evidence representations of the de-]
fendant similar to those charged in
the indictment, made to other per-
sons than G., not in the presence of
G., and not at the time the represen-
tations were made to G.
Held, that this was error............ Ibid.
53. Same.-Hearsay.-The false rep-
resentations appeared to have been
made, and the money and signature,
obtained in January, at which time
defendant referred G. to one B., for
information as to the ownership and
character of the house and lot of
which the defendant represented
himself as the owner; and the State
put in evidence the declaration of B.,
made in the following November,
that the defendant did not own any
house and lot in said town.
Held, that this declaration was not ad-
missible in evidence............................. Ibid.
54. Same.-Representations of Value.
Variance. It was proved that the
defendant represented the house and
lot to G. as worth $2,200 or $2,300,
instead of the sum laid in the in-
dictment.
after the time specified, or manufac
ture or obtain any spirituous or
malt liquors or wine, or cause to be
sold, in said county, by himself or
any other person, either directly or
indirectly, after said date; that he
should settle a certain obligation
calling for liquors, payable to a third
person named, of a certain sum rcn-
tioned, so that the liquors should
not be brought to a town named, in
said county; and should use his in-
fluence to prevent any person or
persons from bringing any of the
aforesaid liquors to said town with
the intention of selling the same
within the town.
Held, that such a bond is valid in this
State.
Held, also, that said sum of $1,000
was liquidated damages, and not a
penalty.
Held, also, that the failure of the obli-
Held, that this was a fatal variance. Ibid. 3.
Measure of; usurpation.
AND OFFICER, 3, 4, 5.
1. Liquidated Damages. Where a
party covenants for the abstaining
from doing, or for the performance,
of, some particular act or acts which
are not measurable by any exact
pecuniary standard, and it is agreed
that the party so covenanting shall
pay a stipulated sum for a violation
of any of such covenants, that sum
is to be deemed liquidated damages,
and not a penalty. Studabaker et al.
V. White.....
2. Same. Bond-Restraint of Trade.
Liquor Trefic.-Bond for $1,000,
conditioned that the obligor should
sell no more spirituous or malt li-
quors or wine, within a county.
named, after a specified date, or
cause the same to be sold within said
gor to deliver any liquor in fulfil-
ment of his contract with such third
person, would not have been a
breach of the condition of the
bond.......
. Ibid.
New Trial.--Excessive Damages.—
The assignment of excessive dame-
ges as a cause in a motion for a new
trial is the only method by which
that question can be raised. Ctg
of Indianapolis v. Parker, Sherif.250
4. Contract.-Breach of.-Measure of
Damages. Where a person contracts
to do a certain amount of work, at
a stipulated price, upon materials to
be furnished by his employer, with-
in a specified time, and is ready and
willing to perform, but is prevented
by the failure of the employer to
furnish materials as promised, he is
entitled to merely compensatory
damages; and where during such
time he is offered other employment
of the same kind, he is not entitled
to the whole amount of profits he
would have made if the contract
had been fully performed by both
parties. Heavilon et al. v. Kra-
.241
See CRIMINAL LAW, 28, 41, 45.
county, either directly or indirectly, See HUSBAND AND WIFE, 1, 2, 20;
1. Parties.-Heirs.-The heirs at law
of a decedent against whose estate
it appears there exists any debts
cannot maintain an action for mon-
ey due the estate.
Walpole's Adm. See PLEADING, 6, 8, 10, 16, 17, 18, 19,
Suppression of.-It is a sufficient rea-
son for suppressing portions of a
deposition, that such portions only
tend to prove matters set up in a
special answer and cross complaint
to which a demurrer has properly
been sustained. Paine et al. v. The
Lake Erie & Louisville R. P Co.283
v. Bishop et al......
