6. Presumption as to death and sanity of the deceased. Ib.
7. Insanity defined, and discussion of the degree of derangement that is necessary to
avoid a policy of life insurance containing a provision that the insurer shall not be
liable in case of suicide. Ib.
8. It is for the jury to determine what is meant by the term disease, as used in the
application for insurance. Substantial truth is alone required in the answers of the
assured. Manhattan Life Ins. Co. v. Francisco, 56.
INTEREST.
See NATIONAL BANK, 1.
1. When a judgment obtained in one state is sought to be enforced in another, it is com-
petent for the courts of the latter, under a plea of nul tiel record, to determine whether
such service was made upon the defendant in the original action as to give the court
jurisdiction of his person. Barnett v. Oppenheimer, 118.
2. A sale of lands under an execution issued upon a judgment which had been fully paid
is void. Lee v. Rogers, 218.
3. W. had a judgment against C., which was the first lien on his property. T. also had
a judgment, which was the second lien on the property. C. paid W.'s judgment
in full, but took an assignment of it in the name of his hired man, who paid nothing for
it. Afterwards, to avoid an attachment, C. confessed a judgment in favor of L., for a
debt previously due him, which became a lien upon the property, and in order to give
L. a preference over T., C. procured an assignment to him of W.'s judgment, for which
no additional consideration was paid; but L. was not aware that it had been paid. C.
afterwards confessed a judgment in favor of F., which also became a lien on the prop-
erty. L. afterwards sold the lands on W.'s judgment and became the purchaser.
Afterwards F. became purchaser of the same lands under his own judgment. Held:
1. That as to F., L. was not a bonâ fide assignee of W.'s judgment for a valuable con-
sideration; and that his sale was void. 2. That by his purchase F. acquired the title
to the land. Ib.
4. In 1863 proceedings were instituted in the district court of the U. S. at Alexandria,
under an act of Congress, to confiscate the real estate of M. Before the condemnation,
M. appeared by counsel and filed his answer, which afterwards, on the motion of the
attorney for the U. S., was struck out; and the court, not allowing M. to appear in the
cause, decreed that the property should be sold at auction by the marshal.
This was
done, and the property was conveyed by the marshal to the purchaser. Upon ap-
peal by M. to the supreme court of the U. S., the decree was reversed. And when
the case came back to the district court it was dismissed. In ejectment by M. against
the purchaser, to recover the property: Held, the decree having been made in the
absence of M. was a nullity, and the deed of the marshal passed no title to the pur-
chaser. Underwood v. McVeigh 281.
5. Starr being in possession of certain lots in Portland, Oregon, filed a bill in chancery
against Stark, to determine an adverse claim of title by the latter, in which the com-
plainant, as one ground of relief, alleged title derived to himself through a United
States patent to the city of Portland, and that defendant claimed title adversely under
a subsequent patent to himself. And as another ground of relief, that the legal title
was in defendant under his said subsequent patent; but that through certain transac
tions set out, complainant had the equitable right, and was entitled to a conveyance of
said legal title. The court, upon motion of defendant, held that the two grounds of
action were inconsistent, and could not be litigated together in the same action, and
required complainant to elect upon which he would proceed, and omit the other;
whereupon complainant, after excepting to the ruling and order, elected to rely on the
first, and withdraw the second. A decree having been rendered in favor of com-
plainant, on the cause of action retained, which was affirmed by the supreme court of
Oregon, it was finally reversed by the supreme court of the United States on the
ground that the patent to the city was void, and the bill subsequently dismissed in
pursuance of the mandate of that court. Complainant then filed a second bill, alleging
the equitable title before set up in the first, and withdrawn in obedience to said order
of the court, and prayed a conveyance of the legal title. Held, that the proceedings
and decree in the former action are not a bar to the second action. Starr v. Stark, 444.
6. There can be no judgment against a non-resident upon substituted service except as a
means of reaching property situated at the time within the state. Galpin v. Page, 534.
A judgment note made more than four months prior to an adjudication of bankruptcy
upon which an execution is issued within four months, is not necessarily fraudulent.
Sleek v. Turner's Assignee, 485.
In proceedings by attachment against M., judgment is rendered against him, and there
is an order for a sale, and a sale and conveyance to the purchasers of the real estate
attached. Held: :-
1. The judgment and conveyance made under the judgment and order, by the sheriff,
divested M. of his legal title to the property, unless the said sale was fraudulently
made, and the confirmation thereof was procured by fraud, and that the purchaser was
privy to such fraud, or had notice of the same, or of such circumstances as would put
a prudent bonâ fide purchaser upon inquiry in respect thereto. Underwood v. Mc-
Veigh, 281.
