to inherit from its father is given by statute in North Dakota. But it is held tbat under this section be may inherit where the father bas acknowledged him as his child by an instrument in writing, properly witnessed, and then only from his father directly and as an illegitimate child. It is also beld, however, under the same section, that if the legal relation of par. ent and child has been established by an adoption under section 2806, providing for the adoption of illegitimate children, be is clothed with the full right of inberitance of a legitimate cbild. Eddie v. Eddie, 8 N. Dak. 37. See also as construing a similar statute, Lind v. Burke, 56 Neb. 785.

ALABAMA........................1, 19, 27, 28, 87, 85, 86, 87, 92
CALIFORNIA..................2, 13, 20, 32, 33, 40, 47, 54, 82, 89
COLORADO..............................1), 66, 68, 70, 71, 81
IDAHO......
INDIANA........
KENTUCKY............3, 17, 35, 37, 45, 46, 52, 58, 66, 72, 73, 79
MISSISSIPPI..........

..........7, 15, 55, 67, 88, 90 MONTANA..................

..........6, 22 NEW YORK..........

........83 NORTH CAROLINA, 10, 14, 31, 36, 42, 44, 51, 53, 59, 60, 62, 64,

69, 74, 75, 91, 93 OH10... TEXAS...

..............9, 29, 30, 38, 39 UNITED STATES C. O

...............16, 49, 84 UNITED STATES C. C. OF APP., 5, 12, 18, 24, 26, 34, 48, 50,

61, 63, 78 UNITED STATES D. (...........

............. 4,77 UTAH............

............................. 23, 41. 13 WASHINGTON.....................................8, 21, 65, 76

......80

1. AB*TEMENT AND REVIVAL-Foreclosure-Personal Representative.-Code Civ. Proc. $ 385, provides that an action does not abate by the death of a party if the cause of action survives. Held, that the fact that defendant in an action to foreclose a mortgage died more than a year after the commencement of the action, and before the service of summops on her, did not prevent the court from acquiring jurisdiction of her personal representative, since the cause of action did not abate, and the court had implied power to order a new summons to bring in the new party.UNION SAV. BANK V. BARRETT, Cal., 64 Pac. Rep. 1071.

2. ACTION-Legal or Equitable-Jury Trial.- Where plaintiffs alleged ownership and possession of land, and that defendant claimed title thereto under forged deeds, and prayed cancellation of such deeds, and that defendant be restrained from claiming there. under, such equitable action cannot be changed into a legal action by defendant flling a cross bill in the nature of ejectment, so as to entitle defendant to a Jury trial.-ANGUS V. CRAVEN, Cal., 64 Pac. Rep. 1091.

3. ADMINISTRATOR DE BONIS NON -- Recovery of Assets Wasted by Administrator.-An administrator de bonis non cannot sue to recover potes belonging to the estate which the administrator turned over to his wile as her share of the estate, the right to recover assets wasted by the administrator being in the dis tributees.-KARN'S ADMR. V. SEATON, Ky., 62 S. W. Rep. 786.

4. ADMIRALTY - Maritime Liens - Supplies and kepairs Furnished to Owner-Implied Agreement for Lien. -Under the rule that where repairs are ordered in a foreign port by the owner, there must be some affirmative evidence to show that the credit of the ship was pledged as security for payment, to entitle the repairer to a lien, it is not essential that such evi. dence should show an agreement for a lien in express words, but facts and circumstances which justily the inference that there was a common understanding that the ship would be bound to establish an implied agreement for a lien, and are sufficient.-THE NEW. PORT, U. S. D. C., D. (Conn.), 107 Fed. Rep. 744.

