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FRAUDS, STATUTE OF.

by sub-contractor. The merchants gave credit exclusively to contractors.
Held, That promise was not within statute. Best v. O'Hara, 146.

6. Defendant promised that if plaintiff would attend sale to be made under
deed of trust given to secure note of third person held by plaintiff, and would
buy in property for defendant, he would pay plaintiff the amount of note.
Held, that promise was not within the statute. Hale v. Stuart, 346.

7. Where debtor, creditor and third person, who owed debtor, came together
and agreed that third person should pay creditor, and debtor was released, con-

tract was not within the statue. Howell v. Field, 346.
GARNISHMENT. See ATTACHMENT.
GIFT. See DebTOR AND CREDITOR, 3. LEGACY, 3.

1. To support donatio causa mortis there must be delivery of subject by
donor as a gift, such as, in case of gift inter vivos, would invest donee with
title. McCord v. McCord, 687.

2. Where bonds are delivered under express promise in writing to return
same “ whenever called for,” the terms and conditions of writing cannot be
varied by parol, and such undertaking is entirely incompatible with absolute
gift; but no duty to return will arise until demand, and statute of limita-
tions does not begin to run until then. Selleck v. Selleck, 812.

3. Intestate, shortly before her death, gave promissory note to plaintiff, who
was daughter of intestate's husband by former marriage. Daughter worked
for father for some time after majority, but no contract for pay was proved.
Father, by third person, conveyed homestead to intestate. Referee stated as
fact that they designed and often talked between themselves that plaintiff should
be paid ; that father so expressed his wish when he conveyed homestead, and
it was to carry out this purpose that note was given. Held, that there was no
declaration of trust, no legal consideration for note, and as gift, it rested in

promise, not executed. Rogers v. Rogers, 622.
GUARANTY.

Guaranty indorsed upon note is absolute contract for payment at maturity
upon default of maker, and guarantor will be liable, although guarantee failed
to enforce lien upon personal property by which note was secured, until security

became lost and maker insolvent. Adams, foc., v. Tomlinson, 146.
GUARDIAN AND WARD. See AssiGNMENT, 7. TRUST AND TRUSTEE, 9.

Mere delay of ward on coming of age to compel guardian to settle accounts
in probate court, does not discharge sureties, notwithstanding guardian may, in

meantime, have become insolvent. Newton v. Hammond, 219.
HIGHWAY.

1. Abandonment of, by non-user does not work a forfeiture: a formal order
of the proper authorities is necessary. Jones v. Williams, 346.

2. W., a butcher, bought an ox at S. market. While his drovers were
driving the ox through streets of S., it became unmanageable, and, without
negligence on part of drovers, rushed into T.'s shop and caused certain damage.

Held, that W. was not liable. Tillett v. Ward, 245, and note.
HUSBAND AND WIFE. See CONFLICT OF Laws, 1, 3. DEBTOR AND

CREDITOR, 6. EXECUTION, 6. REPLEVIN, 5. TRUST AND TRUSTEE, 6.
1. Divorce and Alimony.

1. Where wife has sufficient separate property she is not entitled to tempo-
rary alimony or expenses in a divorce suit. Westerfield v. Westerfield, 283.

2. Divorce suit abates by death of either party before decree : and this effect
extends to whatever is identified with the proceedings. McCurley v. McCurley,
812.

3. Wife has right, independently of merits of case, to require husband, when
she is living apart from him, and without means of her own, to defray expen-
ses of prosecuting her suit for divorce, court exercising discretion as to when
and to what extent allowances shall be granted. Id.

4. Jurisdiction exercised in divorce suit with respect to custody of children
is continuing, and order may be modified at any time during minority, without
reservation of such power in original order. Neil v. Neil, 219.

HUSBAND AND WIFE.

5. Jurisdiction to award alimony in divorce proceedings is purely statutory. Hence judgment for alimony made without reserve, where time for new trial has elapsed and there is no statutory provision for modifying judgment, cannot

be changed. Sammis v. Medbury, 687. II. Separate Estate.

6. Conveyance to a married woman's separate use does not bar curtesy except where there is a clear intent: trustee's covenant to convey at her death to her appointees or heirs, held, not to indicate such an intention. Tremmel v. Kleiboldt, 75.

