knowledged that they executed and delivered the same as their voluntary act and deed." Held, that one of seals would be presumed to be seal of corporation and that deed was deed of corporation. City of Kansas v. Railroad Co., 684.
25. S. conveyed to C. certain property upon special trust to secure debts of S., and subsequently transferred to C. his stock in Q. Co. as "pledge and collateral security" to secure performance by S. of conditions of trust deed; after breach of these conditions, C. filed bill in equity asking for receiver and alleging mismanagement through which it had become impracticable to sell stock pledged for sum commensurate with its value. Held, that C., as pledgee of majority of stock for benefit of the S. creditors, was equitable creditor and entitled to protection of court, and that the thing in litigation was not the stock itself but the property of the Q. Co. Chafee v. Quidnick Co., 545. See EXECUTORS AND ADMINISTRATORS, 1. JUDGMENT, 1.
CO-TENANTS. See ATTACHMENT, 5.
COUNTY. See MUNICIPAL CORPORATION.
COURTS. See INJUNCTION, 2. PROHIBITION, 1. RES ADJUDICATA.
It is present, not past interest that disqualifies a judge. Johnson v. Railroad, 545.
COVENANT. See DAMAGES, 4.
1. Grantee by accepting deed becomes liable on covenants just as if he had signed and sealed it. Sparkman v. Gove, 143.
2. Covenant by grantee to assume mortgage for which grantor is liable binds him to pay mortgage debt, and the damages recoverable are the full amount of debt, although not yet paid by plaintiff. Id.
3. Action may be maintained for breach of covenant against liability without alleging or proving damage, but in covenant against damage because of liability, such damage must be proved. Griswold v. Selleck, 545.
4. Agreement by purchaser of land to assume incumbrance implies, at most,
a covenant of indemnity against damage resulting from breach. Id.
5. Agreement under seal between adjoining owners to build party wall, when executed, gives to each an easement for support which passes by conveyance of premises. Roche v. Ullman, 73.
6. Conveyance was subject to "conditions" against erection of certain buildings. Held, that they were to be construed as restrictions, and constituted breach of covenant against encumbrances in subsequent deed. Ayling v. Kramer, 217.
CRIMINAL LAW. See BAIL. CONSTITUTIONAL LAW, 21, 37. ERRORS AND APPEALS, 4. EXTRADITION. FALSE IMPRISONMENT. INTOXICATING LIQUORS, 2, 4-8. JURY, 1. PARENT AND CHILD. REMOVAL OF CAUSES,
8. STATUTE, 4.
I. Generally.
1. Persons aiding or abetting should be indicted in same form as principals. State v. Hessian, 143.
2. Onus of proving alibi is upon accused and it must be clearly established. Garrity v. People, 811.
3. Burden of proof not changed by attempt to prove alibi, and if by reason thereof, jury entertain reasonable doubt, they should acquit, though not able to find that alibi was fully proved. Walters v. State, 685.
4. Witness not the sole judge whether question may tend to criminate him; court must see reasonable ground for apprehending danger. Ex parte Reynolds, 21, and note.
5. Where statute provides for both fine and imprisonment and one of penalties is omitted, error will not afford ground of reversal. Dillon v. State, 217. 6. Under a statute making it an offence "to sell or give away,” an indictment charging that defendant "did sell and give away," is good. State v. Pittman, 342.
7. If defendant testify, his relation to the case may be considered by the
jury. State v. Sanders, 342.
8. The court may, but is not bound to, receive a verdict of guilty on one
count, without any finding as to the others. Jackson v. State, 342.
9. Parties to recognizance are presumed to know when and where term will
commence, and recognizance omitting the word "next" used in statute in
speaking of term, will not be invalid. Jedlicka v. The State, 342.
10. Power of Supreme Court of the United States to review judgments in
criminal cases is limited to single question of power of lower court to commit
prisoner for act of which he has been convicted. Ex parte Curtis, 144.
11. Conviction in Mayor's court under municipal ordinance for disturbing
peace, will not protect against subsequent prosecution by state for assault
and battery, though same transaction be involved in both cases. De Graffen-
reid v. State, 751.
