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McAllaster v. Niagara Fire Ins. Co. (N. Y.) | erly allowed from the date of the writ.-Quin 502. v. Bay State Distilling Co. (Mass.) 637.

§ 12. Actions on policies.

A finding that insured met his death in consequence of bodily disease or infirmity, or by reason of voluntary exposure to danger, held sufficient to support a verdict in favor of accident insurance company.-Taylor v. Metropolitan Acc. Ass'n (Ill.) 115.

Finding of payment of premium on insurance policy by jury held conclusive.-Union Cent. Life Ins. Co. v. Hollowell (Ind. App.) 399.

It is not error to instruct the jury that warranties in policies are not favored in law.-Masons' Union Life Ins. Ass'n v. Brockman (Ind. App.) 493.

Giving an instruction as to warranties in a policy which was erroneous because practically leaving the construction of the policy to the jury, and was misleading when construed with other correct instructions as to warranties, held reversible error.-Masons' Union Life Ins. Ass'n v. Brockman (Ind. App.) 493.

An offer to prove that witness had talked with insured about his drinking, but not offering to show what he had said about it, is properly refused, where the issue is as to insured's habit of drinking to excess.-Masons' Union Life Ins. Ass'n v. Brockman (Ind. App.) 493.

The giving of an instruction that the word "warranty" means a guaranty held error.-Masons' Union Life Ins. Ass'n v. Brockman (Ind. App.) 493.

A written application for a policy providing that insured did not and would not practice any pernicious habit that tends to shorten life held not ambiguous so as to permit parol evidence to be given in explanation of its meaning as stated to insured.-Masons' Union Life Ins. Ass'n v. Brockman (Ind. App.) 493.

Evidence held to justify a finding of waiver of objection of proofs of loss.-Faulkner v. Manchester Fire Assur. Co. (Mass.) 529.

The burden is on plaintiff to show his compliance with conditions precedent in the policy, or their waiver by defendant.-Lamson Consol. Store-Service Co. v. Prudential Fire Ins. Co. (Mass.) 943.

The question whether defendant had waived a condition requiring a loss to be ascertained by arbitration held for the jury.-Lamson Consol. Store-Service Co. v. Prudential Fire Ins. Co. (Mass.) 943.

Upon the evidence in an action on a fire insurance policy insuring against total destruction of a building by fire, held, that the question whether there was a total destruction should

not have been submitted to the jury.-Corbett v. Spring Garden Ins. Co. (N. Y.) 282.

Questions of deviation and of seaworthiness under a marine insurance policy held to be for the jury.-Thebaud v. Great Western Ins. Co. (N. Y.) 284.

§ 2. Rate.

Where sale under execution was made, but prior to redemption the rate of interest on redemptions was changed by statute, the change did not apply to such sale.-Bauer Grocer Co. v. Zelle (ill.) 238.

INTERLOCUTORY INJUNCTION.

See "Injunction," § 3.

INTERROGATORIES.

To jury, see "Trial," § 6.

INTERVENTION.

In actions in general, see "Parties," § 1. In attachment proceedings, see "Attachment," $ 6.

INTOXICATING LIQUORS.

§ 1. Licenses and taxes.

Application for a retail liquor license held not to be refused because all parts of the room used for the sale could not be seen from the street, as provided by Acts 1895, p. 250, § 4.-Gates v. Haw (Ind. Sup.) 299.

The indictment of a member of a firm to which a liquor tax certificate has been issued is the indictment of the person to whom it was issued, within the meaning of section 25 of the act.-People v. Lyman (N. Y.) 1112.

When a liquor tax certificate assigned as security has been offered for surrender by the assignee, and afterwards, but within 30 days, the person to whom it was issued is indicted for a violation of the law, the rebate cannot be paid.-People v. Lyman (N. Y.) 1112. § 2. Offenses.

Under Acts 1895, p. 248, §§ 3, 10, permitting one not a member of the saloon proprietor's family to be in his place of business on Sunday is, of itself, an offense.-State v. Mathis (Ind. App.) 398.

§ 3. Actions for penalties.

