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1. Use of street or sidewalk after notice that it is out of repair, is not neces.
sarily negligence. City v. Schmidling, 483.

2. In action against city to recover for personal injuries alleged to have
resulted from defective sidewalk, fact that walk was removed by city authori-
ties and better one substituted soon after injury occurred, may be considered as
circumstance tending to show that walk removed was out of repair, but it is no
evidence that city authorities had knowledge of defect before occurrence of
injury. Id.

3. Owners of bridge across navigable stream must use reasonable diligence
to prevent such accumulation of drift about bridge piers, either above or below
surface of water, as might endanger navigation. St. Louis, góc., Railway Co. v.
Meese, 622.

4. Owner of land through or along whose property public highway runs, has
absolute right to use portion of same for certain purposes, for temporary perioul
and in reasonable manner, taking care not to expose an object calculated to
frighten ordinarily gentle and well trained horses. Piollet v. Simmers, 235, and

5. Travelling on Sunday cannot be set up as a defence by one sued for an
illegal obstruction of a highway. Id.

6. Where in such a case plaintiff had proved that other horses had been
frightened by the object in question, evidence was admissible to show that these
horses were skittish. Id.

7. The horse having fallen and died, witnesses familiar with horses may be
asked their opinion as to whether the object was calculated to frighten the
horse, and whether the mere fall or the fright could have killed him. Id.

8. Use of velocipedes upon sidewalk of street not necessarily unlawful.
Purple v. Greenfield, 484.

9. Opening about foot and half deep, little more than foot in width, and two
feet and a half long, was made six inches from line of sidewalk in town, to far.
nish light and air to a cellar. There was nothing to indicate where line of
sidewalk ended. Opening had existed for some months, and was covered by
loose board, and was known to be so covered by chairman of selectmen of town.
While board was off, traveller stepped into opening. Held, that jury were
authorized to find that town had reasonable notice of hole, insecurely guarded,
near highway. Id.

10. Town is not bound to erect barriers to prevent person trarelling with
horse and wagon from straying from highway, although there is dangerous
place 34 feet from marked travelled part of highway, and 94 feet from line of
location of highway, which he may reach by so straying. Barnes v. Chocopee,


Notes, 8. Criminal Law, 1. INSURANCE, 17. LIMITATIONS, STATUTE

1. Marriage, Divorce, and Alimony.

1. Guardian of insane woman cannot maintain action against woman's hus-
band for divorce and alimony, or for alimony alone. Birdsell v. Birdsell, 481.

2. Articles of separation which contain no express stipulation against divorce,
are not per se bar to divorce for causes existing prior 10 execution of articles.
Fosdick v. Fosdick, 681.

3. That liberal divorce law of Rhode Island influenced petitioner for divorce
to come there, does not make him any the less a domiciled inhabitant of state,
if he came bona fide to reside permanently. ld.

4. Widow cannot maintain action against administrator of deceased husband,
for fees of her counsel for prosecuting suit against husband for divorce a mensa
et thoro, pending which suit he died. JcCurley v. Stockbridge, 344.


5. But counsel themselves can maintain such action, if it be made to appear
affirmatively ihat the divorce suit was justitiably instituted. JcCurley v. Stock-
bridge, 344.

6. In absence of any statutory prohibition, marriage at common law may be
had per verla juturo cum copula ; but the copula must be in fulfilment of the
aprecment to marry, or in consummation of such contract. For the copula to be
available, partics must at time have accepted each other as husband and wife.
Stoltz v. Doering, 515.

7. Any unjustitiable conduct on part of husband which so grierously wounds
mental feelings of wife as to seriously impair her health, or such as utterly
destroys the legiumate objects of matrimony, constitutes extreme cruelty,
although no personal violence is eren threatened. Arery v. Avery, 276.

