NOTE. A star (*) indicates that the case referred to is annotated.
ABDUCTION.
Evidence-Variance.
damages for nuisance, see Nuisance, 2-4.
partition, see Partition, 4.
price of chattels, see Sale, 15-18.
price of land, see Vendor and Vendee,
5-9.
bonds, see Guardian and Ward, 1; In-
junction, 5-7.
contracts, see Contracts, 2-7.
note, see Negotiable Instruments, 1.
policy, see Insurance, 16.
Particular forms of action, see Assumpsit;
Bastardy; Creditors' Bill; Death
Wrongful Act; Divorce; Ejectment; Nui
sance; Partition; Replevin; Trespass;
Trover and Conversion.
To set aside fraudulent conveyances, see
Fraudulent Conveyances, 7.
Action on the Case.
When lies, see Mortgages, 11.
An indictment under Gen. Laws, N. H. c.
274, 10, for enticing away a female child See Maritime Liens.
under the age of 18 years for the purposes of
prostitution, is not sustained by proof that the
defendant enticed her away for the purpose
of illicit intercourse with himself.-State v.
Brow, N. H., 216.
Accord and Satisfaction.
See Payment.
See Equity, 8; Executors and Adminis-
trators, 3-11; Guardian and Ward, 3-9.
Acknowledgment.
Of debt, see Limitation of Actions, 7-12.
ADOPTION.
Descent of realty.
A father gave his child, then a few months
old, to S., his sister, with the mutual under-
standing that she was to provide for the child,
and bring her up as her own. She took the
child, refused to give her up to her father,
and had her baptized in her own name, by
which the child was always known. The
child always lived with S., assisted her in her
household duties, called her "mother," and
was not informed of her parentage until she
was 18 years old. S. often stated that the
child was to have all her property, and about
14 years before her death made her will, be-
queathing to the child all her personalty, at
which time she owned none but personal es-
tate; but a few months before her death she
purchased the land in question. Her death
was sudden, and there was no evidence that she
bought the land to prevent that much of the
estate going to the child. Held, that the child
was entitled to the land, as the agreement of
S. to receive her as her own was valid and
binding, though not in writing, and had been
partially performed.-Van Tine v. Van Tine,
(N. J.) 249.
Sufficiency of proof, see Divorce, 4, 5.
See Boundaries, 2; Limitation of Actions, 3.
Right to sit on jury, see Jury, 1, 2.
Amendment.
Of pleadings, see Pleading, 3-6.
Review - Objections not raised be-
low.
4. A claim of right under an act of congress,
made for the first time on motion for rehear
ing in the court of appeals, will not be consid
ered.-Chappell v. Bradshaw, (Md.) 762.
Weight and sufficiency of evi-
dence.
5. Where an action is tried by the judge
without a jury, the judgment will not be re-
versed for alleged errors of fact, where the
evidence is sufficient to justify its submission
to a jury, had the case been tried by a jury,
and the findings are not clearly unwarranted
by the evidence.-Freeman v. Cornwell, (Pa)
873.
Matters not apparent of record.
1. Under R. L. Vt. § 4053, providing that one is whether real estate sold by a surviving
6. Where the controlling question in a case
taking up an estray whose owner is not known,
shall, within six days, advertise it, describing partner, as partnership property, is individual
it, with natural or artificial marks, and the or partnership property, and there is nothing
time and place of taking it up, an advertise- in the record by which such fact can be deter
ment omitting the time and place, and describ-mined with certainty, it not being found by
ing the horse taken as "one bay horse colt, the auditor or the court below, a distribution
supposed to be two years old," is insufficient; of the proceeds, made on the assumption that
it appearing that a much more accurate de the land was partnership property, will not
scription by color, shape, marks, gait, and age be disturbed.-Appeal of Williams, (Pa.) 912
could have been given.-Chaffee v. Harring- · Harmless error.
ton, (Vt.) 350.
2. The statute provides (section 4056) that,
in case the owner of the estray does not claim
it within 20 days from the date of advertise-
ment, the person taking it up shall cause a
copy of the advertisement to be recorded in
the town clerk's office, when, after 90 days,
the estray shall be sold at auction. A person
taking up such estray left the copy with the
town clerk more than 20 days after the first
advertisement. Held, not a compliance with
See, also, Certiorari; Error, Writ of; Excep-
tions, Bill of; New Trial.
1. An appeal does not lie from the court of
common pleas in an action of partition.-Laird
v. Walkinshaw, (Pa.) 898.
7. Where the weight of evidence on the is
sue of testamentary capacity is decidedly in
favor of the will, the verdict sustaining it will
not be disturbed on account of errors in the
rejection or admission of evidence, unless the
court is clearly satisfied that such errors ma
terially affected the result and misled the
jury.-Hoar v. Leaman, (Pa.) 716.
