Title XVIII. Actions by and against Corporations. Title XIX. Foreign Corporations. The extent and variety of the questions under consideration may be understood when it is stated that within these titles are two hundred and one chapters, each chapter divided into many sections, their total number in the six volumes being some eight thousand. We have particularized in giving the above figures in order that the reader may appreciate the magnitude of the work and the comprehensiveness of its character. As to the manner in which the labor of Mr. Thompson has been performed it is enough to say that it is beyond any criticism, and that it is of a kind which is to be expected from one whose ability as a book writer has been demonstrated and established for years. In point of accuracy, diligence, originality of thought, and freedom to express an opinion, we have no law book writer who surpasses Mr. Thompson, and, though like the rest of human kind, his opinions may not be invariably correct, the student will always find something valuable in his views and discussions. There is one special merit in this work, to which we call attention as being different from most modern text-books, and that is the effort of the author to treat every topic with such fullness of detail that the state of the law in respect of it can be learned from the pages of the work and without the necessity of the reader searching the adjudged cases. To this end the author states not only what the courts have decided but also the reasons which they have given for their decisions. In this respect the work differs as much from the ordinary text-book as a commentary of law may differ from the United States Digest. In conclusion we beg to commend this latest work on corporations to the profession, and to say that the corporation attorney will find in its pages the entire modern law of corporations compiled and ready for immediate and practical application. The vol umes are beautifully printed and bound in best law sheep. Published by Bancroft-Whitney Company, San Francisco. BOOKS RECEIVED. The American State Reports, Containing the Cases of General Value and Authority Subsequent to those contained in the "American Decisions" and the "American Reports," Decided in the Courts of Last Resort of the Several States. Selected, Reported and Annotated, by A. C. Freeman, and the Associate Editors of the "American Decisions." Vol. 42. San Francisco: BancroftWhitney Company, Law Publishers and Booksellers. 1895. A Digest of the Missouri Reports, Embracing Volumes 101 to 121, of the Supreme Court Reports, Volumes 42 to 58 of the Reports of the Court of Ap peals, and all the Unreported Cases in Volumes 25 to 27 of the Southwestern Reporter. In Two Volumes. Vol. II. By Everett W. Pattison of the St. Louis, Bar. St. Louis, Mo.: The Gilbert Book Company. 1895. ILLINOIS, 9, 21, 31, 33, 39, 42, 46, 73, 93, 98, 110, 116, 130, 155, 162, 165, 166, 211, 215, 217, 232 INDIANA, 7, 8, 45, 65, 77, 94, 102, 105, 115, 124, 134, 136, 140 MINNESOTA...... ΜΟΝΤΑΝΑ. ...30 ...1, 5, 36 .66, 69, 103 ..41, 72, 85, 132, 164 .59, 149, 210 ..3, 32, 61, 100, 101, 175, 185, 201, 218 ..37, 53, 126, 219 NEBRASKA, 10, 11, 12, 24, 27, 63, 70, 71, 82, 95, 97, 118, 121, 144 147, 152, 172, 174, 184, 187, 194, 199, 205, 214 NEVADA...... NEW JERSEY. NEW YORK... 56, 213 .20, 40, 139, 168, 186, 208 ...131, 231 1. ACCIDENT INSURANCE.-The death of an officer, resulting from wounds inflicted by a prisoner while resisting arrest, is not death from "accidental injuries," within the meaning of that phrase as used in an accident policy.-AMERICAN ACCIDENT CO. OF LOUISVILLE V. CARSON, Ky., 30 S. W. Rep. 879. 2. ADMINISTRATION-Judgment Fraudulent Representations.-Where an order of probate court is obtained by fraudulent representations, the court has jurisdiction to set aside the order after the term wherein said order was made has expired unless the representations were immaterial.-HIRSHFIELD V. BROWN, Tex., 30 S. W. Rep. 962. 3. ADMINISTRATION-Sale of Minor's Land-Collateral Attack. Where it appears from the records of a probate court relating to a sale of real estate by a guardian or an executor or an administrator, which are complete and regular upon their face, that each and all of the essentials of a valid sale named in this statute have been complied with, such records import unimpeachable verity, and the presumptions arising therefrom cannot be rebutted in a collateral proceeding by any evidence dehors the record.