8. In 1864 Henry First, resident of Knox County, Ohio, absconded, desert-
ing his wife and children, and nothing was heard of bim in that community
until 1880. In 1873 land in said county belonging to him in common with
others, was partitioned at suit of co-tenants, and his share of proceeds came to
custody of Brent, Clerk of Common Pleas. In 1879, with his wife's assent,
probate court appointed Bennett administrator of W. H. First, supposing that
to be true name of absentee, and he collected froin Brent $174.21, the said
share of said proceeds. In October 1880, First demanded said sum from Brent,
and brought suit. Held, in absence of showing to contrary, presumption, from
facts stated, is that moves was paid to wise, who was entitled to a year's sup-
port, on supposition that husband was dead ; and that, as she was entitled to
support out of his property during life, First's conduct estops him from claiming
that payment to her was unauthorized. Brent v. First, 212,

II. Curtesy and Dower.

10. Under French law, hy marriage without contract as to property, com-
munity of property between husband and wife is established as an incident of
marriage. During coverture husband has control and management of commu-
nity property, and he may dispose of his half by will. Will of whole of his
property marle by husband before marriage will not defeat wife's right. Harral
v. Ilarral, 344.

ll. Person sui juris may change his domicile as often as he pleases. Natural-
ization in adopted country is not necessary. Id.

12. To effect change of domicile there must be voluntary and actual change
of residence with animus manendi. Id.

13. By French law marriage of foreigner in France without any contract as
to property, followed by establishment of conjugal domicile in France, will sub-
ject property of married persons to community law, and government author.
ization under Article XII. of code is not necessary to establishment of such
domicile, ld.

14. Husband with conjugal domicile in France was brought to this country
in 1878 and sent to hospital for insane in Philadelphia, where he died in 1881.

Held, that there was no change of domicile. Id.
III. Separate Estate. See infra, 25, 27, 31-33.

15. Judgment obtained by husband and wife against railway company, for
injuries sustained by wife, cannot be attached for debt of husband. Clark v.
Wooten, 545.

16. Goods purchased by married woman on credit are not her separate pro-
perty ; nor can she acquire title to any property or business upon the credit of
its after-production. Lienbach v. Templin, 127, and note.

17. Where wife claims property as against husband's creditors, she must
show affirmatively, that she paid for it with her own separate funds. Id.

18. Feme coverthrought suit for personal tort by hier next friend. It
appeared on face of declaration that she had husband living. On general
demurrer, held, that suit should have been brought in name of husband and
wife jointly. Treusch v. Kamke, 748.

19. Suit at law will not lie on promise of husband to repay to wife moneys
received by him for her during coverture ; but will against husband's executors


on promise made by them officially to pay moneys so received by husband.
Rusling v. Rusling, 748.

20. Son advanced money to mother for her support, under agreement that
he should be repaid at her death out of her estate. Son procured froin wife the
money advanced, agreeing that she should have account against his mother.
Equity will enforce the claim in behalf of wife. Titus v. Hougland, 344.

21. Parol assignment to wife being unknown to mother, counter-claim which
she had against son at her death will be set-off against claim of wise. Id.
IV. Torts, Contracts, Conveyances, gc. See ante, 16, 18.

22. Legislation of New Jersey does not give married woman capacity to
make legal contract with her husband. Farmer v. Furmer, 418.

23. Wife may give her property to her husband, or make contract with him
which will be upheld in equity, but courts always examine such transactions
with anxious watchfulness and dread of undue influence. Id:

24. Where contract is made by parties holding confidential relations, the
burden, if contract is assailed, is on stronger party to show no advantage was
taken ; otherwise fraud will be presumed. Id.

25. Contract by which married woman charges her separate estate in equity,
need not be in writing. Elliott v. Luuhead, 484.

26. Action founded on such contract, where personal judgment against mar-
ried woman is not authorized, is cognisable only in equity. Id.

27. Prior action to recover money judgment, in which it is sought to reach
same separate property by attachment, in which plaintiff fails, is no bar to
equity suit to charge such separate property. Id.

28. Where by statute married woman is given use and disposition of her
earnings and property, husband is not responsible for her torts not committed
in his presence or by his direction. Norris v. Corkill, 135.

29. Under statute empowering married women to carry on any trade or busi-
ness on ber sole and separate account, she is not authorized to become her
husband's partner. Fairlee v. Bloomingdale, 648, and note.

30. Where married woman, having separate estate or business, employs hus-
band to manage same, and agrees to pay him stated compensation, a chose in
action in his favor against her is created, which, on her failure to pay, can be
reached by judgment creditor of husband. Kingman v. Frank, 469, and note.

