ter for her dower, and the balance were released by her; and after a recital that the lands of which the deceased died seised were subject to certain unpaid taxes, assessments, &c., each party covenanted to pay "his or her fair, equitable and legal proportion thereof;" Held, 1. That the instrument imposed upon the widow the obligation to pay her fair and equitable proportion of unpaid taxes and assessments to which the premises were subject at the time of her marriage with the decedent; and that in legal contemplation there was no proportion for her to assume. 2. That the taxes assessed and unpaid before the assignment of dower was made, could not be charged upon the estate assigned to her, when there was personal estate sufficient to pay them. That the burdens assumed with the enjoyment of the life estate related to the future, only. ib

See TRUSTS AND TRUSTEES, 3.

DRAINAGE. See ASSESSMENT, 1.

E

ELECTIONS.

See MUNICIPAL CORPORATIONS, 1 to 5.

EQUITY.

1. As well before as since the Code, a party was at liberty to commence a suit in equity, and in the same action to claim not only an ultimate and complete redress for the injury alleged, but also the damages which he had sustained; not merely to the time of the commencement of the action, as at law, but down to the trial and disposition of the case. Per FOSTER, J. Davis v. Lambertson,

480

2. A court of equity has cognizance of an action brought to restrain the commission of a nuisance, whereby an individual is injured, and to compel the discontinuance of it,

3.

4.

where it has been committed; and to a considerable extent the suppression of it is in the discretion of the court, in view of all the circumstances of the case. And in such cases the court has not only jurisdiction in regard to prohibiting or preventing the continuance of it, but it can award damages in the meantime; and the trial of the question of damages can be had at the same time when the other questions involved in the case are litigated. it

The discretion to be exercised in such cases is not however an unregulated discretion, but is to be exercised according to the rules of law applicable to each particular case. ib

A court of equity has jurisdiction, and should grant a perpetual injunc tion, when it is established by a trial that the defendant has created a private nuisance, to the serious injury of the plaintiff, where that nuisance is permanent in its character, so that the injury continues; where complete and ample remuneration cannot be awarded in damages; or where the court can see that to obtain complete and ultimate redress at law several suits may become necessary; or where the injury is otherwise irreparable. ib

5. It is enough that it be such an injury as from its nature is not susceptible of being adequately compensated by damages at law; or such as from its continuance, or permanent mischief, must occasion a constantly recurring grievance, which cannot be otherwise prevented but by injunction.

ib

6. An action by the owner of land upon which there is a durable stream of water, to restrain the owners of a cheese factory, situated higher up on the stream, from polluting the water and rendering it unfit for use, by filth from their hogpens, &c., and from causing an offensive stench in the air, which renders the occupation of the plaintiff's dwelling house uncomfortable, and for damages, is an equitable action, where it appears clearly that the acts of the defendants created and continued a nuisance which in its character was a continuing nuisance, and was intended to be, and was, permanent;

1. On the trial of an indictment for
erecting and maintaining a powder-
house, and for keeping therein a
large quantity of powder, near a
city, a witness who had been in the
infantry and artillery service of the
United States for three years, was
asked, "What is the ordinary mode
of constructing powder magazines ?"
The question was objected to, by the
accused, as incompetent and irrele-
vant, and not the proper manner of
proving that the building in question
was improperly constructed.
objection was overruled, and the
witness proceeded to state how pow-
der magazines were constructed.
Held that the testimony was incom-
petent. MULLIN, J., dissented. Brad-
ley v. The People,

The

72

2. In an action brought against hus-
band and wife, by a judgment cred-
itor of the husband, to have his
judgments declared a lien upon land
purchased by the husband for which
a conveyance had been taken in the
name of his wife, the examination of
the husband upon supplementary
proceedings instituted against him
after third persons had gone into
possession of the premises under an
agreement with the wife, was offered
in evidence against both defendants.
Held that the ruling of the referee

3.

that such examination was compe-
tent evidence against the husband
only, and not against the wife, was
clearly right. Gillespie v. Walker, 185

Held, also, that a similar ruling as to
a declaration of the husband that he
had put his property out of his
hands, and got it fixed so that
neither the plaintiff nor any other
creditor could reach it, came within
the same principle; as it related to
a declaration made after the title to
the land was vested in the wife; and
such title could not be divested by
the subsequent declarations of the
husband.

ib

1. The defendant, on transferring to
the plaintiff the note of a third per-
son, then past due, guarantied its
collection, provided due diligence
should be used. Subsequently, he
requested the plaintiff to give time,
and forbear to sue the maker; which
request was never withdrawn, or
countermanded. The maker ab-
sconded, and went to Canada, where
he remained, leaving property in this
State, liable to the payment of the
debt. Held that the plaintiff, be-
fore he could recover upon the guar-
ranty, was bound to exhaust his
remedy against the maker, by suing
him to judgment, in this State, and
collecting what he could upon the
execution. Mosier v. Waful,