7. Husband can not pay debts with wife's separate money, and if creditor knowingly receives such, wife may recover. If invested by creditor in realty and husband insolvent, she may enforce a lien in equity. Maddox v. Oxford, 346.

8. In such a case it was a proper subject of equitable set-off that husband held bond for titles from creditor more than amount of wife's fund invested in the land, and that she subsisted on rents, &c., of the land. Id.

9. SOME POINTS OF COMPARISON BETWEEN ENGLISH AND AMERICAN LEGISLATION, AS TO MARRIED WOMEN'S PPOPERTY, 761. III. Contracts, Conveyances, fc.

10. Contracts of feme covert are, by common law, void. Musick v. Dobson, 52, and note.

11. Mere moral obligation is not sufficient consideration to support promise, unless there is some antecedent legal liability. Therefore moral obligation of married woman, created by her agreement while covert, will not support a new promise made after coverture is ended, or make subsequent husband liable for debt. Id.

12. Purchase of land in wife's name is presumptively for her benefit: but presumption may be rebutted. Johnson v. Turner, 220.

13. Husband may ratify contract for necessaries furnished to wife on his credit, by promise to pay. Conrad v. Abbott, 75.

14. Wife's earnings, unless in independent business, cannot be basis of claim against husband to prejudice of his creditors. Triplet v. Graham, 146.

15. “Irrevocable power of attorney” to collect rents, given as security for loan, is between parties an equitable mortgage of rents, and when executed by married woman and acknowledged in statutory form, is valid against her. Joseph Smith Co. v. McGuinness, 418.

16. Where lien for purchase-money is reserved in deed for land purchased by married woman with her husband's consent, it may be enforced, though notes given be void against woman personally. Bedford v. Burton, 75.

17. In such a case, woman can not rescind sale, nor will she or her husband be allowed for permanent improvements. Id.

18. In such a case where interest above ordinary legal rate may be, and has been stipulated for, it may be recovered. Id. 19. Married woman purchases land, pays part cash and in deed,

as part of the purchase-money a mortgage debt. This was only separate property she possessed. She conveyed to F. and he to defendants by like deeds. Upon foreclosure, proceeds were insufficient to pay debt. Held, that aside from disability of coverture, acceptance by married woman of the deed was an agreement to pay mortgage debt as part of consideration. The transaction was not a purchase of equity of redemption. State v. Casey, 219.

20. Married woman may convey her separate property, her husband joining, and stipulate for such terms of payment as she may think best. Id.

21. Defendants as grantees of F., were liable to mortgagee for deficiency, but, in such action, it is a good defence to show, that before plaintiff has assented to, or acted on promise in his favor, the agreement has been rescinded. Id.

assumes

* * *

INCUMBRANCE. See MORTGAGE.
INFANT. See INTOXICATING LIQUORS, 4, 5. NEGLIGENCE, 9, 11. REPLEVIN,

5. TROVER, 1. TRUST AND TRUSTEE, 4.

1. Plaintiff must show that goods purchased hy, were necessaries, notwith

66

INFANT.

standing defendant assumes burden of showing them not to be so. Wood v.
Losey, 605, and note.

2. Infant sued for price of horse, showed that his sole business was to carry
on mother-in-law's farm for share of produce, and that she was to furnish all
teams, tools and implements. Held, that this showed horse not to be a neces-
sary, ," and that it was in error to give jury to understand that it was necessity
of horse to the farming business, instead of to his part in it, that fixed liability.
Id.

3. General principles applicable where question of necessaries is involved.
Id., note.

4. When court can pronounce contract of infant to be to his prejudice, it is
void, when to his benefit, as for necessaries, it is good ; and when contract is
of uncertain nature, it is voidable only at election of infant. Green y.
Wilding, 271, and note.

5. Conveyance of land by infant for money consideration, not shown to have
been inadequate, is voidable at election of infant within reasonable time after
attaining majority. Id.

6. Where infant is upon platform of railroad station, not as passenger or
upon any business connected with railroad company, if injured by passing train
he cannot recover on theory that company has failed to discharge toward him a
legal duty. Railroad Co. v. Schwindling, 453, and note.