31. Married woman who purchases real estate at trustee's sale, made under
direction of court of equity, and who only pays part of purchase-money, is
personally liable for balance. Fowler v. Jacob, 343.

32. Decree in personam against feme covert for such balance, means only that
unless by given time she pays such balance, any of her separate property which
she would have right to pledge in order to pay or secure a debt, may be taken
in execution to pay what she owes on her purchase. Id.

33. Married woman has power to charge her separate property with payment
of her debts, and whether she does so or not, is question of intent ; which may
be shown on face of obligation creating debt, or aliunde. Id.


GENCE, 12, 13, 35, 41.


1. Executed note for horse ; before majority rescinded contract, tendered
horse to payee (refused) and demanded note. Iteld, that avoidance and tender
annulled contract on both sides ab initio. Hoyt v. Wilkinson, 683.

2. Deed of intant may be avoided after maturity, hy any unequivocal act; a
reconveyance to another, not in privity with first grantce, disaffirms first deed;
and this, whether last be quit-claim deed, or deed with covenants of warranty.
Bagley v. Fletcher, 419.

3. Deed of infant will pass his estate subject to disaffirmance after maturity,
but covenants in his deed are absolutely void. Id.


4. Infancy of defendant, in action for goods sold and delivered, cannot be
proved by aihdavit made in chancery suit, to which plaintiff was not a party,
by defendant's father, since deceased ; there being no question of pedigree in
the case. Huines v. Guthrie, 170, and note.

5. When in court as suntor or defendant, becomes ward of court, whose duty
it is to see that his rights are proiected. If general guardian fails to appear,
court should appoint guardian ad litem. And if the guardian fails to properly
protect interests of ward, it is duty of court, sua sponte, to conipel him to do so,
whenever fart comes to knowledge of court. Court should see that proper
pleadings are made to present infant's defence. Lloyd v. Kirkwood, 621.

6. Where bill to establish and enforce resulting trust as against infant heir,
showed upon its face that alleged trust arose twenty-five years before suit, and
court rendering decree therein against infant failed to require guardian ad litem
to set up laches in defence, held, that court was justified in setting decree aside
on bill tileil by infant. Id.

7. An infant sued by prochein ami. Afterwards attorney employed by infant
dismissed suit at her request. Motion was subsequently made by prochein ami
to reinstate case. On appeal from overruling of this motion, held, 1. That
infant was incompetent to appoint attorney or take any step in suit which could
bind her rights. 2. That court below was in error in refusing to reinstate suit.
3. That appeal could be taken from such refusal. 4. That infant, after reach-
ing twenty-one, could n t ratify and approve act of her attorney. Where infant
sues by prochein ami, latter is only person authorized to prosecute suit, and is
responsible for costs. While court, after majority of infant, can discharge
prochein ami, and give intant control of suit, it must make such equitable order

as will protect former from costs. Wainwright v. Wilkinson, 213.
INJUNCTION. See Action, 5. CORPORATION, 9, 10, 22, 23. EQUITY, 13.


1. Issued when court has no jurisdiction, void. Willeford v. State, 77.

2. May issue to restrain active waste on property in litigation. Ehardt v.
Boaro, 345.

3. Is proper remedy to prevent collection of taxes hy distraint upon railroad
property, after tender of payment in tax-receivable coupons. Alen v. B. ģ

0. Railroad Co., 484.

I. Life.

i. Assignment of policy to person having no insurable interest, not void.
Mut. Co. v. Allen, 485.

2. Policy not avoided by omission in application to state slight disorders.
Ins. Co. v. Trust Co., 55.

3. Sum insured was by policy pavable to wife or legal representatives of
assured. Held, that wife was entitled to this sum if she survived ; if not, his
executor or administrator. Johnson v. Van Epps, 144.

4. In such case, whatever may be right of assured during lifetime of wife,
after her death he will have same power over policy as if it had been originally
payable to himself, his executors and administrators. Id.

3. Insurance of one's own life for benefit of one not a relative, is not void.
But if it were, only insurer can raise question : heirs of insured cannot. ld.

