HIGHWAYS. SAFETY OF HIGHWAYS IN CITIES. Continued.
3. And even had it been a natural channel, or one made before the
limits of the city were extended so as to embrace it, the duty to have
rendered it safe to the public would have been the same. City of Chicago
v. Gallagher, Admx. 295.
4. And the failure to properly protect persons from falling into such a
place, when the water is in such noxious condition as to enhance the dan-
ger to the life of a person falling in, establishes a greater degree of neg-
ligence than if the water had been free from such pollution. Ibid. 295.
APPEAL FROM CIRCUIT COURT.
5. In respect to locating a highway — decision of Circuit Court final.
See APPEALS AND WRITS OF ERROR, 1.
HOMESTEAD.
NECESSITY OF OCCUPANCY.
1. Where the owner has mortgaged the premises. To entitle a mort-
gagor to a homestead in the mortgaged premises, such mortgagor must
not only be the head of a family, but, at the time of mortgaging, there-
with reside and so continue to reside on the mortgaged premises. Fergus
et al. v. Woodworth et al. 374.
2. So the owner of a homestead cannot abandon the lot of ground,
remove his dwelling to other premises, remove his family to the latter
place, incumber the premises on which he formerly resided, and, after an
absence of three or four years, return to his former home, and claim and
hold it as a homestead against such an incumbrance, merely by showing
that it had been his home, and that he had during his abandonment of
the property as a residence, a secret intention at some time in the future
to resume it as a home. Ibid. 374.
OF JUDGMENT FOR TORTS OF HUSBAND.
3. Whether embraced in the exemption. Under the acts of 1851 and
1857, concerning the homestead exemption, the homestead is exempt from
sale under an execution issued on a judgment against the husband,
whether such judgment is obtained for the violation of a contract, or his
torts. Conroy v. Sullivan et al. 451.
HUSBAND AND WIFE.
GIFT FROM HUSBAND TO WIFE.
1. Whether revocable. At law a gift from husband to wife is ordinarily
void, and, being so, can be revoked by the husband. Courts of equity
will, in certain cases, support such gifts, but require clear and incontro-
vertible evidence. Manny v. Rixford, 129.
2. Not embraced in the act of 1861, concerning the separate property of
married women. See MARRIED WOMEN, 4.
SLANDEROUS WORDS BY THE WIFE.
Liability of the husband. See SLANDER, 3.
CONVEYANCE OF THE WIFE'S LAND.
Husband and wife must join in the deed. See MARRIED WOMEN, 1.
HUSBAND AND WIFE. Continued.
HUSBAND'S ESTATE IN THE WIFE'S LAND.
How affected by the act of 1861. See MARRIED WOMEN, 2, 3.
RIGHTS OF HUSBAND AS ADMINISTRATOR.
May administer, but must distribute. See ADMINISTRATION OF
ESTATES, 4, 5.
IDEM SONANS. See NAMES, 1, 2.
IMPLIED TRUSTS. See TRUSTS, 1, 2, 3.
IMPOUNDING ANIMALS.
SALE BY POUND MASTER.
1. Necessity of a judicial investigation. The act of 1861, which gives to
towns the power to restrain or prohibit the running at large of certain ani-
mals, and authorizes the distraining, impounding and sale of the same for
penalties incurred, and the costs of the proceedings, does not give to towns
the power to confer upon any of its officers authority to make sales of im-
pounded animals except upon the contingency that penalties have been
incurred. Poppen v. Holmes, 360.
2. But to ascertain whether a penalty has been incurred or not is a pro-
ceeding purely judicial in its character, and the power cannot be exercised
by the pound-master by virtue of his office; nor can a town by its by-laws
authorize the pound-master to sell property without a judicial ascertain-
ment that some law has been violated. Ibid. 360.
3. And a sale of property by the pound-master without such judicial
ascertainment being first had, will not divest the owner of his title.
Ibid. 360.
OF A CONTINGENT RIGHT OF DOWER. See DOWER, 15.