2. But if the purchaser combined with others to purchase the property at the attachment
sale, at a sacrifice; and if in pursuance of such combination they so acted as to pre-
vent competition at said sale, or to prevent the said property realizing a fair value, then
such combination and action was fraudulent and the deed of the sheriff passes no title
to the purchaser. Ib.
1. The courts of the United States may take jurisdiction of causes affecting the prop-
erty of a state in the hands of its agents without making the state a party when the
property or agent is within the jurisdiction. Swasey v. N. C. R. R. Co. 359.
2. The company in this case holds the share of its property represented by the stock sub-
scribed by the state, in trust, as well for the bondholders as for the state. The
charter made the company the depository of the pledge to hold it for both parties.
Consequently a suit which seeks to charge the stock as security, and brings the
corporation in to represent it, may be maintained, in the absence of the state as a
party. Ib.
3. It appearing to the court that the stock had been deposited with the company to
secure the payment of interest in which default had been made, a sale of the stock
was directed to be made unless the state should provide by taxation for the amount
due within a reasonable time. Ib.
4. The act of March 30, 1871, of Virginia, Sess. Acts, 1870-71, p. 332, does not give
justices of the peace jurisdiction to try a case of felony; and the conviction and
punishment of a party by a justice for an assault and battery will not bar a prosecution
for wounding with intent to kill, by the same act for which he was punished by the
justice. Murphy v. The Commonwealth, 486.
5. Presumptions of law in favor of the acts of courts of general jurisdiction, their extent
and limitations, defined and expounded. Galpin v.
Page, 534.
See DIVORCE; HABEAS CORPUS; JUDGMENT, 1; PATENT, 7.
1. Where a lessee is, by his lessor, wrongfully evicted from a portion of the demised
premises, he is thereby excused from the payment of any of the rent, although he
remains in possession of the remaining portion of the premises to the end of the term.
Hayner v. Smith, 508.
2. But to constitute an eviction, there must be more than a mere trespass by the land-
lord. There must be something of a grave and permanent character done by the land-
lord with the intention of depriving the tenant of the enjoyment of the premises - the
question of eviction or no eviction depending upon the circumstances, and being a
matter for the jury to decide. Ib.
3. Some acts of interference by the landlord with the tenant's enjoyment of the premises
may be mere acts of trespass, or may amount to an eviction, the question whether they
partake of the latter character depending upon the intention with which they are done;
if clearly indicating an intention on the landlord's part that the tenant should no
longer continue to hold the premises, they would constitute an eviction. Ib.
LIVERY-STABLE KEEPER.
See BAILOR AND BAILEe.
1. In order for the plaintiff to recover in an action for malicious prosecution, the burden
of proof is upon him to show clearly, by a preponderance of evidence, that the defend-
ant did not have probable cause to institute the criminal prosecution against him.
Good faith on the part of the prosecutor is always a good defence, unless it appear that
he closed his eyes to facts around him which would have been sufficient to convince a
reasonably cautious man that no crime in fact had been committed by the person about
to be prosecuted. Palmer v. Richardson, 163.
2. The fact that the defendant, before instituting a prosecution alleged to be malicious
and without probable cause, had honestly laid all the facts before counsel and followed
his advice, is pregnant evidence to show the existence of probable cause. Ib.
Mandamus is the appropriate remedy to restore an attorney disbarred where the court
below had exceeded its jurisdiction in the matter. In re Robinson, 326.
See MUNICIPAL CORPORATION; PLEADING AND PRACTICE, 4.
1. The deed of a married woman, to be operative as a valid conveyance, must be exe-
cuted in strict conformity with all the statutory requirements. Heaton v. Fryberger,
2. Where the name of a married woman is omitted in the body of a deed, equity cannot
supply the omission, even if the execution and acknowledgment are legally sufficient. Ib.
See BANKRUPTCY, 1, 9; PLEADING AND PRACTICE, 8.
1. One employed by a railroad corporation to drive a locomotive engine over its road may
recover damages against the corporation for personal injuries caused by a defect in the
engine, which was due to the neglect of the agents of the corporation charged with
keeping the engine in proper repair, although the directors and superintendent had no
reason to suspect negligence or incompetence on the part of such agents. Ford v.
