COUNTIES. See, also, "Municipal Corporations." To warrant the payment of fees to officer out of county treasury, it must appear that it was authorized by statute. - Clark v. Board of Com'rs of Lucas County (Ohio) 356. A bill presented to county commissioners for services performed by order of township trustee as watchman during a small-pox quarantine held to show no liability on part of county.-Board of Com'rs of Perry County v. Bader (Ind. App.) 776. COURTS. See, also, "Criminal Law," § 1. Justices' courts, see "Justices of the Peace." Trial by court without jury, see "Trial," § 7. 1. In general. A state court, in determining the lien of a judgment of a federal court, must be governed by federal decisions.-Rock Island Nat. Bank v. Thompson (Ill.) 1089. 82. Courts of inferior jurisdiction. Under Pub. St. c. 157, § 15, the remedy for an erroneous decision of the court of insolvency is by application to the supreme judicial court. -Chadwick v. Old Colony R. Co. (Mass.) 629; Old Colony R. Co. v. Chadwick, Id. 3. Courts of appellate jurisdiction. An appeal held to involve a freehold so that the supreme court had jurisdiction.-Farrelly v. Town of Kane (Ill.) 118. Though a freeholder is involved, an appeal from another part of the decree, not involving such question, goes to the appellate court.Rhodes v. Rhodes (Ill.) 170. Appellee held to have waived a constitutional question, and submitted to jurisdiction of appellate court, by omitting to save exceptions to the trial court's ruling, and to assign cross error in the appellate court.-City of Spring Valley v. Spring Valley Coal Co. (Ill.) 1067. Assignments of error in the appellate court held to involve an issue as to the existence of a public highway, calling for a dismissal for want of jurisdiction, since a public highway is a freehold estate.-Taylor v. Pierce (Ill.) 1109. A party-wall agreement, providing that one adjoining owner shall erect the wall and the other shall pay a share of the expense when he uses it, does not constitute a covenant running with the land.-Sebald v. Mulholland (N. Y.) 260. § 2. Performance or breach. The existence of an easement is a breach of a covenant against incumbrances.-Teague v. Whaley (Ind. App.) 41. A constructive eviction constitutes a breach of covenant of warranty.-Beasley v. Phillips (Ind. App.) 488. Where the owner of a paramount title asserted the claim and threatened suit, it was held a constructive eviction.-Beasley v. Phillips (Ind. App.) 488. § 3. Actions for breach. Whether the covenantor was given notice to defend an action brought against the cove nantee, and what the notice consisted of, is a question of fact to be determined by the court. -Teague v. Whaley (Ind. App.) 41. A covenantee in a deed, when a third person seeks to enforce an incumbrance, must expressly request covenantor to defend the title, to bind him by judgment therein.-Teague v. Wha ley (Ind. App.) 41. The right of a grantee to recover against the grantor under a deed covenanting against incumbrances is not defeated because grantee knew of the incumbrance before the execution of the deed.-Teague v. Whaley (Ind. App.) 41. Where there was a breach of the covenant against incumbrance when the deed was exe cuted, the covenantee is entitled to recover on a judgment against him subsequently rendered, whether or not notice thereof was given to covenantor.-Teague v. Whaley (Ind. App.) 41. A grantor held estopped by a warranty deed from claiming that in case an adverse title should be asserted the grantee was to pay the grantor a sum necessary to cancel it.-Beasley v. Phillips (Ind. App.) 488. The fact that a grantee paid nothing for his land does not affect his right to recover from a remote grantor for breach of warranty of title.-Beasley v. Phillips (Ind. App.) 488. The measure of damages for breach of warranty of title is what the grantee was compelled to pay to protect his title.-Beasley v. Phillips (Ind. App.) 488. In an action against a married woman for breach of covenants of title, it was unnecessary to allege that the land was her separate property.-Dickey v. Kalfsbeck (Ind. App.) 590. Voluntary conflicting statements of accused | he had done so.-People v. Fitzgerald (N. Y.) held admissible against him.-Commonwealth 846. v. Williams (Mass.) 1035. It is error to admit in evidence a letter to defendant from his superior, admonishing him in respect to his intemperate habits, or to admit evidence of persons having relations with defendant that his conduct has been rude, arbitrary, and unreasonable.