portance presented and discussed by counsel, but so far as they are material to the case as we have felt constrained to consider it, they have all been disposed of by what has preceded.

Without entering upon a detailed examination of the evidence which tends to support the verdict, we content ourselves with saying that while some of the criticisms of counsel seem plausible, and carry with them much force, we are nevertheless constrained to hold, since there was some evidence which the court and jury, whose duty it was to judge of its weight and credibility accepted as sufficient, that the judgment cannot now be disturbed.

The judgment is therefore affirmed, with costs.

MEASURE OF DAMAGES FOR INJURY RESULTING IN DEATH: See the note to Carey v. Berkshire R. R. Co., 48 Am. Dec. 637-641; Louisville etc. R. R. Co. v. Brooks, 83 Ky. 129; 4 Am. St. Rep. 135, and note; Louisville etc. R. R. Co. v. Stacker, 86 Tenn. 343; 6 Am. St. Rep. 840; Clapp v. Minneapolis etc. R. R. Co., 36 Minn. 6; 1 Am. St. Rep. 631.

SUNDAY. - ON THE QUESTION OF ALLOWING DAMAGES for injuries suffered by one while himself acting in disobedience to the Sunday law, the decisions are not at all uniform. That the action cannot be maintained, see Day v. Highland Street R. R. Co., 135 Mass. 113; 46 Am. Rep. 447; McGrath v. Merwin, 112 Mass. 467; 17 Am. Rep. 119; Wallace v. Merrimac River etc. Co., 134 Mass. 95; 45 Am. Rep. 301; Bosworth v. Inhabitants of Swansey, 10 Met. 363; 43 Am. Dec. 441. Contra, Sutton v. Town of Wauwatosa, 29 Wis. 21; 9 Am. Rep. 534; Schmid v. Humphrey, 48 Iowa, 652; 30 Am. Rep. 414; Baldwin v. Barney, 12 R. I. 392; 34 Am. Rep. 670; Platz v. City of Cohoes, 89 N. Y. 219; 42 Am. Rep. 286.

MASTER'S DUTY IS TO USE REASONABLE CARE IN FURNISHING SAFE AP. PLIANCES: Gutridge v. Missouri Pac. R. R. Co., 94 Mo. 468; 4 Am. St. Rep. 392, and note; Little Rock etc. R. R. Co. v. Leverett, 48 Ark. 333; 3 Am. St. Rep. 230; Clapp v. Minneapolis etc. R. R. Co., 36 Minn. 6; 1 Am. St. Rep. 629; Chicago etc. R. R. Co. v. Swett, 45 Ill. 197; 92 Am. Dec. 206, note 213; Rogers v. Ludlow Mfg. Co., 144 Mass. 198; 59 Am. Rep. 68, note 75.

FACTS NOT INCLUDED WITHIN A SPECIAL VERDICT WILL NOT BE PRESUMED TO EXIST: Lawrence v. Beaubien, 2 Bailey, 623; 23 Am. Dec. 155; and a failure to find such facts will constitute no ground for a venire de novo: Ex parte Walls, 73 Ind. 95; Graham v. State, 66 Id. 386.

DECLARATIONS OF PERSON INJURED, WHEN ADMISSIBLE AS PART of res gesta: See note to People v. Vernon, 95 Am. Dec. 61; Little Rock etc. R. R. Co. v. Leverett, 48 Ark. 333; 3 Am. St. Rep. 230, and note 240.

INDEX TO THE NOTES.

ACCOUNT STATED, conclusiveness of, 224.

ADMINISTRATORS AND EXECUTORS, degree of care and skill required of, 21.
AFFINITY defined, and tests of, 754.

instances of, 755.

ALIENATION, condition that estate shall terminate upon, 406.

estates in which trustee has mere discretion, 406.

restraints on which may be imposed by a will, 366.

restraints upon, generally not allowed, 405.

restraints upon property being subject to execution, 405.

ATTACHMENT of property of non-resident, 674.

ATTORNEY AT LAW, arguments of, which are improper and cause for a new

trial, 559-570.

authority of, under general retainer, 546.

comments of, on excluded evidence, 565.

explanation by, not founded on evidence, 564.

statement by, of facts not in evidence, 560.

statement by, that the public desire a verdict in his favor, 563.

ATTORNEY'S FEES, stipulation for, in a promissory note, 456.

CANCELLATION of writing by court of equity, notwithstanding a defense at
law, 859, 860.

of writings for want of consideration, 860.

of writings, loss of evidence, danger of as a ground for decreeing, 859.
of writings, special circumstances must be shown, 859.

CARRIERS, bill of lading, assignment of, 512, 513.

bill of lading, delivery must be made to person named therein or to his
order, 512.

bill of lading not regarded as a written contract, 282.

bill of lading, production of, should be required before delivering goods,
512.

cartman or drayman, when goods may be delivered to, 511.

consignee is prima facie entitled to delivery of goods, 511.

consignee, failure to deliver to, when evidence of negligence, 511.

delivery of goods, consignee is prima facie entitled to, 511.

delivery of goods, consignor, when may forbid, 151.

delivery of goods, frauds in procuring, for which carrier is not answer-

able, 514.

delivery of goods to agent of consignee, 511.

delivery of goods to an officer unauthorized to receive them, 513.

delivery of goods to consignee is not authorized without production of
bill of lading, 512.

delivery of goods to one not authorized by consignee to receive them,

511.

