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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-

stitutes valid donationes causa mortis.

1b

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-
tator. Ireland v, Corse et al.

394

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An insurance policy containing a provision that
"if the building shall fall, except as the result
of fire, all insurance by this company shall im-
mediately cease and determine," continues in
full force where the building, although removed
from its foundation by the violence of a tem-
pest, and greatly damaged, is stil! intact as a
building. The Fireman's Fund Ins. Co. v. The Con-
gregation of Rodeph Sholem.

99

FALSE IMPRISONMENT.

As to what proot is admissible in actions for, Bedford.

see EVIDENCE.

Where a party accepts a policy containing the
words "Occupied as a dwelling," it amounts to
a warranty that the premises are occupied, and
if the policy provided "if the premises became
vacant and unoccupied the policy should be
void," and they were actually unoccupied when
the insurance was effected, it avoids the policy,
and knowledge upon the part of the company's
age at that the premises were vacant, does not
affects its validity. Alexander v. Germania Ins. Co.
175

An agreement in a policy that any person
other than the assured, who procures the insur-
ance, should be deemed the agent of the assured
is operative.
Ib.

A general agent may waive by parol a con i-
tion of a policy even where the policy provides
that the waiver must be in writing. Arkell v.
Commerce Ins. Co.
372

A company held to be bound by acts of an
agent after surrender of his agency, the insured
being ignorant of such surrender.
Ib.

Where a policy in its terms requires that in
case of loss notice of loss shall be given forth-
with, a notice given twenty-three days after the
loss is in time. Lycoming Mutual Fire Ins. Co. v.
444

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FIXTURES.

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

FRAUDS.

In exchange of chattels, if one party make
false representations as to condition of his prop-
erty, the other in action for fraud is entitled to
recover damages, although he has received full
value for his article Murray v. Jennings. 14

Measure of damage, the difference between
actual value and value as represented. Ib.

Where one of two innocent persons must suf-
fer by the frand of the third, whichever has ac-
credited him must bear the loss. Aull et al. v.
Coiket et al.

30

FRAUDULENT CONVEYANCE.

59

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.
Ib.

See DEEDS; FRAUDS.

A party induced by fraud to make a purchase
of property, and to take a warranty therefor in
writing, and under seal, may disregard the lat-
ter, sue directly for the fraud, and give parol evi-
dence of the fraudulent representations. India-
napolis P. & C. R.R. Co. v. Tyng.
80

In fixing the value of such property as a loco
motive engine, the whole country is but a single

market.

Ib.

Where the grounds of the action are false
statements made by defendant, with intent to
deceive, it is necessary that it should appear by
affirmative proof that the defendants knew the
--representations to be false. Marshall v. Fowler
et al.
274

Fraud will not be presumed or conjectured.

Seller may terminate the credit and sue on the
debt at once.
Ib.

lb.

Where sale is influenced by fraudulent repre.
sentations, even though on credit, it is unneces
sary to allege fraud in complaint. Claflin et al.
v. Taussig et al.
317

Equity may decree the delivery up and cancel-
lation of deeds and other writings procured by
fraud, and will enjoin their transfer or disposi-
tion pending the suit. The Globe Mutual Life Ins.
Co. v. Reals et al.

360

A mere purchase of goods, unaccompanied by
any fraudulent representations, is not of itself
fraudulent, although the purchaser is insolvent
at the time, and has knowledge of the fact.
Fish et al. v. Payne.
477

As to effect of fraud in obtaining renewal of
policy, see LIFE INSURANCE.

As to evidence in cases of, see EVIDENCE.

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.

In

121

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If a person is overpaid by mistake, and at the
time of discovering the error, whether that be
at the moment of payment, or afterwards, forms
the intention of defrauding the rightful owner
as to such overpayment, it is larceny. Wolfstein
v. The People.

184

Such a guaranty covers the defect in the
rants of the want of a proper seal, without which
they would be invalid.

lb.