-KURTZ V. ST. PAUL & D. R. Co., Minn., 63 N. W. Rep. 1. 4. ADVERSE POSSESSION-As Between Joint Tenants. -Occupancy of land and payment of taxes thereon by one cotenant is not adverse to another cotenant in the absence of direct notice by the former to the latter that he is holding adversely, or of overt acts unequivocally showing that such holding is adverse.-SCOFIELD V. DOUGLASS, Tex., 30 S. W. Rep. 817. 5. ANIMAL-Vicious Dog.-Under St. Ky. § 68, providing that an owner of a dog shall be liable for injuries done by it, he is liable for actual damages, though he did not know of the dog's vicious disposition, and for punitive damages, if he had such knowledge.-KOESTEL V. CUNNINGHAM, Ky., 30 S. W. Rep. 972. 6. APPEAL-Harmless Error. The fact that a witness, either voluntarily or by compulsion of court, answers questions relevant to the issue and admissible, but which he has the privilege of not answering, is not available to the party producing the witness as ground for reversal.-INGERSOL V. MCWILLIE, Tex., 40 S. W. Rep. 869. 7. APPEAL-Jurisdiction.-Plaintiff alleged that defendant held over as tenant, and owed for rent. The answer was a general denial; a purchase by verbal agreement, under which defendant made valuable improvements, and paid part of the price; and, in addition, settlement in full of the price. No affirmative relief was sought by or decreed to defendant: Held, that, as a judgment under the pleadings could not settle the question of title, the jurisdiction of the appeal is in the appellate court. -CORBIN V. THOMPSON, Ind., 40 N. E. Rep. 532. 8. APPEAL-Parties. An appeal by a husband from a judgment against himself and wife will be dismissed for want of jurisdiction, unless the wife is a party to the appeal.-INMAN V. VOGEL, Ind., 40 N. E. Rep. 665. 9. APPEAL-Presumptions. Where a party duly ex cepted to the ruling of the court in dismissing an appeal, but where the facts leading to the judgment, or the grounds of dismissal, are not preserved in the record, it will be presumed that the judgment was warranted by the facts before the court. -CHICAGO, R I. & P. Rr. Co. V. TOWN OF CALUMET, III., 40 N. E. Rep. 625. 10. APPEAL-Questions not Raised Below. Where a statute is claimed to be invalid on the ground that it was not enacted in the constitutional mode, such invalidity must be presented by the pleadings or in some other form in the trial court, to be of any avail here. Such objection cannot be raised for the first time in the appellate court.-CLEARWATER BANK V. KURKONSKI, Neb., 63 N. W. Rep. 133. 11. APPEAL FROM JUSTICE'S COURT.-An undertaking given for the purpose of appealing a case from a justice of the peace to the district court is approved by the justice if he receives it, examines it, and expresses himself as "satisfied," and retains it in his custody.BINGHAM V. SHADLE, Neb., 63 N. W. Rep. 143. 12. APPEARANCE - Garnishment. An appearance is special when its sole purpose is to question the juris. diction of the court. It is general if the party appearing invokes the power of the court on any question other than that of jurisdiction. Whether it is general or special is to be determined by an examination of the substance of the pleading, and not by its form.-SOUTH OMAHA NAT. BANK V. FARMERS' & MERCHANTS' NAT. BANK OF FREMONT, Neb., 63 N. W. Rep. 127. 13. APPLICATION OF PAYMENTS. - Plaintiff held two notes against defendant,-one as executor, the other in his own right, as assignee, without defendant's knowledge; and in answer to his request for money, made on the ground that "one of the heirs" needed it, defendant remitted a check: Held, that the same should be applied on the note held by plaintiff as executor.-MOOSE V. MARKS, N. Car., 21 S. E. Rep. 561. 14. ARBITRATION-Sufficiency of Award.-Where an agreement to arbitration did not require a statement in the award of the conclusions of the arbitrators upon the subject of damages, an award of a gross amount to one party, without reference to the claims of the other, is sufficient compliance with the agreement.-GILL V. BICKEL, Tex., 30 S. W. Rep. 919. 15. ASSIGNMENT FOR BENEFIT OF CREDITORS.-An in strument conveying all the property of an insolvent to another, and giving him power to sell the property and pay the debts, and return the balance to the grantor, is a statutory assignment, and not a mortgage.