Review in civil actions, see "Appeal and Error," § 7.
DISMISSAL AND NONSUIT.
Dismissal of action for injunction, see "Injunction," § 3.
Dismissal of suit in equity, see "Equity," $ 4.
Presumption as to dismissal on merits, see "Appeal and Error," § 6.
Of injunction, see "Injunction," § 4.
Of estate of bankrupt, see "Bankruptcy," § 8.
As evidence in civil actions, see "Evidence," § 3.
The acceptance by a married woman, as a gift from her children
by a former marriage, of a part of the money received by them in pay-
ment for their interest in lands inherited from their father, in which
she had a life estate under the laws of Texas, did not estop her from
asserting her rights as life tenant as against the purchaser, where her
children did not undertake to convey anything more than their own
interest.
-Higgins Oil & Fuel Co. v. Snow, 113 Fed. 433......51 C. C. A. 267
§ 2. Rights and remedies of widow.
The statute of Texas governing "descent and distribution," after pro-
viding for the distribution of the personal estate of an intestate who
leaves a surviving husband or wife and children, further provides (Rev.
St. art. 1689) that "the surviving husband or wife shall also be entitled
to an estate for life in one-third of the land of the intestate, with re-
mainder to the child or children of the intestate or their descendants."
Held, that the word "land" is employed in such statute in its most com-
prehensive sense, and that a surviving husband or wife takes a one-
third interest for life in the land itself, as such, including not only the
surface, but also all minerals therein, and is entitled to a proportionate
share of the income or profit derived from the extraction of such min-
erals during his or her lifetime, whether operations were commenced
prior to the death of the decedent, or subsequently by the remainder-
men or owners of the other undivided interests.
-Higgins Oil & Fuel Co. v. Snow, 113 Fed. 433......51 C. C. A. 267
The land and marital laws of Texas are derived largely from the
civil law, and the life estate given thereby to a surviving wife in the
lands of her deceased husband is broader than the common-law dower;
such life estate being one which under the civil law could not have
been impeached for waste, and which would have carried with it the
right to open and work every kind of mines on the property.
-Higgins Oil & Fuel Co. v. Snow, 113 Fed. 433......51 C. C. A. 267
51 C.C.A.-46
Customs duties, see "Customs Duties."
Excise duties, see "Internal Revenue."
1. Right of action and defenses.
A defendant in ejectment may prove an outstanding paramount title
to defeat plaintiff's recovery without connecting himself with such title.
-West v. East Coast Cedar Co., 113 Fed. 737..........................51 C. C. A. 411
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Equitable estoppel, see "Estoppel," § 1.
Particular subjects of equitable jurisdiction and equitable remedies
See "Fraudulent Conveyances"; "Injunction"; "Receivers"; "Trusts."
Suits for infringement of patents, see "Patents," § 4.
§ 1. Jurisdiction, principles, and maxims.
A bill in equity, which alleges that the parties entered into a contract,
the performance of which was to extend over a term of years, and that
defendant, which is a corporation, has conspired with others to take
such action as will render it impossible to perform the contract on its
part, and will also render it insolvent, for the purpose of defeating the
rights of complainant, states grounds for equitable relief, and is not de-
murrable.
-Berliner Gramophone Co. v. Seaman, 113 Fed. 750..51 C. C. A. 440
A court of equity which has rightfully taken jurisdiction of a contro-
versy and has all the parties before it will retain such jurisdiction to
grant full relief, and may enjoin the institution and prosecution of an
action at law by one of the parties in any other court involving the
matters in controversy before it.
-Berliner Gramophone Co. v. Seaman, 113 Fed. 750..51 C. C. A. 440
2. Laches and stale demands.
Under the rule of decision in Texas, where the title of a complainant
to lands, upon which he bases his right to relief in equity, is a legal one,
capable of being established at law, the doctrine of laches and stale
claim does not apply, but his rights are barred only by adverse pos-
session; and on general principles equity will follow the law on such
question, where the jurisdiction is concurrent.
-Higgins Oil & Fuel Co. v. Snow, 113 Fed. 433.......51 C. C. A. 267
A bill by certain insurers to restrain separate actions at law by in-
sured against them and other insurers on their policies, under which
their liability, if any, is proportional, and to which actions the same
defense is interposed, and to have their liabilities determined in equity
under the bill, is not multifarious; all the insurers having a common
interest in defeating the claims of the insured.
