that the plaintiff, without his negligence, fell into the excavation in the night-time, and was greatly injured. The answer averred that the excavation was made by the owner of a lot abutting on the street, in accordance with an ordinance requiring him to improve the sidewalk; and that when the work was left, on the night the plaintiff was injured, such lot-owner, using all care and diligence, placed near the excavation a good and sufficient danger-signal, which the plaintiff carelessly and wholly disregarded. Held, that the answer was unquestionably good. Id. 18. ONLY ORDINARY CARE IS REQUIRED OF MUNICIPAL CORPORATION, its agents, and contractors; and such care does not require that a watch be kept during the night over an excavation, unless there are circumstances peculiar to the particular case making it necessary. It is sufficient, as a general rule, to show that proper signals or secure guards were placed about an excavation on quitting work, and no liability attaches if a wrong-doer removes the signals during the night. Id. 19. TOWN SUED FOR INJURIES FROM OBSTRUCTION IN HIGHWAY MAY SET UP, BY WAY OF Estoppel, JudgmENT in favor of the defendant in a former action brought by the same plaintiff, to recover for the same injuries, against the person alleged to have caused such obstruction. Hill v. Bain, 873.

See COUNTIES; NEGLIGENCE, 7; NUISANCES; RAILROADS

HOMESTEADS.

1. CLAIMANT OF HOMESTEAD DOES NOT FORFEIT HIS RIGHT THERETO by making a conveyance thereof with intent to defraud his creditors. Dortch v. Benton, 331.

2. ONE WHO PURCHASES LAND, AND PAYS PORTION OF PRICE, BECOMES AT ONCE ENTITLED TO HOMESTEAD therein, subject to the lien for the unpaid purchase-money. Id.

3. LAND ASSIGNED TO BANKRUPT AS HOMESTEAD is exempt from execution for a definite period, against the subsisting and unsatisfied portion of a fiduciary debt which has shared in the distribution of the estate, and the same immunity follows the land into the hands of a mortgagee of the homestead owner, whether his wife joined in the transfer or not. Simpson v. Houston, 297.

4. HOMESTEAD.-Attorney has lien of homestead for services rendered in protecting it against creditors. Such services are in the nature of labor done, or purchase-money paid on such homestead. Strohecker v. Irvine, 62. 5. ORDER OF COURT REFUSING TO SET APART HOMESTEAD will not be reversed because the court did not find upon the issues made by the pleadings, when the bill of exceptions fails to show that the findings were not waived. Estate of Noah, 834.

6. Court cannot SET APART AS HOMESTEAD to surviving husband or wife property of the estate which could not have been selected as a homestead during the continuance of the marriage. Id.

7. COURT CANNOT SET APART HOMESTEAD to the value of five thousand dollars to the surviving husband or wife, out of an estate consisting of a lot and four-storied brick building, erected and used exclusively for business purposes, and valued at twenty-five thousand dollars, and which cannot be divided without material injury. Id.

8. WHERE NO HOMESTEAD HAS BEEN SELECTED during the lifetime of the husband or wife, and there is no property out of which the survivor may

select a homestead, the court cannot order a sum of money paid to such survivor in lieu of a homestead. Id.

9. WHERE HOMESTEAD SELECTED DURING LIFETIME OF HUSBAND OR WIFE is inventoried at more than five thousand dollars, and a homestead to that amount cannot be carved out of it, the court may order the sale of the homestead as selected, and pay to the survivor that amount of the proceeds. Id.

See EXECUTIONS, 2-4.

HOMICIDE.

See CRIMINAL LAW, 21.

HUSBAND AND WIFE.

1. HUSBAND IS FORMAL, AND NOT REAL, PARTY TO RECORD, in an action brought by husband and wife, in the right of the wife, to recover damages for injury sustained by her; and the defendant is not entitled to call him for cross-examination, to testify adversely to his wife's claim. Burrell Township v. Uncapher, 664.