5. ADVERSE POSSESSION-Grantee Under Foreclosure Sale.-One who enters upon land under a tr deed which purports to convey an absolute title, and

HUMORS OF THE LAW

"Just for exercise," as he told Judge Sidener, John Sippel kicked Oscar Borgel, a negro, whom he saw asleep in a doorway on Valentine street. The victim came into court with a cut beneath bis eye and with two teeth knocked out. "Sippel's peculiar manner of taking exercise," said the learned judge, “will be svaried by a season of rock-breaking until a $60 fine is erved out."

which was executed upon a sale by the trustee in a 12. BANKRUPTCY-Vold Prior Incumbrances – Mortmortgage, the purpose of which was to bar the mort. gages to Hinder Creditors.-A corporation executed gagor's equlty of redemption, must be regarded as mortgages covering all its property to favored credit. holding adversely to the mortgagor from the time his ors, who were not pressing it for payment nor asking deed is recorded, and poesession is taken thereunder, to be secured, intending thereby to force indulgence although the sale made by the trustee was irregular or from its other creditors and further advances from premature, and no actual notice to the mortgagor of those secured. Held. that they were intended to hin the adverse nature of his claim is necessary to invoke der, delay, or defraud creditorg, within Bankruptcy the running of the statute of limitations for its pro. Act 1898, $ 67, declaring void incumbrances made with tection. - STOUT V. RIGNEY, U. S. C. 0. of App., guch intent within four months prior to filing a peti. Eighth Circuit, 107 Fed. Rep. 545.

tion in bankruptcy.-BAINBRIDGE STATE BANK V. 6. AGENCY - Contract. - wnere plaintiff alleged a

TONGE, U.S.C.C. of App., Fifth Circuit, 107 Fed. Rep.

669. wrongful seizure of his goods in the bands of bis agent, and the answer, denying his ownersbip, 13. BILLS AND NOTES - Non-negotiable Notes-Deshowed the agent's exclusive possession, manage fenses.- Where notes/given with a mortgage were nonment, and control thereof, a contract of agency be. negotiable, but were assigned, the assignee took them tween plaintiff and the agent was properly admitted gubject to all equities; and the mortgagees could get to rebut the presumption of the agent's ownership. up the defense that by mistake the mortgage included KIPP V. SILVERMAN, Mont., 64 Pac. Rep. 884.

more property than tbe parties intended, though the 7. AGREEMENT - Landlord and Tenant. - Where assignee had no notice of the mistake, - SAN JOSE plaintiff's intestate took up delendant's rent note, and RANCH CO. V. SAN JOSE LAND & WATER CO., Cal., 64 furnished him with supplies, under an agreement that Pac. Rep. 1097. defendant would recognize plaintiffs intestate as

14. CARRIERS — Loss of Goods – Bill of Lading landlord, plaintiff was not entitled to a landlord's at.

Reasonableness.-A clause in a bill of lading releastachment for the suppl'es furnished, since such agree.

ing the carrier from liability for loss or damege of the ment could not create the relation of landlord and

goods it potice is not presented in writing within 30 tenant.-COKER V. BRITT, Miss., 29 South. Rep. 833.

days after the delivery thereot, or after due time for 8. ARBITRATION-Award-Review.-Where an agree. such delivery, is unreasonable and void.-GIN HARment to submit a controversy to arbitration provides PER MFG. Co. v. CAROLINA CENT. R. CO., N. Car., 38 S. that the award sball be faithfully kept as to all things E. Rep. 894. by each of the parties, it will not be reviewed by the

15. CARRIERS - Malicious Injury to Passenger. courts, in the absence of a ghowing that the arbitrator

Plaintiff, a negro girl, entered the waiting room of dewas guilty of misconduct.- SKAGIT COUNIY V. TROW.

fendant's depot wlth two other colored girls. E, a BRIDGE, Wash., 64 Pac. Rep. 901.

white man, also entered the same room. The agent 9. A88IGNMENTS - Priority - Representations of refused to sell them tickets, and requested the girls to Agent.-A contractor made an assignment to a bank come into the office and talk it over. The girls re. of the balance due him from a county. On false re.

fused, and Easked to go into the office, where there presentations of the bank's vice-president that the

was a fire; but the agent drew a revolver and ordered county owed enough to the contractor to pay defend.

E to leave, and followed him and the girls outside. ant's claim and all others, nothing being said of the

where plaintiff ran into a pool of water, which caused previous assignment, defendant obtained an assign.

her to be ill. Held, that a judgment for plaintiff ment of the same fund to the extent of his debt. Part

would not be reversed for slight errors in the instrucof this was for material not yet delivered; and on

tione.-YAZ0o & M. V. R. Co, V. MARTIN, Miss., 29 learning of the assigoment to the bank defendant re.

