2. Where debtor has been legally arrested by sheriff under ca. sa. running
in name of people, and is enlarged on bond for his appearance, on day set for
hearing of his application for discharge, court, on refusing discharge, may order
him back into officer's custody without process in name of people, and this may
be verbally done. People v. Hanchett, 274.
ESTOPPEL. See AGENT, 4. COMMON CARRIER, 9. CONTRACT, 6. CORPO-
RATION, 2. DEBTOR AND CREDITOR, 6. EXECUTION, 4. HUSBAND AND
WIFE, 8. REMOVAL OF CAUSES, 7.
If A. is informed by B., adjoining owner, that B. proposes to erect wall on
his own land, at his own expense, and A. assents to building of wall according
to B.'s line, as established by survey of C., A. is not estopped to maintain writ
of entry against B., after wall has been built, for land erroneously included in
such survey, if in so assenting he acted under mistake of fact. Proctor v. Putnam
Co., 212.
EVIDENCE. See AccoUNT, 1. ADMIRALTY, 3. AGENT, 7-9. ATTORNEY, 3.
BURDEN OF PROOF. CORPORATION, 19. CRIMINAL LAW, 2, 4, 13-16, 18,
20, 22, 26. DAMAGES, 1, 5. EASEMENT, 1. EQUITY, 8, 22. EXPERT.
FRAUDS, STATUTE OF, 11. HIGHWAYS, &C., 2, 6, 7, 9. INFANCY, 4. IN-
SURANCE, 8, 9, 14. INTOXICATING LIQUORS, 1. NEGLIGENCE, 7, 8, 11, 30.
PARTNERSHIP, 7, 12, 13. POSSESSION, 3. SUNDAY, 4. STATUTE, 3. TELE-
GRAPH, 5. TORT, 3. TRIAL, 1. UNITED STATES COURTS, 2. WITNESS.
1. Matters of practice in another state may be proved by testimony of law-
yers in that state. Blackwell v. Glass, 77.
2. Justice's judgment from another state cannot be proved by certified copy
of his minutes. The original minutes must be produced, or copy verified by
witnesses who have compared it with original. Id.
3. In action for personal injuries court may, in proper case, at the trial direct
plaintiff to submit to personal examination by physicians on behalf of defendant.
White v. Railway Co., 527, and note.
4. But it is not error for court to refuse to so order, in absence of any show-
ing that justice would be promoted thereby, and especially so when plaintiff
submits to such examination in presence of jury. Railroad Co. v.
Finlayson,
532, and note.
5. When official reporter is not present at trial to take down exact words-
court having made no minutes-and counsel disagree as to what witness said
on material matter, question is for jury; and this although defendant moved
for nonsuit. Porter v. Platt, 752.
6. In such case testimony of attorney, with his minutes taken on trial, is not
admissible to strengthen or weaken that of witness given on same trial. Id.
7. Whether physician is qualified to testify as an expert upon questions of
insanity, is question of fact for presiding judge, whose decision will only be
reviewed in extreme cases. Fayette v. Chesterville, 799.
8. Skilful and reputable physicians, although not expert upon subject, may
testify to mental condition of their patients when they have adequate oppor-
tunity of observation. But this does not embrace case where single examina-
tion was made by physician to qualify himself as witness in pending litigation.
Id. See EXPERT.
9. In action for personal injury plaintiff's attending physician testified that
he had examined plaintiff, who stated the symptoms, and that he had suffered
pain. Being asked whether plaintiff was feigning or making believe," wit-
ness answered, "No, sir; I know he did not, from examination and tests.
Held, that with the explanation as to his means of knowledge, there was no
error in admission of evidence. Chicago Railroad Co. v. Martin, 483.
10. It does not even require an expert to know existence of pain from nature
of injury and patient's outward manifestations. Id. See also Tierney v. Rail-
way Co., 669
11. Directions given to stranger with reference to delivery of baggage, by
baggage-master while away from baggage-room of company engaged in trans-
action of his own private business, are not binding on company. City v. Ray-
nard, 212.
12. In prosecutions for assault words uttered during continuance of main
transaction or so soon thereafter as to preclude hypothesis of concoction or pre-
meditation, whether by active or passive party, if relevant, may be proved as
any other fact, without calling party who uttered them. Flynn v. State, 274.
13. Party cannot call and examine witnesses to support general character of
another witness, or himself, as a witness, for truth and veracity, until character
of witness has been directly assailed. Tedens v. Shumers, 545.
14. That due bill is found in hands of maker is prima facie evidence of its
payment. Id.