1. A guardian ad litem must be appointed for infant defendants, or the
proceedings against them will be erroneous. Quigley et al. v. Roberts, 503.
STRICT PROOF REQUIRED.
2. The rule of practice is well settled, that, in proceedings against
minors, even where there is a guardian, strict proof is required. Nothing
can be admitted, but every thing must be proved, against them, the same
as if every material allegation had been denied by answer. Ibid. 503.
CANNOT BE DEFAULTED.
3. Neither can a default or a decree pro confesso be entered against an
infant. Ibid. 503.
4. When set aside. Where a decree has been rendered against a minor,
without a guardian, or appearance by attorney or otherwise, it will be set
aside on proper motion made, and the party will be allowed to make any
defense to which he is entitled. Hall et al. v. Davis, 494.
RESTRAINING COLLECTION OF TAXES.
1. When injunction will lie for such purpose. A court of equity will
not interpose its power to prevent the collection of a tax, simply for mere
irregularities. If, however, the tax is not authorized by law, or, if au-
thorized, it is imposed upon property exempt from the burden, it is other-
wise. Vieley v. Thompson et al. 13.
2. So, where a town is authorized to levy a tax for a specified purpose,
upon its being so determined by a vote of the legal voters of the town, at
a special election to be called for that purpose, an omission to give the
notice of such election as required by the law, will render the levy of the
tax so far illegal that a court of equity will interpose by injunction to
restrain its collection. Ibid. 13.
3. And where the purpose for which the tax was authorized to be
levied was the payment of bounties to soldiers who might enlist or be
drafted after the passage of the law, if the quota of the town was filled,
and there was no reasonable probability that any more soldiers would be
required, such a tax would be unauthorized, and its collection would be
restrained by injunction. Ibid. 13.
WHEN INJUNCTION WILL LIE.
Where the damages for which a judgment has been rendered, have been set
off in another action, pending an appeal from the judgment. See
JUDGMENTS, 7.
TO PREVENT OR ABATE A NUISANCE.
When an injunction will lie. See NUISANCES, 2, 3, 4.
1. In chancery. In all proceedings in chancery, involving questions
of insanity, it is the duty of the court to direct that an issue be formed
and tried by a jury. Myatt et al. v. Walker et al. 485.
2. Where incompetency to contract is alleged. It seems, that, in cases
involving questions of insanity, sanity is the rule and insanity the excep-
tion; and, where there is only a balance of evidence, or evidence merely
sufficient to raise a doubt, the presumption in favor of sanity must prevail.
An instrument, therefore, made by a person of competent age, and under
no legal disabilities, will, as a rule, be taken and held to be binding until
incompetency is established; and the proof of that fact devolves upon the
party contesting its binding force. Ibid. 485.
MAY PREFER CREDITORS. See DEBTOR AND CREDITOR, 1.
ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
WHAT IS PROOF OF INSOLVENCY. Same title, 9.
INSTRUCTIONS.
OF THEIR QUALITIES.
1. Should be based on the evidence. It is not error to refuse an instruc-
tion announcing a correct legal principle, if there is no evidence in the
case upon which it can be based. American Express Co. v. Parsons, 313.
2. Instructions not based upon the evidence in the case, and which
were calculated to mislead the jury, constitute good grounds upon which
to award a new trial. Gibson v. Webster, 483.
3. M. sold to N. eighteen hogs, and, while driving them to the town of
Arlington, three of them died from heat, and, upon N.'s refusal to pay for
the dead hogs, M. brought suit to recover; and, the question being,
whether by the contract of sale the hogs were to be driven at the risk of
M. or of N., - held, that the court properly refused an instruction based
upon the theory that plaintiff contracted to deliver them at a place other
than at Arlington, and directing the jury, that, if such was the fact, and
plaintiff could by reasonable care have made the delivery at such other
place, and failed to do so, defendant was not liable; there being evidence
tending to show, that, whatever may have been the original contract as
to the place of delivery, it was subsequently agreed that the delivery
should be at Arlington. Nichols v. Mercer, 250.