Fitchburg R. R. Co. 501.
2. One employed by a railroad corporation to drive a locomotive engine over its road is
not debarred from recovering damages against the corporation for injuries from an
explosion caused by a defect in the boiler of the engine, by the fact that he was acting
in intentional violation of the rules of the company, unless the accident was due, in
whole or in part, to such violation; nor by the fact that such rules provided that the
driver of an engine should be held responsible for the condition of his engine, must be
sure that it was in good working order, and must immediately stop, draw his fire, sta-
tion his signal men, and procure assistance, whenever any defect was detected in an
engine that would make it in his judgment unsafe to proceed; nor by the fact that he
knew the engine was not in good working order, if he did not know and ought not to
have known that it was unsafe. Ib.
A bill in equity, to declare the plaintiff entitled to redeem land, which the defendant
holds by an absolute conveyance from him, may be maintained upon parol proof that
he bought the land with money borrowed from the defendant, and, though he executed
his absolute deed intelligently, yet both parties understood that it was intended as
security for the loan. Campbell v. Dearborn, 107.
1. Held: that mandamus will not lie against a county to compel the levy of a tax to pay
a judgment recovered upon ordinary county warrants where the power to levy a tax
for county purposes is limited to a specified amount, and a tax equal to such an amount
has already been levied. Supervisors of Carroll Co. v. U. S., &c. 64.
2. Municipal corporations have not the power to borrow money without express or clearly
implied legislative authority to do so. Mayor, &c. of Nashville v. Ray, 248.
3. Nor have such corporations the power to issue paper clothed with the attributes of
negotiability unless authorized by legislative enactment. Ib.
4. And the officers of such corporations are powerless to bind the corporation without
“ordinance,” even where the power to borrow money and issue bills exists in the
corporation. Ib.
5. The fact that the officers of a municipal corporation wilfully evade the execution of a
judgment against it will not authorize the levy of a tax by a court of the United States
to pay such judgment. Rees v. City of Watertown, 300.
6. In a proper case a court of the United States has jurisdiction to issue the writ of man-
damus to compel the officers of a municipal corporation to levy a tax, but it cannot
under any circumstances direct its own officer to enforce the writ by levying upon the
property of individuals, unless expressly authorized to do so by state enactment. Ib.
See SUBSCRIPTION.
1. The thirtieth section of the act of Congress of June 3, 1864, relative to national bank-
ing associations, allows such banks the rate of interest allowed by the state in which
they are situated to natural persons generally; and a higher rate, if state banks of
issue are authorized to charge a higher rate. Tiffany v. National Bank of Missouri,
2. The defendants, a national banking association, being allowed to take nine per cent.
interest, under authority of the act of Congress, are not liable for any penalty. Ib.
3. A national bank can only be sued in the district where it is located." The Practice
Act of 1872 does not provide otherwise. Main v. Second National Bank of Chicago,
See PRINCIPAL AND SURETY.
NAVIGATION, RIGHT OF.
See FISHING, Right of.
1. A boy was employed in the machine shop of a railroad company as a workman, -
under the direction of the company's foreman, and required to obey his orders; the
boy, by the order of the foreman, ascended a ladder among dangerous machinery for
the purpose of adjusting a belt, and while endeavoring to adjust the belt his arm was
torn off by the machinery; the jury having found that the adjusting of the belt
was not within the scope of the boy's duty and employment, but was within that
of the foreman; that the order was not a reasonable one; that its execution was
attended with hazard to life or limb, and that a prudent man would not have ordered
the boy to execute it. Held, that the rule that a master was not responsible to one
servant for an injury caused by the negligence of a fellow-servant was not applicable,
and that the company was liable. U. P. R. R. Co. v. Fort, 121.
2. In order to obtain the only available supply of water to throw upon a building on fire,
it was necessary to lay a hose across a railroad. The water was applied from the hose
to the fire, and had diminished and would probably have extinguished it, but servants
of the railroad corporation ran a train over the hose, and severed it, and thereby cut
off the water from the fire, which then consumed the building. They had notice about
the hose, and might have stopped the train to permit the hose to be uncoupled. The
railroad was crossed by another at grade a few hundred feet before the place where
the hose was severed; and the train was not stopped before the crossing, as required by
the Gen. Sts. c. 63, § 93. Held, in an action brought by the owner of the building
against the railroad corporation, (1) that the violation of the statute did not affect the
defendants' liability; (2) that the firemen had a right at common law to lay the hose
across the railroad; (3) that it was immaterial that they were volunteers from another
town; (4) that it was immaterial that the plaintiff did not own the hose; (5) that the
severing of the hose was the proximate cause of the destruction of the building; and
(6) that the defendants were liable for the negligence of their servants in severing the
hose. Metallic Com. Casting Co. v. Fitchburg R. R. Co. 135.
