Page images

3. Where the defendant verbally contracted with the plaintiffs for the purchase of a

quantity of ice to be afterwards delivered, and after the breach of the contract by the defendant, the parties put the contract into writing, in the terms as before agreed upon verbally, antedating it as an original contract of the date of the verbal contract first made, in an action upon the contract commenced after, but declaring upon a breach which occurred before, the writing was made, the writing is sufficient evidence

of the prior verbal contract to satisfy the statute of frauds. Bird v. Munroe, 435. 4. In such case, in view of the statute of frauds, the writing is not to be regarded as

constituting the contract itself, but as merely the necessary evidence by which the

contract may be proved. Ib. 5. Parol evidence is admissible, to show that the date of the writing was not an errone

ous, but an intentional one, and that the parties intended thereby to create written

evidence of the unwritten contract before made. 16. 6. An agreement to submit to arbitration, the effect of which is to oust the courts of

jurisdiction, is invalid. Pearl v. Harris, 533. 7. A bill in equity for an account of a copartnership, one of the articles of which pro

vided for the submission of disputed matters to arbitration, need not allege a refusal to refer by the defendants; and the defendants cannot defeat the jurisdiction of the court by alleging that they are and have been willing to refer under the articles of

copartnership. Ib. 8. Where, during the late war, a creditor resided within the territory of one of the

belligerent powers, and his debtor within that of the other, such debtor is, under the rules of public law, entitled to abatement of interest during the continuance of the

Roberts v. Cocke, 534. 9. Where the debtor and creditor reside within the same territory, the mere existence

of war does not furnish such a legal ground for abatement of interest. Ib. 10. In contracts for the payment of a sum certain, interest on the principal sum is a

legal incident of the debt: the right to it is founded upon the presumed intention of

the parties. 16. 11. Wherever there is a contract, express or implied, for the payment of legal interest,

the obligation of the contract extends as well to the payment of interest as it does to the payment of the principal sum; and neither court nor jury ever had the power to

dispense with the performance of such contracts in whole or in part. 16. 12. The laws which subsist at the time and place of the making of a contract, and

where it is to be performed, enter into and form a part of the contract, whether such laws affect its validity, construction, discharge, or enforcement.



CORPORATION. 1. The Northern Central case. State v. No. C. R. R. Co. 230. 2. Under the clause of the Constitution of the United States, extending the judicial

power of the United States to controversies between citizens of different states, a corporation, in respect to the jurisdiction of the federal courts, is regarded as a citizen of

the state where it was created. Baltimore & Ohio Railroad Co. v. Cary, 391. 3. A foreign railroad corporation, by merely leasing, possessing, and operating in this

state the property of a domestic railroad corporation, does not thereby become an

Ohio corporation, nor such citizen of the state. Ib. 4. The proviso of the 24th section of the act for the creation and regulation of incor

porated companies in Ohio, as amended March 19, 1869 (66 Ohio L. 32), so far as it provides that the leasing, purchasing, or operating a railroad in this state by a railroad company of another state shall be regarded as a waiver of the right of such foreign company to remove cases brought against it in the state courts to those of the United States, is repugnant to the Constitution and laws of the United States, and is,

therefore, ineffective as a statutory waiver of the right of such removal. 16. 5. When a corporation of another state, not being a citizen of Ohio, is sued by a citizen

of the state, in the state court, it is entitled to have the case, under the 12th section of the Judiciary Act of Congress of 1789, removed from the state court to a United States court. 16.

CRIMINAL LAW. 1. The prosecution cannot attack the character of the prisoner unless he first puts that

in issue by offering evidence of his good character. State v. Lapage, 411.

2. The prosecution cannot show the defendant's bad character by showing particular

acts. Ib. 3. The prosecution cannot show in the prisoner a tendency or disposition to commit the

crime with which he is charged. Ib. 4. The prosecution cannot give in evidence other criminal acts of the prisoner, unless

they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other

than such as is expressed in the foregoing three propositions. Ib. 5. The ingredients necessary to constitute murder in the first degree having been proved,

the circumstance that the killing was preceded by a verbal dispute and by violent threats uttered by the deceased will not reduce the grade of the offence. Green v. The

