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WEEKLY DIGEST OF RECENT CASES.
any more than a jury to say he bas disregarded his duty, and not considered the evidence. Potter t. Gronbeck, S. C. III. June 12, 1886; 7 N. East Rep. 586.
1. ACTION.-Practice-Repleader and New Trial.
Where issue is joined on several insufficient pleas and on the general issue, and there is a general verdict for the defendant on all the issues; while the bill of exceptions, purporting to set out all the evidence, shows that the plaintiff made out a prima facie case, and that the defendant's evidence only supported the insufficient pleas; the award of a repleader, if not technically correct, is the same in substance as granting a new trial, with leave to amend the pleadings, and accomplishes substantial justice. Ex parte, Pearce, S. C. Ala., Dec. Term, 1885-86.
3. BONDS-Bond and Contract of Agent Construed
Together-Liability of Bondsmen- Principal and Surety-Release-Neve Contract .-Where a bond is executed concurrently with a contract of agency they should be construed together, and the bondsmen can only be held liable for the acts or default of the agent in matters contemplated in the contract of agency. Where, after breach of a contract, the performance of which is guarantied, the creditor and principal debtor, without the consent of the sureties, enter into a new contract, the creditor accepting notes for the damages, payable at a future time, and upon terms differing from the original contract, the new contract supersedes the old, and the sureties will be released. Weed S. M. Co. v. Winchell, S. C. Ind., June 15, 1886; 7
N. East. Rep. 881. 4. CARRIERS-Of Passengers – Injury by Train
Starting Suddenly After Apparently StoppingEvidence of Negligence-In an action for injury caused by a sudden jerk of a railroad train, after the station had been announced, and the train was moving so slowly as to appear to the passengers to have stopped, the judge charged that, “if the train appeared to have stopped, then, for all practical purposes and for the consideration of this case, it had stopped.” Held, no error. After the announcement of the station, the train was run so slow as to appear to a person of ordinary intelligence and observation to have stopped; and ordinary care for the safety of the passengers required the train to be so managed as not to endanger their lives; and a sudden jerk or a start, without any warning, when the passengers were upon their feet moving towards the platform of the cars, was sufficient evidence of carelessness to impose liability upon the defendant. Bartholomero v. New York, etc. Co., N. Y. Ct. App. N. Y. June 1, 1886; 7 N. East. Rep. 623.
2. ASSIGNMENT—Negotiable Instruments-Instru
ment Depending on Extrinsic Proof is not-Covenant for Rent May be-For Rent “From Occupancy," or "For Rent, and Performance of Other Covenants," is not-Guaranty-Joint Guaranty – Withdrawal of One, Before Completion, Without Notice to Others, Releases Them-AppealCertificate of Judge That he did not consider Certain Evidence Immaterial.-By the statute of this State on negotiable instruments, (2 Starr & C. St. c. 98, pars. 3, 4,) any instrument in writing for the payment of money or articles of personal property is assignable, as are bills of exchange. But an instrument depending on extrinsic proof to establish its character as a binding obligation is not so assignable. Kingsbury y. Wall, 68 Ill. 311, followed. A covenant for the payment of rent simply may be assignable; but a covenant for the payment of rent “from occupancy,” or for payment of rent from such time, and the performance of other covenants as to the condition of leased property, is not absolutely assignable under the statute; and a fortiori, a guaranty of such a lease is not assignable absolutely under the statute, so as to enable the assignee to sue in his own name. Where negotiations were made for the joint guaranty of a lease by several persons, and afterwards, before completion of the contract, one of the proposed guarantors withdrew from the proposed agreement, and notified the lessor, who thereupon accepted the lease as guarantied by the others, without notifying them of the withdrawal of the proposed joint guarantor, he cannot enforce the guaranty against them. In the consideration of a cause on appeal, the certificate of the trial judge, in a case tried by the court, that he did not consider certain evidence contained in the bill of exceptions, is immaterial. Where the court heard the testimony, it will be presumed that it was duly considered, and the judge will not be permitted,
5. CONSTITUTIONAL LAW-Esccessive, Cruel, or
Unusual Punishments-Assault and BatteryWith Deadly Weapon- Verdict - IndictmentCriminal Law-Illegality of Part of Sentence.Punishment of an assault with a deadly weapon, by imprisonment in the State prison or county jail not exceeding two years, or by a fine not exceeding $5,000, or both, as authorized by § 245 of the California Penal Code, is not an excessive, cruel, or unusual punishment, within the meaning of $ 6, art. 1, of the California constitution, which prohibits such punishments. Under $ 245 of the Penal Code of California, in a prosecution for an assault with a deadly weapon it is unnecessary to charge in the indictment, or for the jury to find, tuat the assault was made with intent to produce great bodily injury. It is sufficient to follow the language of the statute in charging the offense, and for the jury to find in the language of the charge. Where part of a sentence imposed as a punishment for crime is illegal, if the part that is valid can be separated from the rest it will be enforced. Ex parte Mitchell, S. C. Cal. May 29, 1886; 11 Pac. Rep., 486.
