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decree of the Orphans' Court, granting letters of administration, founded on a petition and proofs, presenting a colorable case, of the decease of the alleged intestate, and as to his residence, cannot be called in question in a collateral proceeding: Plume v. Howard Sav. Ins., 17 Vroom.
CRIMINAL LAW. See Witness. Carrying Weapon.—On the trial of a defendant for carrying a pistol as a weapon, it is not necessary to prove that the pistol was loaded : State v. Wardlaw, 43 Ark.
Former Conviction, when a Defence.—A former conviction is a bar to any offence of which the defendant might have been convicted under the indictment and proof in the first case. And so when a defendant has been convicted under a valid indictment for unlawfully selling liquor, and under proof of several different sales in a given time, and the state made no election as to which it would prosecute, the conviction is a bar to a subsequent indictment for any sale to the same party within the same time: State v. Vunnelly, 43 Ark.
Husband and Wife, Coercion.—The laws of Kansas do not presume that a wife who unites with her husband in the commission of a crime acts under his coercion. On the contrary, the laws of Kansas presume that all persons of mature age and sound mind act upon their own volition and are responsible for their acts. The question whether a wife acted under the coercion of her husband or not is a question of fact, which should in all cases be left to the jury. State of Kansas v. Hendricks, 32 Kan.
DOMICILE. Stulent-Residence-Presumption.-Bodily presence and an intention by the student to remain in such a place only because a student, or only as long as a student, do not confer domicile; the intention must be more than to make the place a temporary home, or student's home merely ; it must be an intention to establish an actual, real and permanent home in such a place; to remain there for an indefinite period, regardless of the duration of the college course : Sanders v.Getchell, 76 Me.
The presumption is against a student's right to vote in such place, if he comes to college from out of town. His calling the place his home, or believing it to be his home, does not legally make it such. It is not his view of the facts that governs ; the facts themselves govern the question. Each case must depend upon its peculiar facts : I.
EASEMENT. Proof of.—To an action for maintaining an artificial structure on the defendant's land in such a manner that rain water which fell on the roof of the structure was thrown on the plaintiff's land, the defendant set up a right by prescription to have the water so flow : Held, that the burden of proof was on the defendant to show an open, continuous, and adverse use of such servitude ; and that the burden was not sustained by proof that the artificial structure had been in the same condition for more than twenty years : Hooten v. Barnaril, 137 Mass.
If the plaintiff in an action proves an invasion of his rights by the defendant, he is entitled to recover at least noininal damages : Id.
ELECTIONS. See Jumlamus.
EVIDENCE. See Expert. Lave of Other State-Judgment of Justice.- Matters of practice in another state may be proved by the testimony of lawyers skilled in the laws, usages and practice of the state : Blackwell v. Glass, 43 Ark.
A justice's judgment from another state can not be proved by a certified copy of his minutes like a certified transcript from a court of record. The original minutes must be produced, or a copy verified by the testimony of' witnesses who have compared it with the original: la.
EXECUTORS AND ADMINISTRATORS. Opening Account.-If the administrator of the estate of a deceased partner in a firm has made a settlement with the surviving partners, and his account, including the amount received from such settlement, has been allowed by the Probate Court, that court has no jurisdiction to open the account, upon the petition of the successor of such administrator, to which the surviving partners only are made respondents, on the ground that the settlement was induced by the fraud of the surviving partners: Blake v. Ward, 137 Mass.
EXPERT. Opinions of Non-professional Witness.- Non-professional witnesses, baving sufficient opportunities of observing a person alleged to be insane, or non compos mentis, may give their opinions as to his sanity or mental condition as the result of their personal observation, after first stating the facts which they observed : Boughman v. Buughman, 32 Kan.
HUSBAND AND WIFE. See Criminal Law.
INJUNCTION. See Corporation. Issued by Court without Jurisdiction. A writ of injunction issued in a matter over which the court has no jurisdiction is void, and no one is bound to obey it: Willeford v. State, 43 Ark.