2. Same.-Suit by the heirs at law of
A. against the administrator of B.,
to recover money collected by B. in
his lifetime, as attorney of A. The
complaint alleged, that, in the same
year that A. died, an administrator
of his estate was appointed, who six
years afterwards resigned his trust;
that no assets ever came to his hands;
that no claims against A's estate were
ever filed in court; that no other
administrator of A.'s estate was ev-
er appointed; that the widow of A.
paid all the claims that were pre-
sented or that she knew existed
against his estate, and fully admin-
istered the same years before.
Held, that these plaintiffs could not
maintain the action...... ...... Ibid. See IIUSBAND AND WIFE, 1; WIDOW, 2, 3.
See OFFICE AND OFFICER, 1, 2.
Widow.-Rights in Husband's Real
Estate. The rights of a surviving
wife in the real estate of her hus-
band are, in this State, those created
by statute alone. Gaylord et al. v.
Dodge......
3. Proceeding to sell Real Estate.--
Jurisdiction. An application to sell
lands in the course of administra-
tion stands upon the footing of an
ordinary adversary judicial proceed-
ing in a court of superior jurisdic-
tion. Spaulding et al. v. Baldwin.376
Same. Collateral Proceeding.-2. Same.-Trust.-A. purchased from
Where jurisdiction has been acquired
in such a proceeding, subsequent er-
rors in the course of its exercise-
as in the order of sale and its con-
firmation--however grave and glar-
ing, will not subject the judgment
to successful collateral attack.. Ibid.
See SALE, 7, 8, 9, 10.
DEED.
See VOLUNTARY CONVEYANCE, 1, 2, 3.
Words. See CRIMINAL LAW, 5, 6, 46.
DELIVERY.
B. certain real estate, for which he
paid in money and in other land in
the conveyance of which to B. the
wife of A. joined with her husband.
At A.'s request and without the
knowledge or consent of his wife,
who supposed that the entire prop-
erty so bought from B. was con-
veyed to her husband, a portion of
it was conveyed by B., by deed ab-
solute on its face, to C., a son of A.
by a former marriage, and the deed
was delivered by B. to A. Nothing
of the transaction was known by C.
till he received, in due course of
mail, at his place of residence in
another state, a letter written to
him by A. on the day of the con-
veyance, informing him of the pur-
chase and of the making of the
deed to him as aforesaid, and that
A. would want a deed from C., in a
not affect the rights of A.'s surviv-
ing wife.
Held, also, that no interest in the real
estate so conveyed to and by C. de-
scended under the statute to the
widow of A..........
Ned
few days, to the children of E. and
F., daughters of A. by said former
marriage; that A. would send a
deed for C. to sign in a few days;
that the property was then in C.'s
name, and that A.wished C. to tell the
wife of the latter how it was situa-3.
ted then, so that she would know all
about it if C. should be taken away;
and if A. should, he wished the
property so deeded to C. to be made
over to said children, the rents and
profits to be paid them yearly for
their support, and when they should
become twenty-one years old, "to
have the property in fee simple, to be
disposed of as they please;" that A.
thought he had bought the B. prop-
erty very low; that it cost B. a cer-
tain sum, "and as property is ad-
vancing, it must bring that again,
but I shall not sell, as it is in a good
location, and will let the children
have it;" and requesting C. to not
let any one know but that he (C.)
had paid for half the B. property.
C. immediately answered A. by let-5.
ter, acknowledging the receipt of
the letter from A., and saying that
C. had told his wife about the ar-
rangement A. proposed making in
case C. should be taken away, and
that she would follow the injunction
of A.'s letter, in that event. C. and
his said wife had no children. Sub-
sequently, without consideration, at
A.'s request, C. and his said wife
conveyed said real estate to A. for
life, then in separate parcels, to E.
and F. for life, remainders in fee
simple to said children of E. and F.
After the execution of the deed from
B., A. made expensive improve-
ments on the land so conveyed to
C., collected rents, and paid taxes
and assessments of all kinds. A.
died, intestate, leaving his said wife
and issue by her surviving him.
Held, that no use or trust resulted in
favor of A. from said conveyance of
B. to C., and that said letters did
not create a trust in favor of A. or
confer on him the right to the use,
control, or disposition of the prop-
erty conveyed to C., but that said
letters did create a trust in favor of
the children of E. and F., which a
court of equity would have enforced.
