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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." Hell, that the evidence was rightly admitted, and that the defendant had no ground of exception to this instruction. Ib.


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part of the grantor to withdraw it at any time before his death, and in case it was not so withdrawn, to be retained until the death of the grantor, and then to be delivered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

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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 wit

Ib. VOL. IV.



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

what the papers consisted. Ib. 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. 10. 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. 16. 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 handwriting or authorship of the entries is not required, when the book is shown to have been the family Bible or Testament.

See Contract, 5; JUDGMENT, 5.


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

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


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 which makes it unlawful for them to hold intercourse, the policy is nevertheless forfeited if the company insist on the condition ; but in such case the assured is entitled to the equitable value of the policy arising from the premiums actually paid. This equitable value is the difference between the cost of a new policy and the present value of the premiums yet to be paid on the forfeited policy when the forfeiture oc

the assured, with a condition to be void on non-payment, is not an insurance from year to year like a common fire poliey; 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,

curred, and may be recovered in an action at law or suit in equity. Ib. 3. The doctrine of revival of contracts, suspended during the war, is one based on con

siderations of equity and justice, and cannot be invoked to revive a contract which it would be unjust or inequitable to revive, as where time is of the essence of the contract, or the parties cannot be made equal. The average rate of mortality is the fundamental basis of life assurance, and as this is subverted by giving to the assured the option to revive their policies or not after they have been suspended by a war (since none but the sick and dying would apply), it would be unjust to compel a

revival against the company. Ib. 4. A life policy is a chose in action. The sale and assignment of such a policy, out

standing and valid, and containing no prohibition of such alienation, is good in Rhode Island, though made to one who has no interest in the life insured, provided such sale and assignment is a bonâ fide business transaction, and not a device to evade the law. Query. Whether in Rhode Island a person can legally take out an original policy on

a life in which he has no interest ? Clark v. Allen, 316. 5. The policy insured separate sums on building, fixtures, and stock, and provided that

fraud on the part of the insured should cause a forfeiture of all claim under the policy. Held, that a fraud proved in the claim in respect of one of the subjects of insurance avoided the policy as to all, and that the policy. would be avoided by fraud on the part of the insured in making the contract, without any express provision to that

effect. Moore v. Virginia Fire & Marine Ins. Co. 369. 6. A foreign insurance corporation which has complied with the laws of Virginia is

domiciled there, and is not a citizen of another state in matters of controversy with citizens of Virginia. It must sue and be sued in the state courts, and does not come within the act of Congress relating to the removal of causes. Continental Ins. Co. v. Kasey, 310.


JUDGMENT. 1. The record of a judgment rendered in another state may be contradicted, as to the

facts necessary to give the court jurisdiction ; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist. Such want of jurisdiction may be shown either as to the subject matter, the person, or in proceedings in rem as to the thing. The circuit courts of that usurped government were a constituent part thereof. Their judicial proceedings, within their military lines and during the war, are not such as are, under art. 4, sec. 1, of the Constitution of the United States and the act of Congress, entitled to full faith and

credit. Pennyucit v. Foote, 97. 2. The difference between the effect of a judgment as a bar or estoppel against the

prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action, stated. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which

the finding or verdict was rendered. Cromwell v. County of Sac, 242. 3. In an action against a county in Iowa upon certain interest coupons originally at

tached to bonds issued by the county for the erection of a court-house, it was found and determined that the bonds were void as against the county in the hands of parties who did not acquire them before maturity for value ; and, inasmuch as the plaintiff in that action had not proved that he has given such value, it was adjudged that he was not entitled to recover : Helil, that the judgment did not estop the plaintiff holding other bonds of the same series, and other coupons attached to the same bonds as the coupons in the original action, from showing in a second action against the country that he acquired such other bonds and coupons for value before maturity. Ib.

4. The finding in one action that the plaintiff therein is the holder and owner of certain

coupons in suit, does not estop the defendant from showing. in another action, that such plaintiff prosecuted the first action for the use and benefit of the plaintiff in the second action. The finding only establishes the fact that such plaintiff held the legal title to the coupons, which was sufficient for the purpose of the action, and was not

inconsistent with an equitable and beneficial interest in another. Ib. 5. A judgment of a court of competent jurisdiction, upon a question directly involved

in one suit, is conclusive as to that question in another suit between the same parties; but to this operation of the judgment it must appear, either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, the whole subject matter of the action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admis

sible. Russell v. Place, 325. 6. In an action at law for damages for the infringement of a patent for an alleged new

and useful improvement in the preparation of leather, which patent contained two claims : one for the use of fat liquor generally in the treatment of leather; and the other for a process of treating bark-tanned lamb or sheepskin, by means of a compound composed and applied in a particular manner; the declaration alleged, as the infringement complained of, that the defendants had made and used the invention, and caused others to make and use it, without averring whether such infringement consisted in the simple use of fat liquor in the treatment of leather or in the use of the process specified : Held, that the judgment recovered in the action does not estop the defendant in a suit in equity by ihe same plaintiff, for an injunction and an accounting for gains and profits, from contesting the validity of the patent, it not appearing by the record, and not being shown by extrinsic evidence, upon which claim the recovery was had; the validity of the patent was not necessarily involved, except with respect to the claim which was the basis of the recovery : a patent may be

valid as to a single claim and invalid as to the others. Ib. 7. If upon the face of a record anything is left to conjecture as to what was necessarily

involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence. Ib.

