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evidence representations of the de- after the time specified, or manufac-
fendant similar to those charged in ture or obtain any spirituous or
the indictment, made to other per- malt liquors or wine, or cause to be
sons than G., not in the presence of sold, in said county, by himself or
G., and not at the time the represen- any other person, either directly or
tations were made to G.
indirectly, after said date; that he
lleld, that this was error............ Ibid. should settle à certain obligation
53. Same.—IIearsay.—The false rep- calling for liquors, payable to a third
resentations appeared to have been person named, of a certain sum nac-
made, and the money and signature tioned, so that the liquors should
obtained in January, at which time not be brought to a town named, in
defendant referred G. to one B., for said county; and should use his ir-
information as to the ownership and fluence to prevent any person or
character of the house and lot of persons from bringing any of the
which the defendant represented aforesaid liquors to said town with
himself as the owner; and the State the intention of selling the same
put in evidence the declaration of B., within the town.
made in the following November, | lield, that such a bond is valid in this
that the defendant did not own any Statc.
house and lot in said town.
IIeld, also, that said sum of $1,003
Held, that this declaratior was not ad- was liquidated damages, and not a
missible in evidence........ ..Ibid. penalty.
54. Same.-Representations of Value. Held, also, that the failure of the obli.
Variance.-It was proved that the gor to delirer any liquor in fulfil-
defendant represented the house and ment of his contract with such third
lot to G. as worth $2,200 or $2,300, person, would not have been a
instead of the sum laid in the in- brcach of the condition of the
Ilcld, that this was a fatal variance. Ibid. 3. Ncu Trial.--Excessive Damages.-
The assignment of excessive dams-
ges as a cause in a motion for a new
trial is the only method by which
See PLEADING, 18.
that question can be raised. Cty
of Indianapolis v. Parker, Shcriff.230
4. Contract.- Preach of: Nessure of
Damages.- Wherca person contracts
to do a certain amount of work, at
Measure of; usurpation. See OFFICE
a stipulated price, upon materials to
AND OFFICER, 3, 4, 5.
be furnished by his employer, with-
in a specified time, and is ready and
1. Liquidated Damages.- Where a willing to perform, but is prevented
party covenants for the abstaining by tho failure of the employer to
from doing, or for the performance furnish materials as promised, he is
of, some particular act or acts which entitled to merely compensatory
are not measurable by any cxact damages; and where during such
pecuniary standard, and it is agreed time lie is offered other cmployment
that the party so covenanting shall of the same kind, he is not cntitled
pay a stipulated sum for a violation to the whole amount of profits be
of any of such covenants, that sum would havo made if the contract
is to be deemed liquidated damages, had been fully performed by both
and not a penalty. Studabaker et al. parties. Ilcavilon et al. v. kro-
2. Same.—Bond.— Restraint of Trade.
Liquor Trafic.-Bond for $1,000, DEADLY WEAPON.
conditioned that the obligor should
sell no more spirituous or malt li- See Criminal Law, 28, 41, 45.
quors or wine, within a county
named, after a specified date, or DECEDENTS' ESTATES.
cause the same to be sold within said
county, either directly or indirectly, ! Sce HUSBAND AND WIFE, 1, 2, 20;
PLEADING, 24; ProuissonY NOTE, 4, of goods by Carrier. See COMMON
5; Widow, 2, 3, 4.
CARRIER, 1, 2, 3, 4.
Sale of real estate to pay debts; appeal
from interlocutory order. See Ar-
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,
v. Bishop et al........
..156 22, 25.
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 Suppression of. It is a sufficient rea-
complaint alleged, that, in the same son for suppressing portions of a
year that A. died, an administrator deposition, that such portions only
of his estate was appointed, who six tend to prove matters set up in a
years afterwards resigned his trust; special answer and cross complaint
that no assets ever came to bis hands; to which a demurrer has properly
that no claims against A's estate were been sustained. Paine et al. v. The
ever filed in court; that no other Lake Erie & Louisville R. Pa C0.283
administrator of A.'s estate was cv-
er appointed; that the widow of A.
paid all the claims that were pre-
sented or that she knew existed See OFFICE AND OFFICER, 1, 2.
against his estate, and fully admin-
istered the same years before.
Ileld, that these plaintiffs could not
maintain the action........... ..Ibid. See IIUSBAND AND Wife, 1; Widow, 2, 3.
3. Proceeding to sell Real Estate.-
Jurisdiction.-An application to sell 1. Widow.— Rights in Ilusband's Real
lands in the course of administra- Estate.---The rights of a surviving
tion stands upon the footing of an wife in the real estate of her hus-
ordinary adversary judicial proceed- band are, in this State, those created
ing in a court of superior jurisdic- by statute alone. Gaylord et al. v.
tion. Spaulding et al. v. Baldwin.376 Dodge ............