JUDGMENT. See Corporation ; Evidence.
LIMITATIONS, STATUTE OF. Acknowledgment-Qualified Promise-Payment of by One Joint Promisee.-From an unqualified acknowledgment of a subsisting debt the law will imply a promise which will obviate the bar of the statute; but if there be anything in the admission to repel the inference of a promise to pay, no promise will be implied, and the acknowledgment will not enable the plaintiff to recover ; and if the acknowledgment be coupled with a promise which is qualified or conditional, peither the acknowledgment nor the promise will be available unless the condition has been performed, or the event happened, by which the promise is qualified : Parker v. Butterworth, 17 Vroom.
Defendant, a joint maker of a promissory note, in a letter written to the plaintiff, admitted that he signed the note as surety : “ It would be impossible for me to pay the note at this time; therefore I shall be in thousand times obliged to thee if thee will allow it to rest until John ” (the other maker) " or I, or both, are in better condition to liquidate it :” Jeli, to be a qualified promise by the defendant to pay when his circumstances had so improved that he had the ability to pay, and that the plaintiff could not make the promise available without affirmative proof of the substantial fulfilment of the condition : Id.
A payment on account by one joint promissor will not remove the bar of the statute of limitations as against a co-promissor in whose favor the statute had attached when the payment was made : la.
Whitcomb v. Whiting approved and explained. Channell v. Dilchburn, 5 M. & W. 494, and Goddurd v. Injram, Q. B. 839, disapproved : N.
Malicious PROSECUTION. Advice of Counsel.-In an action for malicious prosecution where the defendant claims that he acted under the advice of counsel, it is for the jury to say whether the fact, that the attorney and counsellor whose advice was sought was the attorney in a civil suit to recover of this plaintiff the sum alleged in the criminal proceeding to have been embezzled, made the attorney an improper person to consult-whether he was carrying on the suit under such circumstances and with such motives as prejudiced him and rendered him unfit to give fair and impartial advice in the premises : Wutt v. Corey, 76 Me.
Action for Arrest on Civil Process— Contempt.-An action for damages does not lie against a plaintiff for the arrest upon civil process of a defendant, who was at the time privileged from arrest as a witness (without a writ of protection) returning home from court. The remedy consists in an application for a discharge from arrest; the most expeditious mode being by summary motion to the eourt or some judge thereof: Smith v. Jones, 76 Me.
A person ordering an arrest of a witness upon civil process, may be punished for contempt of court for interference with its business : ld.
MORTGAGE. See Bills and Notes. What a sufficient Record— Notice.—The deposit of a mortgage by the mortgagee in the recorder's office for record, the endorsement on it by the clerk, of the date of filing, and the putting of it in the place in the office where unrecorded mortgages are kept for record, are sufficient to affect with notice all who subsequently deal with the property, though the mortgagee do not expressly direct it to be recorded, and the endorsement do not say filed for record :" Case v. Hargodine, 43 Ark.
A mortgage is filed within the meaning of the statute when it is delivered to the proper officer, and by him received for the purpose
of being recorded; and his neglect to make the proper endorsement upon it, or to record it, will not prejudice the mortgagee : Id.
MUNICIPAL CORPORATION. Power to License Drays-- Police Regulation, Taxation. The power to regulate wagons, drays, &c., conferred by the Municipal Corporations Act of March 9th 1875, includes the power to license as a means of regulating: Fort Smith v. Ayers, 13 Ark.
A license fee demanded by a municipal corporation for running a dray, when imposed as a mere police regulation and got as a measure for raising revenue, is not a tax upon an occupation, but a compensation for issuing the license, for keeping the necessary record and for municipal supervision orer the business: Id.
If a license upon an occupation is so large as to have been manifestly imposed by a city for the sole or main purpose of revenue, it is, in effect, a tax upon the owner or his property, and not within the power conferred by the statute : Id. NEGLIGENCE. See Master and Servant; Railroad.
