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5. A statute provided for fine or imprisonment under which the accused was sentenced
to pay a fine and be imprisoned and the fine was paid. At the term during which the
sentence was pronounced the court sought to modify the sentence by changing it to
imprisonment alone. Held, that there was error ; that one of the alternative penalties
of the law having been satisfied, the power of the court was at an end. Ib.
6. While intoxication cannot excuse crime, it may be sufficient to prevent a conviction
of murder in the first degree. Jones v. Commonwealth, 266.
7. Where it was shown that the accused had been taking laudanum and drinking to
excess for several days previous to the killing, which, with other causes, had produced
a disordered state of mind, and the killing took place during an altercation, the crime
was held to be murder in the second degree. Ib.
8. If the accused has been indicted and convicted for a mere assault and battery in the
county court having jurisdiction of such offence generally, the conviction will not be a
bar to an indictment for a felony, in the perpetration of which the assault and battery
was committed. Murphy v. The Commonwealth, 486.
9. On a trial for an assault with intent to kill, the witness upon whom the assault was
alleged to have been made was asked if he did not tell his wife that the prisoner acted
only in his own defence. 1. The answer to the question may tend to criminate him-
self, and the testimony is inadmissible. 2. It required him to state a communication
supposed to have been made by him to his wife, which, if made, was a confidential
communication, and which he was not bound to disclose. Ib.
10. A man is taken to intend that which he does, or which is the natural and necessary
consequence of his own act. Therefore, if the prisoner wounded the prosecutor, by
• the deliberate use of an instrument likely to produce death under the circumstances,
the presumption of the law is that he intended the consequences that resulted from
said use of said deadly instrument. Ib.
11. Malice may be inferred from the deliberate use of a deadly weapon, in the absence
of proof to the contrary. Ib.
12. Where there are two counts in an indictment for a felony, and there is a general
finding by the jury of “guilty," if either count is good, it is sufficient. Ib.
See EVIDENCE, 7, 8; HABEAS CORPUS.
See BILLS AND Notes, 1.
See ASSIGNMENT OF DEBT.
See EVIDENCE, 2, 3; MARRIED WOMAN; MORTGAGE.
See PRINCIPAL AND SURETY.
1. All the powers of the ecclesiastical courts, which are necessary for the protection of
civil rights, and which have not been lodged elsewhere, may be exercised in this coun-
try by the courts of chancery. Carris v. Carris, 41.
2. Courts of chancery, therefore, have jurisdiction to annul a contract of marriage on
the ground of fraud. 16.
3. The parties were married ; the complainant, the husband, supposing from her acts
and otherwise that the defendant, the wife, was at the time of the marriage virtuous.
Two months after the marriage the defendant was delivered of a full-grown child.
Held, that the want of chastity and concealment avoided the consent, and constituted
a fraud upon which a court of equity would declare the marriage void ab initio. Ib.
1. A statute which directed a vote to be taken in Knox County, on the question of re-
moving the county seat from Knoxville to the city of Galesburg, also authorized the
city and individuals to raise and secure funds requisite for the public buildings, and
declared the subscriptions and donations made for that purpose valid and binding in
case the vote should be in favor of the removal. On a contest of an election held
under such law, it was contended that this law was unconstitutional, in holding out
inducements in the shape of a bribe for votes in favor of the change. Held, that if the
* law was unconstitutional, it was so only so far as to render the subscriptions and dona-
tions void, and no further ; that the balance of the law being constitutional, the elec-
tion under it was not void, and that the courts had no power to relieve against the
effects of the inducements which may have operated favorably to the removal. Super-
visors of Knox Co. v. Davis, 461.
2. On the contest of an election for the removal of a county seat, it was urged that the
election was void, because no registry of the voters of the county had been taken.
Held, that the general registry laws of the state had no application to elections of this
character. In the same case the common council of Galesburg required the polls within
the city to be opened at eight o'clock A. M., and kept open until midnight of the day of
this election, and this was urged as a fraud. Held, that as under the general laws of the.
state the judges of election were empowered to keep the polls open until twelve o'clock
at night if deemed necessary, and as the common council had the general power to
regulate elections in the city, they might make this discretion compulsory; and that,
in the absence of proof of an evil intent, no fraud could be presumed, but rather a
desire to afford all an opportunity to vote. Ib.