Same.-- Collateral Proceeding.-- 2. Same.- Trust.-A. purchased from
Where jurisdiction has been acquired B. certain real estate, for which he
in such a proceeding, subsequent er- paid in money and in other land in
rors in the course of its exercise- the conveyance of which to B. the
as in the order of sale and its con- wife of A. joined with her husband.
firmation--however grave and glar- At A.'s request and without the
ing, will not subject the judgment knowledge or consent of his wife,
to successful collateral attack.. Ibid. 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.
See Sale, 7, 8, 9, 10.
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.
Sce VOLUNTARY CONVEYANCE, 1, 2, 3. till he received, in duc course of
mail, at his place of residence in
another state, a letter written to
him by A. on the day of the con-
Words. See CRIMINAL LAW, 5, 6, 46. 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
few days, to the children of E. and not affect the rights of A.'s survir-
F., daughters of A. by said former
marriage; that A. would send a Ileld, also, that no interest in the real
deed for C. to sign in a few days; cstate so conveyed to and by C. de-
that the property was then in Ci's scended under the statute to the
name, and that A.wished C. to tell the widow of A.......... .....Ibid.
wife of the latter how it was situa- 3. Surviving Second Wife Without
ted then, so that she would know all Children. --Creditors.- Where a man
about it if C. should be taken away; dies, leaving surviving him a widor,
and if A. should, he wished the a second or other subsequent wife
property so deeded to C. to be made by whom he has no children, and
over to said children, the rents and children by a previous wife, the
profits to be paid them yearly for widow, as against creditors, takes
their support, and when they should the same share of his real estate, by
become twenty-one years old, “to descent, in fee simple, as if a first
have the property in fee simple, to be wife; and at her death this fee sim-
disposed of as they please;' that A. ple descends to her said husband's
thought he had bought the B. prop- children free from the demands of
crty very low; that it cost B. a cer- his creditors. Louden, Adm 7, v.
tain sum, “and as property is ad- James et al........
vancing, it must bring that again, 4. Widow. - A surring wife who has
but I shall not sell, as it is in a good accepted the prorision made for her
location, and will let the children by the will other deceased husband
have it;" and requesting C. to not is entiled also to the sum of $300
let any one know but that he (C.) allowed lier by section 21, 1 G. & H.
had paid for half the B. property. 293. Dunham v. Tappan et al... 173
C. immediately answered A. by let-5. Same-Statute of Limitations.-
ter, acknowledging the receipt of A man died in 1854, seized in fee
the letter from A., and saying that simple of certain real estate, Icaring
C. had told his wife about the ar- surviving him a widow and broth-
rangement A. proposed making in ers and sistcrs, but no child, or fa-
case C. should be taken away, and ther, or mother. The widow took
that she would follow the injunction possession of the entire property.
of A.'s letter, in that event. C. and Suit for partition, the plaintifs
his said wife had no children. Sub- claiming title to an undivided in-
scquently, without consideration, at terest in the land as brothers and
A.'s request, C. and his said wife sisters of the decessed.
conveyed said real estate to A. for Held, that it was a sufficient answer,
life, then in separate parcels, to E. that before thc commencement of
and F. for life, remainders in the action more than ninety days had
simple to said children of E. and F. elapsed from the 9th of March, 1867,
After the execution of the deed from when section 3 of the act of March
B., A. made expensive improve- 4th, 1833, (Acts 1853, p. 55), was
ments on the land so conveyed to repealed and such limitation fixed
C., collected rents, and paid taxes to the right of action under its pro-
and assessments of all kinds. A. visions. (Acts 1867, p. 204). De-
died, intestate, leaving his said wife Moss et al. v. Newton et al.........219
and issue by her surviving him. 6. Surviving Wife.- Mortgage.- A
TIeld, that no use or trust resulted in man during marriage purchased cer-
favor of A. from said conveyance of tain land, which he entered upon
B. to C., and that said letters did and improved and of which he re-
not create a trust in favor of A. or ceived from his rendor a deed of
confer on him the right to the use, conveyance in fce simple, which
control, or disposition of the prop- was lost, misplaced, or destroyed by
crty conveyed to C., but that said the grantce, without having been
letters did create a trust in favor of recorded; and, with his consent, an-
the children of E. and F., which a other deed was made to his son by
court of cquity would have enforced. said vendor. Afterwards the fa.
IIcld, also, that the variation in the ther and son cxccuted a mortgage
agreement between A. and C. did of the land, in which the wife of
the former did not join. The father, avoid the deed of his wife than
son, and said wife resided as one would be sufficient coming from
family upon the land and cultivated stranger..
it from the time of said purchase 3. Same.-— Wife's Separate Property.
till the father and son died, leaving Mortgage.--Suit upon a note paya-
said wife surviving and said mort- ble in bank and a mortgage to secure
the same, executed by husband and
Held, that the surviving wife was en- wife and assigned to the plaintiff.
titled to one-third of the land in fee Answer by the wife, showing that
simple as against the mortgagee the note and mortgage were given
seeking to foreclose his mortgage. for the debt of the husband, and
Sutton v. Jervis........
that the land mortgaged was the
separate property of the wife, and
averring, “that she was induced by
the persuasions of said payee and
the coercion of her said husband to
execute said note and mortgage."