4. Should not be misleading. Although an instruction may express a
correct legal proposition, as it would be construed by lawyers, yet if liable
to be misunderstood by a jury, and to lead them astray, it is proper to
refuse it. Ibid. 250.
5. Slight verbal inaccuracies will not vitiate. An instruction, containing
verbal inaccuracies, such as the use of the word "plaintiff," in one
instance, when the word "defendant" was intended, and the omission of
the word "if" in another place, are not errors calculated to mislead a
jury. Ibid. 250.
6. Need not be repeated. This court has repeatedly held, that it is not
necessary to repeat instructions to a jury. The court, having once
directed the jury upon the law, may properly refuse to announce the
same principles in other instructions, though couched in different lan-
guage. Hulty v. Markel, 226.
7. Should not assume facts as proven. In an action of trespass, an
instruction to the jury that the plaintiff was "entitled to recover all
damages proved to have been sustained by him on account of the tres-
passes committed by the defendant on the plaintiff's premises as alleged
in the declaration," was held to be erroneous, because it assumed the
defendant committed the trespass, and that the only question before the
jury was the amount of damages. Small v. Brainard, 355.
8. Assuming the guilt of a party. An instruction in an action for slan-
der which informed the jury, that if a sufficient number of the words
laid in the declaration had been proved, which, in their common accepta-
tion, would amount to a charge of fornication, they should find for
plaintiff, was not calculated to mislead the jury, and the court did not
INSTRUCTIONS. OF THEIR QUALITIES. Continued.
err in giving it. Held, that it does not mean that it did not matter how
the words were connected, but that they must be considered in their con-
nection with each other in the sentence. Baker et al. v. Young, 43.
9. An instruction in a case of slander which informs the jury that the
law implies damages from the speaking of slanderous words, and that a
defendant intends the injury the slander is calculated to produce, and
that the jury, in case they find a verdict of guilty, are to determine what
damages ought to be given under all of the circumstances, is not erro-
neous. Such an instruction does not inform the jury that the defendant
is guilty. Ibid. 43.
10. As to a reasonable doubt. In a criminal proceeding it is not neces-
sary that each instruction given to the jury should inform them, that, before
they could convict, they must believe the accused to be guilty beyond a
reasonable doubt. Kennedy v. The People, 283.
11. Omissions obviated by proof. Although instructions given for the
plaintiff in a suit against a railroad company to recover damages for
injury to stock, omit to state, that it must be proved that the road had
been operated for six months prior to the accident, yet no harm could
result to the defendant for such omission, when it clearly appeared from
the evidence that the road had been in use for a much longer period.
Chicago and Northwestern Railway Co. v. Dement, 75.
OF QUESTIONS OF LAW AND FACT. See JURY, 9.
TO WHOM INSURANCE MONEY BELONGS.
As between subsequent purchaser and prior vendor. Where a subsequent
purchaser of premises obtains insurance thereon to protect his own inter-
est, in case of loss the insurance money will belong to the party insured,
and a prior vendor, having a lien on the premises for unpaid purchase
money, cannot require him to account for any part of it. Hammer v.
Johnson et al. 192.
JOINDER IN DEMURRER.
NOT NECESSARY. See PLEADING, 6.
JOINDER OF PARTIES. See PARTIES, 9; SLANDER, 3.
JUDGMENTS.
OF FOREIGN JUDGMENTS.
1. Presumption as to service of process. Where a judgment rendered
by confession in the Court of Common Pleas, in the State of Ohio, was
revived by scire facias in the same court, upon the following return of the
officer upon the writ of scire facias: "June 3, 1853, served personally by
copy. John Boyer, Sheriff,"-this court will presume such return to have
been sufficient under the laws of that State to have authorized the order
reviving such judgment. Rosenthal, Admr., v. Renick et al. 203.
|