CARRIERS, delivery of goods to one not holding the bill of lading, 512
delivery of goods, to whom may be made, 511, 514.
delivery of goods to wrong person, liability for, 513.
delivery of goods, usages affecting, 513.

responsibility of continues till delivery of goods, 511.
CONDITION against use of land for a specified purpose, 276.

CONSTITUTIONALITY of statute taking away the right to challenge jurors
because of relationship, 753.

of statute taking away the right to unbiased jurors, 744.
CONSTITUTIONAL LAW, taking franchise and property of corporation in exer-
cise of power of eminent domain, 137, 138.

CONVEYANCES, registration of, effect of defects therein, 503.

registration of, indexing and its effects, 504.

CO-TENACY, ouster of one co-tenant by another, 183.

CORPORATION, compensation not recoverable by, for grant to another of a
franchise like that possessed by it, 140.

franchise, grant of is not exclusive, 140.
franchise, grant of is strictly construed, 141.

proceedings in eminent domain by one against another, 138–140.

CRIMINAL LAW, larceny, what is, 241.

larceny, indictment for, 242.

threats made by the accused to kill a person other than the deceased, 52

DAMAGES, exemplary, when proper, 777.

measure of, for personal injuries, 344, 778.

DEED, ancient, depository of, what proper, 302.

ancient, documents admissible as, instances of. 304.

ancient, living witness to, whether need be called, 303.

ancient, need not have been thirty years old when the trial began, 203,

ancient, possession as evidence of genuineness of, 303.

ancient, possession under, whether essential, 303.

ancient, presumption of genuineness of, 302.

ancient, proof necessary to support, 302.

from husband to wife, or wife to husband, 323, 325

presumption of genuineness when over thirty years old, 302.

DEFINITION of actual bias, 745.

of affinity, 754.

of bias, 744.

of negligence, 753.

of prejudice, 744.

DIVORCE, power of courts to vacate decrees of, 826.

jurisdiction, assailing for want of, 827.

remarriage will not prevent annulment of, 826.

EASEMENT constitutes a freehold estate, 586.

EMINENT DOMAIN, corporation, when one may not take the property of an-

other, 140-143.

benefits which will be considered in diminution of damages, 546.
corporation, taking property of one for the use of another, 138.

damages, assessment of, general rule governing, 145.

damages, elements of, 546.

damages for constructing one railway on right of way of another, 145.
damages for constructing telegraph line on right of way of railroad, 145.
damages for crossing one railway by another, 144–146.

EMINENT DOMAIN, damages for crossing one street-railway by another, 145.
damages for taking franchise or property of a corporation, 144.

damaging property, constitutional prohibition against, 141.
franchise of corporation may be taken in exercise of power of, 137.
necessity which will justify exercise of power of, 142.

no property exempt from power of, 139.

power to exercise right of, must be conferred in clear language, 142.
property of corporation may be taken in exercise of power of, 137.
propriety of exercise of power of, is a political question, 142.
right to take property already devoted to public use, 142.
taking property granted to a corporation by the state, 139.

taking property which has already been taken by previous proceedings,
138, 139.

use, when deemed to be conferred, 143.

EQUITY, cancellation of writings by, notwithstanding a defense at law, 859,
860.

ESTOPPEL, municipal corporation, when not estopped by declaration of its

officers, 598.

EVIDENCE, account-book containing a single memorandum in not admissible,

530.

parol, to vary a writing, 192.

EXECUTION, income of trust estate, conditions exempting from, 406–408.

reservation of equitable estate from, 406.
reservation of property from, at law, 405.

EXECUTORS AND ADMINISTRATORS, purchases in interest of at their own sales,

620.

FALSE REPRESENTATIONS, what sufficient to avoid contract, 750.
FOOT-PASSENGERS, aged, blind, or infirm, walking unattended, 879.

care which must exercise, 878, 879.

child of tender years, 879.

crossing street at place other than at regular crossing, 879.

duty of, to look up and down the street or highway, 879.

negligence, instances of, 878, 880.

rights of, not superior to those of persons in vehicles or on horseback, 878.
FORGERY, indictment for, sufficiency of, 69.

GIFT causa mortis, essentials of, 87.

causa mortis takes effect only when donor parts with all dominion over
property, 88.

delivery essential to, 88.

GUARDIAN AND WARD, settlements between, when conclusive, 597.

HANDWRITING, opinion of experts respecting genuineness of, founded on com-
parison with other writings, 29.

HOMESTEAD, election to treat one of two tracts as, 209.

fraudulent conveyance of, 210.

judgment lien not displaced by, 210.

occupation essential to, 209.

two parcels of land, when may be held as a, 210.

wife's residence at, not essential, 209.

HUSBAND AND WIFE, contract by wife to convey to husband, 824.

conveyance by wife, effect of in equity, 323.

AX. 8T. REP., VOL. IX. —-57