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chaser cannot recoup as damages the prospective profits which he
could have made, if the capacity of the machinery had been as war-
ranted. (Moulthrop v. Hyett, 139.)
7. DAMAGES-MEASURE OF FOR NEGLIGENCE RESULT-
ING IN DEATH.—The measure of damages for the loss of human
life, resulting from negligence, is the present value of the net in-
come, ascertained by deducting the cost of living, and expenditures,
from the gross income; and no more can be allowed than the present
value of accumulation arising from such net income, based upon the
expectancy of life. (Pickett v. Wilmington etc. R. R. Co., 611.)
8. DAMAGES, MEASURE OF.-IF PROPERTY IS WRONG-
FULLY TAKEN BY AN OFFICER, but not under such circum-
stances as to support the presumption of malice or a desire to op-
press on his part, the value of the property when taken, or at such
time as plaintiff may elect between the time of taking and the bring-
Ing of the action, with interest thereon, is the measure of damages
(Fish v. Nethercutt, 892.)
9. DAMAGES—PUNITIVE, FOUNDED ONLY ON TORT.-
Unless one has a right to maintain an action of tort, he cannot re-
cover punitive or exemplary damages. (Hansley v. Janesville etc.
R. R. Co., 600.)
10. VERDICT, WHEN NOT EXCESSIVE.-A verdict for one
thousand dollars for being wrongfully ejected from a railway car
while it was in motion is not so large as to necessarily indicate that
It was due to prejudice or passion. (Chesapeake etc. Ry, Co. v. Os-
See Highways; Interest, 3-5; New Trial, 3-5; Rallroads, 9, 10; Sales,
7, 8; Sheriff's, 2; Slander, 3-5; Telegraph Oompanies; Water,
See Damages, 7.
See Agency, 2
1. DEEDS. THE TERM "EXECUTION," in conveyancing, de-
notes the final consummation of a contract of sale, and includes only
those acts which are necessary to the full completion of an instru-
ment. These are the signature of the disposing party, the affixing of
his seal, where that is required by law, to give character to the in-
strument, and its delivery to the grantee. (Brown v. Westerfield,
2. DEEDS, THOUGH UNACKNOWLEDGED, PASS TITLE,
WHEN.-As an acknowledgment, under the laws of Nebraska, is no
part of a deed conveying land other than the grantor's homestead,
an unacknowledged deed to real estate, otherwise pei lect, passes the
title. (Brown v. Westerfield, 532.)
3. DEEDS-SEAL.–Under the laws of Nebraska, the seal of the
grantor in a deed is unnecessary. (Brown v. Westerfield, 532.)
4. DEEDS.—THE DELIVERY of a deed is indispensable to its
validity. (Brown v. Westerfield, 532.)
5. DEEDS-DELIVERY, WHAT CONSTITUTES.-It is not es-
sential to the validity of a deed that it should be delivered to the
grantee personally. If the grantor, without reserving any control
over the instrument, delivers it to a third person, unconditionally, for
the use of the grantee, and with the intent that it shall take effect
immediately, such delivery is sufficient, and title to the property
passes to the grantee. (Brown v. Westerfield, 532.)
6. DEEDS-DELIVERY AND INTENT-HOW DETERMINED.
The delivery of a written instrument is largely a question of intent,
to be determined by the facts and circumstances of each particular
case. No particular act or form of words is necessary to constitute
such a delivery; but anything done by the grantor from which it is
apparent that a delivery was intended, either by words or acts, or
both combined, is sufficient. (Brown v. Westerfield, 532.)
7. DEEDS-DELIVERY, WHEN SUFFICIENT-ILLUSTRA-
TION.-If a mother signs and acknowledges a deed before a justice
of the peace, conveying to her minor daughter certain real estate, and
delivers the deed to the justice, for the use and benefit of the grantee,
without reserving any control over it, with the intention and under:
standing that he is to keep it until the mother's death, when he is to
file it for record, and the grantor subsequently tells her daughter that
the property belongs to the latter, and that it has been fixed so that
she will have a home, the delivery is complete, and the deed passes
title at the date of such delivery, though it is afterward lost or de-
stroyed. (Brown v. Westerfield, 532.)