A parent can maintain action for penalty, under Pub. St. c. 100, § 24, for selling liquor to emancipated minor after child reaches his majority.-Hamer v. Eldridge (Mass.) 611.

In action to recover penalty, under Pub. St. c. 100, § 24, for sale of liquors to a minor, it is immaterial whether the liquor was sold or given to minor either by defendant in person or his agent.-Hamer v. Eldridge (Mass.) 611.

§ 4. Criminal prosecutions.

That money was furnished by a city to a person to enable him to buy beer, in order to detect violations of ordinance, held no defense in an action for selling illegally.-City of Evanston v. Meyers (Ill.) 204.

Violations of Acts 1897, p. 253. prohibiting the The limitation of actions to one year, con- sale of liquor without a license, without pretained in fire insurance policies in the standard scribing the penalty, held punishable under Rev. form, is not properly a contractual limitation, St. 1881, § 2090, providing generally as to pun but is one specially prescribed by law.-Hamil-ishment for failure to obtain licenses where reton v. Royal Ins. Co. of Liverpool, Eng. (N. Y.) quired by law.-Daniels v. State (Ind. Sup.)

863.

INTEREST.

See, also, "Usury."

§ 1. Rights and liabilities in general. Interest on interest cannot be recovered simply on the strength of the demand.-Lewin v. Folsom (Mass.) 523.

Where there was nothing making the debt payable at an earlier date, interest was prop50 N.E.-74

74.

§ 5. Civil damage laws.

In action to recover damages for sale of liquor to husband, evidence of sales made more than five years before suit held admissible to show willfulness.-Siegle v. Rush (Ill.) 1008.

In action under dramshop act, proofs should show that person charged had sold defendant liquors a sufficient number of times to aid in bringing about habitual drunkenness.-Siegle v. Rush (Ill.) 1008.

See "Patents."

INVENTION.

ISSUES.

Presented for review on appeal, see "Appeal and Error," § 3.

Trial by jury of issues in equity, see "Equity," § 3.

JOINT TENANCY.

See "Tenancy in Common."

JUDGES.

See "Justices of the Peace."

JUDGMENT.

See, also, "Criminal Law," § 5.
Decisions of courts in general, see "Courts." § 1.
On appeal or writ of error, see "Appeal and Er-
ror," § 28.

Review, see "Appeal and Error"; "Review." § 1. By default.

A petition to set aside a default on the ground that defendant had no notice, and did not appear, held insufficient for failing to show that the want of jurisdiction over defendant's person appears on the face of the record.-Thompson v. Harlow (Ind. Sup.) 474.

A petition to vacate a default must state the nature of the suit in which the default was entered.-Thompson v. Harlow (Ind. Sup.) 474. Defendant held not entitled to the vacation of a default on the ground of mistake, inadvertence, and excusable neglect. — Thompson v. Harlow (Ind. Sup.) 474.

A school township held not entitled to have a default judgment opened where the cause of action was an order fraudulently issued by the trustee, and the plaintiff was no party to the fraud.-Davis v. Steuben School Tp. of Warren County (Ind. App.) 1.

A party asking relief from a default judgment must show a meritorious defense to the cause of action, as well as excusable neglect. Davis v. Steuben School Tp. of Warren County (Ind. App.) 1.

§ 2. On trial of issues.

A motion in arrest cannot be invoked where it involves only the same matters decided by demurrer to the declaration.-Chicago & A. R. Có. v. Clausen (Ill.) 680.

Under Burns' Rev. St. 1894, § 579, where plaintiff brings joint cause of action against two defendants, she can recover a separate judgment against each for one-half.-Hassler v. Hefele (Ind. Sup.) 361.

A motion for judgment on the interrogatories, notwithstanding the general verdict, will not be granted unless the verdict and answers are irreconcilable.-Sievers v. Peters Box & Lumber Co. (Ind. Sup.) 877.

It is not error to overrule a motion to modify a judgment which is not well taken as a whole. -Baum v. Thoms (Ind. Sup.) 357.

§ 5. Opening or vacating.