-People v. Fitzgerald (N. Y.) 846. § 3. Trial. Rev. St. 1874, p. 781, providing that papers read in evidence, other than depositions, may be taken by the jury on their retirement, is not applicable to criminal cases.-Dunn v. People (ill.) 137. An objection to evidence must be specific to be available on appeal.-Dunn v. People (Ill.) 137. It is objectionable for the court during the trial of a criminal case to examine and cross-examine witnesses at length.-Dunn v. People (Ill.) 137. An instruction that evidence of an alibi is not to be considered unless it appear that accused was elsewhere during the time the offense was committed, held erroneous, as invading the province of the jury.-Waters v. People (Ill.) 148. An instruction that the jury might disregard the testimony of defendant's witnesses if they had testified falsely, etc., held erroneous for not including all witnesses.-Waters v. People (Ill.) 148. A verdict against an alibi was set aside as the result of passion or prejudice in view of erroneous instructions concerning the credibility of witnesses.-Waters v. People (Ill.) 148. An instruction explaining broadly the competency of admissions as evidence, but without instructing the jury to receive it with caution, unless deliberately made, is erroneous.-Marzen v. People (Ill.) 249. An instruction relating to circumstantial evidence considered, and held improperly refused, where other instructions given did not define the nature of the circumstances relied on to show guilt with as much particularity.-Marzen v. People (Ill.) 249. Where a witness was called to identify a kerosene can found under suspicious circumstances, as belonging to the accused, and the judge remarked, "I believe that is the same can, ," held, the statement so made was improper, as unduly influencing the jury as to a question of fact.-Marzen v. People (Ill.) 249. The verdict convicting one of receiving stolen property considered, and held expressly authorized by the indeterminate sentence law.-Bealer v. State (Ind. Sup.) 302. It is error in Indiana to refuse to instruct the jury in a prosecution for petit larceny that they may determine whether the punishment be imprisonment in jail or in the penitentiary.— Barnard v. State (Ind. Sup.) 304. Request to direct verdict for defendant held properly overruled. - Commonwealth v. Williams (Mass.) 1035. Where a jury was locked up four nights and nearly four days, held, under the circumstances of the case, that there was coercion of the jury, and its verdict must be set aside.-People v. Sheldon (N. Y.) 840. It is error to refuse to charge that it is the presumption of law that a party will not steal or misappropriate money in his hands.-People v. Fitzgerald (N. Y.) 846. It is error to add, to the instruction that the failure of a defendant in a criminal case to take the stand should not prejudice him, any comments as to what the case would have been if A view by the jury in a criminal case of the premises where the crime was committed is not a part of the trial, nor the taking evidence, and the presence of the defendant or his counsel at such view may be waived by him.-People v. Thorn (N. Y.) 947. § 4. Motions for new trial. Burns' Rev. St. 1894, § 1855, does not require defendant to be personally present when a motion for new trial is denied.-Lillard v. State (Ind. Sup.) 383. § 5. Judgment and sentence. A sentence to a county jail for a crime punishable either as a felony or misdemeanor held not governed by indeterminate sentence law (Laws 1897, p. 69).-Hicks v. State (Ind. Sup.) 27. The record being silent, it was presumed that the court, before pronouncing sentence, informed defendant of the verdict, and called on him to show cause why judgment should not be pronounced.-Lillard v. State (Ind. Sup.) 383. 86. Appeal and error, and certiorari. The presumption is that the jury were correctly instructed unless the contrary appears from the record on appeal.-Bealer v. State (Ind. Sup.) 302. Instructions in a criminal case can only be brought into the record on appeal by a bill of exceptions.-Bealer v. State (Ind. Sup.) 302. Error in excluding testimony held cured by its subsequent admission.-Lillard v. State (Ind. Sup.) 383. Defendant held not entitled to complain that the court, in pronouncing sentence, failed to inform him of the verdict, and to ask him to show cause why judgment should not be pronounced.-Lillard v. State (Ind. Sup.) 383. The fact that a question is leading will not of itself be ground for reversal.