12. Where city policeman was slain, and mayor and council employed coun-
sel to prosecute slayer, this was not sufficient to disqualify all grand and tra-
verse jurors residing within corporate limits, on ground that they would be lia-
ble to taxation to satisfy attorney's fees. Doyal v. State, 546.
13. Person over sixty is not qualified juror; although such a one may not
have made known his age uutil jury was impaneled, he may then be excused,
although defendant may have exhausted all challenges but one in order to secure
such person on jury. Id.
14. Where defendant in criminal case, who had been convicted of misde-
meanor and sentenced to pay specified fine or serve ninety days in chain gang,
procured two others to give their promissory note in satisfaction thereof, and
such note was accepted by solicitor-general as equivalent of cash, consideration
was not illegal. Blaine v. Hitch, 546.
15. At common law only attorney-general could enter nolle pros. upon in-
dictment, and in New Jersey, there being no statute upon subject, power is still
reposed in attorney-general or several prosecutors of pleas; but, under long
established practice in this state, indictment after it passes under control of
court, may not be discharged without consent of court. State v. Hickling, 546.
16. Peremptory power of court, where common law prevails, is never ex-
erted, upon representative of state to discharge indictment, in whole or in part,
at instance of parties. This can only be done where such power is conferred
upon court by statute. Id.
17. Bonds on board a British ship lying in river and moored to shore at
Rotterdam were stolen, and prisoners, British subjects, were found dealing
with them in England, and were tried at Central Criminal Court and found
guilty of feloniously receiving the same knowing them to have been stolen.
Held, assuming bonds to have been stolen by foreigner or other person not
being one of crew, that admiralty had jurisdiction over the offence, and that
prisoners were properly tried in England. Regina v. Carr and Wilson, 299,
and note.
18. It is not indispensable to trace fruits of crime to possession of accused.
Garrity v. People, 811.
19. Finding of money, goods or other property, which were in house at
time of burglary, soon thereafter, in possession of person who is unable to ac-
count for his possession, raises a presumption of guilt and jury could convict
on this alone. Lundy v. State, 751.
20. Indictment charged conspiracy on part of two directors of national bank
to procure declaration of dividend with knowledge that bank had made no net
profits. Held, the declaration of dividend by association is not wilful misap-
plication of its funds by individual directors. It is act done by them as officers
and not in their individual capacity. There being no crime under sect. 5209
of Rev. Stat. U. S., there could be no valid indictment under sect. 5440.
United States v. Britton, 545.
21. It is larceny to bring goods stolen in one state into another, but the
thief cannot be indicted in latter state for original theft. Worthington v.
State, 73.
22. Homicidal mania must be proved by evidence which "fairly" preponder-
ates. Coyle v. Commonwealth, 191, and note.
23. An attempt at suicide is not of itself evidence of insanity. Id.
24. Where, at and before killing, there was a great riot by a mob which
accused took part in, incited and was in great part responsible for, he was
liable for each and every illegal act committed by such mob, and what was said
and done by mob or any of its members, was proper evidence on trial of de-
fendant. Mc Rue v. State, 751.
25. To justify homicide on the ground of self defence it must appear that it
was absolutely necessary to kill the deceased in the slayer's opinion, founded on
good reason; and also, either that deceased was the assailant or that slayer had
really endeavored to decline further struggle before mortal blow. Heard v.
State, 342.
26. Emolument returns and account for services rendered to United States,
of clerk of circuit and district court, sworn to before district judge, is "written
declaration" or "certificate," within meaning of sect. 5392 Rev. Stat. United
States v. Ambrose, 685.
27. Indictment against officer of national bank under sect. 5392, Rev. Stat.
U. S., for wilfully false declaration or statement in report made under sect.
5211, verified by oath, administered by notary public of state, prior to Act of
1881, cannot be sustained. United States v. Curtis, 546.
VII. Political assessments.
28. The Act of Congress of August 15th 1876, prohibiting political assess-
ments is constitutional. Ex parte Curtis, 144.
29. It makes no difference in law whether place be called bar room, glee club,
parlor or restaurant, if liquor is retailed and tippled there on Sabbath day, with
door for entrance, so that anybody can enter and drink, proprietor is guilty of
keeping open tippling house on Sunday, and drinking may be done standing or
sitting, at bar or around the table. Hussey v. State, 217.
CROPS. See SHERIFF'S SALE, 2.