7. Semble, that in such case company would only be liable for wanton or

intentional injury. Id.
INJUNCTION. See AssignMENT, 11. ConstituTIONAL LAW, 35. EQUITY,

15. EXECUTION, 6. NUISANCE, 1. PARTNERSHIP, 18. RAILROADS, 3, 9,
10. Taxes, 6. TRADEMARK, 1. WATERS AND WATERCOURSES, 3.

1. Where injury is irreparable, equity will interfere by injunction; and, if
necessary, after injury commenced, may compel, by mandatory injunction,
restoration of property to original condition. Henry v. Koch, 394, and note.

2. Court may punish party for wilful violation of injunctional order, not-
withstanding same ought not to have been granted ; but it may not, in such
case, order party disobeying to pay any sum as indemnity to opposite party.
Koehler v. Dobberpuhl, 283.

3. One against whom injunction is issued upon an ex parte application, does
not forfeit his legal right to a hearing by violating the injunction. Id.

4. To have nuisance abated by, party must show that injury complained of
is such, in its nature and extent, as to call for interposition of court of equity,
and that the right on which he grounds his title to relief is clear. Stanford v.
Lyon, 753.

5. Mandatory injunction is awarded as of course, wherever it is necessary
and appropriate process for carrying decree into effect. Id.

6. Will not lie to prevent simple trespass, consisting of single act, where per-
son committing or threatening trespass is able to respond in damages; but if
insolvent, and trespasses of grave character are threatened to be repeated, equity
will interfere to prevent wrong by restraining threatened trespass. Owens v.
Crossett, 419.

7. Trustees of Methodist Episcopal church can be compelled by mandatory
injunction to open church building closed by them against the duly appointed
preacher, on ground that it was not for interest of church that he be pastor, and
that he was appointed against wish of majority of members. Whitcar v. Mich-
enor,

753.
8. Representation of dramatic work which proprietor has never copyrighted
or caused to be printed, if made without license, may be restrained by injunc-
tion, although such representation is from copy obtained by spectator attending
public representation by proprietor for money, and afterwards writing it from

memory. Tompkins v. Halleck, 220
INSANITY. See INSURANCE, 27, 28.
INSOLVENCY. See DEBTOR AND CREDITOR, 22-25.

1. Discharge no bar to action by creditor not a party to proceedings, who is
citizen of another state. Hil v. Carlton, 146.

INSOLVENCY.

2. Discharge under insolvent law does not bar debt contracted before its pas-
sage, the creditor in no way becoming party to insolvency proceedings. Conway
V. Seamons, 622.

3. Nor is such debt discharged though merged in judgment rendered after
passage of act. Id.

4. Law discharging such debt is unconstitutional. Id.

5. Maine insolvent law of 1878 was valid when enacted, though operation
was suspended by U. S. bankrupt law then existing. When repeal of bankrupt
law took effect insolvent law went into operation, and took cognisance of all
acts within its provisions done while it was so suspended, and applied to contracts
made during that time. Palmer v. Hixon, 419.

INSPECTION. See ConstITUTIONAL LAW, 22.

INSURANCE. See ConstituTIONAL LAW, 36. CORPORATION, 3. PARTNER-

SHIP, 12. PLEADING, 4.
I. Generally.

1. Law providing penalty against agent of foreign insurance company for
acting without certificate of authority from auditor showing company's compli-
ance with act, and declaring that any person aiding in transacting insurance bus-
iness of such company shall be subject to such penalty is constitutional and
valid. Pierce v. People, 622.

2. Defendant in this case regarded as agent of company, notwithstanding
clause in policy providing that any person, other than the assured, who shall
participate in any transaction concerning the insurance, will be deemed agent

of assured. Id.
II. Life.

3. Where company refuses to receive premium on life policy, on ground of
lapse of policy by reason of non-payment on day stipulated, and assured claims
that company has waived right to assert forfeiture, equity has power to deter-
mine and enforce rights of parties. Insurance Co. v. Tullidge, 688.

4. Although policy and renewal receipts may contain stipulation that agents
of company shall not have authority to waive forfeitures where premiums have
not been paid on or before day designated, yet course of business between agent,
assured and company in giving effect to payments made when overdue, may pre-
clude company from objecting to payment tendered when overdue, where no
notice has been given. Id.

5. Under accident policy, providing that no claim shall be made where death
or injury may have happened in consequence of exposure to obvious or unne-
cessary danger, and containing condition that assured is required to use all due
diligence for personal safety and protection, no recovery can be had for death
of assured, caused by bis being struck by railroad train, wbile running along
tracks in front of it in night time, to get on train approaching in opposite direc-
tion on parallel track. Tuttle v. Ins. Co., 688.