6. Although notices issued by insurance company required premiums to be
paid at 12 m., on day they fell due, yet where no such stipulation was in policy
itself, and, according to course of all previous dealings between it and assured,
literal compliance with this requirement had not been exacted, if right to do so
existed at all, it was waived, and company could not insist on literal compli-
ance without notice before day of payment. Ins. Co. v. Garmany, 145.

7. Where policy provided for payment of premiums annually, and gave
assured right to continue insurance, if, after policy had been continued for sev.
eral years, company improperly refused to receive further premiums or to con


tinue insurance, on suit brought therefor by assured, measure of damages wns
amount of premiums paid with interest. Ins. Co. v. Garmany, 145.

8. If declaration on policy refers to it without annexing copy, and does not
set up contract inconsistent with policy, objection, when policy is offered in
evidence, that there is variance between policy and declaration, cannot be
maintained. Pierce v. Ins. Co., 545.

9. If declaration on policy, which refers to it, is not demurred to, it is no
ground of exception to admission of policy in evidence, that declaration con-
strued in connection with policy is ambiguous. Id.

10. Declaration on policy need not allege l'acts which defeat part of plaintiff's
claim under special provisions of policy. Id.

11. Policy on life of A. was payable on his death to his wife and children,
and their assigns; and if he survived certain day, was payable to him. Held,
that he had assignable interest therein. Id.

12. Policy provided that if assigned, written notice should be given insurer.
Assignment was made, and notice given and acknowledged. Held, not to
amount to promise to pay assignee, and that he could not sue in his own name. Id.

13. Policy, in consideration of payment of annual premium, insured life of
A. in certain sum, or after due payment of premium for two or more years, in
case of default in payment of any subsequent premium, for as many tenth parts
of original sum as there should have been complete annual premiums paid. In
margin were words and figures denoting that one-half annual premium was par-
able in cash, and one-half by note. Held, that these words and figures formed
part of policy, and that, if annual premiums were paid, half cash and half by
note, “completc annual premiums" were paid. Id.

14. In action at law on policy payable at day named therein, evidence is
inadmissible, in defence, to show that different day should have been writ-
ten. Id.

15. In such action plaintiff can recover interest only from date of writ, unless
in declaration he alleges demand before that time. Id.

16. If policy is payable ninety days after due notice and satisfactory evidence of
death of person whose life is insured, or, if he survives certain day, is then pay-
able to him, ninety-day clause has no application to latter contingency, and
interest is not payable except as damages for wrongfully withholding the
money. Id.

17. A. took out policy on his wife's life, payable in four years to her if living
and if not living to himself. He paid premiums, retained policy and received
payments made upon it. She was living at maturity of policy, but had filed
petition for divorce. Statute secured to a married woman and her representa-
tives benefit of all policies not exceeding in aggregate $10,000, taken out on life
any person and expressed to be for her benefit. Held, that wife was entitled to
amount due on policy. Ins. Co. v. Mason, 419.

18. Certificate of membership issued by association organized under provisions
of Ohio Revised Statutes. sect. 3630, “ for the purpose of mutual protection and
relief of its members, and for the payment of stipulated sums of money to the
families or heirs of the deceased members,” which, by its terms, is made pay-
able to the assured, “or any person designated by his will or his heirs, if no
person is designated herein or by will," does not authorize such member, by testa-
mentary appointment, to constitute person beneficiary of such insurance, who is
not of family of assured, or may not, upon his death, become his beir. Aia
Association v. Gunser, 345.

19. F. took out policy payable to M., his wife, and his children, of whom he
had four by former wife. Subsequently child was born to F. and M. After-
wards F. and M. transferred their interest in policy by unsealed instrument, as
collateral security for debt of F., and instrument and policy were delivered to
creditor. No question was made as to validity of transier. Held, Ist. That
policy was executed, irrevocable, voluntary settlement in favor of wife and
children in being when it was taken out. 2d. That F. and M. could pledge or
assign policy to extent of their interests in it. 3d. Policy being for $5000, that
one-fifth was due to creditor and one-fifth to each of four children. 4th. One
of children having died a minor before F., that one-fifth due this child should he
paid to his legal representative, if any, and if none, to administrator of F.,
child's father and next of kin. Ins. Co. v. Baldwin, 800.

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