assigned to C. $5,500 worth of the stock of C.; later, a bill in equity was filed
by B., praying for the specific execution of the contract. Held, that if a re-
scission should be elected by C., that the bill in equity ought not to be dis-
missed till the stock assigned by B. was returned. Appeal of Brush Electric
Light Company, Penn., 648.

4. Stale claim-review.] In 1866 an auditor was appointed to distribute the
balance appearing by the account of B., administrator of the estate of C., to
be in his hands; the auditor performed all his duties but that of filing his re-
port; in 1884 a collateral heir of C., setting up the illegitimacy of B., had the
auditor file his report, the orphans' court re-open the entire matter for exam-
ination, and the estate of B.—who was a brother of C., and had died in the
meanwhile was charged with a large sum that had been previously dis-
tributed to B. in his life-time as brother of C. Held, the orphans' court would
not, under the circumstances, relieve in the interest of so stale a claim.
Appeal of Fidelity Insurance, etc., Co. et al., Penn., 920.

ERROR.

Exception-point - quarter sessions.] A general exception to the opinion
discussing the merits of the case, in which opinion facts are stated and princi-
ples of law applied, is not an exception to a decision upon any point of evi-
dence or of law within the intendment of the act of March 16, 1868, P.
L. 46. Overseers of the Poor of Elk Township v. Overseers of the Poor of Beater
Township, Penn., 46.

ESCHEAT.

Device-trick - foreign corporation - land - real estate-title- quo
warranto.] A foreign corporation, engaged in the business of a common
carrier, purchased the capital stock of a Pennsylvania corporation and reor-
ganized the company, which, when reorganized, purchased coal land. Held,
that if the purpose of the purchaser was a mere device planned to violate and
evade the laws of Pennsylvania prohibiting foreign corporations from holding
real estate within that Commonwealth, and that if the true ownership of the
land was in the foreign corporation, and the name of the Pennsylvania corpora-
tion had been merely used as a repository of the legal title to cover up the
scheme, then the land purchased was subject to escheat. Commonwealth v.
N. Y., L. E. & W. R. R. Co., and The N. W. Mining and Exchange Co.,
Penn., 698.

ESTOPPEL.

Silence contract.] When a contract has been reduced to writing, and one of
the parties refuses to sign it, unless a certain construction, stated by him,
should be put upon it, the other party who, by his silence and conduct, has
induced him to sign it, will be estopped from claiming a different construc-
tion; otherwise it would be a fraud, especially where the parties acted on the
construction given when the contract was executed, was right. Flint v.
Johnson; Johnson v. Flint, Vt., 459.

See INSURANCE, 135; MECHANIC'S LIEN, 394; PARTNERSHIP, 713.

EVIDENCE.

1. In an action of trover for the conversion of property secured by a chattel mort-
gage, evidence is not admissible to prove that the mortgagee, immediately
after the mortgage was executed and in the presence of the mortgagor and
without his denial, told the justice who administered the oath to the parties,
that there was no consideration for the mortgage, and that it was given for
a cover; nor what the justice said. Perry v. Doir, Vt., 82.
2. In an action involving the probate of a will, evidence is not admissible to show
that the contestant did not deny collateral statements made by the testator
at a hearing for the appointment of a guardian over him. Frary v. Gusha,
Vt., 475.

3. Will testamentary capacity - undue influence.] Where the defense

4.

was the insanity of the testator and undue influence, after evidence had been
introduced by the proponent of the will, tending to prove that the testator
held his son, the contestant, in disesteem, evidence was properly allowed to
show that the son was industrious and had no vicious habits, as proving that
if his father did not esteem him, it was due to some unnatural condition or
influence. Id.

.] Evidence was admissible to show the business character and finan-
cial condition of one whom the testator gave a power of attorney to do his
business, as bearing on his capacity to make a will. Id.

5. Suicide — insanity — evidence - expert. A physician, who attended
the testator a few days before he committed suicide, was asked to state whether
the condition the testator had been in was an indication of insanity, and what
the act of suicide would indicate as to soundness of his mind, and answered
that he believed that the suicide was an insane act; held admissible; and
that suicide is evidence tending to prove insanity. Id.