See BILLS AND Notes, 8. 8. The state government, as organized and existing, in all its departments in Alabama,

during the late war, was its rightful de jure government. Judgments and proceedings of its courts, which during that time formed a portion of that government, not violative of the Constitution and laws of the United States, or infringing upon the state

Constitution, are valid and binding. Parks, Brewer & Co. v. Coffey, 204. 9. A sale of land under a pluries execution, issued since the war on a judgment rendered

during the war, is valid, and will pass the title of the defendant in execution; and he not questioning the validity of the process, a third person cannot collaterally attack a sale under the execution, on the ground that scire facias was necessary to authorize

execution. Ib. 10. When an alias fi. fa. issues, followed up, without the lapse of a term, by a pluries

execution under which a sale is made, the purchaser's title is superior to the lien of a creditor who attached the land in the interval elapsing between the issue of the alias

fi. fa. and sale under the pluries execution. Ib. 11. While it is well settled that the judgment of a court of general jurisdiction cannot

be impeached collaterally, if it appears in a collateral proceeding that there was no citation or summons, when there should have been, the judgment will be held to be void. Plaintiff, whose wife was insane and confined in an asylum out of the state, procured a decree of divorce, without summons or citation, in pursuance of the letter of certain statutes which provided that jurisdiction could be obtained by publication. Held, that it was competent to show in a collateral proceeding that the decree of divorce was obtained without the wife being legally cited to answer, and that upon proof of the fact the decree would be treated as null and void. Newcomb's Heirs v. Newcomb, 341.

JURISDICTION. 1. Neither the constitutional provision, that full faith and credit shall be given in each

state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered. Pennywit v.

Foote, 97. 2. The laws of the United States are as much the law of the land in any state as state

laws are; and although, in their enforcement, exclusive jurisdiction may be given to the federal courts, yet where such exclusive jurisdiction is not given, or necessarily implied, the state courts, having competent jurisdiction in other respects, may be resorted to. In such cases, the state courts do not exercise a new jurisdiction conferred upon them, but their ordinary jurisdiction derived from their constitution under the state law. Claflin v. Houseman, 51.


LIMITATIONS. Held, That the following: “I have received a letter from you some time ago, asking of

me what I intend doing with balance of a note I owe you;” and after speaking of an arrangement to pay another creditor, “ and after he is paid I will pay you all I owe you, and if I can do anything for you before that time I will do so. You need not trouble yourself about me that I will not pay you, for I expect to pay all I owe," did not constitute a new promise. Miller v. Baschore, 286.

MARRIAGE. 1. In a case involving the question of marriage, where there is no impediment to mar

riage, and the connection between the parties was illicit in its commencement, it will be presumed to continue to be of the same character; and in order to overcome that presumption it will be necessary to adduce other evidence than that of the cohabitation

of the parties to establish their marriage. Jones v. Jones, 489. 2. If, after the birth of a person claiming to be the legimate child of his parents, though

born as a bastard, there be no cohabitation of his father and mother, the latter assuming the name of the former, and the parties treat each other as man and wife, and treat the claimant as their child, and they are treated as, and reputed to be, man and wife by their friends and acquaintances, these are facts proper to be submitted to the jury, from which marriage may be inferred, not withstanding the original illicit connec

tion between the parties. 16. 3. The presumption of marriage will not arise from the cohabitation of a man with a woman, if during her life and without any proof of a divorce, he marries another

Ib. 4. Under the law of this state (Maryland) the marriage of a slave without the consent

of the master was not actually void. 1b. 5. The Act of 1777, ch. 12, prohibited ministers of the gospel from publishing the banns,

or celebrating matrimony between servants, or a servant and a free person, without the consent of the master. Held, that this act did not render the prohibited marriage void. Ib.

MASTER AND SERVANT. The relation between the owner or master and pilot, as that of master and employee,

is not changed by the fact that the selection of the pilot is limited to those who have been found by examination to possess the requisite knowledye and skill, and have been licensed by the government inspectors. Sherlock v. Alling, 38.


MORTGAGE. Although a mortgage of personal property to be subsequently acquired is in itself inef

fectual to vest in the mortgagee a legal title to the property, yet if after acquisition by the mortgagor the mortgagee by delivery from, or by consent of, the mortgagor, takes possession of the property under the mortgage conveyance, the title to the property both in law and equity vests in the mortgagee without further conveyance or bill of sale. Cook v. Cortheil, 301.


MUNICIPAL BONDS. 1. Where an act of the legislature authorized a city to issue its bonds in aid of a rail

road company, and ratified a contract by which the city, having issued its said bonds,

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