Held, also, that the variation in the
agreement between A. and C. did!
Surviving Second Wife Without
Children.-Creditors.--Where a man
dies, leaving surviving him a widow,
a second or other subsequent wife
by whom he has no children, and
children by a previous wife, the
widow, as against creditors, takes
the same share of his real estate, by
descent, in fee simple, as if a first
wife; and at her death this fee sim-
ple descends to her said husband's
children free from the demands of
his creditors. Louden, Admr, v.
James et al.......
Widow.-A surving wife who has
accepted the provision made for her
by the will of her deceased husband
is entiled also to the sum of $300
allowed her by section 21, 1 G. & H.
295. Dunham v. Toppan et al...173
Same.-Statute of Limitations.-
A man died in 1854, seized in fee
simple of certain real estate, leaving
surviving him a widow and broth-
ers and sisters, but no child, or fa-
ther, or mother. The widow took
possession of the entire property.
Suit for partition, the plaintifls
claiming title to an undivided in-
terest in the land as brothers and
sisters of the deceased.
Held, that it was a sufficient answer,
that before the commencement of
the action more than ninety days had
elapsed from the 9th of March, 1867,
when section 3 of the act of March
4th, 1853, (Acts 1853, p. 55), was
repealed and such limitation fixed
to the right of action under its pro-
visions. (Acts 1867, p. 204). De-
Moss et al. v. Newton et al.........219
Surviving Wife.— Mortgage.— A
man during marriage purchased cer-
tain land, which he entered upon
and improved and of which he re-
ceived from his vendor a deed of
conveyance in fee simple, which
was lost, misplaced, or destroyed by
the grantee, without having been
recorded; and, with his consent, an-
other deed was made to his son by
said vendor. Afterwards the fa-
ther and son executed a mortgage
of the land, in which the wife of
the former did not join. The father,
son, and said wife resided as one
family upon the land and cultivated
it from the time of said purchase | 3.
till the father and son died, leaving
said wife surviving and said mort-
gage unpaid.
Held, that the surviving wife was en-
titled to one-third of the land in fee
simple as against the mortgagee
seeking to foreclose his mortgage.
Sutton v. Jervis..........
See COMMON CARRIER; RAILROAD; RE-
SCISSION, 5.
See HUSBAND AND WIFE, 12.
Interrogatories.-Evidence.- Interrog-
atories to be answered under oath
by the defendant cannot properly be
filed with the answer to a cross
petition in an action for divorce;
and if filed and answered, the an-
swers cannot properly be introduced
in evidence. Barr v. Barr.......240
1. Pleading.-An answer setting up
coercion must aver the facts consti-
tuting it. Richardson v. Hittle..119
2. Husband and Wife.-Much less
force or putting in fear by a husband
will amount to coercion which will
avoid the deed of his wife than
would be sufficient coming from a
stranger..
Ibid.
Same.-Wife's Separate Property.
Mortgage.-Suit upon a note paya-
ble in bank and a mortgage to secure
the same, executed by husband and
wife and assigned to the plaintiff.
Answer by the wife, showing that
the note and mortgage were given
for the debt of the husband, and
that the land mortgaged was the
separate property of the wife, and
averring, "that she was induced by
the persuasions of said payce and
the coercion of her said husband to
execute said note and mortgage."
Held, that the answer was bad on de-
Ibid.
See CRIMINAL LAW, 15, 16.
See VOLUNTARY CONVEYANCE, 3.
New Trial.-As of Right.-There is
no error in overruling a motion for
a new trial as of right in an action
of ejectment, where no proof is pre-
sented to the court that the costs
have been paid. McSheely v. Bent-
ley..........
..235
See COURT OF COMMON PLEAS, 2; OF-
FICE AND OFFICER, 3, 4, 5.