Commonwealth, 189. 6. In a criminal case, the fact that an isolated part of a charge may be open to doubt,

when read without regard to the other parts thereof, is not sufficient ground for re

versal. 1b. 7. An indictment found by a grand jury drawn by virtue of venires not having the seal

of the court upon them, is illegal and void ; and the defect is one which cannot be

cured by amendment, or by special act of the legislature. State v. Flemming, 272. 8. In a criminal case a plea in abatement is sufficient, if it is free from duplicity and

states a valid ground of defence to an indictment in langnage sufficiently clear not to be misunderstood; the strictest technical accuracy, such as is sometimes required in

purely dilatory pleas in civil suits, will not be exacted. 16. 9. An indictment may contain two or more counts alleging distinct offences, if they are

of the same general description, and the mode of trial and the nature of the punish

ment are the same. Commonwealth v. Brown, 292. 10. The provisions of the Gen. Sts. c. 132 (Mass.), as to the selecting and drawing of

jurors, are within the constitutional authority of the legislature. 15. 11. The St. of 1875, c. 5 (Mass.), providing that the grand jurors, empanelled at a

certain time of the superior court, for the county of Suffolk, and who were citizens of the class qualified by the general laws to serve as grand jurors, “ shall for all purposes be deemed and held to be the grand jury of said county, duly and legally drawn, summoned, returned, and empannelled, until a certain time, “notwithstanding any irregularity in any writ of venire facias, or in the drawing, summoning, returning, and empanelling of said grand jurors,” is constitutional as to indictments found by said

grand jurors after its passage. Ib. 12. If a bad plea in bar in a criminal proceeding, which presents merely a question of

law, is submitted to a jury, and, after a verdict thereon for the commonwealth, overruled by the judge, the defendant has no ground of exception to the order submitting

the question to the jury, or to the rulings at the trial of the plea. Ib. 13. Upon the trial of an indictment for an illegal operation upon a woman, with intent

to procure a miscarriage, an officer was permitted to testify that he took the defendant, after his arrest, into the presence of the woman, and asked her if the defendant performed an operation upon her; that the woman said he did; that the defendant asked the woman if she had been operated on previously by any other person; that the woman said, “ No, she came there to be operated on to get rid of a child.” Held,

that the evidence was admissible. lb. 14. Upon the trial of an indictment for an illegal operation upon a woman, with intent

to procure a miscarriage, certain surgical instruments and a speculum chair, found in the defendant's house, were exhibited to the jury. There was evidence that the chair had been used in performing the operation, and medical experts were allowed to testify that the surgical instruments were adapted to producing abortions, although none of them could be said to be so exactly designed for such use as not to be appropriate also for use in lawful acts of surgery. Held, the defendant had no ground of excep

tion to the admission of this evidence. Ib. 15. Medical books cannot be read in evidence to the jury. Ib. 16. No exception lies to the refusal of the judge presiding at the trial of a criminal case,

to give instructions as to matters of fact. Ib. 17. No exception lies to a refusal to instruct the jury in the precise words requested, if

the instruction is given in substance. 16. 18. Upon the trial of an indictment for an illegal operation, with intent to procure a

miscarriage of a woman who had applied to the defendant for that purpose, the woman testified as a witness, and the defendant requested an instruction that, though she was not to be considered as an accomplice, the jury were to take her statements “ with great circumspection and caution and discredit." This was refused; but the judge instructed the jury that the fact that the witness was implicated in the alleged acts of the defendant might be considered as affecting her credibility and the weight of her

testimony. Held, that the defendant had no ground of exception. 15. 19. An indictment under the Gen. Sts. c. 165, $ 9, alleged that A. B., at a time and

place named, “ with force and arms, did unlawfully use a certain instrument, a more particular description of which is to said jurors unknown, by then and there forcing and thrusting said instrument into the body and womb of one C. D., being then and there pregnant with child, with the intent of him, said A. B., thereby then and there to procure the miscarriage of the said C. D.," and concluded in the usual form. Held,

that the indictment was sufficient. 1h. 20. Where an application is made for a discharge, under section 162 of the Criminal

Code (66 Ohio L. 311), at any term of the court, on the ground that the defendant, who had given bail for his appearance, was not brought to trial before the end of the third term after the indictment was found, such application should be refused, if at such term the state is ready for trial, although the cause cannot be tried for want of

time at such term. Erwin v. The State, 357. 21. Where, on the trial of a criminal cause, a juror is challenged by the defendant for

cause, and the challenge is improperly refused; but such juror is afterward excused on a peremptory challenge, the judgment will not be reversed for such error, if an acceptable jury be empanelled before the defendant has exhausted his right to peremp

tory challenges. Mimms v. The State, 16 Ohio St. 221. 22. Intention or purpose to kill may be present in the crime of manslaughter, where the

killing is without malice upon a sudden quarrel. 1b. 23. Where death is caused by the use of a deadly weapon, and the circumstances of the

