he so informed plaintiff, (after the latter's | theory that the papers were not ready for
refusal to proceed,) since plaintiff had a delivery.-Id.
right to regard solely the abstract of title.
-Horn v. Butler, (Minn.) 833.
Bona fide purchasers.
8. One who purchases land in the posses
sion of another takes the title incumbered
with the equitable rights of the person in
possession.-Lipp v. South Omaha Land
Syndicate; (Neb.) 129.*
VENUE IN CIVIL CASES.
of action to recover penalty, see Usury, 5.
Change of venue.
An application for a change of venue
should be denied, unless it is made to ap-
9. Under Gen. St. Minn. 1878, c. 40, § 28, pear that a fair and impartial trial cannot
the record of an executory contract for the be had in the county where the action is
sale of lands is constructive notice to a sub-pending. The fact that there are numer
sequent purchaser of the same lands, but
the prior record of such contract does not
entitle the holder thereof to a preference
over the grantee in a deed given before the
execution of such contract.-Thorsen v.
Perkins, (Minn.) 557.
Escrow.
10. In an action on a written contract to
sell land, to be paid for in part by the con-
ous persons in the county that are biased
against a party will not justify a court in
granting a change of venue on the applica-
tion of such party, if it appears that a fair
and impartial jury can be had, and a fair
trial had therein.-Northeastern Neb. Ry.
Co. v. Frazier, (Neb.) 604.
veyance of other land to plaintiffs, defend- See Trial, 14, 15.
ant may show by parol that the papers ex-
ecuted were placed in the hands of a third
person, to be delivered when defendant's
wife should assent to the transaction and Of pleadings, see Equity, 7; Pleading, 8.
his attorney approve plaintiffs' title.-
Dikeman v. Arnold, (Mich.) 42.
11. Defendant having introduced testi-
mony that the papers were executed, as far See Elections and Voters.
WATERS AND WATER-
COURSES.
as possible, by the parties present, and
were then left in the hands of a third per-
son, to be delivered when defendant's wife
should consent to the transaction, it was
error to charge that if defendant was told
that he could not give a mortgage on the Pleading-Multifariousness.
land for the purchase money until he had
accepted the deed therefor, and that he
then accepted the deed and executed the
mortgage, plaintiff must recover; as it ig
nores defendant's theory that the deed was
delivered conditionally.-Id.
12. It was also error to charge that if,
before signing the contract to purchase,
defendant said that he wished his attorney
to look the papers over, but afterwards
changed his mind, and executed the con-
tract, it would bind him as if nothing had
been said about the attorney looking over
the papers. Id.
13. Defendant having agreed to pay for
the land in part by a conveyance of other
land in which he had a homestead, and to
secure the balance by a mortgage on the
land, to which his wife had not assented,
it was error to charge that the wife's sig-
nature was not necessary to the validity of
the mortgage, whether for the purchase
money or not. Defendant's homestead
right would attach immediately to the land
purchased, and the wife's right therein
would be superior to the mortgage by de
fendant alone for the purchase money, and
it had an important bearing on defendant's
A complaint stated (1) that plaintiff
owned a dam and water-power on a certain
river; that one of the defendants owned a
dam and water power above, and a flour-
ing-mill thereon, and he and the other de-
fendants conspired to hold back the water
from coming down to plaintiff's mills, so
as to permit of their successful operation;
and (2) that plaintiff also owned mills abut-
ting on said river, above the others and be-
low said defendant's dam, and obtained the
right from said defendant's grantor to have
the water brought from said dam by means
of a trunk to his mills; that defendants
conspired, also, to prevent the water from
coming down in said trunk to plaintiff's
mills in sufficient quantity, and at such
times, as successfully and profitably to
run them; that defendants had conspired
to take away from plaintiff's two mills, by
means of their dam, the share of said river
and water-power to which they were en-
titled. The prayer was for an abatement
of defendant's dam as a nuisance, for dam-
ages, and for an injunction against the
continuance of defendants' acts, and that
plaintiff's share of the water be ascertained
and secured. Held, that the complaint was
not multifarious.-Brickner Woolen-Mills
Co. v. Henry, (Wis.) 809.
Obstruction, see Trespass, 1, 2.
Probate and contest.
1. Each of the subscribing witnesses to a
will identified his signature, but denied
recollection of signing it, and testified that
he had never been in testator's house; and
evidence was given that at the date of the
will testator was too ill to leave the house,
but nothing was shown which was likely
to impress the date of the illness on the
recollection of the witnesses, while the tes-
timony that he was able to leave the house
was as strong. Held, that the presumption
of subscription by the witnesses in the
presence of the testator was not overcome.
-Riordan v. O'Hagan, (Wis.) 649.
