2. Foreigner without parents, kept her trunks, &c., at her brother's house
in a certain county, and seemed to regard it as a home, returning there when
sick or out of employment. Held, that it was the county of her residence.
County v. County, 144.
3. Where it is shown that person resides at certain place at certain time,
ordinary presumption is that it was a continuing residence. How long such
presumption would last must depend on all the circumstances. Inhabitants of
Greenfield v. Inhabitants of Camden, 144.
4. Voting is not conclusive evidence of residence. The act and circum-
stances under which vote is given are for the consideration of the jury. In-
habitants of East Livermore v. Inhabitants of Farmington, 144.
DONATIO CAUSA MORTIS. See GIFT, 1.
A certificate of deposit payable to order was endorsed as follows: "Pay
to Martin Basket, of Henderson, Kentucky; no one else; then not till my
death. My life seems to be uncertain. I may live through this spell. Then
I will attend to it myself. H. M. Chaney." Chaney then delivered the cer-
tificate to Basket, and died. Held, not a valid donatio causa mortis. Basket
v. Hussell, 344.
DRUNKENNESS. See ARBITRATION.
1. Where party seeks relief from obligation of contract on ground of duress,
regard will be had to age, sex and condition of life, and evidence is admissi-
ble to show that person subjected to duress had heard that person threatening
was of violent disposition. Jordan v. Elliott, 181, and note.
2. Mere vexation and annoyance, leading to execution and acknowledgment
of conveyance in trust for grantor and his heirs, insufficient to establish such
duress as to avoid the deed, unless it be further shown that a state of insanity
was thereby produced. Brower v. Callender, 282.
3. Where agent of company had collected money and failed to return it, and
another agent demanded the amount and threatened prosecution unless it was
secured, and mortgage was given for same, Held, that if mortgage was given
to settle or suppress criminal prosecution, it could not be collected; if given
to secure what defaulting agent owed, it could. Wheaton v. Ansley, 751.
EASEMENT. See DEED, 5, 6.
Where owner of entire estate sells a portion, purchaser takes with the bur-
den and benefits as they appear. Henry v. Koch, 394, and note. Ancient win-
dows. Id., note.
EJECTMENT. See DAMAGE, 5.
EQUITY, 1.
ELECTION. See PARTNERSHIP, 9.
1. Court acting upon its own knowledge of commerce and business neces-
sities of county, must determine, upon facts stated in petition, whether the
land is reasonably necessary for purpose stated. Jury can find no fact except
what is just compensation. Smith v. Railroad, 481.
2. Every company seeking to condemn land for public improvement must,
in modified degree, be permitted to judge for itself as to amount necessary.
This right is subject to all constitutional and statutory restrictions, and to further
limitation that courts can prevent any abuse of same. Id.
ENCUMBRANCE. See MORTGAGE.
EQUITY. See ACCOUNT.
TUTIONAL LAW, 15, 16.
ASSIGNMENT, 8. BILLS AND NOTES, 15. CONSTI-
DEBTOR AND CREDITOR, 2. INSURANCE, 3. LIMI-
TATIONS, STATUTE OF, 12, 13, 14. NATIONAL BANKS, 4.
PARTNERSHIP, 10, 11, 13, 14. TRUST, 1. WILL, 10.
1. Will not afford relief in proper cases for action of ejectment. Cowman v
Colquhoun, 811.
2. Cestui que trust can not proceed in, merely because his interest is equitable.
Guaranty and Indemnity Co. v. Water Co., 345.
3. Refusal of new trial can not be reviewed by bill in equity to enjoin pro-
ceedings on the judgment; nor will what should have been urged in favor of
the new trial, form good ground for such a bill. Embry v. Palmer, 345.
4. To reform contract for fraud or mistake equity must have full proof of
⚫ same. Fessenden v. Ockington, 144.
5. One can not be both plaintiff and defendant in same suit at law; in such
a case, remedy is by bill in equity. Hayden v. Whitmore, 282.
6. Bill in equity to enjoin trespass by felling timber, need not be brought in
county where land lies. Proper venue is county of defendant's residence.
Powell v. Cheshire, 214.
7. Taxes on another's land paid under mistaken belief of ownership, can not
be recovered in equity. Railroad Co. v. Mathers, 73.
8. Two or more judgment creditors of corporation may unite in creditor's
bill against it and stockholders to reach unpaid subscriptions, and such a bill is
not multifarious. Hickling v. Wilson, 73.