CUSTOM. See FIXTURES, 7. INSURANCE, 10, 12, 31. NUISANCE, 1.
CUSTOMS DUTIES. See UNITED STATES, 2.
DAMAGES. See ADMIRALTY, 9; COMMON CARRIER, 16; LIBEL, 1: MALI-
CIOUS PROSECUTION, 5; NEGLIGENCE, 13; PRACTICE, 1; RAILROAD, 6, 7.
1. Sum of money in gross, to be paid for non-performance of contract is, as
general rule, to be considered as penalty and not liquidated damages. Smith
v. Wedgwood, 417.
2. True measure of, for breach of contract to sell and deliver fruit jars,
where part only were delivered, is difference between contract price and market
value at time and place fixed for delivery. If such articles can not be had in
market where they were to have been delivered, they may be bought in nearest
market and cost of transportation added. Capen v. De Steiger Glass Co., 417.
3. Where contract contemplated an immediate shipment of press, and shipper
gave wrong directions as to timbers needed in setting it up, Held, that he was
liable for all damages resulting directly and naturally from his delay and
erroneous directions, but not for loss of custom. Dennis v. Stoughton, 810.
4. In covenant against grantor by grantee who had been evicted by para-
mount title, parties having agreed on value of land, and eviction having
occurred within period of limitation for actions of trespass, four years, and no
action for mense profits having been brought, Held, that plaintiff was entitled
to interest on agreed value for four years prior to entry of judgment. Iron
Works v. Turner, 547.
5. Grantor had been notified to defend ejectment suit, but neither defended
nor notified grantee that he would not do so. Held, that grantee should recover
his reasonable expenses and counsel fees in defending ejectment. Iron Works
v. Turner, 457.
6. Where article is purchased for shipment abroad, and the fact was shown on
face of contract, and known to vendor, and vendee could not discover in-
feriority of article fraudulently substituted by vendor's employees until it
reached its destination, measure of damages is difference between market price
of article contracted for, at date of arrival, and price realized upon sale, to-
gether with costs and expenses of sale. Oil Co. v. Schlens, 343.
7. In action by vendee against vendor such damages as are the natural and
proximate result of breach need not be particularly stated. Id.
8. In action for timber cut and carried away, measure of damages is:
1. Where defendant is wilful trespasser, full value of property at time and place
of demand or suit brought. 2. Where defendant is unintentional trespasser, or
his innocent vendee, value at time of conversion, less what labor and expense
of defendant and his vendor have added. 3. Where defendant is purchaser,
without notice of wrong, from wilful trespasser, value at time of purchase.
Wooden Ware Co. v. U. S., 677.
9. At trial of action of contract for breach of agreement to carry plaintiff
from S. to N., it appeared that he bought a proper ticket; that conductor re-
fused to receive same, and, at intermediate station, being a railroad police offi-
cer, arrested plaintiff for evading his fare, and delivered him to police officers,
who detained him during the night. Held, that the detention, discomforts,
consequent illness, and indignities suffered at hands of police officers were not
elements of damage in this action. Murdock v. Railroad, 217.
DEBTOR AND CREDITOR. See ASSIGNMENT, 8, 10, 12. INSURANCE, 22.
MUNICIPAL CORPORATION, 18. TRUST AND TRUSTEE, 6.
1. In case of contract merely malum prohibitum value of property received
for unauthorized purpose may be recovered. City v. Brown, 281.
2. Certificates of membership in board of trade are not property and can
not be subjected to payment of debts by creditor's bill. Barclay v. Smith,
435, and note.
3. Law only requires donee to take such possession as nature of property
admits of in order to protect it against attachment by creditors of donor. Ross
v. Draper, 811.
4. Statute of 13th Elizabeth, ch. 5, embraces creditors and "all others who
have cause of action, or suit, or any penalty or forfeiture, and embraces actions
of slander, trespass and other torts. Welde v. Scotten, 343.
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5. Judgment creditor in action of trespass can attack conveyance of defendant
as fraudulent. Id.
6. A gift by husband to wife embracing all grantor's property will not be
held void, at least unless it is shown to be more than a reasonable provision.
Wood v. Broadley, 343.