8. DEEDS-DELIVERY-PLEADING.-An averment, in a peti.
tion to quiet title, that the grantor “made and executed” a deed, in-
cludes not only his signature, but all other acts essential to the com-
pletion of the muniment of title, such as the delivery of the instru.
ment to the grantee. (Brown y. Westerfield, 532.)
9. DEEDS–CONVEYANCE OF GROWING TREES.-Growing
trees are such a part of the realty that the title to, or interest in,
the same can be conveyed or transferred, as a general rule, only by a
written instrument. (Magnetic Ore Co. v. Markbury Lumber Co.,
10. DEEDS-CONVEYANCE OF STANDING TIMBER.-If "saw
timber,” growing on certain lands, is sold and conveyed by deed
regularly executed, without condition or linitation, no mention being
made as to when the timber is to be cut and removed, the title
to it, independently of the land, vests absolutely in the grantee,
and is not lost or forfeited in favor of the vendor, or of a subsequent
purchaser of the land whose deed expressly reserved such timber,
by the fact that the timber was not out and removed within a rea-
sonable time after it was conveyed. (Magnetic Ore Co. v. Markbury
Lumber Co., 73.)
11. DEEDS-EVIDENCE OF TITLE-LOSS OR DESTRUCTION,
A deed, being merely evidence of the grantee's title, its loss or de.
struction, after delivery, does not divest the title of the grantee.
(Brown v. Westerfield, 532.)
12. DEED TO DEAD PERSON-WORDS OF LIMITATION.-A
deed executed to a person not then living "and his heirs" is void, be-
cause the word “heirs” is a word of limitation and not of purchase.
(Neal v. Nelson, 590.)
13. DEEDS TO DEAD PERSON-HEIRS.-A deed executed to
one who is at the time dead, “or his heirs," is good, if his heirs can be
identified, for the reason that he will take if living, and he has no
heirs until his death. (Neal v. Nelson, 590.)
See Alteration of Instruments, 2, 3; Trusts, 1.
“Children." (Estate of Chapoton, 454.)
"Disease.” (Mutual etc. Ins. Co. v. Simpson, 757.)
"Execution." (Brown v. Westerfield, 532.)
"Forfeiture.” (Webster v. Dwelling-House Ins. Co., 658.)
"Heirs." (Neal v. Nelson, 590.)
THE WORD "INCEPTION" means “initial stage." It does not
refer to a state of actual existence, but to a condition of things or
circumstances from which the thing may develop, as where a build-
ing has been projected and its construction commenced. (Oriental
Hotel Co. v. Griffiths, 790.)
"Kicked.” (Chicago etc. R. R. Co. v. Champion, 357.)
"Surety." (O'Conor v. Morse, 155.)
The word "swindling” has no legal or technical meaning. (Cunning.
ham v. Baker, 27.)
"To represent" means "to stand in the place of." (Chase v. Swayne,
“Watercourse." (Tampa Water Works Co. v. Cline, 262.)
See Deeds, 4-8; Sales, 2, 3.
DEMURRER TO EVIDENCE.
See Trial, 6.
See Officers, 3.
1. DESCENT.–When one dies intestate in the state of Texas,
the statute casts the title of all his property, both real and personal,
directly upon his heirs. (Powers v. Morrison, 738.)
2. DESCENT-OHILDREN, WHO ARE.-The word "children,"
as used in a statute providing that if the intestate shall leave no is.
sue, father, or mother, his or her estate shall descend, subject to the
provision therein made for the widow or husband, in equal shares to
his or her brothers and sisters, and the "children" of deceased broth-
ers and sisters, by right of representation, does not include tbe
grandchildren of a deceased brother or sister of the intestate. (Es-
tate of Chapoton, 454.)
See Appeal, 14.
DISTRIBUTION-LIABILITY OF HEIRS FOR DEBTS OF
ANCESTOR.-If an intestate leaves, as heirs, children and a grand-
fon, whose father, the son of the intestate, is dead, the grandson
is not chargeable with a debt due from his father to his grandfather,
in proceedings for the partition and distribution of the estate under
a statute providing that “when the intestate's children, or brothers
and sisters, uncles and aunts, or other relations of the deceased,
standing in the same degree alone, come into the partition, they shall
take per capita, that is to say, by persons; and when a part of them
being dead and a part living, the descendants of those dead have a
right to partition, and such descendants shall inherit only such por-
tion of said property as the parent through whom they inherit would
be entitled to if alive"; and this is true, although the deceased son,
at the time of his death, was indebted to his father in a sum which
was found to exceed the interest he would have inherited in the
estate, had he survived his father. (Powers v. Morrison, 738.)