TIeld, that the answer was bad on de-
See Common Carrier; RAILROAD; RE-
See Criminal Law, 15, 16.
New Trial.--As of Right. There is
no error in overruling a motion for
See HUSBAND AND WIFE, 12. a new trial as of right in an action
of ejectment, where no proof is pre-
Interrogatories.-Evidence.- Interrog- sented to the court that the costs
atories to be answered under oath have been paid. McSheely v. Bent-
by the defendant cannot properly be ley ........
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 See Court or Common Pleas, 2; OF.
in evidence. Barr v. Barr....... 240 FICE AND OFFicer, 3, 4, 5.
Contest of.- Affidavit.—The affidavit
of an elector instituting a contest
See Criminal Law, 39.
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-
1. Pleading.–An answer setting up test, verified by the affidavit of such
coercion must arer the facts consti- elector," is not bad for qualifying
tuting it. Richardson v. IIittle..119 the averment of the truth of such
2. Husband and Wife.- Much less statement by the words, "as he is
force or putting in fear by a husband informed and verily believes.” Cur-
will amount to coercion which will ry v. Baker, Governor...............151
being obtained, and received by the
obligee without notice of such con-
See HUSBAND AND WIFE, 5, 9, 10; Ju- dition or circumstances which should
RISDICTION, 12, 13; PRACTICE, 2, 3. 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
Sec Partition of LANDS, 2; TURNPIKE, in its apparently perfect condition,
4; WILL, 2.
but simply a question of cstop-
See Sowle v. HOLDRIDGE, 393.
4. Same.- Blanks.-A surety signing
1. Conveyance to Ilusband and Wife. and delivering to the principal obli-
Partition.—Where, at the suit of a gor a bond before the names of the
widow against the children and sureties have been inserted in the
heirs at law of her husband for par- body of the instrument will be held
tition of land conveyed to the hus- as agrceing that the blank for such
band and wife jointly, in accordance names may be filled after he has cs-
with the prayer of the petition a ccuted it.........
moicty was set off to the widow in 5. Same.-Signing after Forged Sig.
her own right and the other moiety nature.--A surety signed a county
was divided between the widow and treasurer's official bond, at the re-
children as land descended to them quest of the principal obligor, after
from the husband;
the signatures of otlier surcties,
Ilcld, in a suit by the administrator without reading it or hearing it read,
of the husband's estate to subject to or asking what it was, upon being
sale for the payment of the dece- told by the principal that it was a
dent's debts the land so set apart to county paper.
said children and heirs at that Held, that such surety was not released
the widow and heirs were not es- by the fact that one of the signa-
topped by the proceedings in the tures before his was forged...... Ibid.
partition suit from denying that the 6. Corporation. It is well settled in
husband died seized in fee of a this State, that where one contracts
moicty of the land, or from assert. with what purports to be a corpora-
ing the truth in relation to the title. tion, he is estopped from denying
Simpson et al. v. Pearson, Adm'r... 1 the existence of the corporation at
2. In Pais.—Where an act is done or the date of the contract. UcBroom
a statement made by a person, which v. The Corporation of Lebanon..269
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. See BilL OF EXCEPTIONS, 2; CONTRACT,
sion, the character of an estoppel 11; CRIMINAL LAW, 20, 22, 24, 25,
will attach to what would otherwise 51 to 54; DIVORCE; HUSBAND AND
be mere cvidence; the estoppel be- Wife, 14; INSANITY, 4, 5, 7; JUSTIFI-
ing limited within such bounds as cation, 3, 4; NEW TRIAL, 3, 4; PRAC-
are suficient to put those who have
dealt on the faith of appearances
that.turn out to be incorrect in the 1. Will.- Mistake.—Parol cvidence,
same position with reference to the or evidence dehors the will, is not
author of such appearances as if admissible to correct an alleged
they were true. The State, cx rel. mistake of a testator which is not
Mc Carty, v. Pepper et al.............. 76 apparent upon the face of the will.
3. Same. — Principal and Surety.- McAlister et al. v. Butterfield et al.25
Bond.- When a bond has been 2. Same.-A testator, having devised
signed and delivered to the princi- certain real estate to his widow for
pal obligor by a surety, upon the life and directed that at her death it
condition that others, not named in should be sold and the proceeds di-
the instrument, shall sign before it vided equally between his heirs, and
is delivered to the obligee, and it is bequeathed his personal estate to be
delivered without such signatures equally divided between bis lawful