It is error to vacate a judgment for irregu larity in obtaining it before the court has adjudged that there is a valid defense.-Follett v. Alexander (Ohio) 720.

A motion to vacate a judgment by default because of irregularity in obtaining it need not be made within the first three days of the sneceeding term.-Follett v. Alexander (Ohio) 720.

Rendition of judgment for plaintiff as on default, where demurrer remains undisposed of. is an "irregularity in obtaining judgment," for which the court may vacate the judgment.— Follett v. Alexander (Ohio) 720.

§ 6. Merger and bar of causes of action and defenses.

A judgment refusing specific performance of a contract as against one party, the other having been unable to perform some of the stipulations on his part, held not to amount to an estoppel upon the latter to claim rights under the contract in another action, nor to be evidence that the consideration of the contract has failed.-Stokes v. Stokes (N. Y.) 342. 8 7. Conclusiveness of adjudication. Decree on foreclosure of mortgage to secure mortgagees as sureties, taken by default against the mortgagors, held not res judicata against other creditors and parties not claiming under the mortgagees.-Chambers v. Prewitt (Ill.) 145.

A contest by heirs of a widow's allowance the contest of her claim in a partition suit in in another state held not res judicata, estopping the state.-Smith v. Smith (Ill.) 1083.

A judgment against a defendant, under St. 1887, c. 270, because of injuries through defects in appliances, held not res judicata in an action by defendant against his lessor, on the ground that the injuries were caused by negligence of the lessor in not keeping in repair certain electric lights, as provided by the lease. -Consolidated Hand-Method Lasting-Mach Co. v. Bradley (Mass.) 464.

8 8. Lien.

A judgment of a circuit court of the United States prior to 25 Stat. 357, was a lien on all lands of the debtor in the district for which the court was holden.-Rock Island Nat. Bank v. Thompson (Ill.) 1089.

25 Stat. 357, relating to liens of judgments of United States courts, does not apply to judg ment liens acquired under prior laws.-Rock Island Nat. Bank v. Thompson (Ill.) 1089.

§ 9. Foreign judgments.

A "family allowance" to a widow from the estate of a decedent by a probate court under its local laws held to have no extraterritorial force.-Smith v. Smith (Ill.) 1083.

10. Assignment.

Where half of a judgment is assigned, it can be enforced by the assignee only in equity. Where there are no facts found from which-Pittsburg, C., C. & St. L. Ry. Co. v. Volkert the court could assess plaintiff's damages, judg- (Ohio) 924. ment will not be given in his favor on the answers to the interrogatories, in disregard of the adverse verdict.-Sievers v. Peters Box & Lumber Co. (Ind. Sup.) 877.

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Where half of a judgment has been assigned. to the knowledge of the judgment debtor, he cannot compromise the debt with the assignor alone, and defeat the assignee.-Pittsburg, C.. C. & St. L. Ry. Co. v. Volkert (Ohio) 924.

Legal services rendered and others to be rendered held to constitute a valid consideration for assignment of one-half of judgment recovered. -Pittsburg, C., C. & St. L. Ry. Co. v. Volkert (Ohio) 924.

§ 11. Actions on judgments.

Under Burns' Rev. St. 1894, § 372, a complaint on a judgment of a justice should state

that it was duly given or made, or should show that the justice had jurisdiction over defendant therein.-Chicago & S. E. Ry. Co. v. Higgins (Ind. Sup.) 32.

A complaint on a judgment of a justice, which alleged an assignment of the judgment, but did not state that it was attested by the justice, as required by Burns' Rev. St. 1894, § 612, held to show only an equitable title in the assignee.-Chicago & S. E. Ry. Co. v. Higgins (Ind. Sup.) 32.

In an action by an equitable assignee of a judgment, the assignor must be made a party defendant.-Chicago & S. E. Ry. Co. v. Higgins (Ind. Sup.) 32.

12. Pleading and evidence of judgment as estoppel or defense.

A judgment against a grantee enforcing an incumbrance on land conveyed by a deed covenanting against incumbrances is not of itself evidence of paramount title as against grantor. -Teague v. Whaley (Ind. App.) 41.