2. HUSBAND IS NOT LIABLE TO VENDOR FOR GOODS, NOT NECESSARIES, SOLD TO HIS WIFE ON HIS CREDIT, after an express notice from him to the vendor not to so sell to her without his authority, and the fact that the husband suffers the goods to remain in his house, where the vendor placed them, and does not offer to return them or notify the vendor that he may remove them, does not amount to such a ratification of the unauthorized purchase as will render him liable. Segelbaum v. Ensminger, 662.

8. HUSBAND MAY DISPOSE OF PERSONAL PROPERTY IN GOOD FAITH, BY GIFT OR OTHERWISE, DURING COVERTURE, free from all post-mortem claims thereon by his widow. Dickerson's Appeal, 547.

4. WIFE IS PERSONALLY LIABLE FOR TORT COMMITTED BY HER, unless her husband was both present and directed the doing of it at the time. His presence furnishes evidence, and raises a presumption of his direction, but it is not conclusive, and the truth may be established by competent evidence. Franklin's Appeal, 583.

5. WIFE IS PERSONALLY LIABLE FOR TORT COMMITTED BY HER, unless her husband was both present and directed the doing of it at the time, when he alone is liable. If the husband was present during the commission of the tort, whether actively participating in it or not, prima facie the wrong is deemed his alone; but this presumption may be rebutted, and each of the two may be shown to be the doer of the wrong, the same as though unmarried. Wheeler & W. M. Co. v. Heil, 575.

6. WHERE WIFE VOLUNTARILY AGREES WITH HER HUSBAND for separation, and for a money consideration releases all her marital claims, and receives and enjoys the benefits of the money paid for her support during the separation, and voluntarily continues to live apart from him, without any attempt to set aside the agreement or to again assume the marital relation or to demand further means for her separate support, she does not thereafter constitute a member of the immediate family of the husband, and upon his death is not entitled to an allowance for her maintenance out of his estate, under sections 1466 and 1467, California Code of Civil Procedure. Estate of Noah, 829.

See HOMESTEADS; MARRIED WOMEN.

INFANTS.

See NEGLIGENCE, 6; PARENT AND CHILD; STATUTE OF LIMITATIONS, 4

INJUNCTIONS.

1. TAX-PAYER MAY SUSTAIN BILL TO ENJOIN the imposition of an unjust and illegal burden on the municipality, or to prevent its property from being wasted and squandered: Chicago v. Building Association, 102 Ill. 379, explained, and shown not to conflict with this rule. McCord v. Pike, 85. 2 INJUNCTION AT SUIT OF TAX-PAYER will issue to prevent the officers of a county from selling its lands for a less sum than was offered therefor by another bidder, especially if it appears that their action is collusive and for the purpose of defrauding the county. Id.

& MANDATORY INJUNCTION WIll be Granted to compel the removal from plaintiff's premises of a large quantity of stone, placed there by the defendant pursuant to a license which he has abused, and which has, moreover, expired by lapse of time. Wheelock v. Noonan, 405. INJUNCTION WILL NOT LIE TO RESTRAIN the sale of goods on execution issued on a justice's judgment rendered by default, but void because the court never acquired jurisdiction of the person of defendant. The remedy is by motion to set the execution aside. Luco v. Brown, 772. See TRADE-MARKS.

INSANITY.

1. LUNATIO IS LIABLE IN CIVIL ACTION FOR ANY TORT HE MAY COMMIT. McIntyre v. Sholty, 140.

2 PROPER MEASURE OF DAMAGES IN ACTION AGAINST LUNATIC for a tort com. mitted by him is mere compensation for the injury sustained. It cannot include punitive damages. Id.

INTOXICATING LIQUORS.

See CRIMINAL LAW, 22-25.

INSURANCE.