-LOCHTE V. BLUM, Tex., 30 S. W. Rep. 925. 16. ASSIGNMENT FOR BENEFIT OF CREDITORS-Cancellation of Fraudulent Conveyances. Creditors of one who has assigned for the benefit of creditors may sue to set aside previous fraudulent conveyances, though the assignee may not. DITTMAN V. WEISS, Tex., 30 S. W. Rep. 863. 17. ASSIGNMENT FOR BENEFIT OF CREDITORS-Mortgage. An instrument conveying all of an insolvent's property to secure all his debts, and providing that after the debts are paid the remaining property shall be returned to the grantor, is a mortgage, and not an assignment for creditors.-ADAMS V. BATEMAN, Tex., 30 S. W. Rep. 855. 18. ASSIGNMENT FOR BENEFIT OF CREDITORS-Validity. -Where an assignment purports to convey all the debtor's property to be equally distributed among all his creditors, and the same is accepted by the assignee and by a majority in number, if not in amount, of all the creditors, it cannot be held fraudulent on its face, although it contains provisions which might be objectionable if the assigament were one granting preferences; nor can such assignment be set aside because of the fraudulent intent of the assignor, not shown to have been participated in by the assignee and the accepting creditors.-PORTER V. JAMES, U. S. C. C. of App., 67 Fed. Rep. 21. 19. ASSIGNMENT OF CLAIM-Ownership by Assignor. -In an action for the price of logs sold to defendant by one M, who assigned the claim to plaintiffs, it was not error to refuse an instruction that plaintiffs could not recover if the logs did not belong to Mat the time of the assignment, there being evidence that at the time of such assignment M was acting as agent for the owner, who subsequently ratified his act.--FLECKENSTEIN V. INMAN, POULSEN & CO., Oreg., 40 Pac. Rep. 87. 20. ASSUMPSIT-Breach of Contract.-Where a person agrees to take clay from beds, to be paid for at a certain rate according to the quantity and quality of the clay so to be raised, and has stripped off the surface earth, but, before he has raised any clay, is stopped in his work by the owner of the beds, with whom he has contracted, a suit will not lie in the common courts for the cost of such stripping. If such contract has been illegally terminated, the remedy of the injured party is to sue on the contract, laying his damage for the loss of such profits as he would have made by the completion of the contract.-RYAN V. REMMEY, N. J., 31 Atl. Rep. 766. 21. ATTACHMENT - Fraudulent Conveyances. In an attachment proceeding based on allegations that the debtor was about to fraudulently dispose of his property, the fact that an instruction stated that the fraudulent act must "be on the very eve of consummation" is not cause for reversal, where the correct rule is substantially given in other instructions.-DUEBER WATCH-CASE MANUF'G CO. v. YOUNG, Ill., 40 Ν. Ε. Rep. 582. 22. ATTACHMENT-Grounds. The shipment of products of an enterprise out of the State in the due course of business is not sufficient ground for an attachment where the removal is not permanent, and the proceeds are brought back within the State.CLINCH RIVER MINERAL CO. V. HARRISON, Va., 21 S. E. Rep. 660. 23. ATTACHMENT-Release of Property.-A defendant in attachment may turn over to the levying officer sufficient money to satisfy the claim and costs, to abide the suit, in order to release the property seized. -SOLOMON V. SALY, Colo., 40 Pac. Rep. 150. 24. ATTACHMENT BOND-Set-off. In an action upon an attachment undertaking a claim due the principal in such bond from the plaintiff is a proper subject of set-off.-FIELD V. MAXWELL, Neb., 63 N. W. Rep. 62. 25. ATTACHMENT LEVIES-Priorities.-A sheriff cannot, by virtue of a writ of attachment which came to his hands before another writ came into the hands of a constable, take from the latter property first levied on by the latter.-DERRICK V. STATE, Ark., 30 S. W. Rep. 760. 26. BANKS AND BANKING-Insolvency of Collecting Bank. A bank received a note for collection and remittance, but, instead of remitting as directed, credited its correspondent with the proceeds, and shortly thereafter failed. At the time of failure the cash on hand was less than the amount of the collection, but the receiver realized from the assets sufficient to pay all preferred claims. There was no proof that the proceeds of the note formed part of the assets converted into money by the receiver: Held, that the lien on the assets of the bank for the trust funds converted was limited to the amount of cash on hand at the time of the failure, the presumption of law being it was the residuum of the the trust money.