JUDICIAL NOTICE.

In civil actions, see "Evidence."

JUDICIAL SALES.

Of property of decedent, see "Executors and Administrators," § 3.

On execution, see "Execution," § 5.

The fact that a land contract was a verbal one, and that the decree enforcing it was erroneous, and that the court acted without jurisdiction, held not to show bad faith on the part of the purchaser in acquiring title.-Sexson v. Barker (Ill.) 109.

An assignee of a bid at a judicial sale, who gives notice of his interest, and invites a motion to compel him to complete the purchase, is within the jurisdiction of the court for the purpose of an order to do so.-Archer v. Archer (N. Y.) 55.

JURISDICTION.

See "Courts"; "Habeas Corpus," § 1; "Prohibition," 2; "Quo Warranto," § 2. Amount in controversy, see "Appeal and Error," § 1.

Criminal prosecutions, see "Criminal Law," § 1. Effect of appearance, see "Appearance."

JURY.

See, also, "Grand Jury."

Instructions in civil actions, see "Trial," § 4.

in criminal prosecutions, see "Criminal Law," § 3.

Trial by jury of issues in equity, see "Equity," § 3.

Verdict in civil actions, see "Trial," § 6.

in criminal prosecutions, see "Criminal Law," § 3.

§ 1. Right to trial by jury.

Const. art. 2, § 5, providing that "the right of trial by jury as heretofore shall remain in violate," etc., has no application to suits in equity.-Keith v. Henkleman (Ill.) 692.

Const. U. S. Amend. 7, providing that "in suits at common law when the value in controversy exceeds $20, the right of trial by a jury shall be preserved," operates as to the national government alone.-Keith v. Henkleman (Ill.) 692.

Const. U. S. Amend. 7, providing that "in

suits at common law when the value in controversy exceeds $20, the right of trial by a jury shall be preserved," does not refer to suits in chancery court.-Keith v. Henkleman (Ill.) 692.

A suit to enforce a vendor's lien on realty is not triable by a jury.-Hassler v. Hefele (Ind. Sup.) 361.

Neither party on trial of successful candidate under the corrupt practice act held entitled to jury.-Mason v. State (Ohio) 6.

JUSTICES OF THE PEACE.

Complaint which apprises defendant of the suit for the same cause of action, held sufficient. nature of the claim, and would bar another Metropolitan Life Ins. Co. v. Bowser (Ind. App.) 86.

On appeal from justice to the circuit court, rules of pleading before the justice are applicable.-Metropolitan Life Ins. Co. v. Bowser (Ind. App.) 86.

LANDLORD AND TENANT.

Railroad leases, see "Railroads," § 2.

§ 1. Leases and agreements in general. A natural gas lease held to create a leasehold interest, and hence unaccrued rents passed by a conveyance of the land.-Chandler v. Pittsburgh Plate-Glass Co. (Ind. App.) 400.

§ 2. Terms for years.

Under a lease containing a provision for appraisal at the end of the term, and covenant by the landlord either to buy the building on the land or to grant a renewal at a certain percentage, held, that the lessee was not bound to accept a renewal if offered, but could elect to refuse it, and lose the building.-Zorkowski v. Astor (N. Y.) 983.

§ 3. Tenancies at will and at suffer

ance.

A sale by the owner terminates a tenancy at will, and makes the tenant a mere tenant at sufferance, not entitled to notice to quit.-Lash v. Ames (Mass.) 996.

A tenant by sufferance cannot be sued as a trespasser or for possession until he has been given reasonable time to remove.-Lash v. Ames (Mass.) 996.

Where the facts are not disputed, the question of what is a reasonable time for tenant by sufferance to remove is for the court.-Lash v. Ames (Mass.) 996.

§ 4. Premises and enjoyment and use thereof.

Evidence held to justify a finding of agreement that building on leased land should be personal property of lessee.-Ryder v. Faxon (Mass.) 631.