1. INSURABLE Interest in LIFE OF ANOTHER, SUCH AS WILL TAKE CONTRACT OUT OF WAGER CLASS, MUST ARISE from the relation of the party taking the insurance to the insured, either as surety or debtor, or from the ties of blood or marriage, so that from the relation thus established there may be some expectation of benefit or advantage in the continuance of the insured life. Keystone M. B. Ass'n v. Morris, 572.

2. POLICY OF INSURANCE ON LIFE OF ANOTHER, TAKEN BY ONE WHO HAD INSURABLE INTEREST IN IT, for the purpose of assigning it to a third person who had no such insurable interest, is void as a wagering policy in the hands of the assignee. Id.

3. CONDITION IN POLICY OF LIFE INSURANCE PROVIDING THAT NO ACTION shall be Brought thereon, unless within one year from the death of the insured, is not suspended by an action brought within the year in a court which had no jurisdiction of the defendant. Id.

4. MORTGAGEE, MERELY AS SUCH, HAS NO INTEREST, either in law or equity, in policy of insurance effected by the mortgagor upon the mortgaged premises for his own benefit, in the absence of any covenant or agreement requiring the latter to insure for the benefit of the former. Nor dyke and Marmon Company v. Gery, 219.

5. GENERAL RULE IS THAT, BETween Insurer and INSURED, policy of fire
insurance is purely personal contract, by which the former agrees to in-
demnify the latter against any loss he may sustain by the destruction of
his interest in the property insured. Id.

6. WHERE MORTGAGOR HAS COVENANTED TO KEEP MORTGAGED PREMISES IN-
SURED FOR BENEFIT OF MORTGAGEE, and either has effected, or thereafter
effects, insurance in his own name, though without the mortgagee's
knowledge, or without any intent to perform the agreement, equity will
treat the insurance as effected under the agreement, and will give the
mortgagee his equitable lien accordingly. Id.

7. MORTGAGOR HAS DONE THAT WHICH HE OUGHT TO HAVE DONE where,
having covenanted to insure mortgaged premises for benefit of mort-
gagee, he has effected solvent insurance, in good faith, in the name and
to the acceptance of the mortgagee, to an amount adequate to secure
the debt. Having kept the policies alive until the mortgage debt
is paid, or a loss occurs, he is not in default, and will be responsible
thereafter only for such infirmities as existed and were inherent in the
insurance at the time the policies were accepted, or such as may have
resulted from his own subsequent conduct. Id.

8. PURCHASER OF LAND UNDER ARTICLES OF AGREEMENT, THOUGH PURCHASE-
MONEY IS UNPAID, HAS INSURABLE INTEREST in buildings on the land,
within the contemplation of a policy containing a condition that it
should be void "if the interest of the assured be other than the entire,
unconditional, and sole ownership, or if the property insured be a build-
ing standing on ground not owned by the assured in fee-simple." In
respect to the insurance, such purchaser is to be regarded as the entire,
unconditional, and sole owner. Imperial F. Ins. Co. v. Dunham, 686.
2. WHERE INSURANCE COMPANY IS, FROM ANY CAUSE, DISCHARGED FROM
LIABILITY, RESPONSIBILITY FOR LOSS WILL NOT REATTACH by waiver
without proof of authority in the party whose act of waiver is relied
upon, or without a new consideration to sustain it; but where the act
of the agent executing the waiver is contemplated in the contract, and
the power is expressly conferred upon him in writing, no new considera-
tion is required. Id.