15. If plaintiff shows by preponderance of evidence that defendant owes him
on due bill, notwithstanding its surrender, defendant must overcome that evi-
dence by a preponderance, to defeat recovery. Id.
16. Contradictory declarations of witness, whether oral or in writing, made
at another time, cannot be used for purpose of impeachment until witness has
been examined upon subject, and his attention particularly directed to the cir-
cumstances in such way as to give him full opportunity for explanation or excul-
pation, if he desires to make it. The Charles Morgan, 682.
17. If contradictory declaration is in writing, questions as to its contents,
without production of instrument itself, are ordinarily inadmissible. Circum-
stance may, however, excuse its production. All law requires is that memory
of witness be properly refreshed, which court is to determine. Id.
18. Where A., desiring to talk over telephone with B., asked operator to
call him, and operator thereupon had conversation with B., reporting to A., who
was standing by, what B. said as it came over the wire, held, in subsequent
action between A. and B., former might prove, by himself and others, what
operator reported to him as coming from B., operator being called and not
remembering conversation. Sullivan v. Kuykendall, 442, and note.
19. Fact of mailing letter, properly addressed, with postage prepaid, creates
no legal presumption that it was duly received; but is merely to be weighed
along with other evidence in determining the question. Id.
20. On question of pedigree declarations are admissible: 1. When it appears
by evidence dehors, that declarant was lawfully related by blood or marriage to
person or family whose history the facts concern; 2. That declarant was dead
when declarations were tendered, and 3. That they were made ante litem
motam. Rule applied in determining rightful distributees of intestate's estate,
as to declarations of intestate's sister that claimant was natural son of intestate.
Northrop v. Hale, 143.
21. In course of negotiation for lease, a paper was partly written by defend-
ant and handed to plaintiff, and by him interlined and returned to defendant,
which paper was not signed by either of the parties. On trial question was
whether terms of lease were those mentioned in paper only, or there were other
terms agreed upon outside of it. Held, that paper was admissible as part of
res gesta. Freeman v. Bartlett, 747.
22. THE LAW OF JUDICIAL NOTICE, 553.
EXECUTION. See EXEMPTION.
1. Merchant tailor, who is head of family and resident, is entitled to exemp
tion of such portion of his stock as he may select up to statutory limit of value ;
and this right is absolute, and does not depend upon any claim or selection to
be made by him. Rice v. Nolan, 275.
2. Claim of exemption on morning preceding sale upon order of attachment,
is not too late. Id.
3. Where stock in trade of debtor is mortgaged, he is entitled to an exemp-
tion of his own selection, free of all liability from debt up to full value of $400.
Id.
4. Where exempt property of defendant has been levied on by attachment,
and a few days before sale thereof defendant makes assignment for benefit of
creditors, with no reservation of such exempt property, but no proceedings are
taken under such assignment, and where plaintiff's do not claim the property
thereunder, and are not influenced or prejudiced thereby, defendant is not
estopped as against such plaintiffs from thereafter claiming attached property as
exempt. Id.
EXECUTORS AND ADMINISTRATORS. See ACTION, 3, 7. CORPSE, 1, 2.
FRAUDS, STATUTE OF, 9. REMOVAL OF CAUSES, 6, 8. WITNESS, 4.
executor will not enlarge or transfer
Long v. Long, 212.
1. That same person is both trustee and
the powers from one capacity to the other.
2. A. died in Connecticut and letters of administration were taken out there.
There were no claims in Rhode Island against estate of A. Held, that Con-
necticut administrator could endorse promissory note due estate of A., so as to
enable endorsee to bring suit on note in Rhode Island. Mackay v. Church,
683.
3. Promissory notes given to two joint administrators for debt due estate of
intestate, may be transferred and endorsed by one of them. Id.
4. If administrator of deceased partner has settled with surviving partners,
and his account has been allowed by Probate Court, it has no jurisdiction to
open account upon petition of administrator's successor, to which surviving
partners only are made respondents, on ground that settlement was induced by
their fraud. Blake v. Ward, 77.
5. When bill in equity was brought by administrator to set aside as fraudu-
lent against creditors conveyances made by deceased, and it did not appear
whether administrator held sufficient assets to pay expenses of administration;
Held, that the bill instead of being dismissed might, if administrator lacked
funds to defray expenses of administration, be amended by setting forth this
fact and by adding creditors. Estes v. Howland, 799.
6. THE POWER OF AN EXECUTOR WITH THE WILL ANNEXED OVER HIS
TESTATOR'S REAL ESTATE, 689.
EXEMPTION. See EXECUTION. PARTNERSHIP, 3. PATENT, 2. PENSION, 1.