killing are detailed to the jury, some of which tend to disprove a malicious or intentional killing, it is misleading to charge the jury " that in this case the law raises a presumption of malice in the defendant, and an intent on his part to kill the de

ceased." 16. A. Where a person in the lawful pursuit of his business, and without blame, is violently

assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing his danger, may kill his assailant if necessary to save his own life or prevent enormous bodily harm. Ib. 25. In a criminal case, a witness, who testifies to the doing of the act charged against

the defendant, may be asked who the person was who did it, and no exception lies to the admission of his answer, “ That man,” pointing to the defendant. Commonwealth

y. Whitman, 475. 26. On an indictment for larceny, the evidence tended to prove that a boy was sent to

the office of A. with money for him; that he found B. in the office, who, on being asked, said he was not A., and that he was going to stay until A. came in; and that the boy handed the money to B., on his signing a receipt therefor, which he did in the name of A. by C., signing a false name instead of his own. The defendant asked the judge to rule that “to constitute larceny, there must be an appreciative act of personation, and that if B. said he was not A., there was no larceny.” The judge gave this instruction, with the addition, " unless B. held out some inducement to the boy to lead him to believe that he had the right to sign the receipt and receive the money

for A." Held, that the defendant had no ground of exception. Ib. 27. On the trial of an indictment for larceny, there was evidence identifying the pris

oner as the person who had committed the act at the office of A., by a boy who was sent to that office with a receipt for A. to sign. On the receipt was written “twenty minutes past two,” denoting the time when the boy started on his errand. A witness for the government who had an office in the same building as A., testified that at about thirteen minutes to two o'clock he passed the door of A.'s office and saw the prisoner there alone. Held, that the defendant had no ground of exception to the admission of this evidence; and that the government, by putting the receipt into the case, was not bound to concede that the interview between the prisoner and the boy

was after twenty-two minutes past two o'clock. Ib. 28. At the trial of an indictment for larceny, it appeared that a boy was sent to an

office with a package, and that a man in the office took the package and signed a receipt for it. The government offered in evidence a receipt for a watch, admitted to be signed by the defendant. The judge instructed the jury that “the only legitimate use of the watch receipt was for the comparison of hands, and if the jury believed that the same person wrote the watch receipt and the name attached to the receipt which the boy took, it was evidence tending to show that the man who was in the office, of whom the boy testified, was the defendant.Held, that the defendant

had no ground of exception. Ib. 29. At the trial of an indictment for larceny, alleging the property stolen to be in the

District Telegraph Company, a corporation duly established by law,” it appeared that the District Telegraph Company, a corporation organized under the general law of New York for the incorporation of telegraph companies, received a package of money to deliver, and sent a boy to make the delivery. The government put in evidence a copy of the Statutes of New York, containing this general law, and also an attested copy of the articles of association, under which the company was organized, from the office of the secretary of state of New York, where the law required the original to be deposited. It appeared that the company had undertaken to do business in the city of Boston under its New York organization, by delivering messages, and that this boy was one of its messengers. The judge instructed the jury " that the court was not bound to say whether the company had or had not authority to do business under its New York charter in the city of Boston; but that if the jury found that it was incorporated under the law of New York as the District Telegraph Company, and attempted to do business here under its organization, and received this money and undertook to deliver it through this boy, as its agent, then it might be considered as having especial ownership in this property, which would be sufficient under this indictment. Held, that the evidence was rightly admitted, and that the defendant had no ground of exception to this instruction. Ib.

DEED. 1. To constitute a delivery of a deed, the grantor must, by act, or word, or both, part

with all right of possession and dominion over the instrument, with the intent that it

shall take effect as his deed, and pass to his grantee. Brown v. Brown, 442. 2. The commitment of a deed to a third person, with the reservation of the right on the

part of the grantor to withdraw it at any time before his death, and in case it was not so withdrawn, to be retained until the death of the grantor, and then to be delivered

to the grantee, is no legal delivery, and will pass no title to the grantee. 16. 3. Deed of trust defined, &c. Bank of Commerce v. Lanahan, 543.

See BILLS AND Notes, 7; JUDGMENT, 2, 3, 4, 6, 7.