6. Person may insure his own life and make policy payable to person without
interest therein. Hence, where policy was taken out on life of one and made
payable to another (who had no legal interest in it) in case he survived the
assured, and there was strong evidence to show that transaction was a wager,
Held, that it was for jury to say whether policy was obtained in good faith.
Langdon v. Insurance Co., 385, and note.

7. Applicant was asked : “ Has any npplication ever been made, either to
this or any other company, upon which a policy was not issued ?" Held, that
negative answer was not improper, although application made to another com-
pany had not been finally passed on. Id,

8. Applicant made full statement regarding name of his usual medical
attendant to sub-agent, who, putting his own construction on the facts, filled in
the wrong name. Held, that company could not take advantage of the mis-
take. Id.

9. What is insurable interest. Assignment to person without. Id., note.

10. If dealings of insurance company with insured and other policy holders
are such as to induce belief that payment of premium within reasonable period

Vol. XXXI.--107

INSURANCE.

after day fixed will save a forfeiture, company cannot forfeit policy of one who acted on that belief and subsequently made or tendered payment. Insurance Co. v. Doster, 60.

11. Clause declaring that agents cannot receive overdue premiums or waive forfeiturcs, cannot be set up where company habitually send renewal receipts to its agent, leaving their use to his judgment, and he, with knowledge of company, receives premiums several days after they are due, and insured, relying on such practice, tenders the premium within a reasonable time after it is due. Id.

12. Where it had been invariable custom of company to send insured statement of the premium due after deducting dividend, with notice when, where and to whom same could be paid, and on account of a failure to send such notice premium was not paid when due but was tende ed within reasonable time afterward, policy does not lapse. Id.

13. Semble, Where premium is liable to be reduced by dividends, company should give insured reasonable notice of amount of dividends and thereby of cash to be paid to keep policy alive. Id.

14. When person not sole beneficial owner, pays premium to keep up policy of life insurance, he is entitled to lien in following cases only: 1. By contract with beneficial owner. 2. By reason of right of trustees to indemnity our of trust property for money expended in its preservation. 3. By subrogation to their right of some person who at request of trustees, has advanced money for that purpose.

4. By reason of right of mortgagee to add to his charge any money paid to preserve property. In re Leslie, 753.

15. If application for policy provides that representations and answers therein “shall form the basis and become part of the contract of insurance and “that any untrue answers will render the policy null and void," and policy recites that it is issued “in consideration of the representations and agreements in the application for this policy, which application is referred to and made a part of this contract,” in an action upon policy, application is to be considered part of contract, and if representations in it are in a material respect untrue, action cannot be maintained, though untrue representations were inserted by agent employed by defendant to solicit insurance, without knowledge of applicant, who orally stated truth to agent. McCoy v. Insurance

Co., 220. III. Fire.

16. Consignee of goods damaged in transit, has no right to abandon them to insurance company and claim whole insurance, except in case of total loss, or of such damage as to render them unmarketable. Hicks v. McGehee, 419,

17. Where order confirming sale made under foreclosure to mortgagee who is a party, is at same term vacated and sale set aside for want of notice, insurable interest of mortgagor in possession is same as before sale. Ins. Co. v. Sampson, 220.

18. Where, in such case, loss occurs after confirmation, and before sale set aside, insurable interest of mortgagor not divested by such unauthorized sale and confirmation. Id.

19. A policy, providing that it shall be void in case insured shall make other insurance without consent, is avoided by such subsequent insurance, even though second policy is itself avoided by similar provision. Turner v. Ins. Co., 275.

20. Policy on articles of furniture described them as "all contained in house No.- McMillen street, Providence, R. I." Insured, without knowledge of in surer, removed these articles to house in another street, where they were consumed. Held, that statement of locality was continuing warranty, and that insured could not recover. Lyons v. Ins. Co., 419.

21. Contract for insurance with person who has no insurable interest in property, or who can not sustain any pecuniary loss by injury thereto, is a mere wager. Spare v. Ins. Co., 409.

22. Judgment creditor has insurable interest in property of debtor ; but to recover, must show that judgment debtor has not sufficient property left, out of which to satisfy judgment. Id.

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