PARTNERSHIP. Purchase by Purtner from Firm.—One partner may acquire title to partnership property by purchasing from the copartnership, and if the purchase is not made with the intent to hinder, delay or defraud the creditors of the copartnership, and the property purchased is such as is exempt from levy and sale on execution under the statutes of the state, may hold it as against creditors of the copartnership: Burton v. Baum, 32 Kans.
RAILROAD. See Corporation.. Damages— Trustees for Bondholilers—New Corporation-Liability.Where trustees of the bondholders are in possession and operating a railroad, under a mortgage for the security of bondholders, they are liable, to the extent of funds received by them in operating the road, to keep the road, buildings and equipments in repair, furnish such new rolling stock as is necessary, pay the running expenses and apply the balance to the payment of any damages arising from misfeasance in the management of the road, and after that to the mortgage, as the rights of the parties may require. A claim for damages to property by fire, commupicated by a locomotive while passing along its track at a time when the road was in the possession of and operated by such trustees, does not depend upon proof of malfeasance or negligence, but is an incident to the running of the road, and may be considered a part of the running expenses, and is therefore an equitable lien upon the funds liable in the hands of the trustees : Stratton v. European and North American Rail
way, 76 Me.
Where such trustees have paid and conveyed to a new corporation, formed by the bondholders, any such funds upon which there was such a lien to that extent the new corporation would be liable in equity to the person suffering the damage : Id.
In such case the bill should contain averments that at the time of the alleged injury and demand for payment, the trustees had in their hands or under their control any such funds, or that they subsequently conveyed any such funds to the new corporation : Id.
RECEIVER. See Corporation.
REMOVAL OF CAUSES. Separable Controversy- What is not.-The fact that separate answers Were filed which raised separate issues in defending against one cause of action, does not create separate controversies within the meaning of the second clause of Sect. 2, of the Act of March 3d 1875. They simply present different questions to be settled in determining the rights of the parties in respect to the one cause of action for which suit was brought : dyres v. Wiswull, S. C. 0. S., Oct. Term 1884. TAXATION. See Municipal Corporation.
TRUSTEES. Exercise of Jurigment-Repairs.—Where a trust deed requires the trustees to care fur, manage and keep the trust property according to their “ best judgment,” it is their discretion which the grantor confided in and not that of the court. If not exercised in good faith the court may interfere, but not otherwise. It is for the trustees to decide whether repairs shall be temporary or permanent: Veazie v. Forsaith, 76 Me.
TRIAL. Interpretation of Contract-Submission to Jury. It is the province of the jury to find what words were used and the meaning of them, where an oral bargain is made. But the court may inform the jury what interpretations of the language used would be possible and permissible, and the jury must determine the meaning within the limits prescribed; Connor v. Giles, 76 Me.
a judge may with hold a case from the consideration of the jury when there is no evidence upon which they can in any justifiable view find for the party producing it, upon whom the burden of proof is imposed : Id.
It is not enough to require submission to a jury, that there may be a crumb or scintilla of evidence. It must be evidence of legal weight: Id.
TROVER. Refusal to Deliver.—An unqualified refusal to deliver goods to an owner upon demand, by one in whose custody they were left by an officer who had taken them without authority, is a ground for an action in trover: State v. Stevenson, 17 Vroon.
WILL. Omission of Child.—Under a statute providing that a child unintentionally omitted from a will should take a pro rata share the child is not entitled, if the omission of a child from his father's will is intentional, although the testator would not have entertained such intention but for a mistake as to the legal effect of matters outside of the will: Hurley v. O'Sullivan, 137 Mass.
WITNESS. See Expert, Reputation- Evidence.--Evidence of the character and present reputation for truth of a witness is admissible to rebut evidence of his conviction of crime: Gertz v. Fitchburg R. R. Co., 137 Mass.
Evidence is inadmissible, to rebut evidence of the conviction of a witness of crime, that he was innocent of the crime, and in explanation of his conviction ; ld.