3. Where it appeared, on the contest of a vote for the removal of a county seat, that the
judge and clerk of the election in a town had acted fraudulently in registering the votes
as they were keeping the lists, and in making fraudulent returns, and that they knor.
ingly allowed illegal votes, and many persons to vote several times, and even minors to
vote ; and where the vote returned was double the vote ever cast before in the town,
and the evidence showed that heavy frauds were practised, the judge and clerk par-
ticipating therein, the court below rejected the poll-books and returns from such town
for all purposes, except to show that an election was held, leaving it to be shown by
proof who in fact voted and how such votes were cast. Held, that the court did not
err in rejecting the books and returns on account of the fraud. Ib.
4. Although there may be some fraudulent voting at an election in a town, yet, where the
officers conducting the same are not participants in it, but endeavored to hold the elec-
tion according to law, their returns are primâ facie evidence of all they contain, sub-
ject, however, to be corrected by proof; but where their returns are successfully im-
peached for fraud in them, they are unworthy of credit, and are evidence of nothing
except that a poll was opened. Ib.
See PLEADING AND PRACTICE, 3.
See BonD; PRINCIPAL AND SURETY; WARRANTY.
See LANDLORD AND TENANT.
1. When evidence is offered, if it is relevant it should be admitted, and the jury permitted
to determine its true weight. Underwood v. McVeigh, 281.
2. When a vendor of land, having contracted to convey a perfect title, brings his action
to compel specific performance against the vendee, who denies the sufficiency of the
vendor's title, the burden of showing title in himself rests on the plaintiff, and the
introduction of a deed of recent date executed to himself, without further proof of title,
is not sufficient. Walsh v. Barton, 341.
3. A deed purporting to have been executed by the president of a railroad corporation,
under the seal of the corporation, as authorized by section fifteen of the statute of Ohio
of May 1, 1852 (S. & C. 279), if objected to, cannot be given in evidence without proof
of its execution. Ib.
4. Shortly after the discovery of the fraudulent conduct of the treasurer of a railroad
company in the over-issue of stock, the directors of the company held a meeting at
which a report was made by the finance committee, setting out in detail the extent of
such over-issue. In this report there was no mention made of one of the certificates
held by the plaintiff. The plaintiff offered to read in evidence the record of the pro-
ceedings of this meeting, from the record book of proceedings of the company, having
previously read, without objection, from the record of the various meetings of the stock-
holders and directors of the company, held prior to this meeting. The defendant
objected to the admission of the proffered testimony. Held, that the proceedings of
the meeting of the 10th of August were admissible, — the report of the finance com-
mittee, that one of the certificates of stock held by the plaintiff did not appear upon
the list of " over-issues of the stock of the company,'' furnishing the strongest negative
proof that such certificate was genuine and not spurious. Tome v. Parkersburg Branch
R. R. Co. 426.
5. On the question of the genuineness of the signature of a Mr. Van Winkle to certain
certificates of stock sued on, a witness professing to be an expert in the matter of hand-
writing was offered to prove that the signature to such certificates was not genuine.
He stated that he had never seen Mr. Van Winkle write, nor received any letter from
him, nor had he become acquainted with it in the course of business ; but that his
only knowledge on the subject was derived from an examination of the signatures of
said Van Winkle, in the two certificate books in evidence, which had been placed in
his hands by the defendant to enable him to testify, and that he had carefully examined
them for five or six months, and had thus acquired a knowledge of the handwriting of
Van Winkle. Held, that the witness was not competent to testify as to the genuineness
of Mr. Van Winkle's signature, his opinion being derived solely from a comparison of
6. On the same question, a photographer by profession and expert in handwriting offered
as a witness by the defendant, stated that he had, at the instance of the defendant,
made photographic copies of the signatures of Van Winkle to the certificates sued on,
and of others admitted to be genuine ; that some of these copies were of the actual
size of the original, and others of an enlarged size. The defendant thereupon pro-
posed to offer said copies in evidence, to be examined by the jury, together with expla-
nations by the witness as to the differences between the genuine and those alleged to
be forged, and his opinion, derived from a comparison of those copies, as to the gen-
uineness of the signatures to the certificates sued on. The plaintiff objected. Held,
that the proffered evidence was inadmissible. Ib.