See Corporations, 20, 21,
DOWER.—IF LANDS ARE SOLD BY AN UNMARRIED
MAN, his subsequent marriage does not create any right to dower
therein, though hey are not conveyed to the purchaser until after
the vendor's marriage. His conveyance, therefore, passes a perfect
title, notwithstanding his wife refuses to join therein. Nor is it ma.
terial that the purchase money was not paid until after the mar-
riage. This rule is not affected by a statute declaring that when
a husband, or anyone to his use, shall have been entitled to a right
of entry, or action in any land, and his widow would have been
entitied to dower had the husband or such other recovered pos-
session thereof, she shall be entitled to such dower, although there
shall have been no such recovery. (Chapman v. Chapman, 823.)
See Negligence, 19.
DUE PROCESS OF LAW.
See Constitutions, 2, 3; Statutes, 24.
ELECTION-EVIDENCE OF.-A person claiming to have been
elected to an office by the state legislature may introduce in evidence
the record of such legislature for the purpose of proving his election
and right to the office he is claiming. (State v. Ellington, 580.)
5. HOMESTEAD, REFORMATION OF MORTGAGE UPON.-
If a husband and wife agreed to mortgage their homestead, and
executed a mortgage which they knew did not include the whole
thereof, but which they knew was accepted by the mortgagee in
the belief that it included all such homestead, sucli mortgage may
be reformed in equity so as to include all the land which was agreed
to be mortgaged. (Stevens v. Holman, 216.)
6. CONTRACTS-RESCISSION.—The power of equity to compel
the cancellation of a contract is never exercised to interfere with the
freedom to contract or with proper legal liability for bad bargains,
but only to supplement the powers of courts of law when there is
exceptional equity, of a settled and recognized kind. (Du Bois Bor-
ough v. Du Bois etc. Water Works Co., 678.)
7. CONTRACTS-RESCISSION.—The grounds on which equity
interferes for the rescission of contracts are distinctly marked, and
every case proper for this branch of its jurisdiction is reducible to a
particular head. They are principally fraud, mistake, turpitude of
consideration, and circumstances entitling to relief on the principle
of quía timet, and do not include inadequacy of price, improvidence,
surprise, and mere hardship. (Du Bois Borough v. Du Bois etc.
Water Works Co., 678.)
8. CONTRACTS-RESCISSION.-A contract cannot be rescinded
in equity simply because it calls for the performance of an impossi-
bility, by reason of a mutual mistake of fact as to the capacity of the
stipulated source of supply. (Du Bois Borough v. Du Bois etc.
Water Works Co., 678.)
9. PRACTICE-RELIEF FROM ORDER OF SUBMISSION-A
chancellor is justified in refusing to set aside an order for the sub-
mission of a cause for judgment, where the complainant had failed
to reply to the defendant's answer, on the ground that the counsel for
the complainant did not know of such answer when the order for
submission was made, if such counsel could have known that fact by
the exercise of ordinary diligence. (Payton v. McQuown, 437.)
See Costs; Insurance, 6; Partition, 1, 3.
ESTOPPEL FROM SILENCE.-One of the essential elements
of an estoppel is change in the position of the person who claims
the benefit thereof. Therefore, one cannot be held to be estopped
by his silence, where the person who relies upon such silence has
not changed his position on account thereof, and will, therefore,
suffer no substantial injury if not permitted to rely on the estoppel.
(Shakman v. United States etc. Co., 920.)
See Corporations, 26; Cotenancy, 4,
See Landlord and Tenant, 2, 4.
1. EVIDENCE-TESTS OR EXPERIMENTS.—When experi-
ments or tests are shown to have been made under essentially the
same conditions, evidence of the result of such experiments or tests
is admissible to prove a fact; but, unless this foundation is laid, it
is not error to exclude it. (Chicago etc. R. R. Co. v. Champion, 357.)
2. EVIDENCE, CIRCUMSTANTIAL-INSTRUCTIONS.--In or-
der to warrant a conviction on circumstantial evidence, all the neces.
sary facts must be consistent with one another and with the main
fact sought to be established, and they must be of so conclusive a
nature that, when considered in connection, they lead reasonably