7. Novation is substitution of one debtor for another, or substitution of new
obligation for old one which is thereby extinguished; the new contract must be
a valid one upon which creditor can have his remedy. Guichard v. Brande,
620.
8. Payment, to constitute defence, must be of money or something accepted
in its stead. Valid obligation can not be paid or satisfied by transfer of forged
securities. Id.
9. To create estoppel by admission of payment it must appear that person
setting up estoppel was induced by admission to do something to his prejudice
if admission be withdrawn.
10. Where difference between price paid and actual value is apparent and
great, conveyance will be regarded as voluntary to extent of difference.
Strong v. Lawrence, 144.
11. If debtor is insolvent when judgment is rendered, his insolvency will
be considered as extending back beyond voluntary conveyance made during his
indebtedness, unless contrary be shown. Id.
12. Conveyance by insolvent to daughter-in-law, in consideration of amounts
owed as her guardian, is valid, and creditors can not compel him to set off
amounts furnished by him for maintenance and support of her and her husband.
Comfort v. Bearden, 218.
13. A., treasurer of R. I. company and agent of Mass. company, and B.,
home agent of latter company, arranged to transfer accounts so that debt of A.
to Muss. company and one of B. to R. I. company should be cancelled by B.
paying excess in cash. Before arrangement was consummated, A. received notice
that B.'s agency was revoked, and B. never completed arrangement by paying.
Held, that R. I. company could not sue A. for amount of B.'s debt to it less
amount of A.'s debt to Mass. company. Gas Burner Co. v. Barney, 547.
DECEDENTS' ESTATES. See EXECUTORS AND ADMINISTRATORS.
DEED. See CORPORATION, 24. COVENANT, 1. ESTOPPEL, 1. EVIDENCE, 17.
1. Grantor may at any time revoke deed placed in hands of A. with direc-
tions to deliver it on grantor's death. Hale v. Joslin, 811.
2. Deed cannot be delivered to grantee or obligee as an escrow, to take effect
upon condition not appearing on its face; the delivery must be to stranger. Mc-
Cann v. Atherton, 621.
3. Deed signed by B. with A.'s name, in A.'s presence, and under A.'s
direction, is deed of A. Goodell v. Bates, 417.
4. If one whose name is signed by another to deed, so far acknowledges same
as to induce third persons to act on it as lis, he may, without evidence in writ
ing of an estoppel, be held precluded from subsequently denying the deed.
Id.
5. Granting clause conveyed "all the stone coal lying and being in, under
and upon certain premises," in consideration of thirty cents per ton on all coal
mined, and second party bound themselves to mine at least 3000 tons annually,
but had the right "to abandon the contract at any time." Held, 1. All mine-
able coal passed to grantees. 2. No interest therein remained in grantor sub-
ject to be mortgaged as land. 3. A mortgage upon the remaining interest
of grantor did not cover purchase-money due or to become due from purchasers
of coal. Edwards v. McClurg, 344.
6. A. owning unimproved lot over which projected to extent of foot, eaves
of adjoining house owned by B., conveyed to B. by deed in execution of which
B. did not join, strip of land so overhung. Deed stipulated that it was made
and accepted upon express condition and reservation that A. and his heirs, or
owner of A.'s lot, should have right of building up to line of lot thereby con-
veyed, and of having two windows looking out on said lot "which windows
shall not be hindered or obstructed in any way by said B., his heirs or assigns,
to any other or greater extent than such windows if so erected could be obstruct-
ed by the house of B., at present standing on his said lot." Held, that deed
only entitled A. to have unobstructed by buildings, for benefit of his windows,
the one foot strip conveyed by deed. Cooper v. Louanstein, 738, and note.
7. Per BEASELEY, C. J.-Deed not executed by grantee but accepted by
him containing grant of easement in lands of grantee, such lands not being
passed by conveyance, is not to be regarded with respect to grant of easement
as deed of grantee. Id.
DEMURRER. See FIXTURES, 2.
DESCENT. See WILL, 9.
DETAINER. See TRESPASS, 1.
DIVIDENDS. See INSURANCE, 32.
DIVORCE. See HUSBAND AND WIFE, I.
1. In Constitution of Rhode Island, "residence" means domicile; hence
where citizen had domicile in town of L., but temporarily resided elsewhere, he
had right to vote in town of L. State v. Aldrich, 621
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