6. COVENANT-Covenant for Title-Quiet Enjoy. ment-Covenant for Quiet Enjoyment-Breach of - Eviction-Measure of Damages-Landlord and Tenant - Action for Rent-Damages-- Set-Off and
Recoupment.-An express covenant, in a lease, for quiet enjoyment, implies a covenant that the lessor had title to the property leased, and power and right to demise it; and therefore, if, at the time of a lease with such covenants, there be, as to part of the property leased, another valid and outstanding lease, the lessor, had, at the time of the second lease, no power to so demise the part of the property already demised by the first lease, and his cov. enant would be immediately broken. There can be no breach of a covenant for quiet enjoyment without an eviction, actual or constructive. Recovery in an action of trespass against the covenantee is such a disturbance of his possession as will constitute a constructive eviction, and therefore a breach of the covenant. The measure of damages in an action against a lessor for breach of his covenant of quiet enjoyment, where the covenantee has been evicted, cannot be less than the amount of the judgment for damages and costs recovered against the covenantee. That amount may properly be classed as “expenses properly incurred by the covenantee in defending his posses. sion.” When damages have been sustained by a lessee by a breach of the lessor's covenant, if an action for rent is brought, the lessee may recoup his damages from the rent, or, at his election, he bring a separate action for the recovery of the damages, and the fact that the lessee has paid the rent for the greater part of the term will not deprive him of the right to counter-claim his damages for the entire term. McAlester v. Landers, S. C. Cal. June 29, 1886; 11 Pac. Rep. 505.
ple, there must be something more than a mere contradiction between the defendant's own testimony and the testimony of the witnesses against him. An abstract charge, even though it assert a correct legal proposition, will work a reversal, when it may have misled the jury. Beck v. State
S. C. Ala. Dec. Term 1885-1886. 10.
.Good Character of Accused-Effect of Larcency-Proof of Good Character-Possession of Stolen Goods.-Proof of previous good character is admissible on behalf of the defendant in a criminal prosecution, as tending to mitigate or cast a doubt upon his guilt, but its value must depend on the peculiar circumstances of each particular case. Proof of previous good character held not sufficient to rebut the presumption of guilt arising from the possession of stolen property under the circumstances of this case. Wagner v. State, S. C.
Ind. June 18, 1886. 7 N. East. R. 896. 11. DEED.— Description—"All the Land by Me
Owned”—Mortgage—"All the Land Owned by Me."—Where a conveyance is made with no particular description of the land, the words "all the land by me owned” are more naturally understood to mean "all the land now owned by me," which is equivalent to "all the land which I have not heretofore conveyed.” Where A. executed a mortgage to B., embracing four different parcels or clusters of land, and in respect to the first three of these there was a description of land, or a reference to deeds, which were designated, sufficient to enable one to ascertain the boundaries of a larger quantity of land originally owned by A., from which he had conveyed certain portions or lots, but in respect to the fourth parcel, the land was described as "all the land owned by me in my New City, so called, in said L.” which description included certain lots previously conveyed to C. and D., but the deeds of which had not been recorded at the time the mortgage was recorded, held, that the intention of the mortgagor was to include only such land as he owned at the time of the execution of the mortgage, and did not include the lots previously conveyed to C. and D. Fitzgerald v. Libby, S. Jud. Ct. Mass. July 2, 1886. 7N. East. 917.
7. CRIMINAL CASE-Continuance-Important Wit
ness Absent-Homicide-Evidence-Previous Kill. ings by Defendant 8.-The wife of the victim of an alleged homicide, who can prove that deceased had made repeated threats against the lives of defendants; that at the time he bad made the alleged dying statement he had not believed in the imminency of death: that he told her that, under certain conditions, he would have no charge in such statement against one of the defendants, mentioning him; and that the victim, while suffering from his wounds, kept drinking intoxicating liquors continually, and did not obey the physicians' instructions, is an important witness, and, in case of her unavoidable absence, through sickness, after her baving been duly summoned, the trial should have been put off until she could attend. In a trial upon an indictment for murder, evidence is not admissible to prove that the defendants, or some of them, had some time previously killed the brother of their alleged victim. Wyatt v. Commonwealth,
Ky. Ct. App. June 19, 1886; 1 S. W. Rep. 196. 8. CRIMINAL LAW.- Affidavit and Information
Ambiguous Use of Pronoun-Selling Intoxicat iug Liquors-Failure of Proof:—Where a personal pronoun is so used in an affidavit and information that it may refer to either of two persons, it does not necessarily refer to the person whose name immediately precedes it, but to the one to whom the entire affidavit shows it was intended to refer. Miller v. State, S. C. Ind. June 10, 1886. 7 N. East.