-Lillard v. State (Ind. Sup.) 383. Where accused makes general objection to judgment, but does not move to modify it, the objection cannot be considered.-Evans v. State (Ind. Sup.) 820. A bill of exceptions, not filed within 60 days after judgment, as provided by Burns' Rev. St. 1894, § 1916, is not given in the record, though by order of court 90 days was given to file it.Hoch v. State (Ind. App.) 93. Affidavits to sustain causes assigned for a new trial in a criminal case must be brought into the record by a bill of exceptions.-Names v. State (Ind. App.) 401. It is error on the trial of an indictment for larceny to admit in evidence a letter written to the complainant by a person having personal and professional relations with the defendant, expressing an unfavorable opinion of his integrity.-People v. Dorthy (N. Y.) 800. The court of appeals is bound by the decision of the lower courts upon the question whether the defendant in a criminal case was prejudiced by incompetent testimony.-People v. Dorthy (N. Y.) 800. § 7. Punishment of crime. Punishment may be lessened, but cannot be increased, by a statute enacted after the commission of the offense.-Hicks v. State (Ind. Sup.) 27. Horner's Rev. St. 1897, vol. 4, § 8253 (b) et seq., held not to repeal by implication provisions in Burns' Rev. St. § 2007, permitting a punishment for a felony by imprisonment in the county jail.-Zeilinski v. State (Ind. Sup.) 304. In order to allow imposition of a greater punishment, a former conviction must be alleged and proved.-Evans v. State (Ind. Sup.) 820. CROSS-EXAMINATION. See "Witnesses," § 2. CUSTODY. DEATH. Of partner, see "Partnership," § 2. § 1. Actions for causing death. In an action for causing death, the burden of showing that intestate was using ordinary of goods in course of transportation, see "Car- care when he was killed is on plaintiff.-Illiriers," § 1. Of jury, see "Criminal Law," § 3. CUSTOMS AND USAGES. General course of business held admissible to explain ambiguity as to whether a sale or a bailment was intended by a contract.-Leiter v. Emmons (Ind. App.) 40. DAMAGES. See, also, "Death." Breach by vendor of contract for sale of land, see "Vendor and Purchaser," § 5. Compensation for property taken for public use, see "Eminent Domain," § 1. § 1. Grounds and subjects of compensatory damages. nois Cent. R. Co. v. Cozby (Ill.) 1011. Under Burns' Rev. St. 1894, § 7473 (Horner's Rev. St. 1897, § 5480; Act 1891, § 13), it was held that the right of action there allowed was limited to the beneficiaries named in the act. -Boyd v. Brazil Block Coal Co. (Ind. App.) 368. An averment in action under Burns' Rev. St. 1894, § 285, held to sufficiently allege that decedent left heirs and next of kin, so as to authorize evidence showing who are the proper beneficiaries. Commercial Club of Indianapolis v. Hilliker (Ind. App.) 578. Complaint held sufficient where it averred facts showing legal duty to injured party from defendant, and a breach thereof causing the injury.-Commercial Club of Indianapolis v. Hilliker (Ind. App.) 578. Club of Indianapolis v. Hilliker (Ind. App.) 578. Verdict for $2,750 held excessive.-Commercial A reduction in plaintiff's damages could not be allowed because of damages to which defend-petent to show that deceased fireman was in ant had subjected himself, where it was not clear that plaintiff would receive benefit from said damages.-Banewur v. Levenson (Mass.) 10. One whose negligence has caused a wound may be liable for blood poisoning, though it was not the ordinary effect.-McGarrahan v. New York, N. H. & H. R. Co. (Mass.) 610. § 2. Measure of damages. In an action for injuries to barges, the time in which plaintiff was kept out of the use thereof, through defendant's acts, is a legitimate element of damages.-Pierce v. Walton (Ind. App.) 309. Damages for breach of contract based on market value held too speculative.-Tebbs v. Cleveland, C., C. & St. L. Ry. Co. (Ind. App.) 486. line of promotion when injuries were received.Hesse v. Columbus, S. & H. R. Co. (Ohio) 354. In an action for death by wrongful act, an admission of deceased that he was negligent was held admissible.-Helman v. Pittsburg, C., C. & St. L. Ry. Co. (Ohio) 986. DEBTOR AND CREDITOR. See "Assignments for Benefit of Creditors"; "Fraudulent Conveyances"; "Insolvency." DECEDENTS. Estates, see "Descent and Distribution"; "Executors and Administrators." In an action for breach of contract to fur-See "Fraud.” nish money to discharge plaintiff's debts by paying a less sum than was due, held, that the measure of damages was the difference between debts and the sum for which defendant could DECEIT. DECLARATION. have discharged them.