9. Only interferes with action at law where there are equitable circumstances
which render it unjust, as against defendant at law, that suit should proceed.
Long Dock v. Bentley, 752.
10. Bill for discovery and payment into court lies against former sheriff
under act providing, that all fines imposed on persons convicted of keeping
houses of ill-fame, shall be divided equally between certain dispensaries of the
city. Snowden v. Dispensary, 751.
11. Issue of fact from court of equity to be tried by a jury is entirely in
discretion of court for informing its conscience, and is not binding upon it. It
should only be allowed where proof creates doubt, never as a substitute for
failure of proof or omitted evidence. Chase v. Winans, 480.
12. Bill against several defendants to set aside several distinct conveyances,
made to them separately, on ground of fraud, one general right being claimed,
is not multifarious. Bobb v. Bobb, 480.
13. Under laws of Illinois party may only file bill to quiet title or remove
cloud from title to real property, when he is in possession thereof, or when he
claims to be owner, and lands are unimproved and unoccupied. Gould v.
Sternburg, 480.
14. Where one authorized by power of attorney to sell and convey lands,
conveys same without consideration, owner may treat such conveyance as
nullity and having, therefore, an adequate remedy at law to recover possession
by action, cannot maintain equitable action to have grantee declared trustee and
for reconveyance. Campbell v. Campbell, 282.
15. A. filed bill to prevent B. obstructing strip of land between their estates
and houses, which originally belonged one-half to estate of each, but which had
become public way by fifty years' use. A. charged that only access to his back
door and yard was through the way over this strip. On demurrer: Held, 1.
That bill sufficiently charged special damage. 2. That it was maintainable to
enjoin B. from obstructing strip as private way, A.'s right not being affected
by public rights subsequently acquired. 3. That it was maintainable to
remove the nuisance, though complainant might have other remedies, and
though bill charged neither irreparable mischief nor right established at law.
Gorton v. Tiffany, 418.
16. By written agreement between S. and E., each agreed to convey land
to the other "subject to" an encumbrance. S. delivered to E. deed, conveying
land "subject to" encumbrance, and also containing clause stating that E.
assumed and agreed to pay the encumbrance as part of consideration.
E., being ill, did not read clause, but discovered it after having made two pay-
ments of interest on encumbrances, and promptly brought suit to have deed
reformed. In negotiations prior to agreement S., through agent, had solicited
E. to assume encumbrance, but E. refused. S. understood difference between
two forms of expression. Owner of encumbrance was no party to transaction,
and had done nothing in reliance upon deed. Held, That agreement created
no liability on part of E. to pay debt to D., that there was a mutual mistake in
the deed and E. was entitled to have it reformed. Elliot v. Sackett, 685.
17. A., who was of improvident habits and unskilled in affairs, applied to
B., real estate and mortgage broker, to procure a loan, having previously had
loans from him. B. prolonged negotiations for month, objecting to security
offered, which was undivided interest worth some $10,000, in inherited realty,
and finally loaned A. $2000 instead of $1000, sum originally requested, taking
from A. note for payment of $2000, six months after date, with interest at five
per cent. per month, payable monthly in advance till said principal sum is paid,
and all instalments of interest to carry interest at same rate till paid. When
transaction took place statute allowed parties to make their own agreement as
to interest, prescribing six per cent. in absence of agreement. Held, That B.
had taken unconscionable advantage, and that case should be referred to master
to fix reasonable rate of interest not less than six per cent. Brown v. Hall,
18. Bill was brought to enjoin action at law, because 1. Execution was on
satisfied judgment. 2. Judgment creditor was guilty of laches in delaying to
bring action. 3. Action was maliciously brought to harass and oppress.
Demurrer thereto sustained. Clark v. Clapp, 686.
ERRORS AND APPEALS. See ADMIRALTY, 3, 7. CRIMINAL LAW, 10.
PRACTICE, 4. REMOVAL OF CAUSES, 1.
1. Point not raised in court below will not be considered on appeal. Wet-
more v. Mellinger, 711.
2. Refusal of District Court to grant certificate of probable cause in revenue
prosecution, where judgment is for claimant, is not reviewable. United States
3. Appeal will not lie from interlocutory order, as from order refusing to
allow one to become party defendant to bill. Young v. Zinc Co., 282.
4. Where convict escapes pending a writ of error, it is within discretion of
court to hear cause while he is at large. McGowan v. People, 74.