8. Where a witness, in reply to a question,
answers, "I couldn't tell," it is immaterial
whether the question was properly or improp-
erly allowed.-Haupt v. Haupt, (Pa.) 700.
1. A contract for building a reservoir pro-
vided that the city engineer should make
monthly estimates of the work done, which
were to be only approximate. When con-
pleted a final estimate was to be made, which
should be conclusive on the parties. Plain-
2. A grantee of real estate by a conveyance tiffs were to receive 85 per cent. of the value
from an intestate, alleged to have been fraud- of the monthly estimate about the first of each
ulent, has a sufficient interest to enter an ap- month. The engineer had authority to stop
peal from the decree of the judge of probate the work whenever the interest of the city re-
granting the administrator license to sell thequired it. A week after the last monthly es
same land for the payment of debts.-Allen v.
Smith, (Me.) 62.
Insufficiency of surety on recogni-
3. Under a rule of court prohibiting a sher-
iff from becoming surety on a recognizance
taken therein, it is error, on a rule to show
cause against the same, to dismiss an appeal
in which the sheriff is the sole surety; the
proper practice being to require the appellant
to perfect his bail within a specified period,
and in default thereof to quash the appeal.
-Kerr v. Martin, (Pa.) 860.
timate plaintiffs were notified that the appro
priation was exhausted, and the work must
stop; whereupon they asked for a final esti-
mate. The engineer refused to make the es-
timate at once, but it was made within five
weeks. Held not such a refusal as to oust
the engineer's jurisdiction to make a settle
ment which would be conclusive on the par-
ties.-Dhrew v. City of Altoona, (Pa.) 636.
Award.
2. Where the contract allows $35 a yard for
earth excavation, and $.75 for rock, an item
in the estimate of $.50 a yard for loose rock is
not within the submission, the term "rock ex-
cavation, "unqualified, including loose as well
as solid rock; but such improper item renders
the estimate void only pro tanto.-Id.
Of married woman, see False Imprisonment.
In civil action-Power of officer.
1. An officer having a process in a civil ac-
tion, by which he is commanded to arrest the
body of defendant, a railroad engineer, may
lawfully stop a train of cars run by such en-
gineer, for the purpose of making the arrest.
-St. Johnsbury & L. C. R. Co. v. Hunt, (Vt.)
186.
2. Where an officer making a lawful arrest
afterwards becomes a trespasser ab initio,
by failure to return the warrant, a person as-
sisting in making the arrest, at the officer's
request, does not become a trespasser.-Dehm
v. Hinman, (Conn.) 741.
ASSIGNMENT.
In insolvency, see Insolvency, 1.
Of negotiable instrument, see Executors and
Administrators, 2.
patent, see Patents for Inventions, 1-3.
policy, see Insurance, 7-10.
What is assignable.
1. A legatee of a portion of the proceeds of
land may assign his interest, by parol, before
sale.-Mellon v. Reed, (Pa.) 906.
Evidence of assignment.
not converted into money, though he refrained
from selling them at the request of the as-
signor, who promised that he should not be
prejudiced thereby.-Appeal of Hower, (Pa.)
687.
4. An assignee is liable for interest on mon-
eys remaining uninvested in his hands.-Id.
Attacking claim.
5. The mode of attacking a claim presented
to an assignee being by exceptions heard and
determined in the orphans' court, (Revision,
N. J. p. 38, § 6,) that court has jurisdiction to
determine the validity of a chattel mortgagę
upon which the claim is founded.-Moore v.
Williamson, (N. J.) 587.
1. The officer need not have the writ with
2. Evidence that one legatee of the proceeds him. It is sufficient if he has it in his control.
of land was present at a partition thereof be--Barney v. Rockwell, (Vt.) 163.
tween the others, taking no part and making
no claim, and that he had admitted to various
witnesses that he had assigned his interest to
one of the other legatees, and had been paid
for it, is sufficient for submission to the jury.
-Id.
ASSIGNMENT FOR BENEFIT
OF CREDITORS.
By surviving partner, see Partnership, 2.
Construction of assignment, see Insurance, 9.
Preferences.
1. Laws N. H. c. 85, § 9, providing that all
payments made within three months before
an assignment for the benefit of creditors shall
be void, does not apply to payments on con-
tracts existing at the time of its enactment.
-Leavitt v. Lovering, (N. H.) 414.
The assignee.
2. As the assignee is the representative of
the creditors, he may procure to be set aside
fraudulent conveyances by the assignor,
though the latter could not question their va-
lidity.-Moore v. Williamson, (N. J.) 587.