3. The plaintiffs deposited bonds with the defendants for safe keeping, for the benefit of
the plaintiffs and without compensation. The bonds were stolen by the defendants'
teller. Held, that the defendants were not liable except for gross negligence; and that
the fact that the teller had been abstracting the funds of the bank for two years, and
to the amount of $26.000, and had kept false accounts, and was supposed to remain in
his employment after it was known that he had dealt in stock, did not constitute such
negligence as to render the defendants liable. Scott v. National Bank of Chester
Valley, 132.
4. Where negligence is concurrent a child will not be held to the same degree of care
as an adult. Crissy v. Hestonville, &c. R. R. Co. 166.
5. Whether the engineer of a railroad runs his engine at a proper rate of speed, and
keeps a proper lookout, the facts being in dispute, is a question for the jury. P. & R.
R. R. Co. v. Long, 169.
6. A mother who takes reasonable care, under the circumstances, of an infant child, is
not guilty of negligence. Ib.
7. The plaintiff was a passenger on the defendants' railway from A to B; while the
train was passing through B station the company's servant called out the name of the
station, and shortly afterwards the train stopped. The carriage in which the plaintiff
travelled stopped a little way beyond the platform, and several carriages and the
engine, which were in front of that carriage, stopped at some distance from the plat-
form. The plaintiff, who was well acquainted with the station, in alighting from the
carriage was thrown down and injured in consequence of the train being backed into the
station for the purpose of bringing the carriages alongside the platform. A very short
interval elapsed between the time that the train stopped and the time it was backed
into the station. Held, that there was no evidence of negligence on the part of the
company to render them liable to an action. Lewis v. London, &c. R. W. Co. 187.
8. A telegraph company undertakes to receive and transmit by telegraph, and to deliver,
without unnecessary delay, according to directions, the messages offered for trans-
mission. Dorgan v. Tel. Co. 406.
9. Where a message was left at the office of defendant in New York at about twenty
minutes after five o'clock P. M. for transmission to Mobile, Alabama, and was not
delivered at the office of the person addressed until half past ten o'clock the next fore-
noon, and it appeared that under ordinary circumstances it would only require four
minutes to transmit the message, and the plaintiff had paid uninsured day rates for its
transmission, the court instructed the jury that the facts made out a primâ facie case of
negligence. Ib.
10. Those who use the telegraph as a means of communication, unless they insure the
delivery of their messages, take the risk of delay and failure of their messages to reach
their destination arising from the accidents and obstructions to which telegraphic lines
are liable. Ib.
11. It is the duty of a telegraph company to transmit messages impartially in good faith
and in the order in which they are received. Therefore, if the company proved that
the delay in the transmission of the message was not owing to the carelessness or neg-
ligence of its agents, but to obstructions in the line which the company could not foresee
or prevent, or that the delay arose from the observance of the rule that messages must
be sent in the order in which they are received, then the primâ facie case of negligence
is overthrown. Ib.
12. Whether it is negligence to fail to deliver a day message received after ten o'clock
P. M. will depend upon the circumstances of the case, and the jury was directed to pass
upon the question of negligence according to the facts as they should find them. Ib.
13. If the damage suffered by the plaintiff from the negligence of the company might
have been avoided by the use of ordinary diligence by the plaintiff, in that case the
plaintiff, cannot recover. Ib.
14. The plaintiff can only recover such damages for the failure to transmit and deliver
his message as were within the reasonable contemplation of the parties when the con-
tract for transmission was made. Ib.
15. If the sender of a message, at the time he left it for transmission, informed the tele-
graph company that it was important, and the dispatch itself indicated that it was a
business message, and that serious damage might result if it was not promptly sent,
the company would be liable for any damage which might be the result of negligent
delay in sending the message. Ib.
16. But if the message was so worded as not to show that damage might fellow delay in
sending it, and the company was only told that it was important and requested to send
it immediately, in such case the telegraph company would only be liable for nominal
damages. Ib.
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