-BOONE COUNTY NAT. BANK V. LATIMER, U. S. C. C. (Mo.), 27 Fed. Rep. 67. 27. CARRIERS Delivery- Bill of Lading.-Bills of lading are symbols of property, and, when properly indorsed, operate as a delivery of the property itself, investing the indorsees with the constructive custody, which serves all the purposes of an actual possession, and so continues until there is a valid and complete delivery of the property, under and in pursuance of the bill of lading, to the person entitled to receive the same.-UNION PAC. RY. Co. v. JOHNSON, Neb., 63 N. W. Rep. 144. 28. CARRIERS OF GOODS-Failure to Furnish Cars.Inability of a railroad to furnish cars contracted for, owing to an unexpected increase in its volume of business, is no defense for breach of such contract.-Gulf, C. & S. F. RY. Co. v. HODGE, Tex., 30 S. W. Rep. 829. 29. CHATTEL MORTGAGE-Validity.-A provision in a chattel mortgage given in trust for certain creditors, reserving to the mortgagor the right, with the consent of such creditors, to discharge the trustee in case he becomes unwilling or incompetent to carry out the trust, does not invalidate the instrument as to creditors, as giving the mortgagor control of the property. -MEYER BROS. DRUG CO. V. RATHER, Tex., 30 S. W. Rep. 812. 30. CONSTITUTIONAL LAW-Committing Witnesses.Section 61, ch. 82, Gen. St. 1889, by which an examining magistrate is authorized to commit to prison a witness who refuses to enter into a recognizance with or without sureties for his appearance as a witness, is not unconstitutional, as being in violation of the fifth article of the amendment of the constitution of the United States.-IN RE PETRIE, Kan., 40 Pac. Rep. 118. 31. CONSTITUTIONAL LAW-Gaming. Rev. St. 1893, ch. 38, div. 8, which authorizes the issuance of search warrants for the recovery of stolen property, counterfeit coin, obscene literature, lottery tickets, and gaming apparatus, which provides that such property, if found, and the person in whose possession they are found, shall be brought before the judge or justice who issued the warrant, and which directs that such property shall be kept so long as is necessary for the purposes of the trial, and that "as soon as may be afterward all such stolen property shall be restored to the owner thereof, and all the other things seized by virtue of such warrants shall be burnt or otherwise destroyed under the direction of the judge, justice or the court," is not unconstitutional as depriving persons of property without due process of law.-GLENNON V. BRIT · TON, III., 40 N. E. Rep. 594. 32. CONTEMPT PROCEEDINGS- Reviewed by Certiorari. Where in contempt proceedings the penalty imposed is for the benefit of a party, the order is ap pealable, and certiorari will not lie to review it; but, where the punishment is for a criminal contempt,that is, one where the penalty is imposed solely to vindicate the authority of the court,-the order is not appealable, and it can be reviewed by certiorari. STATE V. WILLIS, Minn., 63 N. W. Rep. 169. 33. CONTRACT-Action for Wages-Services.-Where the services sued for were rendered by plaintiff while she was a member of the family of defendant, who was her cousin, it is proper to instruct the jury that they are authorized to find whether there was a contract, express or implied, to pay the plaintiff's services.-HEFFRON V. BROWN, Ill., 40 N. E. Rep. 583. 34. CONTRACT-Breach.-The making of payments on a building contract without objection, after the timespecified for the completion of the work, is a waiver of any claim for damages, except as against the unpaid balance, for failure to finish the work within the stipulated period. BRODECK V. FARNUM, Wash., 40Рас. Вер. 189. 35. CONTRACT-Breach-Damages.-One who, in con sideration of the assignment to him of a half interest in an invention, agrees to pay the costs of procuring a patent and manufacturing the machines, will not, upon his refusal to pay such costs, become liable for the full value of the invention, or for profits which the assignor could have realized from sales on the machine if it had been patented and manufactured.HOLLIDAY V. BROSIG, Tex., 30 S. W. Rep. 841. 36. CONTRACTS-Consideration.