South. Rep. 829. tused delivery until secured or paid therefor. Thebank 16. CARRIERS OF LIVE STOCK - Contract Limiting paid the amount under agreement that neither party's Amount of Liability to Agreed Valuation.- A stipula. rights would be prejudiced thereby. Previous to the tion in a bill of lading for live stock that in case of bank's representations, defendant contemplated at. loes or injury in shipment the carrier shall not be tachment of the contractor's property, but the evi. liable beyond a stated and agreed valuation per bead, dence showed no ground of attachment. This prop. in consideration of which the shipper is given a lower erty was subsequently mortgaged to the bank to se. freight rate, is valid and binding on the parties, al. cure another debt not herein involved. Held, that the though the loss or injury results from the negligence bank was not estopped by its officer's false represen. of the carrier. - METROPOLITAN TRUST CO., OF NEW tations from claiming priority to the fund assigned, YORK V. TOLEDO, ST. L. & K. O. R. Co., U.S.C.C., D. since defendant did not rely or act thereun.-WAXAHA. (Iod.), 107 Fed. Rep. 628. CHIE NAT. BANK V. BEILHARZ, Tex., 62 S. W. Rep. 743.

17. CRAMPERTY AND MAINTENANCE - Agreement to 10. ASSIGNMENT FOR BENEFIT OF CREDITORS - Assist Litigant.-An agreement by one who was not a Validity. - Where B conveyed bis property to his lawyer to assist ipfapt heirs, to whom he was not rebrother on June 22d, and on June 24th it was recon. lated, in the contest of a will, by rendering personal veyed to B, who assigned it to his brother-inlaw for services as their agent, in consideration of "a sum the benefit of certain creditors, the assignment, in the equal to" a certain part of what might be recovered, absence of evidence that the debts secured were not wag vold where the litigation was the result of the due or were not bona fide, was not void as in fraud of agent's interference and intermeddling, and though creditors not Included in the assignment, since it is the contract was made in the name of an attorney not frand for a creditor to prefer one debtor to an whose employment the agent procured under an other.-CITY NAT. BANK OF NORFOLK V. BRIDGERS. N. agreement that the agent wag to share the fee, which Car., 38 S. E. Rep. 888.

has since been collected by the attorney, the agent 11. BANKRUPTCY--Discharge-Appeal Bond-Surety.

cannot require the attorney to divide with him upon -Where a surety on an appeal bond was discbarged of

the ground that the contract, though Illegal, has been all his debts and claims provable under the bank.

executed.-LYNN V. Moss, Ky., 62 S. W. Rep. 712. ruptcy law subsequent to a judgment on such appeal 18. CHATTEL MORTGAGE8-Disposal of Released Prop. bond, the discharge is a defense to the enforcement of erty-Effect of Renewal Mortgage.-If, before the exe. such judgment, since the debt, or damages for breach cution of a second renewal chattel mortgage on the of the appeal bond, was a provable one, under Bank same property, included in the first between the same ruptcy Act 1898, $ 63, subd. 4, subsec. "," providing parties, the parties agreed by parol that the mort. that debts of the bankrupt founded on an express gagor might dispose of a part of the mortgaged propcontract may be proved.-COE V. WATERS, Colo., 64 erty free from the mortgage lieps, and he did so, the Pac. Rep. 1062.

| rights thereby acquired by third parties to such re

leased property are unaffected by the renewal mort. gage.-PECO8 VALLEY BANK V. EVANS-SNIDER-BUEL Co., U.S. C. C. of App., Fifth Circuit, 107 Fed. Rep. 654.

19. CONTRACT-Instructions.-In an action upon an account, where the trial is had upon the plea of tbe general issue and of payment, and there is evidence tending to gbow tbat the defendapt had never cbased the article alleged to have been sold to him by the plaintiff, and that if he did he had paid for it, a charge is properly refused which instructs the jury that "the burden of proof is on the defendant to establish his plea of payment to tbe reasonable satisfaction of the jury, and, if the evidence is equally balanced, the plaintiff is entitled to a verdict."-DAVIS WAGON CO. V. CANNON, Ala., 29 South. Rep. 841.