EVIDENCE. 1. In an action for injuries involving the loss of an arm, plaintiff may introduce evi

dence to show what must be the effect of his injuries in disqualifying him from pur

suits requiring two hands. Norfolk & Petersburg R. R. Co. v. Ormsby, 117. 2. In an action brought by a mortgagee against one who has injured the mortgaged

property by a removal of fixtures, evidence that the mortgagee, after the alleged injury and before the action was brought, under the power in his mortgage sold the mortgaged premises for more than enough to pay his debt and all prior incumbrances,

is admissible in mitigation of damages. King v. Bangs, 287. 3. Where a person to whom a letter was addressed has been dead for several years,

leaving no personal representative of whom inquiry could be made concerning it, and the letter is not shown to have been of such importance as to require its preservation, it may well be presumed that the letter has been lost or destroyed, and secondary

evidence of the address written on it may be admitted. Jones v. Jones, 489. 4. In a trial involving the question, whether a particular person was the legitimate child

of his alleged parents, evidence of his personal resemblance to his alleged father is

not admissible. Ib. 5. To render admissible the deposition of a deceased witness taken in an equity cause,

it is incumbent upon the party offering the deposition to prove the bill and answer in

the cause. Ib. 6. The offer of the deposition should be accompanied with a proffer to show that it was

the deposition of a deceased witness taken under oath, in a judicial proceeding, involving substantially the same question or matter in dispute as that on trial, to which the plaintiff and defendant in the suit on trial were parties, and that the party against whom it is sought to be used had the right and opportunity to cross-examine the witness. 16. VOL. IV.


7. It is improper to offer all the original papers in the former cause without disclosing of

what the papers consisted. 1b. 8. Not all the proceedings in an equity cause can be offered in order to let in the depo

sition of a deceased witness, but only such parts of the proof as show the nature of the cause, and the parties to the controversy; and they are not to be received as evidence for the jury, but for the court only, to enable it to determine whether the depo

sition is evidence proper to be allowed to go to the jury. Ib. 9. In order to prove the existence of a record which does not belong to the same court,

the proof must be by transcript under seal, and not by the original papers. Ib. 10. The entire case, or the consideration of any particular question involved in it,

should not be taken from the jury upon a prayer that there is no sufficient evidence to justify the finding for the adverse party, if there be any evidence from which a rational conclusion may be drawn as opposed to the theory of such prayer. Ib. 11. Before such a prayer can be granted, the court must assume the truth of all the evi

dence before the jury tending to sustain the claim or defence, as the case may be, and of all inferences of fact fairly deducible from it, as on demurrer to evidence; and this though such evidence be contradicted in every particular by the opposing evidence in the cause.

Ib. 12. But where the evidence is of such an inconclusive nature that no rational conclusion

can be fairly drawn from it in support of the claim or defence sought to be maintained by it, it is the imperative duty of the court to instruct the jury that such evidence is not sufficient to be considered by them. Ib. 13. Questions as to whether verdicts have been rendered against the decided weight of

evidence, or in disregard of the rules of evidence, or from passion or prejudice, can only be dealt with by the court in which the trial takes place, upon motion for a new

trial. 1b. 14. On questions of marriage, births, deaths, &c., entries in a family Bible or Testa

ment are admissible, even without proof that they have been made by a relative, provided the book is produced from the proper custody. Proof of the bandwriting or authorship of the entries is not required, when the book is shown to have been the family Bible or Testament. 16.


In the absence of positive stipulation by treaty there can be no extradition.

cannot be extradited for one crime and tried for another and different crime.
v. Hares, 524.

A man


HOMESTEAD. On a writ of entry to foreclose a mortgage of a parcel of land which contains a release

of all homestead rights, it is no defence that the tenant had acquired a homestead right before the mortgage deed, and that the estate is sufficient to satisfy the mortgage, without having recourse to the homestead. Searle v. Chapman, 386.

HUSBAND AND WIFE. 1. A husband and wife are jointly liable for a tort done by her in his absence, but

under his direction and instigation. Handy v. Foley, 532. 2. Evidence of acts done by a husband in the presence of his wife, similar to those

done by her in his absence, in execution of the same purpose, is admissible to show that the wife acted under his direction and instigation. Ib.

INSURANCE. 1. A policy of life insurance which stipulates for the payment of an annual premium by

the assured, with a condition to be void on non-payment, is not an insurance from year to year like a common fire policy ; but the premiums constitute an annuity, the whole of which is the consideration for the entire assurance for life ; and the condition is a condition subsequent, making void the policy by its non-performance. But the time of payment in such policies is material, and of the essence of the contract ; and failure to pay involves an absolute forfeiture, which cannot be relieved against in

equity. New York Life Ins. Co. v. Statham, 6. 2. If failure to pay the annual premium be caused by the intervention of war between

the territories in which the insurance company and the assured respectively reside,

« PreviousContinue »