DISCRETIONARY.
OF MATTERS THAT ARE DISCRETIONARY.
1. Admission of further evidence after the case is closed. See PRACTICE, 7.
2. Taking proof on bill in chancery taken as confessed. See CHANCERY, 4.
3. Costs in chancery. See COSTS, 1.
1. Where the wife has absented herself from the house of her hus-
band for more than two years before suit is brought for divorce, she
must show, by a preponderance of evidence, that she was justified in so
absenting herself, in order to prevent her husband from obtaining a di-
vorce for such cause. Carter v. Carter, 439.
2. On the trial of the issues in a suit by a husband for divorce, on
the ground of the wife's desertion, the court, at the instance of the wife,
instructed the jury that they should determine, from all the facts and
circumstances, what constituted a reasonable cause of abandonment:
Held, that although the court, in other instructions, properly stated
what acts of the husband would constitute reasonable cause, the court
erred in giving this, as it was uncertain which the jury followed. Ibid.
439.
3. To justify a wife in leaving her husband, and absenting herself
without giving him cause for divorce after the statutory period, it seems
that his conduct must have been such as to authorize a divorce in her
favor.
4. On the trial of a bill by the husband, and cross bill by the wife,
for divorce, where the husband relied on desertion for the space of two
years, and the wife charged him with extreme and repeated cruelty,
and adultery, it appeared that the husband had made demonstrations
of personal violence when highly excited by great provocation and
wanton insult on the part of the wife, but committed no personal vio-
lence in fact; and it also appeared that the wife provoked the difficulty
as a pretext for separation, and that the husband was a man of good dis-
position, a good citizen, and truthful: Held, that in view of the provo-
cation, the acts of the husband were not such extreme cruelty as to en-
title the wife to a divorce, or justify her abandonment of her husband.
Ibid. 439.
5. And the proof thereof. A husband, after his wife left him, employed
a widow woman to keep house for him, and, to avoid scandal, kept dur-
ing the time a hired girl in the house, and it appeared that such help
was necessary to enable him to carry on his farm. The wife, in a suit
for divorce, attempted to prove that the widow's character for chastity
DIVORCE. ADULTERY. Continued.
was bad, to show that her husband was guilty of adultery with this
woman, but no improper acts between them were proved: Held, that
evidence of the general character of such widow was inadmissible to
prove adultery; and that if her character had been shown to be bad,
her employment, under the circumstances, was no evidence of adultery
on the part of the husband. Carter v. Carter, 439.
6. The fact that the husband, after his wife left him, employed a man
and his wife to come and stay at his house for a few days, although the
character of the man's wife, for virtue, may not have been good, does
not prove the husband's adultery, unless it is also shown that they were
employed for improper purposes. Ibid. 439.
7. The charge of adultery must be shown by proof of acts and cir-
cumstances that convinces the mind by a preponderance of its weight,
and not by mere suspicion or conjecture from vague or indefinite cir-
cumstances, pointing to no specific time, place, or act. Hence, evidence
that defendant's character for virtue was not good, is not admissible on
a charge of adultery. Nor is hearsay, or neighborhood rumor and gos-
sip. Ibid. 439.
8. The fact that a husband, during his wife's absence, visited, on one
or two occasions, female friends, and at one or more times was seen rid-
ing in a carriage with females, when the attendant circumstances failed
to show that he acted improperly on such occasions, does not prove his
adultery. Ibid. 439.
9. When immorality or wrong is imputed, such as adultery, it must
be established by at least a preponderance of proof; and when the facts
or circumstances relied upon to establish the same, may as well import
innocence as guilt, they must be held to import innocence. Ibid. 439.
WHAT PASSES ON ASSIGNMENT THEREOF.
1. When premises are assigned to a widow for dower, the assignment,
like a deed, without mention of appurtenances, will pass all those things
which are incidents appendant or appurtenant thereto; and, in the ab-
sence of any restrictions in the proceedings, it will be presumed that
they were taken into consideration by the commissioners and regarded
as a charge upon the other portion in favor of that allotted. Morrison
et al. v. King et al. 30.
SEVERANCE OF UNITY OF SEIZIN.
1. Easements pass to the several purchasers. See CONVEYANCES, 1, 2
REMEDY AS BETWEEN THE PURCHASERS.
2. When one of them attempts to disturb the easement which is common to all.
See INJUNCTIONS, 2, 3.
1. Revivor in the names of part of the heirs. When the sole plaintiff in
an action of ejectment dies, it is not necessary that the suit be revived
in the names of all his heirs-at-law, and it is not error to allow the suit
to be revived and prosecuted by a part of his heirs. Funk v. Stubblefield
et al. 405.
2. On the death of the sole plaintiff in ejectment, intestate, leaving
several heirs-at-law, the unity of title is severed into aliquot parts, and
descends to such heirs, and they each become invested with a separate
right of recovery. Ibid. 405.
3. Fraudulent deed of trust. The plaintiff in an action of ejectment
deduced title through a sale under judgment and execution against a
prior owner and sheriff's deed. The defendant offered in evidence a
prior deed made by the same owner in trust for the benefit of creditors,
which was recorded before the recovery of the judgment under which
the lands were sold, to defeat a recovery by showing an outstanding
title. This deed was held to be fraudulent on its face in imposing con-
ditions and restrictions which were onerous and illegal: Held, that such
deed being void could not be used to show an outstanding title. For-
sythe v. Hardin, 206.