20. CONTRACIS-Rescission - Diligence. - Plaintiff and intervepers alleged that they were stockbolders in defendant corporation; that defendant Powned a majority of the stock; that, the corporation being in. debted to P for land purcbased of him, which, by agreement, was to be paid only out of the proceeds of siles of sucb land, the directors had adopted a resolu. tion authorizing a load and mortgage of all its prop. erty, and, in consideration of Pe guarantying the pay. ment of the loan, that he should be paid at once: that the loan wag made, and Pwas paid his claim out of the proceeds. Held, under Civ. Code, $ 1691, provid. log that rescission, when not effected by consent, can be accomplished only by the complainant rescinding promptly on discovering the facts which entitle bim to rescind, that rescission should be denied, the action pot baving been commenced until two years after the acts complained of, and no excuse being offered for the delay.-WILLS V. PORTER, Cal., 64 Pac. Rep. 896.

21. CONVERSION-Claim Against County-Tex Sale.The defendant county instituted a suit against Mand others to recover taxes on certain goods wbich in fact belonged to plaintiff, and the goods were sold by a re. ceiver, whose actions were directed by the county treasurer and other county officere. A judgment in favor of the county was reversed on appealandthe sult dismissed. Held, that it was proper, in an action by plaintiff against the county for conversion, to charge that the receiver's acts were unauthorized, and that the county was responsible tberelor.-Rose V. Puk COUNTY, Wash., 64 Pac. Rep. 913.

22. CONVERSION -Damages.-An instruction, in an action for damages for conversion of a stock of mer. chandise, that the burden is on the plaintiff to show that at the times alleged he was the owner of, and entitled to possession of the goods, etc., and that at said time defendantsheriff wrongfully and unlawfully levied on and sold said goods, to plaintiff'g damage; the burden is also on the plaintiff to show that the goods were of any greater value than $1,000, as admitted by the argwer, and that he has expended any sum necessarily in endeavoring to recover said property or the value thereof,"--correctly stated the law on the issues of the ownership of the property and its value.-KIPP V. SILVERMAN, Mont., 64 Pac. Rep. 881.

23. CONVERSION- Officer - How far Protected by Writ.-In the absence of a statute, an officer, under a process against one of several co-tepants, may seize and take into his exclusive possession the common property, and a co-tenant, though a stranger to the writ, is without remedy for such invasion of his pos. session; and upon a sale of the interest of the joint Owner, who is a party to the action, the possession of the common property may be delivered to the pur. chaser, who becomes a tenant in common thereof; but, if the omcer assumes to levy on or sell the whole property, his act, as against the contenant pot pamed in the writ, is wrongful, and he may be sued for treg. pass or conversion as the co-tenant may elect.-SPALDING V. ALLRED, Utah, 64 Pac. Rep. 1100.

24. CORPORATION-Stockholders Subject to Assess. ments-Transfer of Shares in Good Faith.-An owner

of shares in a national bank, who sold the same in good faith, without knowledge or reason to believe the bank was insolvent, and who did everything that was reasonably possible to have the proper formal transfer made on the books of the bank, cannot be treated as a shareholder, and held liable to an 888ee8ment made by the comptroller upon the subsequent closing of the bank as insolvent, upon evidence show. ing that the bank was in fact Insolvent at the time the sale was made, and that the purchaser was also in. solvent. The statute imposes no restriction upon the right to transfer shares because of the insolvency of the bank or the transferee, por do copeiderations of public policy justify him where the seller bas exer. ciged due diligence, and bas acted in the transaction with fairness and good faitb.- EARLE V, CARSON, U. S. C.C. of App., Third Circuit, 107 Fed. Rep. 639.

25. CORPORATIONS-Stock Subecriptions - Not Paid Up-Liability of Stockholders.-Where a corporation agrees with its stockholders that only a certain amount of the stock subscribed by each stockholder shall be paid in, but credit is extended to the corpo. ration on faith tbat its corporate stock is payable in full, and without potice of a different agreement between the corporation and its stockholders, the un. paid subscriptions are assets for the payment of such creditors on the insolvency of the corporation.-BENT V. UNDERDOWN, Ind., 60 N. E. Rep. 307.