6. Improper answer of witness practice.] Error cannot be predicated
on an improper answer of a witness, when no attempt was made to check him
and the attention of the court was not called to it; and doubted whether an
exception should be allowed in such case. An error in excluding evidence,
rendered harmless by the verdict, is not vitiating. Id.

7. Action on fire policy - value of goods.] The trial of an action to
recover on a fire policy was nine years after the fire.
For the purpose of
showing the amount and value of the goods burned, plaintiff offered, and it
was received against defendant's objection, an inventory made ten months
before the fire, by the firm of whom plaintiff purchased the goods, and also
the footings of an inventory of stock then on hand, made by plaintiffs a few
days before the fire. Held, that the evidence was properly admitted. El-
lsworth v. Etna Ins. Co., N. Y., 831.

8. Code Civ. Proc., § 829.] In an action to declare the plaintiff's right of
dower in lands conveyed by her and her husband to the defendant, upon the
ground that she was induced to join in the conveyance by the false and
fraudulent representations of her husband, evidence of a conversation
between the plaintiff and her deceased husband at the time of the execution
of the deed is inadmissible under section 829, Code of Civil Procedure.
Witthaus v. Schack, N. Y., 968.

9. Cross-examination.] A party cannot, by drawing out on cross-examination
statements from a witness which are irrelevant and collateral, gain the right
to contradict them by showing inconsistent statements made by the witness
at other times. Jordan v. McKinney, Mass., 570.
10. Declarations of a grantor.] Evidence of a deceased grantor's declara-
tions in disparagement of his title was admitted against the grantee. Held,
that later and contradictory declarations of the same person were not thereby
made admissible in evidence. Royal v. Chandler, Me., 549.
11. Deed of corporation sealed -- want of knowledge that authority
given.] Where certain instruments purporting to be the deeds of a private
corporation are shown to be sealed with the corporate seal, the testimony of
a single corporate officer, whose duty might or might not make him cogni-
zant of their execution, that he had no knowledge of corporate authority
having been given to execute the instruments, should be deemed legally
insufficient to overcome the presumption of due execution, to which the affix-
ing of the corporate seal gives rise. Parker v. Receiver, etc., N. J., 228.
12. Genuineness of signature.] In an action on a promissory note by the
indorsee thereof, proof of the admission of the maker that he knew that the
plaintiff had cashed such note for the payee, will not amount to proof of the
genuineness of the signature indorsed upon it, purporting to be the signature of
such payee. Beckley v. Evans, N. J., 230.

13. Indebtedness and fraud-ex parte affidavit.] In an action between
third parties a conclusion reached by a judicial officer upon ex parte affidavits,
to the effect that they contained sufficient evidence to prove an indebtedness
from one party to another and the perpetration of frauds by the debtor in

incurring it, is not competent evidence to establish either the fact of such
debt or of such frauds. Bookman v. Stegman, N. Y., 827.

14. Negligence - driver of horse car.] It is no evidence of negligence in
a driver of a horse car, that he whipped a pair of horses when about to start a
car full of passengers unless there appears to be something unusual in the man-
ner of his whipping them. Rochat v. North Hudson County R. Co., N. J., 190.
15. Parol, to contradict deed.] Parol evidence of conversations between
parties previous to the execution of a deed are never admissible in a court of
law to contradict, enlarge or abridge the operation of the deed. Nor are the
acts or declarations of the parties before or after its execution admissible to
show their understanding of the deed. Smith v. Fitzgerald, Vt., 755.
16. Pleadings as.] The rule that the pleadings in a case are not evidence on
the trial, but only allegations, is limited to the suit in which they are pleaded.
Outside of that the admissions and declarations of a party in his pleadings
are competent evidence, where they appear to be the act of the party himself,
and where the particular and specific allegations of matters of action or
defense cannot be presumed to have been made under the general author-
ity of the attorney, but were obviously from specific instructions from his
client. Accordingly held, that the declarations in the defendant's answer in
an action of contract, to the effect that he was liable to a third party upon
his acceptance of an order drawn by the plaintiff upon him in favor of such
third party, were competent evidence in a subsequent action, brought against
him by the third party, upon the order to prove his acceptance of it. John-
son v. Russell, Mass., 250.