3. An assignee, who had no agency in col-
lecting or disbursing the funds to pay the
debts, is not entitled to commissions on lands
attached, where the officer first attaches other
2. Property in possession of a bailee is not
property, and then merely writes to the bailee
that he has attached that in his possession,
and requests him to keep it, and the bailee
agrees to keep it.-Id.
ATTORNEY AND CLIENT.
Compensation of attorney, see Trusts, 8.
Authority to compromise.
An attorney, by virtue of his employment,
cannot bind his client by a compromise of the
demand sued on.-Brockley v. Brockley, (Pa.)
646.
For benefit of both parties-Duties
of parties.
1. A covenant in a lease of a patented ma-
chine, that the lessee, as rent, shall deliver a
certain amount of pulp, of a kind to be se-
lected by a third person, to the lessor, at a
place designated by the third person, is not
discharged by failure of the third person to
make the selection and designation, as they are
not conditions precedent to the lessor's re-teller, and the bond given to secure the per
covery, but the lessee, on failure of the third formance of the appointee's duties as such.
person to act within a reasonable time, should but the defalcation was made by him as book
make the selection, designate the place, de-keeper.-Appeal of Vogeley, (Pa.) 878.
liver the pulp, and notify the lessor.-Cush-
man v. Somers, (Vt.) 315.
For benefit of both parties-Negli-
gence of bailee.
2. In a case for negligence against the
bailee of a horse for hire, the burden is on
plaintiff to prove negligence, and it is not
shifted by merely showing that the horse was
sound when delivered to the bailee, and when
returned that it was injured in a way that
does not ordinarily occur without negligence.
-Malaney v. Taft, (Vt.) 326.
3. The rule in trover as to the liability of
bailee, who violates the contract of bailment,
does not apply in case for negligence; and in
an action for immoderate driving and im-
proper care of the plaintiff's horse, where the
evidence shows that defendant drove a greater
distance than he engaged for, and that the
horse was sound when taken by defendant,
but injured when returned, there is no error
in charging that the gist of the action was
negligence, and that there could be no recov-
ery unless the jury found that the horse was
injured by improper use, care, or driving.-Id.
It is error to allow an infant, six weeks old,
to be introduced in evidence, and viewed by
the jury, to enable them to judge, from a com-
parison of its appearance with defendant's, as
to its paternity.-Clark v. Bradstreet, (Me.)
56.*
Bill of Exceptions.
See Exceptions, Bill of.
Bills and Notes.
See Negotiable Instruments.
Actions on, see Constitutional Law,6; Guard-
ian and Ward, 1.
Construction, see Covenants, 2.
Injunction bonds, see Injunction, 4-7.
Liability of co-obligors, see Mortgages, 17.
Of trustee of religious society, see Religious
Societies, 1.
Requisites and validity.
1. A bank, which had no regular officer
known as "teller, " appointed defendant's son
clerk, the designation of his employment be-
ing left blank in the resolution appointing
him, and in the bond given for the faithful
discharge of his duties. He sometimes acted
as teller and sometimes as book-keeper, and,
while so employed, made numerous false en-
tries in the books, and became a defaulter
to a large amount. Held, that the bond re-
mained in force, although the surety alleged
that the appointment was to the position of
2. Where, pursuant to the vote of a town to
sell certain property if the purchaser will al-
low certain privileges, the land is sold, and a
allow" certain privileges to the inhabitants of
bond is executed, conditioned "to grant and
is guarantied, the word "grant" not being
the town forever, merely a perpetual license
used in its technical sense, and no remedy in
the nature of specific performance can be giv
en.-Town of Middletown v. Newport Hos-
pital, (R. I.) 800.
chaser allow the inhabitants of the town to
3. The bond, being conditioned that the par-
take and carry away sand and gravel, confers
a right to take for use only in the town, and
consequently not a right without stint, and
cannot be said to be repugnant to the grant,
on the ground that the inhabitants may in
time destroy the beach.-Id.
inhabitants certain privileges, was merely a
4. The bond, being conditioned to allow the
security for the due performance of the cb-
fuse performance and incur the penalty.—Id.
ligations, and the purchaser cannot elect to re-
BOUNDARIES.
Location of monuments, see Trial, 9.
Artificial.
1. A marked line, experimentally located by
a surveyor in attempting to divide a tract of
land, not mentioned in the deed, and disagree-
ing with its courses and distances, as well as
with a plat therein referred to, will not cop-
trol the description in the deed.-Kuhns v.
Fennell, (Pa.) 920.
Adverse possession.
2. Where coterminous owners of land agree
upon a marked line as their mutual boundary,
and so recognize and adopt it for 21 years, the
statute of limitation will protect either party
in his possession up to the line, though it is
not the line mentioned in the deed.—Id.
Evidence.