Rep. 898. 9. -.Fraud-Evidence.-If a party attempts to
practice a fraud on the court, by procuring or assisting to procure testimony which he knows to be false, or resorting to any other artifice designed to deceive or mislead, this is a circumstance which the jury may properly consider to his disadvantage; but, to justify a charge invoking this princi
12. DIVORCE.—Pleadings-Libel-Dismissal “ With
out Prejudice” Not a Bar-Record Cannot be Attacked by Matter in Pais-Amendment.-Common-law pleadings are not required in divoree cases. A decree dismissing a libel for divorce, “without prejudice," even after the evidence has been heard, is not a bar to a new libel for the same cause. It cannot be shown by matter in pais under a rejoinder that the words "without prejudice" were added to the record after the term of court, in which the case was dismissed, was ad. journed sine die. A bad surrejoinder is a sufficient answer to a bad rejoinder. The county court has power, on an oral motion and without notice to the defendant, to allow the libellant to amend his replication: and the exercise of such power is not revisable. Burton v. Burton, S. C. Vt. July 1,
1886. 6 East. Rep. 341. 13. EJECTMENT.-Deed-Proof of Consideration
Evidence-Mortgage--Assumption by VendeeVesting of Title-Consideration-Ejectment--Defenses-Breach of Covenant-Abatement-Plea of Action Pending.-In ejectment, plaintiff (who claims under a deed from defendant, payment of the consideration of which deed is denied by de
ble and the orators entitled to a decree; (3) that S. was a proper co-orator. Schofield v. Stoddard, August 2, 1886; S. C. Vt. 6 East. Rep. 33.
fendant) may, if his deed is regularly executed, read it in evidence, without being first required to allege or prove the consideration or payment thereof. Where, by terms of deed, grantee, as part of consideration, is to pay mortgage, or assume grantor's indebtness thereunder, this does not operate as a condition upon the breach of which the title would revest in the grantor, but vests the title absolutely in the grantee, and creates between him and the creditor of the grantor the relation of debtor and creditor. Where, in ejectment, the title to property is shown to be vested absolutely in the plaintiff, his right to recover its possession from the defendant, his grantor, cannot be defeated by showing that he had failed to pay the stipulated consideration for it. In such case the grantor's remedy is by action for damages for breach of covenant. Pendency of an action for unlawful detainer, after expiration of an alleged lease, cannot be properly pleaded in abatement to an action between the same parties for the recovery of the possession of the same land. Martin v. Splivalo, $. C. Cal. May 26, 1886. 11 Pac. R. 484.
17. EVIDENCE-Opinion- Value of Services— Wit.
ness-Hostility of— Master and Servant-Finan. cial Condition of Servant - Long-Standing Claims.-Opinions as to the value of services are admissible in evidence under proper conditions, such as a knowledge shown of the character, extent, and quality of the services, and a knowledge of the business in which they were rendered. Although it is proper for a party to show the hostility of an opposing witness, he will not be allowed to go into the details of such hostility. When one claims demands against a responsible party, long overdue, and not demanded, it is proper to show that the claimant was in such a stress pecuniarily, that he could not well forego payment, as evidence tending to show that the claim is false; but it is not enough to show that the claimant was poor; it must appear that he was in need of money to use. Stone v. Tupper, S. C. Vt., Aug. 6, 1886; 5 Atl. Rep. 387.
14. EQUITY.-Cross-Bill-Dismissal - Drains and
Sewers-Right of Drainage-Agreement-Drainage and Sewage Distinguished.-When a cross-bill pertains to the subject-matter of the original bill, a discontinuance of the original bill does not operate to dismiss the cross-bill. An agreement giving a right of drainage into and through a drain gives no right to turn sewage into the drain. As used nowadays, the words “drainage" and "sewage” suggest to the mind a difference, and a sewer is a conduit for liquid filth. When the simple term “drainage" is used as appurtenant to lands, the most obvious suggestion is a drainage of water. Wet more v. Fiske, S. C. R. I. July, 1886. 5 Atl. R. 375.
18. EXECUTORS AND ADMINISTRATORS – Special
Administrator-Discharge--Votice - Estoppel Allowance of Account.-A special administrator, appointed pending the contested probate of a will, may settle, and be discharged, without giving prenotice of the contemplated settlement. A probate decree allowing the account of a special administrator, and discharging him, is a binding and conclusive judgment, unless appealed from within the statutory time limited therefor. Robards v. Lamb, S. C. Mo., June 7, 1886. 1S. W. R. 222.
