DEATH FROM NEGLIGENCE.

TO WHOM THE DAMAGES MAY BE PAID. 1. Under the statute of Indiana. Under the statute of the State of Indiana, in force in 1859, in case of the death of a minor from the negligence of a railroad company, the right to recover and to receive compensation for such wrong was placed in the father of such minor, if he were living. So, when the administrator of such minor permitted the father to receive the money arising from that cause, he was held to have performed his whole duty in respect to the fund. Perry v. Carmichael et al. 519.

DECREE.

UPON WHAT PLEADINGS GRANTED.

1. Where a bill, cross-hill, petition and answers thereto, relating to the same subject matter, are consolidated and heard together, and a decree rendered, it will be considered as made in view of all the allegations of the parties as contained in all the pleadings, although the petition and cross-bill may be dismissed on the hearing. Wilmington Star Mining Co. et al. v. Allen et al. 288.

PERSONAL DECREE.

2. What constitutes. A decree which simply requires a holder of the legal title to land to convey to a purchaser, upon the latter paying a certain sum claimed under a vendor's lien, is not to be regarded as a personal decree against the purchaser for the money. This in nowise imposes any liability in case of non-payment. Rann et al. v. Rann, 433.

DEEDS. See CONVEYANCES.

DEFAULT.

ADMISSION OF CAUSE OF action.

1. A default admits the facts alleged against the defendant to be true, but does not admit that those facts constitute a cause of action. So, if, upon default, it be found that the facts alleged do not give a right of recovery, final judgment should not be entered against the defendant. Madison County v. Smith, 328.

DELIVERY OF DEEDS. See CONVEYANCES, 1, 2, 3, 4.

DEPOSITS AND DEPOSITORS.

DESCENTS.

AS TO PERSONAL PROPERTY.

See BANKS, 3 to 12.

1. By what law governed. The succession to personal property is gov erned by the law of the actual domicil of the intestate at the time of his death, no matter what was the country of his birth, or his former domicil, or the actual situs of the property at the time of his death. Russell et al. v. Madden, 485.

DESCENTS.

AS TO PERSONAL PROPERTY.

Continued.

2. In the State of Sonora, Mexico. A citizen of the United States became domiciled in the State of Sonora, in the Republic of Mexico, and died there, intestate, leaving considerable property in that country, but leaving no child or children, or descendants of child or children him surviving. There were, however, brothers and sisters of the deceased, and his mother, who survived him. The law of the State of Sonora, in regard to the succession to estates, provides that "if there be only a father or mother living he or she shall succeed the child in the entire estate." So it was held, the mother of the deceased, the father being dead, succeeded to the whole of his estate situate in the State of Sonora, to the exclusion of his brothers and sisters. Russell et al. v. Madden, 485. AS TO AN ACCEPTANCE OF AN INHERITANCE.

3. In a foreign jurisdiction. In a contest between different claimants to the succession to an estate situate in a foreign jurisdiction, no question can arise, as between the several claimants, in respect to an acceptance of the inheritance by the party seeking to recover the estate. That question can only arise between the party seeking the recovery and the officers having the custody of the estate in the foreign jurisdiction. Ibid. 485.

DISCRETION.

AS TO ORDER OF INTRODUCING PROOF.

In allowing evidence in chief to be given after party has closed his case. See EVIDENCE, 9.

DURESS.

WHAT CONSTITUTES DURESS.

1. In avoidance of a contract. It is not enough to establish duress, that a party was imprisoned at the time of making a promise or executing a contract in respect to the subject concerning which he had been arrested. Imprisonment, when lawful, is by no legal intendment an abridgment of the free and voluntary volition of the mind in the management of business transactions. To put the party under duress, the imprisonment must be unlawful, or there must be an abuse of or an oppression under lawful process or legal detention. Heaps v. Dunham et al. 583.

2. So, where a person had been arrested upon a charge of bastardy, under a warrant regularly issued, and while under arrest, but not actually in prison, or even under such restraint as would prevent him from going where he pleased, he executed his promissory notes in settlement of the subject matter of the charge, it was held, the party was under no such duress as would enable him to avoid the contract. Ibid. 583.

EAST ST. LOUIS, CITY OF.

OF TAXATION THEREIN.

The rate per cent allowed. See TAXATION, 6 to 10.

EQUITABLE TITLE.

WHEN IT WILL PASS, THOUGH legal title DOES NOT.

By defectively executed power in mortgage. See MORTGAGES, 12.

ESTOPPEL.

AS TO RIGHT TO FORFEITURE OF LEASE.

1. Where a lessor of a mine, then operated by an insolvent corpora-
tion in the hands of a receiver, had proposed, under the sanction of the
court, to test his right to a forfeiture of the lease, and for that purpose
had served due notice, but the proceedings were stayed by injunction,
and after the dissolution of the injunction the lessor was informed by the
attorney of the corporation and receiver that no appeal would be taken,
and that he could take possession of the mine, which he did, and leased
the same to another party, who made considerable expenditures in fitting
up the same for operations, it was held, that after this abandonment and
surrender of possession, and such action had on the faith of it, the lessee
company and its receiver were estopped from retracting from such virtual
surrender of the old lease. Wilmington Star Mining Co. et al. v. Allen
et al. 288.

POWER TO ISSUE MUNICIPAL BONDS.

2. The payment of taxes levied to meet accruing interest upon bonds
issued in the name of a municipality will not operate to estop the tax-
payers of the municipality from alleging a want of power to create the
debt. This rule is in contra-distinction to the case of the mere irregular
or defective execution of an existing power, for in such case such a pay-
ment of taxes may well work an estoppel to set up the irregularity.
Shaeffer et al. v. Bonham et al. 368.