5. Although appellant in court below claimed $3000, yet as he was there
awarded $1500, matter in dispute in Supreme Court United States, required
to be $2500, was but $1500. Hilton v. Dickinson, 752.
6. Decree is final for purpose of appeal, when it terminates litigation on
merits, and leaves nothing to be done but enforcement by execution. Railway
Co. v. Express Co., 752.
7. Administrator may maintain appeal from order of payment on ground
that it lays down rule of apportionment which works injustice as between
creditors of estate. Estate of McCune, 481.
8. The obtaining possession of a share of the estate without further delay or
litigation is sufficient consideration for waiver of appeal from decree construing
will. Mackey v. Daniel, 481.
9. Where several persons with distinct interests join in libel, the aggregate
of sums awarded is not to be considered in determining appellate jurisdiction.
In re Railroad Co., 73.
10. Appeal to Supreme Court United States, where there is evidence in
record to sustain jurisdiction, will not be dismissed simply because upon ex-
amination of all affidavits court may be of opinion that estimates of value of
matter in dispute acted upon below were too high. Gage v. Pumpelly, 621.
11. County officer subpoenaed cashier of National Bank to appear before
him with his books, &c., in matter relating to tax lists. Bank filed bill in
equity to enjoin auditor, which Circuit Court dismissed and bank appealed.
Held, that appeal must be dismissed on ground that amount in controversy
did not exceed $5000. Bank v. Hughes, 548.
12. Payee of two notes given in single contract brought separate actions
thereon, in each of which maker interposed same counterclaim.
In one,
demurrer to the counterclaim was sustained, and after final judgment and writ
of error, defendant prosecuted his counterclaim in other suit and accepted
agreed amount therefor. These facts being by leave brought into record,
Held, 1. That such facts occurring since final judgment may be pleaded in
appellate court. 2. That foregoing facts are in legal effect a withdrawal of
the counter claim. Matthews y. Davis, 345.
ESCROW. See DEED, 1.
ESTOPPEL. See CORPORATION, 4, 21. DEBTOR AND CREDITOR, 9. DEED,
2. FORMER RECOVERY, 4. INSURANCE, 23. MUNICIPAL CORPORATION, 7.
1. Recital in deed does not estop grantee from showing real consideration.
Wood v. Broadley, 345.
2. Mere knowledge that one is about to purchase, does not impose on owner
of equity duty of seeking him out and advising against it. Bramble v. Kings-
bury, 418.
3. Blank assignment of certificates of stock with blank power of attorney to
transfer on books of company, enables holder, as to persons dealing with him
without notice of any defect of power in him, to use them as owner might,
though legal title may not have passed, for want of transfer on books of
corporation. Otis v. Gardner, 481.
EVIDENCE. See ADMIRALTY, 1. BILLS AND NOTES, 8. CONTRACT, 16.
CRIMINAL LAW, 4, 19, 22, 24. DURESS, 1. GIFT, 2. INTOXICATING
LIQUORS, 7. LIBEL, 2, 4-6. MALICIOUS PROSECUTION, 1, 2. PATENT,
3. TRIAL, 5. WILL, 3, 4.
1. Any one can express opinion as to speed of railway train. Railroad Co.
v. Johnson, 117.
2. Conversation between parties to written contract, after execution and de-
livery, relating to change of some provisions, admissible. Oakland Ice Co. v.
Maxcy, 418.
3. Books of science not admissible to prove opinion contained therein, but
may be received to contradict witness who has referred to them as authority.
Pinney v. Cahill, 104, and note.
4. Medical books can not be introduced in evidence, nor can expert testify
as to statements made therein, nor can they be read to jury by counsel. Boyle
v. State, 621.
5. Extracts from standard work on mechanics may be read to jury in action
on the case to recover for injury caused by use of defective machinery. Rolling
Mills v. Monka, 811.
6. Rule that witness not an expert can not testify as to his opinion, not of
universal application; under certain circumstances, such witness may state his
observation as to cause and effect. Yahn v. City, 644, and note.
7. Declaration of president of canal company about time of construction,
under his direction, of certain work for use of canal, with regard to purpose of
company in building it, competent evidence against company. Halsey v.
Railroad Co., 548.
8. Declaration respecting management of section of canal, made by super-
visor in response to complaint concerning his management, also competent. Id.
9. Court can not allow party to impeach his own witness by general evidence
or proof of prior contradictory statements. Cox v. Eayres, 621.