3. Declarations of deceased persons as to
the boundaries of their land, though not made
on the land, are admissible on an issue be-
tween parties not privy in estate to them.
where the declarants had means of knowl-
edge as to such boundaries, and no apparent
interest to misrepresent. CARPENTER and
BINGHAM, JJ., dissenting.-Lawrence v. Ten-
nant, (N. H.) 543.
4. Declarations of deceased persons are ad-
missible to prove the original location of s
highway.-Id.
5. In a controversy involving the location
of a disputed boundary line, where the ques
tion turns on the location of an old and recog
nized division fence, evidence of the boroug
regulator, who had run the lines of the lots.
is admissible to prove where the dividing line
is actually located.-Haupt v. Haupt, (Pa
700.
6. The question being which of two loca
tions, based on designated monuments, is the
true one, refusal to instruct that "the highest
evidence of location is the original marks or
monuments on the ground called for in the
return of the surveyor," and, if the monu-
ments testified to by defendant's surveyors
are original monuments, this fixes the loca-
tion, for the reason that it is for the jury to
fix the location from all the evidence, is error,
as the hypothesis of the point is that the jury
had closed this inquiry.-Cross v. Tyrone Min.
& Manuf'g Co., (Pa.) 643.
7. The former existence of a monument at a
certain point, and the fact that the corner of
a wall was placed by A. at the same point, be-
ing relevant to the issue, the report of a ref-
eree should not be set aside because A. and
B., whose adjoining lands were bounded by
the monument, were permitted to testify to a
conversation between themselves, at the time
the wall was being built, which tended to
show that both then understood that the cor-
ner of the wall was located at the place of the
former monument. CARPENTER and BING-
HAM, JJ., dissenting.-Lawrence v. Tennant,
(N. H.) 543.
8. Evidence that at the time of a conveyance
a survey was made, and that a line running to
a post, designated as 7 perches, was in fact
6.7 perches to where the post was actually set
as a monument, whence a partition fence on
another line between vendor and vendee was
built, justifies a verdict locating the corner at
the post, as distance usually yields to monu-
ments actually erected. - Morse v. Rollins,
(Pa.) 645.
9. The well-marked line run south from the
western tree, corresponding in age and course
to the return of survey, was prima facie the
boundary between the two blocks.-Berry v.
Watson, (Pa.) 618.
Question for jury.
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CERTIORARI.
Application for writ-Laches.
1. The determination of the supreme court
on the question of the laches of the prosecu-
not subject to review on error.-Atlantic City
tor in applying for a writ of certiorari is final,-
Water-Works Co. v. Reed, (N. J.) 10.
Review - Matters not apparent of
record.
the scope of its powers, will not be reviewed
2. An attachment issued by a court, within
on certiorari, when the evidence is not brought
up.-Black v. Oblender, (Pa.) 708.
CHARITIES.
Fire insurance patrol.
1. An insurance patrol company, whose ob-
ject, as described by its charter, is "to pro-
10. In a controversy as to the boundary be-tect and save life and property in or contigu-
tween two blocks surveyed in 1794, one west of
the other, it appeared that the north lines were
run west and east from district and subdistrict
lines ten miles apart, but they did not meet,
and two trees were marked as corners. It was
shown that a line was run south from the
western tree in 1794, but no line was run south
from the eastern tree. The warrant for each
block called for the other as an adjoinder. The
eastern tree was admitted to be the common
corner of the two blocks north of the two in
question. Held, that it was for the jury to
decide which tree was the common corner,
and error to charge that the eastern tree was
the corner.-Id.
11. It is error, in trespass, to take the ques-
tion of boundary from the jury, when the tes
timony is conflicting.-Oliver v. Brown, (Me.)
Cancellation.
Of instrument, see Equity, 7.
1. It is the duty of a railroad company,
which carries the mail under a contract with
ous to burning buildings, and to remove and
take charge of such property or any part
thereof, when necessary, "is a public charity
though the evidence shows that it is a corpo-
ration without capital stock or moneyed capi-
tal, and that it is supported by voluntary con-
tributions derived from different insurance
companies; it appearing that in protecting
property no distinction is made between prop-
erty insured and property not insured, and
that no profits or dividends are made and di-
vided among the corporators.-Fire Ins. Pa-
trol v. Boyd, (Pa.) 553.
Liability for negligence.
have not been contributed for the purposes of
2. Such corporation, having no funds which
occasioned by the negligence of its servan
charity, cannot be rendered liable for injuries
or agents.-Id.
CHATTEL MORTGAGES.
Priority of lien.
1. A chattel mortgage is superior to a prior
real-estate mortgage, in common form, cover-
ing the same chattels, where the chattel mort-
gagee is in the position of an innocent pur-
chaser.-Howard v. Witters, (Vt.) 303.
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