-Where the defendant agrees to act as stakeholder for money due a contractor, and to pay the same to the subcontractor, and the person who is to pay the money refuses to accept the order, and the subcontractor draws a portion of the money direct, a subsequent agreement by defend. ant to pay the debt, under the belief that he was bound to do so by the first agreement, is without consideration. SNEED & CO. IRON WORKS V. JEFFERSON, Ky., 30 S. W. Rep. 883. 37. CONTRACT-Order-Consideration.-An agreement not to file a lien on an owner's lot is a good consideration for his acceptance of an order.-LEVELL V. FROST, Mont., 40 Pac. Rep. 146. 38. CORPORATION-De facto Corporation.-A corporation created under the general law of this State for incorporating railroad companies can bind by mortgage or trust deed, executed to secure bonds issued by it to provide funds for constructing its railroad, future acquired property, as well as property owned by it at the time of the execution of the instru ment. This being so, a corporation de facto can do the like.-MCTIGHE V. MACON CONST. Co., Ga., 21 S. E. Rep. 701. 39. CORPORATIONS-Election of Directors. Const. 1870, art. 11, § 3, provides that "the general assembly shall provide by law that" in elections for directors or managers of incorporated companies every stockholder shall have the right to vote for the number of shares of stock owned by him, with certain rights as to cumulating his shares in order to vote for certain candidates, and such directors or managers shall not be elected in any other manner:" Held, that a bylaw of a railroad company allowing bondholders to vote for directors was void.-DURKEE V. PEOPLE, Ill., 40 N. E. Rep. 626. 40. CORPORATIONS- Fraud - Stockholders. Where the directors of a corporation, by gross negligence in the management of the corporation, wreck it, the stockholders may sue the directors for damages with out first suing to set aside apparently valid incumbrances created through the connivance of such directors.-LANDIS V. SEA ISLE CITY HOTEL CO., N. J., 31 Atl. Rep. 755. 41. CORPORATIONS-Insolvency.-On an issue as to the insolvency of a corporation, testimony of a notary that he had protested its commercial paper for nonpayment is admissible.-MISH v. MAIN, Md., 31 Atl. Rep. 799. 42. CORPORATIONS - Similarity of Names.-Rev. St. 1893, ch. 32, § 2, which forbids the incorporation of two companies having the same name, does not prevent the incorporation of both "The Elgin Butter Company" and "Elgin Creamery Company."-ELGIN BUTTER CO. V. SANDS, 111.. 40 N. E. Rep. 616. 43. CORPORATIONS-Validity of Contract.-A contract whereby the officers of an insolvent corporation, for the purpose of avoiding dissolution, transferred all its property to another corporation which had been organized to continue its business, and accepted in pay. ment shares of stock in the corporation, which were to be held by trustees named by such officers, was void, In the absence of a provision of the charter expressly authorizing such a transaction.-BRYNE V. SCHUYLER ELECTRIC MANUF'G Co., Conn., 31 Atl. Rep. 833. 44. COUNTIES - Allowance of Claims. Under Laws 1893, p. 292, providing that any person may appeal from a decision of the county commissioners, and that the "party appealing" shall serve notice, etc., persons interested in a claim, who feel aggrieved by the decision of the commissioners, only can appeal and not taxpayers generally.-MORATH V. GORHAM, Wash., 40 Pac. Rep. 129. 45. COUNTY-Implied Contract.-Where a county officer takes dirt from private premises, for a public purpose, without permission of the owner, the owner of the land, waiving the tort, may sue the county commissioners for the value of the dirt.-BOARD OF COM'RS OF RUSH COUNTY V. TREES, Ind., 40 N. E. Rep. 535. 46. COURTS County Court-Holding Court in Another County.-Under Rev. St. 1893, ch. 37, § 215a, which provides that the county judges of the several counties, "with like privileges as the judges of the circuit courts," may "interchange with each other, hold court for each other, and perform each other's duties," when necessary or convenient, a county judge of one county may hold court in another county at the same time that the county judge of the latter county is holding another branch of the court there.-PIKE V. CITY OF CHICAGO, III., 40 Ν. Ε. Rep. 567. 