26. COURTS-Land Department of the United States -Judicial Power and its Effect.-The land department of the United States is a quasi-judicial tribunal, in. vested with authority to hear and determine claims to the public lands subject to its disposition, and its de. cisions of the issues presented at such hearings, and Its patents issued thereon, are impervious to col. lateral attack.-JAMES V. GERMANIA IRON Co., U.S.C. C. of App., Eighth Circuit, 107 Fed. Rep. 596.

27. CRIMINAL EVIDENCE-Bigamy.-On a trial under an indictment for bigamy, evidence that at the time of the second marriage the defendant had made in. quiries to ascertain whether or not his former wife wag dead, and that he had received a letter stating that she was dead, is irrelevant, illegal, and properly excluded.-RAND V. STATE, Ala., 29 South. Rep. 844.

28. CRIMINAL EVIDENCE-Homicide.-On a trial un- · der an indictment for murder, where it is shown that the homicide took place at the bouse occupied by the defendant, and there was evidence tending to show that deceased was trying to gain admittance into the defendant's house at the time of the killing, the fact that the door of the defendant's residence was broken and battered up several months after the homicide is not a circumstance which could in any way aid in determining the character of the homicide, and is plainly irrelevant to the issue being tried; and the er. ror in the admission of such evidence, in the absence of its being shown to the satisfaction of the court that the defendant was not prejudiced thereby, will work a reversal of the judgment of conviction.-ABERNATHY V. STATE, Ala., 29 South. Rep. 844.

29. CRIMINAL EVIDENCE-Homicide-Circumstantial Evidence.-Allowing the state to introduce only cir. cumstantial evidence of defendant's guilt, and not requiring it to call eyewitnesses of the homicide because they were. unfriendly to the state, was not erroneous as depriving the defendant of a presumption of inno. cence by forcing him to put such witnesses on the stand.-MOCANDLESS V. STATE, Tex., 62 S. W. Rep. 746.

30. CRIMINAL EVIDENCE-Identifying Accused.- Op prosecution for theft an officer may testify to his tak. ing prosecutor to the jail, and, after putting a certain bat on accused's head, that prosecutor identified her as the thief, over objection that it was forcing accused to testify against herself while she was confined in jall.-WHITE V. STATE, Tex., 62 S: W. Rep. 749.

31. CRIMINAL EVIDENCE-Res Gesix.-Where, in a prosecution for homicide, there was evidence that de

fendant killed deceased by throwing a stone, which strained by force or fear, and that in making their struck deceased on the temple, evidence of a witness verdict they should take into consideration all the who was present, that he heard the lick, and asked facts and circumstances.-NRACE V. COMMONWEALTH. R, who was standing two steps from defendant, what Ky., 62 S. W. Rep. 733. It was, and R stated that defendant bit deceased with

38 CRIMINAL LAW-Right to Continuance-Absence a rock, was admissibly as res gestæ,'though it did not

of Witnesseg-Diligence.- Defendant was indicted for appear tbat the defendant heard R's statement; he be.

horse tbeft, and sought a second continuance op ae. ing present within hearing distance from R at the

count of the absence of three witnesses, by whom time.-STATE V. McCOURRY, N. Car., 38 S. E. Rep. 883.

alope he could prove that he traded for the horse, and 32. CRIMINAL LAW-Forgery - Indictment.-The in: the absence of an attorney whom he had employed to dictment charged forgery in uttering a false and ficti. defend him, and to wbom he claimed to have given a tious note, dated April 28, 1897, purporting to have bill of sale which he received at the time he made the been made by R. J. McIntyre to Eddie Burney for $260. trade. On a former application defendant stated that gold coin, payable one year after date. The note ol. there were several witnesses by whom he could prove tered in evidence corresponded with such descrip. the same facts, and it appeared that the attorney em. tion, except that it contained a provision for interest, ployed had been elevated to the bench, and could no and for payment of attorney's fees if collected by suit. longer act for defendant, but tbat there had been two Held, that there was no material variance, since the terms of court since such attorney's appointment, description in the indictment was correct, as far as it and no process had been issued to require bis attendwent, and sufficient to identify the instrument, and ance as a witness, or effort made to secure the bill of the fact that there were conditions in the instrument sale. Held, that no diligence was shown to obtain not inconsistent with, but in addition to, those men. eitber the witnesses or the bill of sale, and hence de tioned in the description, was immaterial, since an in. tendant was not entitled to a continuance.- PEREZ V. dictment is sufficient, without containing a copy of STATE, Tex., 62 S. . Rep. 748. the instrument alleged to be forged.-PEOPLE V. TER