-Virginia-Carolina Chemical Co. v. Home Ins. Co., 113 Fed. 1.....
51 C. C. A. 21
The granting of leave to file an amended and supplemental bill is a
matter within the discretion of the court, and its action will not be re-
viewed in an appellate court unless there has been a gross abuse of this
discretion.
-Berliner Gramophone Co. v. Seaman, 113 Fed. 750..51 C. C. A. 440
§ 4. Dismissal before hearing.
After the granting of a preliminary injunction by a circuit court, com-
plainant, by leave of court, filed an amended and supplemental bill
Defendant afterwards appealed from the order granting the injunction,
but the record on appeal did not show the amended bill, nor was it called
to the attention of the circuit court of appeals. That court, on the hear-
ing, ordered the dismissal of the bill. Held, that on the filing of the
amended and supplemental bill such bill, together with the original bill,
constituted one pleading and one record, and that the order of the ap-
pellate court, having been made upon a defective record, did not operate
to dismiss the bill as amended.
-Berliner Gramophone Co. v. Seaman, 113 Fed. 750..51 C. C. A. 440
5. Masters and commissioners, and proceedings before them.
A complainant is not entitled to a reference for an accounting,
where the allegations of the bill are denied in the answer, until there is
at least sufficient evidence to show the right to an accounting. An order
for an accounting will not be made to enable him to make out his case
before the master.
-Columbian Equipment Co. v. Mercantile Trust & Deposit Co., 113
Fed. 23...
..51 C. C. A. 33.
Of trusts, see "Trusts," § 2.
Decedents' estates, see "Executors and Administrators."
By judgment, see "Judgment," § 3.
To avoid or forfeit insurance policy, see "Insurance.” § 3.
To claim dower, see "Dower," § 1.
In a suit for infringement of a patent against a corporation and
person who is a stockholder and officer therein, the fact that the latter,
as an individual, may be precluded from denying the validity of the
patent, cannot affect the rights of his codefendant.
-American Coat Pad Co. v. Phoenix Pad Co., 113 Fed. 629...
Harmless error in admission of evidence, see "Appeal and Error," § 9.
Questions of fact for jury, see "Trial," § 2.
Reception at trial, see "Trial," § 1.
As to particular facts or issues.
Care in inspection of vessel, see "Shipping." § 2.
Fault of vessel causing collision, see "Collision," §§ 2, 3.
Public use of patented invention, see "Patents," § 1.
Right of bankrupt to exemption, see "Bankruptcy," § 9.
In actions by or against particular classes of parties.
See "Executors and Administrators," § 2; "Physicians and Surgeons."
Employés, see "Master and Servant," § 5.
In particular civil actions or proceedings.
See "Negligence," § 2.
Admiralty, see "Collision," § 6.
For personal injuries, see "Master and Servant," § 5.
For price of goods sold, see "Sales," § 4.
In criminal prosecutions.
For cutting timber on public land, see "Public Lands," § 1.
For violation of internal revenue laws, see "Internal Revenue."
§ 1. Relevancy, materiality, and competency in general.
The modern tendency is to extend, rather than to narrow, the rule as
to the admission of declarations as part of the res gestæ, especially in
view of the fact that the parties are now generally permitted to testify
in their own behalf, and to consider the grounds which formerly ex-
cluded such declarations as affecting their weight only.
--Jack v. Mutual Reserve Fund Life Ass'n, 113 Fed. 49..51 C. C. A. 36
In an action on a life insurance policy by one Jack, as assignee, it
was shown that the insured was a young man, recently married, and
poor, who had been employed as a laborer by plaintiff for a number of
years; that within a few months prior to his death his life had been
insured in all for $21,000, all the policies having been assigned to plain-
tiff, who paid the premiums thereon; that he died from poison, and one
Dr. Lipscomb had been convicted of his murder, for which offense also
plaintiff had been tried and acquitted; that on the day preceding his
death he was in town, and in and around plaintiff's store, as was also
Dr. Lipscomb, who had conversations with plaintiff; that about 4 in the
afternoon the doctor gave deceased a box, containing a single capsule,
and told him to take it before going to bed, which he did; that within
a few minutes thereafter he began to have convulsions, which followed
each other at short intervals, and in the third of which he died; that be-
tween the second and third convulsions, with the consciousness of im-
pending death, he made to his wife the following statement:
"I am
going to die.