7. Where a question is put to a witness which he answers, and which relates to a
collateral matter not connected with the subject of the prosecution, his answer to that
question is conclusive, and cannot be contradicted. Murphy v. The Commonwealth,
8. In this case, after the witness was asked the question whether he did not state to his
wife that the defendant had acted only in his own defence, and he had answered the
question denying that he had done so, the wife of the witness was introduced to prove
the statement was made to her. She is not a competent witness to prove it, though at
the time it was alleged to have been made they were living apart from each other, but
not divorced. Ib.
See CRIMINAL LAW, 1, 2, 9; Malicious PROSECUTION.
S. made his will in 1858, and died in July, 1867. He gave to his daughters S. and C.
each ten thousand dollars, to be realized out of his estate by sale or otherwise, as early
as practicable after his decease ; and directed his executors to invest the said legacies
in the bonds of the State of Virginia, in the names of S. and C. The residue of his
estate he gave to his two sons, who were his partners in business, and who he ap-
pointed executors. When S. died his daughter C. was over twenty-one years of age,
and capable of understanding her rights. The executors did not invest the $10,000
left to her, but retained it in their hands with her knowledge, and, as they aver, by
express agreement with her, and paid her the interest regularly upon it. Held, in the
condition of the country from 1867 to 1870, the executors were well justified in not
investing the money in state bonds. Perry v. Smoot, 234.
See CONFEDERATE BONDS.
See CONSTRUCTION OF STATUTES, 1.
See EVIDENCE, 5, 6.
Where it is stipulated in a deed-poll that the grantee, his heirs and assigns, shall build
and perpetually maintain a fence on the line between the land granted and other lands
owned by the grantor, and the parties to such deed, at the time of its execution, con-
template the subdivision of the granted premises into building or town lots, and their
subsequent sale, the burden of maintaining such fence will not attach to, or run with,
lots which do not abut on the line of the proposed fence. Walsh v. Barton, 341.
FISHING, RIGHT OF.
The right of fishing in a river is subordinate to that of navigation, but this does not
excuse the master of a vessel from running into and damaging a net of a fisherman,
where he could change the course of the vessel without prejudice to the reasonable
prosecution of his voyage, and thus avoid the net. Cobb v. Bennett, 172.
FRAUDS, STATUTE OF.
Where the name of the agent with whom a contract for the purchase of real estate was
made appears in the written memorandum of the agreement signed by the purchaser,
who is the party to be charged, the statute of frauds is satisfied, although the names of
the principals are not disclosed therein. Walsh v. Barton, 341.
GUARDIAN AND WARD.
1. A man of wealth and having no family dependent on him, under guardianship as
insane, should be allowed those luxuries which he desires and can enjoy, which are
unobjectionable in themselves and would be proper and reasonable expenditures for a
sane man in a similar position. May y. May, 123.
2. A guardian of an insane man whose estate was worth over $200,000 spent four hours
three times a week in visiting and dining with his ward, and superintending the man-
agement of his house and grounds ; and the ward's spirits and condition were much
improved by the visits. Held, that a monthly charge of $100 for personal services,
besides the commission of five per cent. on the income collected, should be allowed to
the guardian ; but that an additional charge of $100 for attending court should be dis-
allowed, as should also a charge of $200 for attending the ward on two journeys of a
fortnight each, which were undertaken partly on account of the guardian's own busi-
3. The additional compensation, if any, allowed to a guardian for changing investments
of his ward's property, or making repairs thereon, should not be by way of commis-
sions on the amount invested or expended. 16.
4. A guardian who makes up his accounts monthly may charge his ward's estate each
month with his commissions on the amount collected in that month, and with a month's
interest on a balance from the preceding month in his own favor, and may carry the
balance to the next month. Ib.