Contest of Affidavit.-The affidavit
of an elector instituting a contest
of an election, under the act of May
4th, 1852 (1 G. & H. 316), requiring
of such contestor "a written state-
ment specifying the grounds of con-
test, verified by the affidavit of such
elector," is not bad for qualifying
the averment of the truth of such
statement by the words, "as he is
informed and verily believes." Cur-
ry v. Baker, Governor..............151
See HUSBAND AND WIFE, 5, 9, 10; Ju-
RISDICTION, 12, 13; PRACTICE, 2, 3.
See PARTITION OF LANDS, 2; TURNPIKE,
4; WILL, 2.
See SoWLE v. HOLDRIDGE, 293.
1. Conveyance to liusband and Wife.
Partition.-Where, at the suit of a
widow against the children and
heirs at law of her husband for par-
tition of land conveyed to the hus-
band and wife jointly, in accordance
with the prayer of the petition a
moiety was set off to the widow in
her own right and the other moiety
was divided between the widow and
children as land descended to them
from the husband;
Held, in a suit by the administrator
being obtained, and received by the
obligee without notice of such con-
dition or circumstances which should
put him upon inquiry, the condition
imposed will not avail the surety.
This is not a question of the power
of the principal to deliver the bond
in its apparently perfect condition,
but simply a question of estop-
pel.....
......... Ibid.
4. Same.-Blanks.-A surety signing
and delivering to the principal obli-
gor a bond before the names of the
sureties have been inserted in the
body of the instrument will be held
as agreeing that the blank for such
names may be filled after he has ex-
ecuted it.........
...Ibid.
Same.-Signing after Forged Sig-
nature. A surety signed a county
treasurer's official bond, at the re-
quest of the principal obligor, after
the signatures of other sureties,
without reading it or hearing it read,
or asking what it was, upon being
told by the principal that it was a
county paper.
Held, that such surety was not released
by the fact that one of the signa-
tures before his was forged...... Ibid.
of the husband's estate to subject to
sale for the payment of the dece-
dent's debts the land so set apart to
said children and heirs at law, that
the widow and heirs were not es-
topped by the proceedings in the
partition suit from denying that the
husband died seized in fee of a
moiety of the land, or from assert-
ing the truth in relation to the title.
Simpson et al. v. Pearson, Adm'r...1
2. In Pais.-Where an act is done or
a statement made by a person, which
cannot be contradicted or contra-
vened without fraud on his part and
injury to others whose conduct has
been influenced by the act or admis-
sion, the character of an estoppel
will attach to what would otherwise
be mere evidence; the estoppel be-
ing limited within such bounds as
are sufficient to put those who have
dealt on the faith of appearances
that turn out to be incorrect in the 1.
same position with reference to the
author of such appearances as if
they were true. The State, ex rel.
Mc Carty, v. Pepper et al.............76
Same.-Principal and Surety.—
Bond. When a bond has been
signed and delivered to the princi-
pal obligor by a surety, upon the
condition that others, not named in
the instrument, shall sign before it
is delivered to the obligee, and it is
delivered without such signatures
Corporation. It is well settled in
this State, that where one contracts
with what purports to be a corpora-
tion, he is estopped from denying
the existence of the corporation at
the date of the contract. McBroom
v. The Corporation of Lebanon...269
See BILL OF EXCEPTIONS, 2; CONTRACT,
11; CRIMINAL LAW, 20, 22, 24, 25,
51 to 54; DIVORCE; HUSBAND AND
WIFE, 14; INSANITY, 4, 5, 7; JUSTIFI-
CATION, 3, 4; NEW TRIAL, 3, 4; PRAC-
TICE, 14.
Will.-Mistake.-Parol evidence,
or evidence dehors the will, is not
admissible to correct an alleged
mistake of a testator which is not
apparent upon the face of the will.
McAlister et al. v. Butterfield et al.25
Same. A testator, having devised
certain real estate to his widow for
life and directed that at her death it
should be sold and the proceeds di-
vided equally between his heirs, and
bequeathed his personal estate to be
equally divided between his lawful
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