CONTRACT OF SALE BY THE PLAINTIFF.
4. No defense. When a plaintiff in ejectment shows a legal title in
himself, the defendant can not defeat a recovery by showing that the
plaintiff had brought suit upon a note given to him by one who had
contracted to purchase the land of him. Gladfelder et al. v. Hale, 72.
WHETHER PROPERLY APPOINTED.
1. And of being sworn. Where the office of sheriff of a county was
vacant, and the duties of the office were being performed by the coro-
ner, who was a party defendant to a bill in chancery filed: Held, that
the facts justified the clerk of the court in the appointment of an elisor
to serve the summons. The statute does not require an elisor to be
Reed v. Moffatt et al. 300.
EMINENT DOMAIN. See RIGHT OF WAY.
ERROR WILL NOT ALWAYS REVERSE. See PRACTICE IN THE SU-
PREME COURT, 2, 3, 4.
AS BETWEEN VENDOR AND PURCAHSER. See VENDOR AND PUR-
CHASER, 6.
1. To explain contract. Where parties covenant personally to pay
rent, and execute the obligation in their individual names, evidence
dehors the written undertaking is inadmissible to show that they in-
tended to bind an incorporated lodge, although in the body of the ob-
ligation they are described as trustees of such lodge. Stobie et al. v.
Dills, 432.
2. To explain who are meant by "heirs-at-law,” as those words are used in
a will, and to identify heirs. See WILLS, 13, 14.
3. To impeach the acknowledgment of a deed. See ACKNOWLEDG-
MENTS OF DEEDS, 1, 2.
4. In action by bailor against bailee. In an action by the owner of a
team of horses to recover damages for an injury to them against the
hirer for want of proper care, the defendant asked the court to instruct
the jury, that if the team hired was in good condition when taken by
defendant, and was not returned in such condition, and if the defend-
ant had shown prima facie that he took ordinary care of the team, then
the plaintiff must show, by a preponderance of testimony, that defend-
ant misused the team so as to cause the injury complained of, which the
court refused: Held, that the refusal was proper. Funkhouser v. Wag-
ner, 59.
5. Where goods, when placed in the hands of a bailee, are in good
condition, and they are returned in a damaged state, or not returned at
all, in an action by the bailor against the bailee, the law will presume
negligence on the part of the latter, and impose upon him the burden
of showing that he exercised such care as was required by the bail-
ment. Ibid. 59.
6. As to abandonment of special contract. When the plaintiff declares
generally for work and labor done, and materials furnished, and the
defendant files the general issue with notice that he will insist on the
trial that the work was performed under a written contract, the burden
of proof is not thrown upon the plaintiff to show an abandonment of
the special contract, until the defendant has proved the averment in
his notice. Robinson et al. v. Parish, 130.
7. In a proceeding to contest a will. See WILLS, 23.
8. Where the obligors in a written instrument obtained its pos-
session, refused to deliver the same to the obligee, but gave a copy
thereof and destroyed the original, and when sued denied the execution
of the contract declared on in a plea verified by affidavit, it was held
that the copy, when accepted as such, was, as between the parties, of
equal authenticity with the original. White et al. v. Herrman, 73.
EVIDENCE. SECONDARY EVIDENCE.
9. And when it appeared that such copy was left with plaintiff's at-
torney for suit, it was held error in the court to admit in evidence a
copy of it made by plaintiff's attorney, upon the testimony of plaintiff
that it was a copy of the original as nearly as he could recollect. The
copy given by defendants was the next best evidence to the original,
and should have been produced, or its non-production explained. White
et al. v. Herrman, 73.
10. On failure to convey land. In a suit to recover damages for a fail-
ure to convey title when only a small sum was paid, the preponderance
of the testimony showed that the land was worth no more than was
agreed to be paid, but the plaintiff showed, without objection, that other
lots in an adjoining tract had sold much higher by the front foot. This
proof did not disclose the terms of the sale, the number of lots sold, or
whether the purchases were bona fide: Held, that such evidence was
too vague and unsatisfactory to furnish a proper indication of the value
of eighty acres sold in a body. Ibid. 73.
11. What is in the nature of an admission. Where the authority of
one to employ the plaintiff as an attorney was disputed, and the evi-
dence on that point conflicting, and it was proved by two witnesses that
they were present and heard defendant authorize the employment of
plaintiff, the circuit court instructed the jury that, while it was com-
petent for plaintiff to show the admissions and statements of defendant,
as tending to show his liability, yet the law regards such admissions as
a weak kind of evidence: Held, that the instruction was erroneous,
because the testimony was not of admissions, but of an important fact,
and in such a case it was for the jury alone to determine the weight
of the evidence. Mauro v. Platt, 450.
12. Of their weight as evidence. It is not true that, under all circum-
stances, admissions of a party are weak evidence; sometimes they are
the strongest and most satisfactory species of evidence. It is the prov-
ince of the jury to weigh such evidence, and give it the consideration
to which it is entitled; and in case of a conflict the court has no right
to tell the jury that an admission is a weak kind of evidence. Ibid.
13. As affecting rights of mortgagee. The declarations and admissions
of a mortgagor of chattels, made after the execution of a chattel mort-
gage by him, are not admissible in evidence to defeat the claim of the
mortgagee, in a contest between the latter and one claiming under the
mortgagor. Bell v. Prewitt, 361.
14. The defendant in a suit brought to recover damages on the
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