CORPORATIONS-ULTRA VIRES.

3. When corporation estopped to plead ultra vires. See CORPORA-
TIONS, 3.

FACTOR PLEDGING GOODS OF PRINCIPAL.

4. Whether the latter estopped from claiming his property as against the
pledgee. See FACTOR, 2.

LANDLORD'S LEASE.

5. As to what acts will operate to estop the landlord from claiming a lien
as against a purchaser from the tenant. See LANDLORD AND TENANT, 2.
PROMISE BY COUNTY TO PAY INTEREST.

6. Whether county estopped to plead ultra vires in respect thereto. See
INTEREST, 2.

EVIDENCE.

PAROL EVIDENCE

1. As to authority given by county board to issue order on county treasurer.
Except in cases where payment of money out of a county treasury is

specifically authorized by law to be made, no money or funds can prop-
erly be paid out unless upon an order of the county board, and in such
case the order of the county board can only be shown by the record.
Parol evidence is not admissible for such purpose. Hall v. Jackson
County, 352.

2. So, in an action against a county to recover upon an order on the
county treasurer, the order bearing interest upon its face, it was held
incompetent to prove by parol that the county board directed the order
to be issued with the interest clause. Ibid. 352.

3. To explain or enlarge the minutes of a judge or clerk-not admissible.
See MINUTES OF A JUDGE OR CLERK, 1.

SECONDARY EVIDENCE.

4. Where an original paper is in the hands of a third person residing out
of the State, and he refuses to attach the same to his deposition when
taken, and requested to do so, a sworn copy taken by another person
present, who attaches such copy to his deposition, is admissible in evi-
dence. Fisher v. Greene, 94.

ONE FACT INFERRED FROM PROOF OF another.

5. It is not always necessary that every fact essential to sustain a
finding shall be testified to by witnesses. Evidence of a fact may be
derived from inference, although there be no positive statement of its
existence. Jurors bring to bear upon testimony their common observa-
tion and general knowledge, and in the light thereof, and as men conver-
sant with affairs, they pass upon the evidence in a case, drawing the
inferences from it, which, as judges of the facts, they properly may do.
Robbins v. The People, 175.

6. So, under an indictment for keeping "a common gaming house," it was
proven that the defendant was seen frequently in certain rooms and was
there dealing the cards at the game of faro; that the rooms were kept
and used as common gambling rooms, in which were the implements of
gambling, and that the rooms were fitted up for gambling rooms. It was
also proven that the defendant had charge of the rooms, and whenever
any questions arose about the games being played there, all disputes
were referred to him for settlement. It was held, if it were necessary to
a conviction that it should appear there was gambling in the rooms "for
money or other valuable thing," that fact might be inferred from the
other facts proven, without being itself established directly by the testi-
mony of witnesses. Ibid. 175.

AS TO MOTIVE IN MAKING CONTRACT.

7. In an action by a real estate broker, against a person whose land
the plaintiff claimed to have sold, to recover for services in making the
sale, under an alleged special agreement in regard to the amount per
acre to be paid as compensation, evidence offered by the plaintiff, show-

EVIDENCE. AS TO MOTIVE IN MAKING CONTRACT.

Continued.

ing all the negotiations between the parties relating to the sale of the
land as the inducement to make the particular terms relied upon, might
well be rejected as having no bearing on the issue being tried. Robbins
v. Roth, 464.

EVIDENCE IN CHIEF AND IN REBUTTAL.

8. As to compensation for right of way. In a proceeding by a railroad
company to condemn an entire lot in a city for the use of its road, evi-
dence of the price per foot an adjoining tract had been sold for, and the
price per foot at which other lots had been offered for sale, is doubtless
competent if offered by the company as evidence in chief, but is not after
the defendant has closed. Chicago and Western Indiana Railroad Co. v.

Maroney et al. 179.

9. In a proceeding to condemn land, where the petitioner closes his
case and the land owner gives evidence of the value of the property
sought to be taken, there is no error in refusing to allow the petitioner
to prove the price at which an adjoining tract was sold, or at which other
lots in the vicinity are offered for sale. Such evidence is in chief and
not in rebuttal, and it is a matter of discretion to open the case and let
in proof which ought to have been given in chief. Ibid. 179.

QUESTIONING JUDICIAL PROCEEDINGS COLLATERALLY.

10. As, in respect to ordering the sale of the property of an insane per-
son by a conservator. Aside from the question of jurisdiction in the
appointment of a conservator, and in the proceeding to authorize the
conservator to sell and convey land, the question whether there was a
proper case for the exercise of the jurisdiction in respect of the kind of
property sought to be sold, or the necessity for its sale, can not be made
in a collateral proceeding, as, in an action of ejectment where one of the
parties claims under the conservator's deed. Gardner v. Maroney, 552.

AS TO DEGREE OF EVIDENCE REQUIred.

11. It is error to instruct a jury that it is necessary for the plaintiff
to prove a material fact, or that it should be made to appear from the
evidence "to the satisfaction of the jury." The law does not demand that
every material allegation should be established to the satisfaction of the
jury, and it is error to so instruct. The jury in a civil case are to decide
facts upon the weight or preponderance of the evidence, even though
the proof does not show such facts to their satisfaction. Stratton v.
Central City Horse Railway Co. 25.

IN SUIT ON OFFICIAL BOND OF CITY Treasurer.

12. Evidence as to amount in hands of principal-how far sureties con-
cluded by entries of principal. See OFFICIAL BONDS, 12 to 18.

13. The officer's books as evidence. Same title, 18.