Where a landlord agreed to keep certain electric lights in repair, he is liable to the lessee, and is compelled to pay for injuries caused to his servant only as to such damages as arose from his breach of contract to keep the lights in repair.-Consolidated Hand-Method Lasting-Mach. Co. v. Bradley (Mass.) 464.

The owner of land abutting on a street, who has constructed a grating in the sidewalk for the benefit of his premises, owes a duty to the public to see that such grating is kept in a safe and proper condition so long as he remains in possession.--Trustees of Village of Canandaigua v. Foster (N. Y.) 971.

§ 5. Rent and advances.

In a declaration on a lease, allegations that the instrument bore a certain date, was for a time certain, and that the rent was due for certain months, must be proved as laid.-Locke v. Kennedy (Mass.) 531.

Where leased premises were burned on the day the rent was due, held, that the tenant was not relieved from paying the rent by the stat

ute relating to untenantable premises.-Craig v. Butler (N. Y.) 962.

LANDS.

See "Public Lands."

LARCENY.

See, also, "Robbery."

for.

§ 1. Offenses and responsibility thereDefendant's taking of a draft held not to constitute larceny. - Steward v. People (Ill.) 1056.

Where goods have been attached by a constable, and they are taken from his possession by the owner with felonious intent, he commits larceny.-Whiteside v. Loney (Mass.) 931. § 2. Prosecution and punishment. Information held to sufficiently charge the ownership of the stolen property.-Evans v. State (Ind. Sup.) 820.

Where information charges petit larceny, but not former conviction, a verdict of "guilty of grand larceny, as charged," means guilty of petit larceny.-Evans v. State (Ind. Sup.) 820.

Where indictment charges petit larceny and a former conviction, a verdict of "guilty as charged" means guilty of petit larceny, but the offense is punishable, under Burns' Rev. St. 1894, § 2007, as grand larceny.-Evans v. State (Ind. Sup.) 820.

LAW OF THE CASE.

Decision on appeal, see "Appeal and Error," § 27.

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LICENSES.

For making, use, or sale of patented articles, see "Patents," § 1.

For sale of intoxicating liquors, see "Intoxicating Liquors," § 1.

§ 1. For occupations and privileges.

The words, "goods, wares, and merchandise." held to include corporate stock, within the meaning of an ordinance imposing a license tax on brokers engaged in selling goods, etc.-Banta V. City of Chicago (Ill.) 233.

A license of a certain sum imposed on brokers, under Const. 1870, art. 9, § 1, is not within section 9, requiring uniformity as to person and property in the levy of municipal taxes.Banta v. City of Chicago (Ill.) 233.

LIENS.

See "Attachment," § 3; "Factors"; "Judgment,”
§ 8; "Mechanics' Liens."
Mortgage, see "Chattel Mortgages," § 3; "Mort-
gages," § 3.

Of broker, see "Brokers," § 2.
Vendor's lien on lands sold, see "Vendor and
Purchaser," § 4.

LIMITATION OF ACTIONS.

See, also, "Adverse Possession."

§ 1. Statutes of limitation.

The amended statute, permitting a contest of a will within two years, instead of three, held to be in force when the bill to contest was filed. -Spaulding v. White (Ill.) 224.

§ 2. Computation of period of limitation.

An amended declaration held to set forth a different cause of action.-Secord-Hopkins Co. v. Lincoln (Ill.) 1074.

Partial payments by a principal debtor will not suspend the statute of limitations in favor of a surety.—Mozingo v. Ross (Ind. Sup.) 867.

Absence of a principal debtor from the state will not suspend the statute of limitations in favor of his surety.-Mozingo v. Ross (Ind. Sup.) 867.

Code Civ. Proc. § 399, applies as well to limitations created by contract as to those prescribed by statute.-Hamilton v. Royal Ins. Co. of Liverpool, Eng. (N. Y.) 863.

Right of action for money had and received. accruing to married woman in 1879, held not affected by Act March 26, 1883, removing disability of coverture as to married women's separate property.-Yocum v. Allen (Ohio) 909.