47. COURTS-Jurisdiction. Under Const. art. 14, §§ 1, 2, and Act Va;, 1785, "concerning the erection of the district of Kentucky into an independent State," the Circuit Court of a county in Indiana has jurisdiction of a suit for the wrongful killing of one opposite that county, on that part of the Ohio river which is the southern boundary of Indiana.-MEMPHIS & C. PACKET Co. v. PIKEY, Ind., 40 N. E. Rep. 525. 48. CRIMINAL EVIDENCE-Larceny. The well estab lished rule that independent facts, discovered in consequence of a constrained confession made by a prisoner, are admissible in evidence against him, is of force in this State, unless it appears that criminal violence was used in procuring the confession or making the discovery. And, where such independent facts are admissible, so much of the prisoner's acts and declarations as are necessary to account for the discovery and explain the manner of it are admissible also, but solely for this purpose. They count for nothing as confessions, and, as such, are to be wholly disregarded. -RUSHER V. STATE, Ga., 21 S. E. Rep. 593. 49. CRIMINAL EVIDENCE-Murder-Handwriting.-On a trial for murder, an anonymous letter threatening violence to deceased, found on him after the killing, and shown to have been in his possession two or three weeks before that time, was, when proved to be in defendant's handwriting, proper evidence to be considered in determining whether the killing was due to malice, even though such killing had been shown to be the result of a quarrel between defendant and the deceased a few days before the act was committed.KARR V. STATE, Ala., 17 South. Rep. 328. 50. CRIMINAL EVIDENCE-Robbery. On a trial for robbery, it was not error, as compelling defendant to testify against himself, to admit evidence of his identification by witnesses before whom he had been taken, as the person whom they saw near the place of the crime on the evening it was committed.-LAND V. STATE, Tex., 30 8. W. Rep. 788. 51. CRIMINAL LAW - Assault from Ambush. In a trial for assault from ambush, complainant testified that, after he had been ordered from defendant's premises, he saw the latter come out, and point to a place near by, from which he inferred that it was de. fendant's intention to go there and shoot him. Com. plainant ran home, returned with a gun, and searched for defendant, but, before he discovered his hiding place, was himself shot, recognizing defendant as his assailant by the flash of the gun: Held, not an assault made in a "secret manner."-STATE V. GUNTER, N. Car., 21 S. E. Rep. 674. 52. CRIMINAL LAW-Embezzlement.-A bailee appropriating money intrusted to him by a thief is guilty of embezzling the same from the thief.-STATE LITTSCHKE, Oreg., 40 Pac. Rep. 167. v. 53. CRIMINAL LAW-Forgery. It is forgery to sign a check of apparent legal efficiency in an assumed or fictitious name, if done with intent to defraud the payor.-STATE V. VINELAND, Mont., 40 Pac. Rep. 173. 54. CRIMINAL LAW-Forgery-Name of Fictitious Person. The signing of a fictitious name to an instru. ment, with a fraudulent intent, constitutes forgery.HOCKER V. STATE, Tex, 30 S. W. Rep. 783. 55. CRIMINAL LAW-Former Jeopardy.-A conviction of assault with a deadly weapon will not support a plea of former conviction in a trial for carrying a con. cealed weapon.-STATE V. ROBINSON, N. Car., 21 S. E. Rep. 701. 56. CRIMINAL LAW-Homicide. A murder not perpetrated by means of poison, lying in wait, or torture, nor in the perpetration of, or attempt to perpetrate, arson, rape, robbery, or burglary, can only become murder in the first degree by being willful deliberate, and premeditated. An instruction which ignores these conditions, and informs the jury that if they find that the defendant unlawfully, and with malice aforethought, killed the deceased, their verdict must be murder in the first degree, is erroneous.-STATE V. WONG FUN, Nev., 40 Pac. Rep. 95. 57. CRIMINAL LAW-Homicide-Aiding and Abetting. -In a trial for murder, an instruction that if defendant was present for the purpose of actual assistance as the circumstances might demand, and the principal was encouraged to take the life of the deceased by the presence of defendant, then defendant aided and abetted in the killing of the deceased, is properly given.-SINGLETON V. STATE, Ala., 17 South. Rep. 327. 