17. Whether sale absolute or conditional.] Where the question at issue is
whether the property in question was delivered to the purchaser under an
absolute or conditional sale, evidence that the seller knew at the time that the
buyer's financial reputation was bad is competent as tending to show that
credit was not given. Buswell Trimmer Co. v. Case, Mass., 176.

Parol, to show ticket not a free pass.] See CARRIER, 721.

See ACCORD AND SATISFACTION; ATTACHMENT, 985; CRIMINAL LAW, 375;
DIVORCE, 992; FRAUD, 53; NOLLE PROSEQui, 222; NeglIGENCE, 257, 370;
TITLE, 397; TRUST AND TRUSTEE, 905; Usury, 37.

EXECUTOR AND ADMINISTRATOR.

1. Accounting.] A bill to compel an executor to account cannot be maintained
in the supreme court except upon appeal from the probate court, or until
after his liability has been ascertained and fixed by an accounting in that
court. Ammidown v. Kinsey, Mass., 904.

2. Insolvent estates damages-breach of bond.] An administrator of
an insolvent estate, which is more than sufficient to pay the expenses and
privileged claims, is liable to an action on his bond if he fails to settle his
account within six months after the return of the commissioners. The dam-
ages in such action would be nominal if no actual damages are proved. The
rule that there is no breach of the bond of an administrator until he has
been cited to settle his account does not apply to insolvent estates.
Webb v.
Gross, Me., 435.

3. Assets-mortgages.] By the statutes of Maine the title of lands held by a
decedent, in mortgage, passes to the administrator, and is administered and
distributed as personal estate. Hemmenway v. Lynde, Me., 999.

4. Equity-subrogation - orphans' court-common pleas --jurisdic-
tion.] A., who took out letters of administration upon the estate of B., sold the
personalty and one tract of land; with the fund in his hands he paid off and
had satisfied two mortgages upon an unsold tract of decedent's land and also
paid off all the balance of the estate indebtedness but about $2,000 — and
the expense of settlement; later, he obtained an order for the sale of the tract
upon which the mortgages had been a lien, but did not sell, allowing five
years from the time of B.'s death to pass without a sale; later, he filed a bill
in equity in the common pleas, in which he complained that the widow of B.,
upon learning of the expiration of the limitation to which the lien of the

debts of B. had been confined, had refused to join in a sale or incumbrance
of the remaining realty of B., and in which he asked inter alia for a decree
vacating and canceling the satisfaction of the mortgages, and asked the sub-
rogating of himself to the rights of the holder of the mortgages, etc. Held
the common pleas had no jurisdiction. Appeal of Miskimins, Penn., 491.
FORECLOSURE.

1. One purchasing pendente lite is bound by the decree and need not be made a
party. Kopper v. Dyer, Vt., 75.

2. Title of purchaser.] The title made under a decree condemning mortgaged
premises to sale invests the purchaser with all the rights and equities inhering
in either of the parties to the suit, whether complainant or defendant at the
time of the institution of the suit. Mount v. President, etc., N. J., 196.

FORMER RECOVERY.

A former recovery is a bar only when the former trial was upon the merits. Orr
v. Mercer Co. Mut. Fire Ins. Co., Penn., 135.

FRAUD.

1. Assignment just after purchase.] When one had for years conducted his
business with gross carelessness, without proper books, and ignorant of his
liabilities, held, that a purchase made by him not long before his voluntary
assignment, and apparently in the usual course of his business, was not nec-
essarily for that reason fraudulent. Dalton v. Thurston, R. I., 302.

2. Establishing of illiterate person- surety representation to-
discharge of. Although great liberality is allowed in proving fraud, it
can, nevertheless, only be established when actually shown by competent evi-
dence. B., a Star Route" contractor for carrying the mail, sub-let the
contract to C., who gave as his bondsmen D. and E. Held, in an action by
B. against C., D. and E. to recover for failure upon the part of C. to perform
his work of carrying the mail, that the representations of C. to D. and E., in
the absence of B., and of which it was not alleged he had notice, could not
be given in evidence in order to discharge D. and E. Where an illiterate per-
son executes a writing, which has been falsely read to him, he is not bound.
Johnston v. Patterson, Penn., 506.

Opening account of guardian after his death.] See GUARDIAN AND WARD,

Me., 243.

Relief from judgment obtained by.] See JUDGMENT, 201.

