But the cost of improvement and inclosure of
burial lot will not be allowed an exe utor as re
spects objecting parties in interest.
ib.
A delivery by testator to his executor of cer-
tain money to be distributed among his servants,
which was so distributed after his death, eon-
Ib
stitutes valid donationes causa mortis.
Where an executor is likewise trustee he is
allowed but one commission for both capacities.
Ib.
Where an executor is allowed by the terms of
the will 6 per cent. commission for all money
collected by him, the term collection will be
construed in its strict and distinctive sense, and
will not be held to include moneys received by
the executor as the proceeds of a sale of proper-
ty belonging to the estate, unless it plainly ap-
pears that such was the intention of the tes-
Ireland v, Corse et al.
394
An owner of personal property cannot, against
his will, be deprived of the title to the same, by
having it attached without his consent, to the
real estate of another, by a third person, where
such personal property can be removed from
such real estate without any great inconvenience,
and without any subtantial injury to the real es
tate. Shoemaker et al. v. Simpson.
93
Gas fixtures, chandeliers and brackets, do not
pass with the sale of a house to the purchaser.
Jarechi et al. v, The Philharmonic Society. 153
FORECLOSURE.
See MORTGAGE.
FOREIGN JUDGMENT.
Prima facie a Superior Court of another State
has jurisdiction over the subject matter of a
judgment pronounced by it. Lowry v. Guthrie.
153
In setting aside a conveyance procured by
fraud, equity will allow the purchaser to receive
back only the identical property by which he
When the record of such a court shows juris- effected the bargain, whether it has greatly de-
diction, e. g., that the party against whom judg-preciated in value or not; and even if it has be-
ment was finally pronounced had himself pre- come worthless. Neblett v. Macfarlana.
viously instituted proceedings by filing a bill
against other parties, and that all parties ap
peared before the court by counsel, it is (in the
absence of any allegation of fraud) conclusive,
and cannot be contradicted by parol evidence in
a collateral proceeding in this State.
See DEEDS; FRAUDS.
GARNISHMENT.
That a foreign attachment issued out of a
court of another State, and the garnishee under
its judgment has actually paid the money to an
attaching creditor, does not discharge the garn-
ishee, if it appear that the court has no jurisdic-
tion over the subject matter, and that the gara
ishee might under the law of such State, have
protected himself, but neglected to do so.
such a case, article 4, section 1 of the Federal
Constitution, providing that full faith and credit
shall be given in each State to the judicial pro-
ceedings of every other State, is not applicable.
Noble et al. v. The Thompson Oil Co.
![[blocks in formation]](https://books.google.no/books/content?id=b6sPAAAAYAAJ&hl=no&output=html_text&pg=PA623&img=1&zoom=3&q=%22butter+or+cheese+is+kept+for+sale,+nor+at+any+place,+offer+or+have+for+sale,+nor+shall+%27%E2%80%A2+any%22&cds=1&sig=ACfU3U1RRW81Hr8LsDlOuDzNJtFmnuLhPg&edge=0&edge=stretch&ci=82,182,411,646)
A person digging a pit or ditch near or in a
highway, must see that travelers are protected
from falling into it. Beck v. Carlton et al. 116
The same rule is applicable to any alley in a
city, although the ditch or pit is not in the exact
bounds of a street, alley, or lane.
Ib.
The fact that a street is laid out with side-
walks, gutters, &c., and used by the public, is
prima facie evidence that it is a street for public
use &c. Baxter v. Warner.
266
No person, therefore, had a right to do any-
thing himself, or to cause anything to be done
by another, whether servant or contractor,
which renders the street less safe than for-
merly.
Ib.
One obstructing a highway cannot escape
liability for the doing of such acts by proving
that he made a contract with another to do them,
and that they were actually done by the latter
and not by himself.
Ib.
Commissioners of High ways are not liable
for damage caused by an erroneous construction
of an embankment in a highway, by means of
which the lands of abutting owners are deprived
of drainage. Gould et al v. Booth et al., Comrs.
![[blocks in formation]](https://books.google.no/books/content?id=b6sPAAAAYAAJ&hl=no&output=html_text&pg=PA623&img=1&zoom=3&q=%22butter+or+cheese+is+kept+for+sale,+nor+at+any+place,+offer+or+have+for+sale,+nor+shall+%27%E2%80%A2+any%22&cds=1&sig=ACfU3U1RRW81Hr8LsDlOuDzNJtFmnuLhPg&edge=0&edge=stretch&ci=79,1324,443,161)
a certain sum in lieu of support, in an action to
recover for the wife's board evidence of cohabita-
tion after the separation is competent to do
away with the effect of the separation. In
such case proof of cruel or inhuman treatment
by the husband is not necessary. Holt v. Des-
brough.
129
Where a physician is employed in attendance
upon a sick person, his employment continues
while the sickness lasts, and the relation of
physician and patient continues unless it is put
an end to by the assent of the parties, or the
express dismissal of the physician. Potter v.
Virgil.
and home and bind him for necessaries. pro-
A wife cannot abandon her husband's house
visions, clothing, medical attendance &c., ex-
cept on proof of gross abuse, neglect and mis-
conduct on the part of the husband.
Ib.
In the absence of the husband the wife may
act as his agent and rent a house, and bind him
for rent, &c. Roberts v. Heap.
292
IMPLIED OBLIGATION.
See CONSTITUTIONAL LAW.
As to organization of Grand jury, see JURIES.