A suit commenced May 4, 1894. by administrator of a married woman, who died February 12, 1889, against surviving husband, for money received in 1879, is not barred by statute.Yocum v. Allen (Ohio) 909.

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A plea of justification must be supported by proof of the truth beyond a reasonable doubt. See "Intoxicating Liquors." -Wintrode v. Renbarger (Ind. Sup.) 570.

LIQUOR SELLING.

In an action for libel, based on an article in an evening newspaper, not naming plaintiff, held, that articles in morning papers of the See "Intoxicating Liquors." same day, making the same charge against plaintiff by name, were admissible to show that the libel was published of and concerning plaintiff.-Van Ingen v. Mail and Express Pub. Co. (N. Y.) 979.

LIS PENDENS.

Pendency of other action ground for abatement, see "Abatement and Revival."

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It seems that a mandamus may issue during the recess of the legislature to all the members, except the governor, of a board comprising the governor, lieutenant governor, and speaker of the assembly.-People v. Morton (N. Y.) 791.

An application for a mandamus to the trustees of public buildings, to require them to reinstate a veteran, cannot be sustained against the governor at all, nor against the successors of other members, without bringing them in on notice. People v. Morton (N. Y.) 791.

§ 2. Proceedings and relief.

Where all material allegations of fact are denied by answer, and no replication is filed nor steps taken to have issue of facts affirmed, the petition will be dismissed.-People v. Hercer (Ill.) 230.

An application for a mandamus, in which personal liability is involved, commenced against a board of officers, cannot be continued gainst their successors without bringing them in on notice.-People v. Morton (N. Y.) 791.

See "Mandamus."

MANDATE.

MANSLAUGHTER.

See "Homicide."

MARRIAGE.

See, also, "Bigamy"; "Breach of Marriage Promise"; "Divorce"; "Husband and Wife."

In action to annul a marriage for fraud, no express representations need be proved.-Smith v. Smith (Mass.) 933.

Gen. St. c. 107, § 4, relating to the annulment of marriage, construed.-Smith v. Smith (Mass.) 933.

Marriage annulled, on libel filed by wife, be cause of incurable disease of husband.-Smith v. Smith (Mass.) 933.

MARRIAGE SETTLEMENTS.

See "Husband and Wife," § 2.

MARRIED WOMEN.

See "Husband and Wife."

MASTER AND SERVANT.

§ 1. The relation.

A laborer hired and paid by a party conabove the cost is a servant of the contractor, stucting a building for a percentage over and and not of the owner.-Whitney & Starrett Co. v. O'Rourke (Ill.) 242.

Where the company, in consideration of a release signed by an "extra freight brakeman," agreed to re-employ him as "freight brakeman," the contract was construed with reference to the previous employment, and to the acts of the parties under the agreement; the employé serving and accepting pay as an extra.-Phares v. Lake Shore & M. S. Ry. Co. (Ind. App.) 306.

Where a contract for five years might be continued for an additional five years, at the option of one party, on the giving of notice, held, that the "full term" of the contract, as used in another contract, was 10 years. Poole v. Massachusetts Mohair Plush Co. (Mass.) 451.

A special policeman appointed under St. 1878, c. 244, § 6, held not the servant of the person who pays him.-Healey v. Lathrop (Mass.) 540. § 2. Master's liability for injuries to

servant-Nature and extent in

general.

Ordinary care is all that an employer need exercise towards an employé.-Sievers v. Peters Box & Lumber Co. (Ind. Sup.) 877.

Evidence held insufficient to show employé injured by negligence of his master.-McIntire v. White (Mass.) 524.

only when the relation of master and servant is The doctrine of respondeat superior applies shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong, at the time and in respect to the very transaction out of which the injury arose.--Higgins v. Western Union Tel. Co. (N. Y.) 500. § 3.

Tools, machinery appliances, and places for work.

A railroad company held liable for damages resulting to an engineer from a collision of his engine with cattle which had strayed on the track in the absence of a fence or cattle guard, as required by Hurd's St. c. 114. § 62.-Terre Haute & I. Ry. Co. v. Williams (Ill.) 116.

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