See PARTNERSHIP, 1; PAYMENT, 53; SURETY, 70.

GIFT.

Deposit of money as trustee.] A deposit of money made by a husband
in a savings bank in his own name, as trustee for his wife, is not alone suffi-
cient to constitute a gift of the money to her. Walker v. Welch, Mass., 598.

See TRUST, 925.

GRAND JURY.

See BOROUGH, 41.

GUARDIAN AND WARD.

1. Maintenance.] B., a "soldier's orphan," was in her fourth year and during
the life of C., her father, placed by him with D., a saloon keeper, but upon
what conditions it is not known; when B. was eight years of age, D., as her
guardian, received from the government arrears of pension and back pay
amounting to $541.62; B. continued in the household of D. until she was
seventeen years of age and then left, D. receiving from the government until
B. was sixteen years of age further sums as guardian, amounting to $889.25.
After B. was eight years of age and whilst she remained in the house of D.
she rendered domestic services in the kitchen and also waited at the bar. D.
obtained no order for maintenance and filed no account and died when B. was
VOL. XI.-- 130

twenty-four years of age without having made payment to her. Held, that
under the circumstances D. was entitled to an allowance of $541.62 for the
maintenance of B. until she was eight years of age, and that his estate should
account to B. for the $889.25 with interest on it from the time B. left the
house of D. Appeal of Simon, Penn., 839.

2. Opening account for fraud after guardian's death.] Where a guardian
settled his accounts with his ward after her arrival at twenty-one years of
age, and filed the same in probate court, where it was allowed and recorded,
the court will not, after the death of the guardian, open that settlement on
the ground of fraud or mistake, unless the fraud or mistake is clearly proved
by the petitioner. Where the judge of probate, on petition to open such
account, allows the petitioner a certain sum in correction of errors, the burden
is on the petitioner, on her appeal from the decree, to prove to the appellate
court that the estate of the guardian should have been charged with a greater
Burell v. Gibson, Me., 243.

sum.

HABEAS CORPUS.

Custody of children - discretion.] This court will not interfere with the
exercise of discretion by the court below in awarding on habeas corpus the
custody of infant children to their mother, she having obtained a divorce in
Illinois, the decree awarding to her the custody of the children. People, ex
rel. Allen, v. Allen, N. Y., 832.

HIGHWAY.

A decree of court ordering one town to aid in the maintenance of a highway in
another town, on petition under the statute of 1884, No. 18, may be vacated
on proof of necessity for a considerable portion of the way for ordinary use
to an inhabitant of such other town. An absolute necessity, or any necessity
for the entire length of the way, is not required. Wardsboro v. Jamaica,
Vt., 74.

HOMESTEAD.

Present use.] To acquire a homestead in premises, they must be used or kept
for a family home; and it cannot be gained by a mere intention to occupy
them at some indefinite future time. There must be a present use of the
premises or the keeping of them for that purpose with a present right to use
them. Keyes v. Bump, Vt., 766.

HUSBAND AND WIFE.

1. The plaintiff married W. supposing him to be a single man, and while they
were living together they purchased the premises in question, which were
paid for with the plaintiff's money. The deed was taken in both their names
as husband and wife. W. died, and the plaintiff afterward ascertained that
he had a wife and children living at the time of their marriage. Thereupon
she brought this action against the wife and her children to obtain title to
the whole property on the ground of W.'s fraud in inducing their marriage
and in taking the deed of the property jointly as husband and wife. Held,
that she was entitled to the decree prayed for. Gebel v. Weiss, N. J., 109.
2. Married woman-separate estate-purchase-title-feigned issue.]
B., the wife of C., having a separate estate, purchased a store, giving in
consideration her note with D. as surety. Held, in the trial of a feigned
issue to test the question of ownership of the store, in which issue B. was
plaintiff, and E., a creditor of C., was defendant, that if D. had become
surety in consequence of his knowledge that B. was possessed of available
means sufficient to meet the note when due, then B. had purchased the store
upon the credit of her separate estate. Gregg, Son & Co. v. George, Penn.,
380.

3. Separate estate - personal property-purchase-gift- liability —
creditors. A married woman having no separate estate cannot buy on
credit, horses, sheep, hogs, farming implements, etc., and hold them against
her husband's creditors. A married woman may receive as a gift her hus-