Insolvent debtor who sells property which is subject to execution, and with
proceeds immediately purchases exempt property, will be presumed to have
done so with intent to hinder, delay or defraud his creditors; but property so
purchased does not cease to be exempt. Only remedy of creditors is by
attacking sale of non-exempt property. Comstock v. Bechtel, 748 and 783,
and note.
EXPERT. See EVIDENCE, 7, 8, 10. HIGHWAY, 7.
Non-professional witnesses having sufficient opportunities for observation
may give their opinions on question of insanity, having first stated the observed
facts. Boughman v. Boughman, 77.
EXTRADITION. See CRIMINAL LAW, 11, 12.
FACTOR. See BAILMENT, 2-4. CONTRACT, 5.
FENCE. See FIXTURE, 3.
See CONSTITUTIONAL LAW, 1. NEGLigence, 5.
1. Boards in corn barn. used for permanent floor, and stone posts, deposited
upon farm for building necessary fences. Hackett v. Amsden, 748.
2. Trespass de bonis is proper form of action to recover for boards and posts;
as claim was not for breaking and entering, but for taking and carrying
away. Id.
3. Fence built by one person on land of another under parol agreement that
it might be removed at will of builder, becomes a fixture which will pass with
grant of land to bona fide purchaser without notice. Rowand v. Anderson, 483.
FOREIGN CORPORATION. See CORPORATION, 30.
FORGERY. See CORPORATION, 29.
FORMER RECOVERY. See HUSBAND AND WIFE, 27.
1. Damage to goods and injury to person, occasioned by one act, give rise to
distinct causes of action. Brunsden v. Humphrey, 369 and note.
2. A., claiming to be injured by collision with certain teams left in highway
by B., brought action against B. to recover damages. B. obtained judgment.
Held, that this judgment was bar to subsequent suit against town. Hill v.
Bain, 683.
3. A. recovered judgment in assumpsit against B. for money loaned; A.
afterwards brought case against B. for alleged fraudulent and false statements
to obtain loan. Held, that judgment in assumpsit could not be pleaded in
bar; but that value of judgment in assumpsit was to be considered as pro tanto
reducing the damages. Whittier v. Collins, 799.
4. Plaintiff was owner of certain land, and in 1867 and in 1868, but not
afterwards, defendants worked seam of coal lying under and near to plaintiff's
land, which subsided in consequence, and the injury was repaired by de-
fendants. In 1882 a second subsidence and injury occurred from same cause.
Held, that plaintiff was entitled to maintain action for damage done in 1882,
and that he was not barred by Statute of Limitations. Mitchell v. Darley Co.,
432, and note.
COMMON CARRIER, 16. CORPORATION, 26, 27,
29. DEBTOR AND CREDITOR, 4, 5. EXECUTORS AND ADMINISTRATORS, 4.
HUSBAND AND WIFE, 23, 24. INSURANCE, 26. MORTGAGE, 22. NEGO-
TIABLE INSTRUMENT, 2. PLEADING, 1. POSSESSION, 2. LIMITATIONS,
STATUTE OF, 8. TORT, 6. TROVER, 1. WILL, 11.
1. Party not excused for want of care and prudence in signing contract with-
out reading it, if capable of reading, unless induced to do so by wilfully false
statements of party procuring his signature. Linington v. Strong, 275.
2. What is negligence in signing contract without reading same is question
for jury; it is not proper to select certain facts, and tell jury that they afford
no evidence of negligence or want of proper care. Id.
3. To support action, false representation need not be adrressed directly to
plaintiff, if made with intent to influence every person to whom it may be com-
municated. Not essential that misrepresentation be sole inducement to purchase.
Carvill v. Jacks, 275.
FRAUDS, STATUTE OF. See CONTRACT, 4. EXECUTORS AND ADMINIS-
TRATORS, 5. EXEMPTION. PARTNERSHIP, 3. SPECIFIC PERFORMANCE, 3.
1. Does not require that all terms of contract shall be agreed to or written
down at one time, nor on one piece of paper; but the paper signed must be con-
nected with the other papers by internal evidence. North v. Merdel, 143.
2. Parol or simple contracts for sale of growing timber to be cut and severed
from land by vendee do not convey any interest in lands, and are not therefore
within statute. Banton v. Shorey, 799.
3. Doctrine of part performance to take parol contract for sale of land out
of statute, does not apply to contracts between tenants in common. Haines v.
McGlone, 418.