58. CRIMINAL LAW-Homicide-Self-Defense. On an issue that defendant produced the occasion with a view of having deceased killed, or killing him himself, and that he had not abandoned the difficulty at the time deceased was killed, a charge "that a party, unlawfully and violently attacked, such an attack would not justify homicide if the party killing had provoked the difficulty with the intent to kill his assailant, or had voluntarily engaged in a difficulty with the person killed," is correct.-BURRIS V. STATE, Tex., 30 S. W. Rep. 785. 59. CRIMINAL LAW-Indecent Assault. Where it appears from the evidence in a prosecution under 3 How. Ann. St. § 9314b, for assaulting a female child under 14 years of age, and taking improper liberties with her person, that, while defendant put his arm around her waist, he did not take any liberties, an instruction that he might be convicted of an assault is error.-PEOPLE V. SHEFFIELD, Mich., 63 N. W. Rep. 65. 60. CRIMINAL LAW Instructions. Where the evidence is mainly circumstantial, and no special charge was asked applying the doctrine of reasonable doubt to any particular fact, and the circumstances do not call for any special charge relating thereto, a correct general charge on reasonable doubt is sufficient.CARSON V. STATE, Tex., 30 S. W. Rep. 799. 61. CRIMINAL LAW Jurisdiction. -The offense of larceny from the person was committed above an island on a wagon bridge, which crosses the Mississippi river between Wisconsin and Minnesota. The island is on the Wisconsin side of the main channel of the river, is separated from the Wisconsin shore by non-navigable water, is subject to overflow, is submerged about four months in the year, is crossed by said bridge, which rises above high water mark, is a permanent structure, and is suported by piles driven into the soil of the island: Held, the State of Minnesota and its courts have jurisdiction over said offense- STATE V. GEORGE, Minn., 63 N. W. Rep. 100. 62. CRIMINAL LAW-Justifiable Homicide.-To reduce homicide in self defense to excusable homicide, it must be shown that the slayer was closely pressed by the other party, and retreated as far as he conveniently or safely could, in good faith, with the honest intent to avoid the violence of the assault.-STATE V. ZEIGLER, W. Va., 21 S. E. Rep. 763. 63. CRIMINAL LAW-Larceny-Evidence.-In a prose. cution for larceny, if the owner of the property alleged to have been stolen is examined as a witness upon the trial, his testimony that he did not consent to the taking of the property is indispensable to a conviction.-PERRY V. STATE, Neb., 63 N. W. Rep. 26. 64. CRIMINAL-Murder.-Under Pen. Code, art. 590, providing that when one, in the execution of a felony, shall kill another, though without an apparent intention to kill, the offense is not negligent homicide, and article 47, providing that if one, intending to commit a felony, and in the act of executing the same, shall through mistake or accident, do another act, which, if voluntarily done, would be a felony, he shall receive the punishment affixed by law to the offense actually committed. If A shoots at B, intending to unlawfully kill him, but unintentionally kills C, A is guilty of murder.- RICHARDS V. STATE, Tex., 30 S. W. Rep. 805. 65. CRIMINAL LAW-New Trial.-An affidavit for a new trial on the ground of newly-discovered evidence must state facts showing the materiality of the evidence, a mere allegation that it is material being insufficient, and must also aver that the same is believed to be true, and that it has been discovered since the trial.-RUSSELL V. STATE, Ind., 40 N. E. Rep. 666. 66. CRIMINAL LAW-Right to Bail.-A mistrial, be cause of a disagreement of a jury as to a capital offense, does not furnish the accused the absolute right to give bail. That fact, coupled with other circumstances, simply affords proper matter for the court to consider in exercising its discretion as to whether or not it will admit to bail.-EX PARTE VICKERS, La., 17 South. Atl. Rep. 296. 67. CRIMINAL PRACTICE-Obscene Publications-Indictment. When an indictment, under article 343, Pen. Code, which makes indecent publications a criminal offense, fails to show on its face that the published matter was obscene or indecent, it will not sustain a conviction.-ABENDROTH V. STATE, Tex., 30 S. W. Rep. 787. 68. CRIMINAL PRACTICE - Record of Conviction. Where one indicted for murder in the first degree was convicted of murder in the second degree, and the clerk inadvertently entered in the record that he was found guilty as charged, instead of guilty of murder in the second degree, the court could, during the term, order the clerk to correct the error, without first requiring the presence of defendant.