10. INSURANCE - WAIVER OF FORFEITURE OF POLICY.

-

A policy of fire insur-
ance contained a provision that it should be void, if assigned before a
loss, and without permission of the company therefor indorsed on the
policy, and further provided that "no agent has power to waive any
condition of this contract." The policy was assigned before a loss, with-
out the assent of the company, but the company's agent, having power
to " renew and consent to the transfer of policies," subsequently ap-
proved the assignment, and the company silently acquiesced in the act
of the agent. Held, that the forfeiture of the policy was thereby waived,
and the operative force of the policy revived in the hands of the as-
signee. Id.
11. ID.-ACTION ON POLICY-PAROL EVIDENCE. - In an action by the as-
signee of the policy against the insurance company, it appeared that the
assured assigned and transferred by articles in writing all his interest in
the insured property, and assigned the policy to the vendee: held, that
it was competent for the plaintiff to show by parol what the contract
was with reference to the existing insurance at the time of the transfer
of the property to him, in order to explain the subsequent act of the
parties in making the assignment of the policy, to exhibit their good

-

faith in so doing, and to fix the admitted consideration therefor; espe-
cially as it appeared that the parol understanding was soon afterwards
communicated to the company's agent, and met with his approval, which
he subsequently entered in due form on the policy. Id.

12. APPLICATION FOR INSURANCE CONSTITUTES NO PART OF POLICY OR OF
CONTRACT between the parties, and is therefore not receivable in evi-
dence, unless a copy is attached to the policy as required by statute,
Pennsylvania act of May 11, 1881. Id.

13. WHERE INSURANCE COMPANY RECEIVES PAYMENTS ON ASSESSMENTS on a
policy when they are overdue, and when it might refuse payment and
declare the policy forfeited under its by-laws, it cannot accept and keep
the money, and still insist upon a forfeiture. Nor does the fact that
where the money is so received the receipts therefor have a conditional
clause of the by-laws appended, to the effect that a physician's certificate
of good health may be required in all cases of reinstatement, alter the
case, in the absence of fraud in the insured as to his state of health at
the time the payments were made. Stylow v. Wisconsin Odd Fellows M.
L. Ins. Co., 738.

14. INSURANCE COMPANY, BY MAKING AN ASSESSMENT AGAINST AN ASSURED
after he has failed to pay a previous assessment within the time declared
by the by-laws to work a forfeiture, waives the forfeiture of the policy
for such failure to pay, and admits him to be a member of the company
notwithstanding such failure. Id.
15. INSURANCE COMPANY, HAVING RECEIVED ASSESSMENTS after they were
overdue, and when the policy might have been forfeited under the by-laws
for non-payment, can only insist upon a forfeiture after having given
the assured personal notice that thereafter punctual payment of assess-
ments would be required. Id.

16. IT IS COMPETENT FOR INSURANCE COMPANY TO WAIVE FORFEITURE OF
POLICY caused by a sheriff's sale of the property insured, and it is an
express waiver in writing of such forfeiture, if the company, having no-
tice of such sale, issues a new policy as an extension of the previous one
forfeited. Elliott v. Ashland M. F. Ins. Co., 703.

17. PURCHASER UNDER CONTRACT FOR SALE OF REAL ESTATE IS EQUITABLE
OWNER, and is liable to all loss that may befall the property, including
the loss of the buildings by fire. For the purpose of insurance, he may
be said to be vested with the entire, unconditional, and sole ownership.
Id.

18. INSURED IS BOUND ONLY TO GIVE NOTICE TO COMPANY OF ANY CHANGE
of which he has knowledge, and by which he knows the rate of insurance
will be increased, where the conditions of the policy require him to give
notice to the company of any change in the insured or neighboring
premises, or in the use or occupation of the same, whereby the risk is
increased, so as to increase the rate of insurance. Rife v. Lebanon M. I.
Co., 580.

19. INSURANCE COMPANY WAIVES COMPLIANCE WITH CONDITIONS OF POLICY
requiring proofs of loss to be made within a certain time, by receiving
them, referring them to its adjuster, and retaining them, without objec-
tion or complaint, for five months. Commercial U. A. Co. v. Hocking, 562.
20. ACTION IS Prematurely Brought against INSURANCE COMPANY, where
the policy provides that the company shall have thirty days after the
receipt of proofs of loss in which to give notice of its intention to re-
build, and that the loss shall not be payable until sixty days after the