The supreme court of the United States has authority to issue a writ of habeas corpus,
accompanied by a writ of certiorari, to bring before it the proceedings of a circuit
court for the purpose of ascertaining whether such court has exceeded its powers.
And in a criminal case it may release the prisoner. In re Lange, 256.
1. Where a party waived his right of homestead exemption in a negotiable promissory
note, and was subsequently adjudged a bankrupt, it was held that the homestead was
not exempt as against the holder of the note. In re Solomon, 351.
2. A statute which permits the head of a family to waive an exemption of homestead is
not an infraction of a constitutional provision by which such exemption is created. Io.
HUSBAND AND WIFE.
See MARRIED WOMAN.
1. The act of the State of California is such that a sale of realty for taxes casts a cloud
upon the title, and if the tax for the collection of which the sale is about to be made
is unlawful, equity will enjoin the sale. Huntington v. Cent. Pac. R. R. Co. 94.
2. Where a tax is invalid, and other equitable circumstances are shown to exist, an in-
junction may issue, in effect restraining the collection of the tax. Ib.
3. In a case of necessity a court may issue a writ of injunction on Sunday. Langebar
v. Fairbury, fc. R. R. Co. 101.
4. A court has no power to restrain the treasurer of a state from paying out money in
pursuance of law upon the ground that an earlier appropriation for a specific purpose
has been misapplied. The treasurer as an agent of the state is bound only to pay its
debts when required to do so by law. Self v. Jenkins, 368.
5. An injunction will not be granted to restrain the collection of a tax, when the deed
issued upon a sale for taxes would not cloud the title. Minturn v. Smith, 507.
1. Held, that in an action against an insurance company to compel it to issue a policy
upon an alleged contract of insurance, there must be conclusive proof that such con-
tract was actually made. McCann v. Ætna Ins. Co. 232.
2. Held, that due notice of loss, and statements supported by affidavits, are conditions
precedent to recovery. Th.
See CONSTRUCTION OF STATUTES, 1.
A mortgagee, who has insured his mortgage interest at his own expense and for his own
indemnity, without any agreement with the mortgagor, may, in case of loss, call upon
the insurer without first exhausting his remedy under his mortgage. Excelsior Ins. Co.
v. Royal Ins. Co. 331.
1. Where the local agent of a life insurance company, on receiving payment of the first
premium due on a policy, represented to the assured that the company was in the habit
of giving thirty days' notice to its policy holders of the time when each premium falls
due, and promised that he would give such notice, and the assured died two days after
the second premium fell due, no such notice having been given to him, and the proof
failed to show that the agent had any authority to make such an agreement, it was
held that the beneficiary could not recover on the policy. Morey v. N. Y. Life Ins.
2. Where the company's receipt for the premium was not received by the local agent to
whom it was to be paid until two days after the death of the insured, it was held,
under the circumstances above stated, that the beneficiary could not recover on the
policy ; otherwise if the premium had been tendered before it fell due. 1b.
3. Where by express agreement, or by the course of business between the parties, it is
understood that payment will be made to the local agent, and no notice has been given
in sufficient time that payment shall be made at the office and principal place of busi-
ness stipulated in the contract, a tender of payment to the local agent, whether re-
ceived by him or not, will excuse the policy holder and prevent a forfeiture. Ib.
4. Held, that to make the insurer liable the mind of the deceased must have been so far
deranged that he was incapable of using a rational judgment in regard to the act of
self-destruction ; that if the insured was impelled by an insane impulse which his
remaining reason did not enable him to resist, or if his reasoning powers were so far
overthrown that he was unable to exercise them on the act he was about to perform,
the company is liable ; that there is no presumption of law that self-destruction arises
from insanity, and if, by reason of sickness, or distress of mind, or a desire to provide
for his family, the insured takes his own life in the exercise of his usual reasoning
faculties, the company is not liable, and that the burden of proof lies upon the com-
pany to show that the death was caused by suicide and not by accident. Coverston v.
Conn. Mut. Life Ins. Co. 239.
5. Construction of the words “die by his own hand” in a policy of life insurance.
Moore v. Conn. Mut. Life Ins. Co. 319.