-Banewur v. Levenson In pleading, see "Pleading," § 2. (Mass.) 10. The measure of damages for a failure to perform a contract to furnish power or machinery to operate a mill is the difference in the rental value of the mill with the power or machinery contracted for and without it.-Witherbee v. Meyer (N. Y.) 58. 3. Pleading and evidence. DECLARATIONS. As evidence in criminal prosecutions, see "Crim- DECREE. An instruction to assess compensatory damages "not exceeding the sum claimed in the dec- In equity, see "Equity," § 5. laration" is proper.-Calumet Electric St. Ry. Co. v. Van Pelt (Ill.) 678. Evidence that a physician gives professional advice to one injured justifies a finding that services were rendered for a pecuniary recompense.-McGarrahan v. New York, N. H. & H. R. Co. (Mass.) 610. Damage accruing from personal injuries held capable of estimation by the court, without the assistance of experts.-Copson v. New York, N. H. & H. R. Co. (Mass.) 613. Where a plaintiff suffered injuries in two successive accidents on defendant's railway, and brought two successive suits, held, that the jury's attention in the second must be confined to the injuries or aggravations of injuries properly attributable to the second accident.Brooks v. Rochester Ry. Co. (N. Y.) 945. DEDICATION. 8 1. Nature and requisites. Where acknowledgment of plat is not in ac cordance with statute, the recording of it does not constitute a statutory dedication.-Rusk v. Berlin (Ill.) 1071. One purchasing lot in subdivision with reference to invalid plat held estopped to deny the existence of a street shown by the plat.-Rusk v. Berlin (Ill.) 1071. Evidence held to show a common-law dedication of a public street.-Rusk v. Berlin (Ill.) 1071. That during a part of adverse user the owner was out of possession, and the property was held by a tenant, will not defeat pre sumption of dedication.-Pittsburgh, C., C. & St. L. Ry. Co. v. Town of Crownpoint (Ind. Sup.) 741. Such user as amounts to establishment of right by prescription raises presumption of dedication. Pittsburgh, C., C. & St. L. Ry. Co. v. Town of Crownpoint (Ind. Sup.) 741. Owner's participation in use of a highway constructed by him, not inconsistent with the public use, will not defeat presumption of dedication.-Pittsburgh, C., C. & St. L. Ry. Co. v. Town of Crownpoint (Ind. Sup.) 741. Evidence held to raise a presumption of dedication of highway to public use.-Pittsburgh, C., C. & St. L. Ry. Co. v. Town of Crownpoint (Ind. Sup.) 741. One relying on disability to resist presumption of dedication of highway must show such disability. Pittsburgh, C., C. & St. L. Ry. Co. v. Town of Crownpoint (Ind. Sup.) 741. Certain provisions in conveyances construed to be restrictions, and not conditions.-Cassidy v. Mason (Mass.) 1027. Where land was deeded for an expressed money consideration, to be used only for religious purposes, on appropriation of a part thereof by a village for a street, title does not revert to the grantor's heirs, the deed containing no re-entry clause.-Incorporated Village of Ashland v. Greiner (Ohio) 99. § 4. Evidence. Evidence held insufficient to show a delivery of a deed.-Maratta v. Anderson (Ill.) 103. Evidence of a recital in another deed, and testimony of a witness that he had seen it, held sufficient to sustain a finding that a lost deed had existed.-Arents v. Long Island R. Co. (N. Y.) 422. DEFAMATION. If laying a pavement over the front of a lot See "Libel and Slander.” was a dedication, it was a dedication of part of a highway, and not of a mere footway.-Hamlen v. Keith (Mass.) 462. In trust, see "Trusts," § 1. Of trust, see "Mortgages." Parol or extrinsic evidence, see "Evidence," § 9. Separate property of married women, see "Husband and Wife," § 5. 1. Requisites and validity. Evidence held insufficient to show delivery.Fouts v. Bell (Ill.) 198. The description of land in a deed held insufficient.-Pfaff v. Cilsdorf (Ill.) 670. Where the maker of a deed dies before its de DEFAULT. Judgment by, see "Judgment," § 1. DEFICIENCY. On foreclosure of mortgage, see "Mortgages," § 9. DELIVERY. Of deed, see "Deeds," § 1. DEMONSTRATIVE EVIDENCE. In civil actions, see "Evidence," § 6. DEMURRER. In pleading, see "Pleading," § 4. DENIALS. In pleading, see "Pleading," §§ 2, 3. DEPOSITARIES. See "Deposits in Court." DEPOSITIONS. livery, the deed is void.