29. CRIMINAL LAW-State's Evidence-Nolle Progtqui. RILL, Cal., 64 Pac. Rep. 894.

- Where a prisoner awaiting trial under indictment 33. CRIMINAL LAW-Former Jeopardy.-On a trial for ceed with the sheriff and county attorney that be forgery, the court excluded the instrument claimed to would testify against otbers, and that in considers. be forged, on the ground of variance with the indict. tion thereof he should not be prosecuted, he is not en. ment, and directed a verdict for defendant; and a ver. titled to a discharge from jail until he has given such dict was returned of “not guilty, on the ground of a testimony, even though he is unable to furnish bail.material variance between tbe note set forth in thein EX PARTE GIBSON, Tex., 62 S. W. Rep. 755. dictment and the note offered." Held, that defendant

40. CRIMINAL TRIAL-Homicide-Chapge of Venue.could not be again tried for the offense, since by the

Pen. Code, $ 1033, directs a grant of a change of venue verdict he was acquitted, and it was immaterial what

in a criminal case on a showing that a fair trial reason the jury gave for tbe acquittal, or that there

be had or a jury cannot be obtained. Defendant, who was in fact no material variance.-PEOPLE V. TERRILL

was a man of bad repute, made an assault on a person Cal., 64 Pac. Rep. 894.

who had filed an information against him, and fired 34. CRIMINAL LAW-Fraudulent Use of Mails-Indict. several shots into his house. The sheriff went to the ment.-An indictment for a fraudulent use of the house of defendant, and was shot by him. A mob was malls, in violation of Rev. St. § 5480, as amended by formed, composed of persons of standing in the comAct March 2, 1889°(1 Supp. Rev. $t. p. 694), not charg. munity, and mob violence was only prevented by ing a scheme to defraud the public generally, or & prompt removal of defendant to another county. The class pot capable of being regolved into individuals. defendant was denounced in the pulpit and by the but clearly importing an intention to defraud definite press, and public opinion was unanimous that the individuals, is bad, if it does not describe them by death penalty should be inflicted. Sixty-eight jury. name, or give a good and true reason for the omission. men were examined on their roir dire, and all but -LARKIN V. UNITED STATES, U. S. C.C. of App., Sey. eigbt had formed an opinion as to defendant's guilt, enth Circuit, 107 Fed. Rep. 697.

and three of these were excused. Held, that it was 35. CRIMINAL LAW-Homicide-Insanity as Defense.

error to refuse a change of venue.-PEOPLE V. Sors. - Where deceused had seduced a sister of defendant,

SER, Cal., 64 Pac. Rep. 1095. and then married her. the testimony of the county 41. DECEDENTS-Estates-Fraudulent Conveyance.clerk that defendant said when deceased procured the Owing to the provisions of sections 3922, 3923, Rev. St. license to marry that he didn't believe in settling it 1898, creditors of an insolvent estate may not bring an that way" was testimony in chief, though it contra action in their own names to set aside a conveyance dicted the defendant, who denied that be had made made by the decedent in his lifetime, without first the statement, and should not have been admitted for having made the demand on the administrator to the commonwealth after defendant had closed his bring such suit, required by said sections, and having testimony.-ABBOTT V. COMMONWEALTH, Ky., 62 S. W. been met with a refusal by him.-FEHRINGER V. CO Rep. 715.

MERCIAL NAT. BANK OF OGDEN, Utah, 64 Pac. Rep.