To recover upon & guaranty it is not necessary
to return, or offer to return, the property pur
chased upon its faith.
lb.

GUARANTY.

A guaranty that certain county warrants are Where a physician is employed in attendance
"genuine and regularly issued," means that they upon a sick person, his employment continues
are valid, legal claims against the county. while the sickness lasts, and the relation of
Smeltzer v. White.
106 physician and patient continues unless it is put
an end to by the assent of the parties, or the
war-express dismissal of the physician. Potter v.
Virgil.

243

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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

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.

INDICTMENTS.

As to organization of Grand jury, see JURIES.
As to practice on the trial of, see CRIMINAL

PRACTICE.

As to the requisites and sufficiency of indict-
ments for any particular offence. see the title of
the crime in question, such as BIGAMY, GRAND
LARCENY &c.

INJUNCTION.

A Court of Equity will not restrain proceed-
ings at law upon a note which contains, as
liquidated damages, a clause which provides
that after maturity it shall bear interest in ex-
cess of the legal rate. Downey v. Beach. 72

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.

Ib.

INNKEEPERS.

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

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The acts of a de facto officer are valid as to
the public and the validity of his title to office
Ib.
cannot be drawn in question collaterally.

JURISDICTION

A judgment recovered against co partners in
one State cannot be enforced in another against
a partner not personally served with process
and not residing in the State where the judg
ment was obtained, though his co-partner, after
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

In an action on a foreign judgment, the record
of which discloses an appearance, it is compe-
tent for the defendant to show the appearance
was unauthorized.
Ib.

After the dissolution of a co-partnership, one
of the partners in a suit brought against the firm
has no authority to enter an appearance for the
other partners who do not reside in the State
where the suit is brought and have not been
served with process.
Ib.

In an action for the recovery of property, it is
not sufficient to give this court jurisdiction to
review, on a writ of error, the decision of the
highest court of a State, that title in a third
party, acquired under a United States statute,
fendant himself must claim title under a statute.
is set up to defeat the paintiffs claim; the de-
(R. S., 709.) Long et al v. Converse et al.
33

The U. S. Supreme Court cannot re-examine
the judgment or decree of a State Court simply
because a Federal question was presented to
that court for determination. It must appear
that such a question was in fact decided, or that
its decision was necessarily involved in the judg
ment or decree as rendered. Bolling v. Lersner.
63

Due notice, actual or constructive, to the de-
fendant, is essential to the jurisdiction of all
courts. Earle et al v. McVeigh.
81

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.
110

Before the jurisdiction of the Orphans Court
has attached, a proceeding to declare void and
alleged, release of dower is properly brought
on the equity side of the Common Pleas Camp-
bell et al v. Hammett.

204

The Commissioners of Central Park bad full
jurisdiction to alter the grade of 123d St. be-
tween 6th and 7th Avenues.
The People ex rel.
Kurzman v. Green et al.

208

To give the United States Supreme Court juris
diction to review the decision of a State Court,
As to manner of arriving at verdict, see PRAC-the judgment of the latter must be final Zeller
et al v. Switzer.

TICE.

207

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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."
Ib.

The United States courts have exclusive
jurisdiction of an action for the infringement of
a patent. De Witt v. Elmira Nobles Mfg. Co. 589

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.

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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.
Ib. 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 lessee cannot dispute his lessor's title. Ib.
Acceptance of new tenants operates as a sur-
render of a lease. Fobes v. Lewis.
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-

Code of 1870.

Ford v. The Mayor &c. of

191
The Military Code of 1862, is repealed by the
Military Code of 1870, except as to certain legal
proceedings,
Ib.

JUSTICES COURTS.

An answer alleging that a note was of no

N. Y.

legal force, held a sufficient allegation to justi-tary
fy the defendant in insisting upon his right to
amend by pleading the statute of limintations.
Leonard v. Forster

508

As to justice's return, see PRACTICE,

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