10. When deposition was excluded because witness was in court, and wit-
ness was then called, and on cross-examination testified that plaintiff about
time of taking deposition, had given him shoes and liquor, Held, that plain-
tiff could repel imputation cast upon him, but could not show that witness had
made prior contradictory statements. Id.
11. When witness is party to action court may, probably, in its discretion,
allow broader range of cross-examination than in ordinary cases; but such
latitude is not a right of adverse party. Norris v. Cargill, 547.
12. One who accepts employment to perform skilled labor impliedly under-
takes that he possesses requisite skill, and in action for breach of contract, evi-
dence that he represented himself as possessed of such skill is immaterial. Id.
13. In action for price of goods sold, upon issue whether plaintiff sent bill
by mail to defendant and defendant received it, evidence is admissible that
upon envelope was printed usual request to return, and that it was not re-
turned. Heddon v. Roberts, 686.
14. If, in action of tort against two defendants, one calls other as witness,
he cannot, before credibility of witness has been attacked, put in evidence that
witness was without means to satisfy judgment that might be obtained against
him. Bryant v. Zidgewell, 218.
15. In suit by physician to recover for services, where only testimony as to
their value and propriety of treatment is opinion of other physicians, it is
error to instruct jury that they may disregard this opinion. Wood v. Barker,
323, and note.
16. Opinion evidence generally. Id., note.
17. Before office copy can be introduced, execution and genuineness of origi-
nal deed must be proved, and that all apparent means to produce the same
have been exhausted. Elwell v. Cunningham, 145.
18. Evidence of what one joint maker said when he delivered note to plain-
tiff about signing thereof by defendant, other joint-maker, inadmissible.
Smith v. Wagaman, 145.
19. In civil action where defence rests upon an alleged crime, plaintiff's
guilt need not be established beyond a reasonable doubt. Behrens v. Ins. Co.,
20. The quality of goods furnished can be shown by evidence of the quality
of articles of same kind and quality furnished at same time to another party.
Ames v. Quimby, 145.
21. The exceptions to rule that written contract shall be only evidence are,
1. Where writing is on its face incomplete. 2. Where parties in negotiating
agreement have entered into another agreement by parol, collateral and on
distinct subject. Naumberg v. Young, 145.
22. To justify admission of parol promise, made during negotiation of writ-
ten contract, on the ground that it was collateral, it must relate to subject dis-
tinct from that of written contract. Morgan v. Griffith, 145.
EXECUTION. See ATTACHMENT, 11.
SHERIFF, 3. SHERIFF'S SAle, 1.
1. No entry necessary to constitute valid levy on real estate. Morgan v.
Kinney, 218.
2. Property in legal controversy cannot be seized by other judicial power
than that under which it came into custody of law. Pipher v. Foredyce, 665,
and note.
3. One partner, with consent of others, may claim separate exemption out
of partnership property seized on execution against firm. O'Gorman v. Fink,
4. Consent of partners that each should have and select an exemption out of
partnership property, after levy, amounts to severance of joint property, and
the several right of each attaches to portion he selects. A demand by each for
such exemption will be deemed consent that others have same. Id.
5. In such case there is sufficient demand if partner informs officer making
levy that he claims exemption and that other partners do the same, and asks
permission to make selection, Id.
6. On judgment against married woman, sheriff seized her household furni-
ture, &c. She was living with her husband, who was insolvent and contributed
but little to family's support, and she had for several years almost entirely
maintained him and her children. Held, that her right to claim exemption as
"a debtor having a family residing in this state," not being clear, she was not
entitled to injunction restraining sheriff from selling. Muir v. Howell, 752.
EXECUTORS AND ADMINISTRATORS. See ACCOUNT. ERRORS AND
APPEALS, 7. JUDICIAL SALE. LIMITATIONS, STATUTE OF, 4. PARTNER-
SHIP, 5. SURETY, 2, 3.
1. Expenses of defending will which is set aside must be borne by the devi-
sees whose interests are at stake. Shaw v. Moderwell, 74.
2. Errors in accounts of, open to correction in all subsequent accounts, except
matters disputed and determined, which cannot be again questioned without
leave of court. Watts v. Watts, 74.
3. Executor not liable for failure of banks in which he had deposited estate
funds in his own name, adding "estate of Hassel C. Jacobus," his testator,
bank being in excellent standing at time of deposit. Jacobus v. Jacobus,
4. When debt due to decedent is voluntarily paid by debtor at his own dom-
icile in state in which no admininistration has been taken out, and in which no
creditors or next of kin reside, to administrator appointed in another state, and
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