1108. 36. CRIMINAL LAW-Homicide - Second Degree.Where, in a prosecution for homicide, the court was

42. DEEDS – Construction – Calls for Swamps.requested to charge that, if the prisoner killed de.

Where a conveyance of realty calls for a swamp, and ceased with a deadly weapon, malice would be pre.

thence along the swamp, grantee's title extends only gumed, and ordinarily the verdict would be murder in

to the banks of the swamp, and not to the run of the the second degree, but, unless the weapon had been

awamp, since tbe rule that a call in a deed for the prepared for the purpose, its use would not neces.

bapkg of a stream takes the title to the middle of the sarily be evidence of malice, such instruction was

stream does pot obtain where the call is for a swamp. properly given, as moditied, by adding that it would

- ROWEV. CAPE FEAR LUMBER CO., N. Car., 38 S. E. be sufficient to constitute murder in the second de. Rep. 896. gree, but pot express malice.-STATE V. MOOOURRY, N. 43. DEED-Mortgage.-A bill of sale of a house sit. Car., 38 S. E. Rep. 883.

uated on mining ground, given to the party furnisb. 37. CRIMINAL LAW - Rape-Consent of Woman-Evi.

ing the lumber for the erection of the bouse, without dence of Want of Chastity. The court should have in.

a transfer of possession, amounts to nothing but a structed the jury that the fact that the woman was of

mortgage securing the debt, and does not pass title.bad character would not relieve defendants of respon.

AZZALIA V. ST. CLAIRE, Utah, 64 Pac. Rep. 1106. sibility, but that there could be no conviction it she 44. DEED-Reservation of Title-Judgment Creditor. consented to the sexual intercourse, and was not con. | -A father conveyed land to his son, reserving title

thereto ip himselt until payment of the purchase money. A part thereof was paid, when the son reconveyed it, 8ome of the personal property sold there. with having been changed in the meantime. The father undertook to sell the land under the power contained in the original contract of conveyance, and repurchased from the vendee at such sale. After the origioal conveyance, a judgment was obtained by plaintiff against the son. Held, that plaintiff had no lien superior to those claiming under the father, since he bad never parted with the title to the land.-TAY. LOR V. CAPEHART, N. Car., 38 S. E. Rep. 890..

45. DIVORCE-Agreement Relieving Husband of Ob. ligation to Pay Alimony.- Where a husband and wife had separated and were dealing at arm's length, an agreement between them for a dismissal of a divorce suit brougbt by the wife, and for a division of their personal property, with a stipulation that neither should bave any interest in the real estate belonging to the other. was valid: and it being further stipulated that "it either of said parties shall hereafter institute divorce proceedings against the other, or further prosecute the divorce suit above named, it shall not vary the property rights of either of said parties," the agreement relieved the busband of the obligation to pay alimony upon a divorce being subsequently ob

ped by the wile.-PARSONS V. PARSONS, Ky., 62 S. W. Rep. 719.

46. EASEMENTS- Partition-Rights to Existing Pagg. ways.-Each of the several parcels of land allotted in a partition proceeding is subject to the benefits and burdens of existing passways as between it and the otber parcels, though tbere be no reference to pasg. ways in the deeds of partition; and a subsequent pur. chaser of a part of one of the lots takes It subject to an existing passway between it and that part of the lot retained by the vendor.-MUIR V. Cox, Ky., 62 S. W. Rep. 723.

47. ELECTIONS-Statement of Expenses — Forfeiture of Office.-Purity of Elections Act (St. 1893, p. 15) sec. tlon 4, declares tbat one elected to an office shall for. felt it if he neglects to file a statement of election ex. penses, as prescribed by section 3, which provides that he shall give an itemized statement, showing in detail all moneys expended by him in aid of his elec tion, giving the names of persons to whom such moneys were paid, and the specific nature of each item; and section 13 provides that on the trial under the act of the right to an office, if it appear that the offenses complained of were trivial, unimportant, and limited in character, the candidate sball not be de. prived of his office by reason thereof. Hold, that an election was not rendered void by the candidate putting down as a single item, "gundries and incidentals, $22.65;" the statute providing that the candidate may expend $100 for necessary incidentals, and dispensing with vouchers for expenditures in amounts less than $.-LAND V. CLARK, Cal., 64 Pac. Rep. 1071.

48. EQUITY - Action on Contract - Enforcement of Legal Liability.- A right of action against a city to recover rentals alleged to be due it under a contract with a water company is at law, and the fact that the company bas made an equitable assignment of the coutract by way of mortgage does not give the as. signee the right to sue thereon in equity, merely be. cause his own interest is equitable, and be capnot, by joining the city as defendant, have its rights deter. mined in a euit to foreclose the mortgage. The city is entitled to bave its rights and obligations under such contract determined by a trial in a court of law. -CITY OF EAU CLAIRE V. PAYSON, U. S. C. O. of App., Seventh Circuit, 107 Fed. Rep. 552.