As to practice on the trial of, see CRIMINAL
An injunction will not be granted unless a
reasonably clear case is made out. Clark v. The
N. Y. Life Ins. & Trust Co., et al.
269
Neither illegality or irregularity in the pro-
ceedings, nor error, or excess in the valuation,
nor the hardship or injustice of the law, pro-
vided it be constitutional, nor any grievance
which can be remedied by a suit at law, either
before or after its payment, will authorize an
injunction restraining the collection of a tax.
Taylor, Collector, v. Secor et al.
317
The rule as to courts of equity interfering
with the collection of taxes stated and applied
to a peculiar case.
In an action against an innkeeper for loss of
a guest's property by fire, when the defense,
under chapter 638 laws of 1866, was that the
fire was of incendiary origin, and defendant's
witnesses had given testimony tending to estab-
lish, and plaintiff's witnesses testimony tending
to rebut the defense, evidence that an attempt
was made to fir an adjacent building on the
same night is admissible Faucet v. Nichols. 332
A judgment recovered against co partners in
one State cannot be enforced in another against
Negligence by an innkeeper in omitting pre-a partner not personally served with process
cautions which a prudent man ought to take to and not residing in the State where the judg
protect the property of a guest, will deprive ment was obtained, though his co-partner, after
him of the benefit of the statute of 1866 Ib. dissolution, may have authorized an appearance
by attorney for the firm in the suit in which the
judgment was recovered. Hall et al v. Lanning
et al.
16
As to liability of insurance companies for acts
of their agents, see PRINCIPAL AND AGENT.
As to waiver of conditions of policy by agents,
see WAIVER.
As to principles governing different classes of
insurance, see ACCIDENTAL INSURANCE; FIRE
INSURANCE; LIFE INSURANCE; MARINE IN-
What is a good notice under a statute pro-
viding for constructive process, decided. Ib.
A claim by a trustee, that he was compelled
to pay over the trust funds to the Confederate
States, when the country was under military
rule, is not a Federal question, and will not give
this court jurisdiction to review a decision of
the State court. Rockhold v. Rockhold et al. 82
A court will not be deprived of jurisdiction
unless it appears affirmatively in the declaration
that the "matter in demand" is beyond its
jurisdiction. Sullivan v. Vail.
The Supreme Court has no jurisdiction to
direct a receiver appointed under Section 50 of
the National Currency act, who is not a party to
the record, to pay over moneys in his hands to
a judgment creditor of the bank over which he
is appointed receiver. Ocean National Bank v.
Carll.
312
Such receiver being under the control of the
Controller of the Currency, such judgment
creditor should present his cla m to the Con-
troller of the Currency for payment. Ib.
An unauthorized appearance by an attorney
gives jurisdiction, and the subsequent proceed-
ings in the action cannot be attacked in a col-
lateral proceeding, on the ground that such ap-
pearance was unauthorized or forged. Fergu-
son v. Crawford et al.
336
A petition of administrators to the Surrogate
for authority to sell real estate to pay debts,
which omits to state a description of all the
real estate of deceased, whether occupied or not,
and if occupied, the names of the occupants,"
will not confer jurisdiction on the Surrogate to
grant the order to show cause. Estate of Kel-
ly.
As to effect of laches in not bringing action to
If the requirement of the statute which pre-trial, see PLEADINGS.
scribes what such petition must state, may be
disregarded in one particular, it may be in
all.
Sections 1, 2 and 3 of Chap. 82, Laws of 1850,
and the amendments of Sec. 3 by Chap. 260,
Laws of 1869, and Chap. 92, Laws of 1872, do
not cure or obviate such omission.
Ib.
Said Sections 1, 2 and 3 are not applicable to
proceedings before the Surrogate, and do not
relieve him from requiring strict conformity to
the requirements of the Revised Statutes govern
ing such proceedings. To hold otherwise would
nullify Sec. 4 of same act. That section pro
hibits the Surrogate from confirming a sale
"unless upon due examination he shall besatis-
fied that the provisions of the title of the Re-
vised Statutes (governing such proceedings)
have been complied with, as if this act had not
been passed."
LANDLORD AND TENANT.
When one of joint lessees receives rents under
the authority created by a lease, and upon the
strength of the title of the lessees, he has no
right to retain the money on the ground that
the lease was a nullity. Dayton, public Admr. v.
Mc Cahill et al.
A lessee cannot dispute his lessor's title. Ib.
Acceptance of new tenants operates as a sur-
render of a lease. Fobes v. Lewis.
65
The United States courts have exclusive
jurisdiction of an action for the infringement of
a patent. De Witt v. Elmira Nobles Mfg. Co. 589 Where a lessee agrees to and does make re-
pairs, under an agreement with the lessor that
State courts have jurisdiction in actions in his lease shall be renewed and the amount ex-
which patent rights come in question collater-pended in repairs shall be applied to the rents.
ally.
As to effect of filing of petition in involuntary
bankruptcy on jurisdiction of state court over
pending cause, see BANKRUPTCY.
As to presumption in favor of, see FOREIGN
JUDGMENT.
An answer alleging that a note was of no
and the demised premises are destroyed before
the new lease is delivered, he may recover the
the commencement of the new term and before
amount so expended in repairs. Smith v. Farns-
worth.
65
A board of Supervisors have no power to
enter into a lease of a building for armory and
drill purposes, until they have complied with
all the requirements of section 120 of the Mili-
N. Y.
legal force, held a sufficient allegation to justi-tary Code of 1870. Ford v. The Mayor &c. of
fy the defendant in insisting upon his right to
amend by pleading the statute of limintations.
Leonard v. Forster
As to justice's return, see PRACTICE,
The Military Code of 1862, is repealed by the
Military Code of 1870, except as to certain legal
proceedings,
|