- STATE V. MCNAMARA, Ark., 30 S. W. Rep. 762. 69. CRIMINAL TRIAL-Cross-examination.- Although the cross-examination of the witness for the State is closed, the defendant's counsel should be allowed to question the witness as to contradictory statements by him, so as to afford the basis to introduce proof of such statement, and thus impeach the witness' credit; the witness being at hand and on the stand, and the exercise of the right claimed on behalf of the prisoner operating no delay or injury to the State.-STATE V. NIXON, La., 17 South. Rep. 303. 70. DECEIT.-In an action to recover damages for alleged false representations or fraud and deceit prac. ticed upon plaintiff, by reason of which it is claimed he was induced to part with property (in this case a farm) at a price greatly below its real value, and thus damaged, it devolves upon the party pleading the fraud and deceit to show that he was influenced by 72. DEED-Condition Subsequent.-In response to a resolution of a city council, directing a lease "for pub. lic use" with the right reserved "to purchase," certain land described in the resolution was conveyed to the city by two deeds. The first conveyed a portion of the land with a habendum clause, stating that it was to be held by the city "as and for a street, to be kept as a public highway;" and the second, after setting out the resolution, leased to the city, with the right reserved to purchase in fee, all the ground mentioned in the resolution, except that which had been granted by the prior deed to the city in "fee-simple." All the land thus conveyed was used by the city for a public park: Held, that the habendum clause of the first deed did not create a condition subsequent so as to work a forfeiture in case the property was not maintained as a public street.-KILPATRICK V. MAYOR, ETC. OF BALTIMORE, Md., 31 Atl. Rep. 805. 73. DEED-Delivery.-A man executed a deed con. veying land to his nieces and nephews, some of whom were minors, and gave it to his partner, telling him to take care of it. The partner kept the deed until after the grantor died. The grantor at the same time executed and delivered a lease of the property, in which lease the grantees in the deed were recognized as the owners of the land: Held, that the deed was duly delivered. MILLER V. MEERS, Ill., 40 N. E. Rep. 577. 74 DEED-Duress.-A deed executed during the duress of the grantor is not void but voidable only.-COMMERCIAL NAT. BANK OF CLEVELAND V. WHEELOCK, Ohio, 40 N. E. Rep. 636. 75. DEED-Husband to Wife.-A deed from a husband to his wife for real estate, while inoperative and void at law, is nevertheless valid in equity, and will confer upon the wife a good equitable estate, which in all cases will be enforced against the husband by a court of equity.-COSNER V. MCCRUM, W. Va., 21 S. E. Rep. 739. 76. DEED-Parol Evidence.-Where the description in a deed is free from ambiguity, parol evidence is not admissible to show that the premises in controversy were intended to be included therein.-ELOFRSON V. LINDSAY, Wis., 63 N. W. Rep. 89. 77. DEED-Rule in Shelley's Case.-A deed giving land to persons "during their natural lives, and at their death to the heirs of their body," gives the grantee a fee.simple.-WATERS V. LYON, Ind., 40 N. E. Rep. 662. 78. DEED OF GIFT-Construction.-A deed by E S, of the first part, and S S, "his wife, and her heirs, named on the back of the deed," of the other part, conveyed to the wife and her "children" certain land. The deed was executed for the purpose of providing for the grantor's family, a life estate being reserved by him. On the back of the deed, after the indorsement of the names of the children, was indorsed the provision that, if the wife had any other children, they should have an equal share with the above "heirs:" Held, that the wife and children took a fee-simple.-HELMS V. AUSTIN, N. Car., 21 S. E. Rep. 556. 79. DESCENT-Rights of Heirs.-Under Sayles' Civ. St. art. 1652, providing that where a part of intestate's relations in the first and same degree are dead, and a part alive, the descendants of the former shall inherit only such portion of the estate as their parents would be entitled to, if alive, a grandchild takes per stirpes, and his share may be charged with a debt due the estate from his deceased parent.-PoWERS V. MORRISON, Tex., 30 S. W. Rep. 849. |