49. EQUITY-Enforcement of Trust-Assignee of Soly. ent Corporation.-A suit in equity cannot be main. tained by one claiming to be a contract creditor of a solvent corporation against an assignee to wbom the corporation has conveyed its property in trust to b converted into money and its debte paid therefrome.

In such case a court of equity has no jurisdiction to administer the fund in the hands of the trustee for the benefit of creditors, the trustee being merely an agent for the corporation, which owns the property or fund; nor has the creditor, who has no lien on such property or fund, any right of action against the trustee.AMES & HARRIS v. SABIN, U.S. C. C., D. (Oreg.), 107 Fed. Rep. 582.

50. EVIDENCE-Exnert Opinion-Machinery.- Where the facts touching the question whether a machine was impracticable and unsafe cannot be fully eom. municated to the jury, expert opinion is competent.-HUTCHINSON COOPERAGE CO V. SNIDER, U. S. C.C. of App., Seventh Circuit, 107 Fed. Rep. 363.

51. EXECUTORS AND ADMINISTRATORS - Conveyance of Property-Rights of Creditors.-Under Code, $ 1442, providing that any conveyance of real estate by an heir at law, made wichin two years after the death of the intestate, shall be void as to estate creditors, but that conveyance made thereafter shall be valid as to bona fide purchasers without notice, land so inherited is liable for the debts of the ancestor, though con. veyed after the expiration of two years, for full value, to a grantee who has knowledge of such debts.HOOKER V. YELLOWLEY, N. Car., 38 S. E. Rep. 869.

52. EXECUTORS AND ADMINISTRATORS - Liability of Heir Who Has Sold Estate Descended.-Under Ky. St. $ 2087, providing that, "when the heir or devisee shall alien before suit brought the estate descended or de. vised, be shall be liable for the value thereof, with legal interest from the time of alienation to the cred. Itors of the decedent or testator," the administrator is not a necessary party to an action to enforce the liability of the heir; and, where the administrator was joired with the heir, the courts erred in refusing to permit plaintiff to dismiss as to the administrator, and in tben sustaining a demurrer to the jurisdiction. and dismissing the action as to both defendants, be. cause the administrator resided in another county.LANCASTER V. WOLFF, Ky., 62 S. W. Rep. 717.

53. EXECUTORS AND ADMINISTRATORS - Liability of Sureties.- Where the surety on an administrator's bond, to whom real estate inherited by the latter from his intestate has been mortgaged as security, defeate a suit on the bond for a debt of the intestate by pleading limitations, he cannot resist a suit by the creditor to enforce payment from mortgaged real estate on the ground that he is solvent, and that the administrator's bond, as representing the personalty, must be exhausted before the realty.-HOOKER V. YELLOWLEY, N. Car., 88 S. E. Rep. 889.

54. ILLEGITIMATE CHILD – Adoption. - Under Civ. Code, $ 230, providing that the father of an illegiti. mate child, by publicly acknowledging it as his own and receiving it into his family, adoptg it and makes it, for all purposes, legitimate from the time of its birth, the acknowledging of an illegitimate child by a father without receiving it into his family is not suffi. cient for its adoption, and such child can conler no right to administer her father's estate.-GARNER V. JODD, Cal., 64 Pac. Rep. 1076.

55. INJONCTION – Exclusive Priveleges - Ferry. -A Iree bridge over a river became impaggable, and the supervisors licensed plaintiff to establish and operate a ferry for five months. The ferry was established when defendants, without license, set up a ferry a short distance from plaintiffs, for their own use, and for the use of such persons as chose to cross there, and re. ceived pay when voluntarily offered. Held, that plaintiff, having given bond and procured license, was entitled to the protection of the law, and that defend. ants should be enjoined from operating their ferry, and required to compensate plaintiff for the tolle which they bad diverted from him.-MCINNIS V. PACE, Miss., 29 South. Rep. 836.

56. INSURANCE-Agreement to Pay Premium-Mort. gagee.-A fre policy containing a mortgage clause, which stated that the mortgagee should pay prem.

« ПредишнаНапред »