2. The court having found that the will
was executed by the testator in the city of
B.. on the day it bore date, and was at the
same time subscribed by the attesting wit-
nesses, it was unnecessary to make specific
findings on the questions: "At what place
in the city did the testator and the wit-
nesses subscribe it?" "Was the testator
able to leave his house on that date?" and,
Construction-Description of prop-
3. A will giving to one person certain
property "and all other property of which
I shall die seised," passes a life insurance
under a certificate, payable "to the devi-
sees, or, if no will, to the heirs," though
nearly, if not all, of the property of the in-
sured, except the insurance, is specifically
named in the bequest.-Aveling v. North-
western Masonic Aid Ass'n, (Mich.) 28.
Contracts to make wills.
4. Where a husband and wife, orally,
bind themselves to make a particular dis-
position of their land by will, which is fully
performed by the husband, and the bene
fits accepted by the wife, the agreement is
taken out of the statute of frauds, and eq-
uity will prevent the wife from violating
her part of the contract in fraud of parties
interested.-Carmichael v. Carmichael,
(Mich.) 173.*
5. Where the wife, after the husband's
death, makes a conveyance in violation of
the agreement, those to whom she agreed
to will may sue her to set aside the convey-
ances.-Id.
Transactions with decedents, see Con
tracts, 12.
Competency-Transactions with de-
1. Under Gen. St. Minn. 1878, c. 73. § 8,
forbidding a party to the action, or one in-
terested in its event, to testify as to any
conversation with, or admission of, a de-
ceased or insane party or person relative
to any matter at issue, testimony by one to
whom a certificate of deposit had been
paid that the payee, plaintiff's intestate,
had given it to him causa mortis, is incom-
petent in favor of defendant bank. -Beard
V.First Nat. Bank, (Minn.) 842.
2. Code Iowa, § 3639, making a party to
an action or person interested therein in-
competent to testify against the personal
representative of a deceased person as to
a personal transaction or communication
does not disqualify an heir and distributee
had with such person during his life-time,
tion by a creditor of the estate, who is also
from testifying for the defendant in an ac-
heir and distributee, against the executor.
Following Leasman v. Nicholson, 12 N. W.
Rep, 270, 13 N. W. Rep. 289.-Harrow v.
Brown, (Iowa,) 708.
3. How. St. Mich. § 7545, amended by
Laws 1885, No. 139, which provides that in
istrator is a party the opposite party shall
be precluded from testifying to matters
equally within the knowledge of deceased
and himself, applies to an action on a note
indorsed by deceased, brought against the
maker only, a stranger to the estate, where
the executor indemnifies the defendant,
and takes on himself the defense of the
suit. Following 36 N. W. Rep. 670.-Hill-
man v. Schwenk, (Mich.) 924.
Examination.
all actions wherein an executor or admin-
4. A party may, on direct examination,
to refresh the recollection of his witness,
inquire if he has not at another time testi-
fied to facts inconsistent with his present
testimony.-State v. Cummins, (Iowa.) 124.
5. When a defendant testifies in his own
behalf, he may be cross-examined as any
other witness, and may be compelled to
testify whether he did not write to a per-
son for money, stating that he would need
$500 to clear him.-People v. Howard,
(Mich.) 789.
6. Memoranda to refresh the memory of
a witness must have been made up recent-
ly after the event in regard to which he
testifies. Memoranda prepared by the at-
torneys of the witness several months
after the occurrence of the events testified
to, such memoranda being prepared from
other evidence in possession of the wit-
ness, are not admissible to refresh his
memory.-Schuyler Nat. Bank v. Bollong,
(Neb.) 413.*
7. In an action on a note procured by an
agent of plaintiff, a farm machine com
pany, defendant's contention being that
the note sued on was a forgery, he may in-
quire of the agent if he had not previously
turned in a note to another company which
falsely purported to be signed by defend-
ant, where the witness does not claim the
privilege of not answering because it
would tend to criminate him.-Johnston
Harvester Co. v. Miller, (Mich.) 429.
8. Defendant, a registered pharmacist,
was indicted for maintaining a liquor nui-
sance. The state introduced certificates
showing the purchase of liquor from de-
fendant, and witnesses swore that the
signatures thereto were theirs, and were
genuine. The state then rested, and de-
fendant asked the court to direct a verdict
on the ground that no witnesses had testifi-
ed that they obtained liquor from defend-
ant by means of the certificates. The state
contending that they had so testified, the
court allowed the witnesses to be recalled
to testify on that point. Held, no error.-
State v. Huff, (Iowa,) 720.
9. A witness in whose possession notes
had been, which were alleged to have been
fraudulently altered, testified, in chief at
the taking of his deposition, that the notes
were signed in his presence by the persons
whose signatures appeared thereon. On
cross-examination he declined to state
whether the notes when signed were in
their present condition, on the ground that
it might tend to criminate him. Held, that
the suppression of the deposition, on the
ground that he had waived his privilege by
his first answer, and thus should have an
swered the second question, was error.-
Lombard v. Mayberry, (Neb.) 271.