80

2. The plaintiff, after the maker of the
note absconded, issued a summons
for the purpose of commencing a
suit against him, and obtained an
order of the court directing service
thereof by publication, and that a
copy of the summons and complaint
be deposited in the postoffice, di-

1. In an action against a husband,
after his wife's death, to recover
money deposited in a savings bank,
and the value of promissory notes,
claimed to have been owned by the
wife in her lifetime, and to have
been given to the plaintiff by her in
anticipation of death, proof of the
declarations of the wife are not com-
petent evidence against the defend-
ant, to show that she was the owner
of the demands; where the answer
denies that the wife ever was the
owner of the property, and claims
that it at all times belonged to the
defendant in his own right; and
where he had the actual control and
possession of it, at the time.

4. The rule is general, that he who
knowingly assists the wife in the
violation of her duty as such, is
guilty of a wrong, for which an
action will lie, by the husband,
where injury is thereby inflicted
upon him. Per FOSTER, J. Hoard
202
v. Peck,

5. An action can be maintained by a
husband against a druggist to re-
cover damages for selling to the
plaintiff's wife, secretly, from day to
day, large quantities of laudanum to
be used by her as a beverage, and
which are so used by her to the de-
fendant's knowledge, without the
knowledge or consent of the hus-
band; the defendant well knowing
that the same was injuring and
impairing her health, and concealing
the fact of such sales and use thereof
from the plaintiff; in consequence
of which use by her the wife became
sick and emaciated, and her mind
was affected, so that she was unable
to perform her duties as such wife,
and her affections became alienated
from her husband, and he lost her
society and was compelled to ex-
pend divers sums of money in med-
ical and other attendance upon her.
MORGAN, J., dissented.

6.

ib

7. In such an action a physician may
be asked "what would the natural
result of three of these bottles of
opium, called laudanum, be upon
the plaintiff's wife, as you know the
woman, and her situation and con-
ib
stitution," &c. ?

See EVIDENCE, 2, 3.

I

INDEMNITY.

See CONSTABLE.

INJUNCTION.

See EQUITY, 2, 4, 6.
MORTGAGE.

INSURANCE (FIRE.)

1. Where, upon a sale by one of the
members of a firm, of all his inter-
est in the partnership property and
effects, there was no assignment or
transfer, of any kind, of a policy of
insurance upon the partnership prop-
erty, to the purchaser, or any delivery
of the policy, or of a certificate of re-
newal, to him; Held that although
the language of the instrument of
sale, taken by itself, was broad
enough to include the policy as one
of the choses in action of the firm, yet
as it was manifest from the whole

transaction and its surroundings
that no such thing was intended, the
policy did not pass by the instru-
ment. Kitts v. The Massasoit Insur-
ance Company,
177

INTERNAL REVENUE.

1. Where a quantity of whisky was
sold by the plaintiff's assignor to the
defendant, for $1.45 a gallon, at a
time when the tax imposed upon
that article, by the government, was
$2 per gallon, the bill of sale stating
the price to be $2.45 per gallon;
Held that the sale at a price less than
the amount of the tax was, under
section 21 of the act of congress of
1867, (14 U. S. Stat. at Large, 471,)
prima facie evidence that the tax had
not been paid; and that the intent
to avoid the tax was inferred from
the price at which it was sold, and
the statement, in the bill of sale, of
a price greater than the amount of
the government duties.
Kessel v.
Albetis,

2.

3.

362

The court is bound to take judicial
notice of the statutes relating to in-
ternal revenue, and not to suffer the
collection of any debt prohibited.
And if a vendor has apparently vio-
lated them in the particular above
mentioned, it is incumbent on him
to show either that the tax has been
paid, or that he did not intend to
avoid the payment.
ib

Independently of the statute making
it prima facie evidence thereof, (14
U. S. Stat. at Large, 471, ý 21.) no
other conclusion can be reasonably
drawn from the sale of an article for
less than the tax imposed by law,
upon it, in the absence of proof of
the payment of such tax, than an in-
tention to evade such payment.

ib

4. This conclusion is strengthened
where it appears that in the bill of
sale the price of the thing sold is
stated at a sum larger than the
amount of the tax, although the
actual price was less.
it

J

JUDGMENT.

A judgment entered upon the report
of a referee will not be reversed for
an error in admitting improper testi.
mony, where it appears that such
testimony could not have influenced
the referee in any of his findings of