-Mortgage Trust Co. of See "Witnesses." Pennsylvania v. Moore (Ind. Sup.) 72. 2. Recording and registration. DEPOSITS. Where deed is to one and her minor "heirs," it In bank, see "Banks and Banking," § 2. means children.-Seymour v. Bowles (Ill.) 122. 3. Construction and operation. Deed construed, and held to give a life estate, with remainder to grantee's minor children, or to those living at time of her death, and issue, if any, of those then dead.-Seymour v. Bowles (Ill.) 122. Oral negotiations leading up to the execution of a conveyance become merged in it.-Beasley v. Phillips (Ind. App.) 488. A provision in a deed that all buildings shall be regular and uniform does not bind the land for all time to an arbitrary building line.Hamlen v. Keith (Mass.) 462. An adjoining owner cannot enforce a condition in a conveyance by a town which is based on public interest.-Hamlen v. Keith (Mass.) 462. The state of the law at the date of a deed may be considered in determining the meaning and operation of its words.-Hamlen v. Keith (Mass.) 462. DEPOSITS IN COURT. Where a clerk of court deposits money paid into court in a bank under direction of the court, claims on the money must be made in the same court.-Gregory v. Merchants' Nat. Bank (Mass.) 520. DESCENT AND DISTRIBUTION. See, also, "Executors and Administrators"; "Wills." 1. Persons entitled and their respective shares. Under Rev. St. 1894, § 2650, to entitle the husband to all the wife's estate, he must show that it was of the character specified therein.Mortgage Trust Co. of Pennsylvania v. Moore (Ind. Sup.) 72. Where the wife died possessed of a legacy which was a charge on land, and her mother 2. Allowances. Order directing payment by husband for services already performed by attorney for wife held not authorized by Rev. St. c. 40, § 15.Anderson v. Steger (Ill.) 665. Order directing husband to pay a wife's counsel his fees held not authorized by Rev. St. c. 40, § 15.-Anderson v. Steger (Ill.) 665. Under Burns' Rev. St. 1894, § 1054, an allowance of attorneys' fees for the wife should not be made to her attorneys on their petition, but to the wife on hers.-Garrison v. Garrison (Ind. Sup.) 383. § 3. Rights of divorced persons. A decree of divorce affirms the capacity of the parties to enter into the marriage contract.— Walker v. Walker (Ind. Sup.) 68. A decree of divorce adjudicates all property rights or questions growing out of or connected with the marriage.-Walker v. Walker (Ind. Sup.) 68. DOCUMENTS. 1. Under statutory provisions. Under Pub. Acts, c. 167, § 53, providing for examination of president of corporation before trial, held, that he may be compelled to answer interrogatories calling for information As evidence in civil actions, see “Evidence,” § 8. outside of his personal knowledge.-Gunn v. New York, N. H. & H. R. Co. (Mass.) 1031. DISCRETION OF COURT. Review in civil actions, see "Appeal and Error," § 22. DISMISSAL AND NONSUIT. Dismissal of appeal or writ of error, see "Appeal and Error," § 16. 1. Voluntary. See "Gifts." DONATIONS. DOWER. § 1. Inchoate interest. Where wife joined husband in conveyance, held, that she acquires no interest, on reconby him to convey the land.-Sharts v. Holloveyance to husband, as against a prior contract way (Ind. Sup.) 386. A wife's inchoate right of dower held not to Plaintiff may discontinue as of right only be- entitle her to any of the proceeds of her husfore trial.-Derick v. Taylor (Mass.) 1038. band's land taken by eminent domain during his life.-Flynn v. Flynn (Mass.) 650. Discontinuance before trial on appeal held a prosecution with effect, under the statute, and therefore the court had no power to affirm the judgment below for failure to prosecute the appeal.-Derick v. Taylor (Mass.) 1038. DUE PROCESS OF LAW. See "Constitutional Law," § 6; "Taxation." Under Pub. St. c. 154, §§ 39, 43, and chapter 155, § 28, appeals from the municipal court of Boston stand on the same footing as those from trial justices, and in the superior court See "Homicide," § 1. may be discontinued before trial.-Derick v. Taylor (Mass.) 1038. EASEMENTS. See, also, "Dedication"; "Highways." § 1. Creation and existence. A release by a mortgagee of part of the mortgaged lands does not pass, as appurtenant thereto, easements in the balance, created by the mortgagor unknown to the mortgagee.-Hyde Park Thomson-Houston Light Co. v. Brown (III.) 127. |