10. Where a witness has been questioned
in regard to statements contradictory of
his testimony, evidence of the statements
is admissible to impeach his credibility,
though made after the occurrence which
is the subject-matter of the suit.-Welch
v. Abbott, (Wis.) 223.*
11. Where, on cross-examination, a wit-
ness testifies that he has not been im
peached in previous suits, and denies that
on one occasion he asked a man if he was
going to swear that he (witness) had a bad
reputation for veracity, and no effort is
made to contradict him on the last point,
its admission is harmless error.-Mears v.
Cornwall, (Mich.) 931.
chased the liquor for medicinal purposes,
but may inquire of him how many times
he was sick, the nature of his ailments,
when he made the purchases, etc., to show
that the alleged object of the purchase was
a mere pretense, and that defendant knew
that fact.-State v. Cummins, (Iowa,) 124.
13. In an action on a note taken by an
agent to plaintiff, a farm machine company,
where the agent testifies in chief that he
saw defendant sign it, and knew nothing
of the consideration of a former note in
place of which it was given, he may prop-
erly be asked by defendant, on cross-exam-
ination, if he has not made contrary state-
ments, and defendant is not bound by his
denial.-Johnston Harvester Co. v. Miller,
(Mich.) 429.
14. Ón trial for rape upon respondent's
own daughter, who is the only witness
for the people, respondent may show, by
the evidence of other witnesses, that the
daughter has made similar charges falsely
against other men, even though the daugh-
ter has denied, on cross-examination, that
she made such charges; the question, under
the circumstances, not being collateral to
the main issue.-People v. Evans, (Mich.)
473.*
15. Under Pen. Code Minn. § 531. pro-
viding that a person convicted of crime is
a competent witness, but the conviction
may be proved by the record or cross-exam-
ination, a defendant in a criminal case,
sworn as a witness in his own behalf, may,
on cross-examination, be asked if he has.
been convicted of crime.-State v. Curtis,
(Minn.) 263.
16. In trover for the value of horses
siezed under void attachment and deliv-
ered to the debtor, but claimed by plaintiff
as purchased from the latter, in order to
ascertain plaintiff's bias or interest, and to
test his credibility, it is proper to inquire,
on his cross-examination, whether he knew
the attachment was issued when he bought
the horses, and whether he had not aided
the debtor in other suits with the attach-
ment plaintiff by becoming his surety.-
Mears v. Cornwall, (Mich.) 931.
Words and Phrases.
"Depot grounds," see Railroad Companies,
See, also, Attachment; Certiorari; Execu-
tion; Garnishment; Injunction; Manda-
mus; Replevin.
Service of process.
1. The question whether a warrant was
issued and delivered to an oflicer for serv-
12. On trial of a pharmacist for the un-ice within the required time is for the jury.
lawful sale of liquor, the state is not bound-People v. Clement, (Mich.) 190.
by a statement of its witness that he pur- 2. When Sp. Laws Minn. 1877, c. 185. § 2,
providing that summons to be served in
Ramsey county shall be served by the
sheriff, was repealed by Sp. Laws 1881, c.
371, the provisions of the general law on
the subject (Gen. St. 1878. c. 66, § 56, allow-
ing service by any one not a party to the
action,) took effect in that county.-Miller
v. Miller, (Minn.) 261.
3. Proof, by affidavit, of publication for
"six successive weeks" does not show the
publication to have been made "once in
each week" for the period named.-God-
frey v. Valentine, (Minn.) 163.
service was made, nor that the court ac-
quired jurisdiction, unless that is affirma-
tively shown.-Id.
of a summons is not conclusive on defend-
ant, but may be impeached by affidavit, on
motion or other direct proceedings in the
action to set aside the judgment on default.
Crosby v. Farmer, (Minn.) 71.
5. The return of an officer of the service
6. In an action to enforce a judgment
against property in the hands of the debt-
or's grantee, the latter cannot show, to
avoid the judgment, that service of process
in the action wherein it was obtained was
accepted in another state, when it does
not appear from the acceptance that it was
in another state.-Wright v. Mahaffey,
4. The record of judicial proceedings
stating that the summons was served by
publication against a non-resident, who
was beyond the jurisdiction of the court,
it will not be presumed that other proof of | (Iowa,) 112.
TABLES OF NORTHWESTERN CASES
We herewith furnish tables of all those cases which, originally published in the NORTHWESTERN REPORTER, have since appeared in the various State Reports. Reference is made in each case to the volume and page of both the State Report and the NORTHWESTERN REPORTER. Similar tables will be made and issued hereafter. The advantage of such tables, both for purposes of reference and citation, are obvious,—much increasing the permanent value of the series.
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