Dr. Lipscomb killed me with a capsule he gave
me to-night, and Guy Jack had my life insured, and hired Dr. Lipscomb
to kill me." Held, that such statement as a whole, and each part of it.
was admissible in evidence on the part of defendant, under the circum-
stances shown and as against the objections made, as a part of the res
gestæ.
-Jack v. Mutual Reserve Fund Life Ass'n, 113 Fed. 49..51 C. C. A. 36
Defendant in such action, in support of a defense that plaintiff had
fraudulently procured the insurance and had murdered the insured, and
for the purpose of connecting plaintiff with the acts of Lipscomb, was
entitled to prove any fact which tended to show that they were acting
in concert; and evidence that they had been engaged together in ob-
taining fraudulent insurance on the lives of others was not inadmissible
because it tended to show the commission of other crimes by plaintiff.
-Jack v. Mutual Reserve Fund Life Ass'n, 113 Fed. 49..51 C. C. A. 36
Where plaintiff introduces evidence of the conversations and negotia-
tions between the parties before the exchange of letters constituting the
contract, evidence of such conversations and negotiations is admissible
on behalf of the defendant.
-Sun Printing & Publishing Ass'n v. Edwards, 113 Fed. 445......
51 C. C. A. 279
In support of an allegation of a conspiracy between plaintiff and an-
other to defraud a life insurance company by procuring the issuance of
the policy sued on on the life of the insured and then murdering him,
statements, declarations, or acts of the co-conspirator are not inadmis-
sible because made or occurring after the death of the insured, on the
ground that the object of the conspiracy had been accomplished, since
it was not in fact accomplished, under such allegations, until the col-
lection of the insurance.
-Jack v. Mutual Reserve Fund Life Ass'n, 113 Fed. 49..51 C. C. A. 36
The institution of a suit against a foreign corporation in North Caro-
lina is an admission on plaintiff's part that it is doing business and is
to be found within that state at the time.
-Southern Ry. Co. v. Mayes, 113 Fed. 84...........................51 C. C. A. 70
Plaintiff's request to charge that the jury should not disallow all his
bill because there are defects in the woodwork, but should deduct from
that bill on this account what it would cost, under the evidence, to put
the woodwork in as good condition as it should have been under the
contract, having been affirmed, is sufficient basis for the statement of
the court in its charge that plaintiff admits there are defects in the
woodwork, and has given evidence that they could be remedied at a
cost of not over $500, so as to make it an admission.
-Pitcairn v. Philip Hiss Co., 113 Fed. 492..
On an issue whether public land on which timber was cut by de-
fendant was mineral land, within Act Cong. June 3, 1878, authorizing
residents of certain mineral districts to cut timber on mineral lands, a
geological map of the territory in which the lands were located, issued
by authority of interior department, was admissible for use in connec-
tion with the evidence of witnesses, and to show the general nature of
the land described, its elevation and surroundings, and its situation with
relation to lands proven to be mineral, where not in any way purporting
to show the nature of the land in controversy, or to indicate that it was
mineral.
-United States v. Van Winkle, 113 Fed. 903..
4. Parol or extrinsic evidence affecting writings.
Where letters between plaintiff and defendant show a contract by
which plaintiff was employed as superintendent of defendant's printing
and mechanical departments for a certain term at a certain salary,
with power to employ and discharge all help, parol evidence is not
admissible, in an action against defendant for the wrongful discharge
of plaintiff, to show conversations and negotiations between the parties
prior to the exchange of letters, for the purpose of showing that the con-
tract actually made by the parties required plaintiff to bring with him
into defendant's service a force of competent compositors and stereo-
typers, etc., as such oral agreement, relating to the same subject-matter,
is not a collateral agreement which may be established by such evidence.
-Sun Printing & Publishing Ass'n v. Edwards, 113 Fed. 445.....
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