4. Where one tenant in common by parol contract sells his moiety of land to
co-tenant, and afterwards repudiates contract and conveys to another pur-
chaser with notice, latter cannot recover in equity except upon return to co-tenant
of his purchase-money and half of all taxes and cost of improvements paid by
him, and interest.
5. When relied upon in defence to action for breach of contract, on ground
that it was not to be performed within year, should be pleaded specially. Far-
well v. Tilson, 143.
6. To defeat application of statute by happening of contingency, it must be
such as renders performance of contract possible within year. Id.
7. Effect is to be given to oral contract if proved, unless upon whole case it
appears affirmatively that it is not to be fully performed within year; it is not
sufficient that it may not be.
8. In determining question of time of performance of contract, it is proper
to consider circumstances and situation of parties, so far as kuown to each other,
and subject-matter of contract.
Id.
9. Promise of executor to pay $5000 to one of testator's heirs-at-law, who
received nothing under will, in consideration that he would forbear further op-
position to probate of will, claimed to have been made through undue influence,
is not within statute, and such forbearance is sufficient consideration. Bellows
v. Sowles, 620.
10. G. was refused credit by P.: M., who employed G. at time, told P. to
let G. have goods, and he would see it paid. The credit was given to M. and
was refused to be given to G. Held, that M.'s promise was an original under-
taking. Maddox v. Pierce, 343.
11. Plaintiff's house being mortgaged, he entered into parol contract with
defendant to purchase mortgage, sell house, and after satisfying mortgage debt,
costs, &c., to pay balance to plaintiff. Held, that plaintiff in assumpsit could
recover this balance and that contract was not within Statute of Frauds. Mc-
Ginnis v. Cook, 620.
12. REFORMATION IN EQUITY OF CONTRACTS VOID UNDER THE STATUTE
OF FRAUDS, 81.
13. VALIDITY OF BONA FIDE VOLUNTARY CONVEYANCES BY SOLVENT
DEBTORS, AS Against Prior Creditors, 489.
GAMBLING. See CRIMINAL LAW, 21.
GARNISHMENT. See ATTACHMENT.
GAS COMPANY. See CORPORATION, 13.
1. To establish gift causa mortis evidence must show not only that person in
extremis distinctly designated thing given and donee, but also that property was
presently to pass, and delivery. Newton v. Snyder, 418.
2. Delivery to third person for donee, is sufficient; but delivery to agent to
perform act or make delivery only after giver's death, would amount to nothing.
Id.
3. Deed for interest in land, unlike a will, must take effect upon its execu-
tion; but it may be good as voluntary settlement, though it be retained by
grantor in his possession until his death, when circumstances, aside from reten-
tion of deed, do not show grantor did not intend it to operate immediately.
Cline v.
Jones, 418.
1. Following letter was held not to create a continuing liability:
men: The bearer of this letter, my son-in-law, *** wishes to place a stock
of groceries in his provision and meat store, in this place. To enable him to
do this, I am willing to be responsible to you for the amount of groceries he
may order of you." Knowlton v. Hersey, 144.
2. In suit upon guaranty of payment of note owned by bank, fact that bank
held, before suit, assignment, through trustee, of patent right and some claims
for damages for alleged infringement, and was offered more for these than
enough to have paid note, such assignment having been made by principal
debtor; which patent and claims afterward prove valueless from adverse ruling
of courts, will not discharge guarantor, although he may have urged bank to
accept offer. It was bank's duty, as trustee, to obtain largest sum that could
be realized, and making mistake, while acting in good faith, will not subject
bank to loss. Kaufman v. Loomis, 144.
1. Guardian appointed in one state, of ward domiciled in another, where law
of latter is less strict as to investments of a guardian than that of former, will
not, in absence of express statutory requirement, be held to the more rigid
rules of state of his appointment, when be has faithfully and prudently exer-
cised his discretion. Lemar v. Micon, 144.
2. Former guardian of plaintiff's ward pledged to defendant bank to secure
his own note two negotiable bonds owned by ward, on which was endorsement
tending to show ward's ownership, and which was seen by cashier at time of nego-
tiation. Held, 1. That defendant was put upon inquiry, and that it was not
sufficient to only inquire of guardian. 2. That plaintiff could recover bonds in
action of replevin. 3. That settlement of guardian's account in Probate
Court did not affect title to bonds. Langdon v. Bank, 620.
HABEAS CORPUS. See CRIMINAL LAW, 5.
HIGHWAYS, STREETS, BRIDGES. See CONSTITUTIONAL LAW, 26, Mu-
NICIPAL CORPORATION, 6, 7. NEGLIGENCE, 1, 3, 6, 12, 36. WAY.
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