15. -. Specific Performance-Parol Contract
Part Performance-Erecution-Sale -- Title ACquired by Purchaser.- Equity will not interfere with the operation of the statute of frauds, and compel specific performance of a verbal land contract, unless there has been such part performance that a failure to interfere would operate as a fraud on the vendee, and when his recovery at law would be inadequate to restore his statu quo. The purchaser at a valid excution sale succeeds to whatever title the execution debtor had at the time of levy. Sullivan v. O'Neal, S. C. Texas. June 21, 1886; 1 S. W. R. 1885.
19. FRAUD-Charge to Jury-Reasonable Hypothe
sis.-A charge which instructs the jury, in a civil case, “that to justify the imputation of fraud, the facts must be such that they are not explicable on any other reasonable hypothesis," exacts too great a measure of proof, and is erroneous. The cases of Thompson v. Nichols, 53 Ala. 197, and Steele v. Kinkle, 3 Ala. 352, where similar language was used, are declared to be overruled. Adams o. Thornton, S. C. Ala., Dec. Term, 1885-86.
16. -. Specific Performance- Statute of Frauds
- Pleading-Practice.-S. and R. were partners and, as such, owned a starch factory and had unsettled dealings. In view of a settlement, s. offered to sell out to R. for $250, if accepted before a certain time limited, and R. was willing to accept, if he could raise the money. Within that time $. deeded to the defendant, who, with knowledge of the facts, took a deed on a verbal condition that he should fulfil S.'s offer to R.; R. tendered fulfilment on his part; but the defendant refused. A bill having been brought to compel specific performance, the defendant did not plead the statute of frauds, but denied the contract, and ohjected to the admission of oral evidence to prove it. The master received the evidence, but the defendant failed to file exceptions to the report. Held, (1) that all objections to the admission of testimony were waived; (2) that the contract was not void, and having been proved, was enforcea
Fraudulent Conveyance Pleading. – Whether a conveyance assailed as fraudulent was made with intent to hinder, delay and defraud the creditors of the grantor, or was made without such and in good faith, depends upon the circumstances surrounding the transaction, the credit to be given to the witnesses and the inferences proper to be drawn; and where a referee has found the fact in defendant's favor, and that conclusion is reasonable and possible upon some views of the evidence, it must prevail. A defendant is not called upon to meet and answer a cause of action not only absent from the pleadings, but entirely inconsistent with their allegations. Third Nat. Bk. v. Corns, N. Y. Ct. App. N. Y. June 25, 1886. 6 East. R. 36.
21. LIMITATIONS--Statute of Limitations-Mutual
Account--Assumpsit. – In assumpsit to recover the balance of an open and running account, in which three of the charges, and none of the credits, were within six years from the date of the writ, it is error for the presiding judge to instruct the jury that, unless these three items were had as part of the general account, the plaintiff could not recover anything. Dunbar v. Dunbar, S. C. Me. June 23, 1886. 5 Atl. R. 384.
public use by mere ordinance so declaring, without the owner's acquiescence or consent. A dedication of land for a street, in an incorporated city or town,must precede an acceptance by the corporate authorities; and a dedication will not be presumed from mere user for any period short of twenty years, when unaccompanied by any act on the part of the owner clearly showing his acquiescence; nor even after the expiration of twenty years, when it is shown that the owner, during that period, contested or constantly interrupted the user. Smith v. Inge, S. C. Ala. Dec. Term, 1885-6.
22. NEGLIGENCE-Contributory Negligence-Rail
road.-A railroad company can not be held liable for carelessly permitting a child to get upon its passenger trains, where it does not appear that the child was not, so far as the servants of the company could observe, in company with adult persons who entered the train at a regular station; nor that the company's employees knew, or could have known, that he had no right to take passage. Intruders as a general rule cannot impose any duties upon the person on whose property they intrude. The act of the conductor in expelling from the train, miles from its home, a child so young as to be incapable of taking care of itself or comprehending its danger, without requesting any one to look after its safety, and the wrong of those in charge of a freight train in negligently failing to stop the train, when it was within their power to do so, before it ran upon the child, make a case establishing negligence on the part of the company and excluding contributory negligence on the part of the child; and the injury is not so remote that it cannot be attributed to the negligence of the company. The age of a child is an important element to be considered in determining whether the person who injured him was negligent, as well as in determining whether the child himself was guilty of contributory negligence. The rule as to the responsibility of the wrongdoer does not differ in cases of actionable negligence from that which governs in cases of wilful or malicious tort, though exemplary damages may be given in the latter case. In order to enable the court to determine whether any injury was done the appellant by excluding a question asked a person called as a juror, the entire examination of the person should appear in the record. It was error to submit to the jury, by an instruction, the pecuniary condition of the appellee, and his inability to employ servants, as one of the elements to be considered by them. Indianapolis etc. Co. v. Pitzer, s. C. Ind. June 11, 1886. 4 West. R. 250.
24. PARTITION-Parties- Judgment – Estoppel
Execution-Contribution-- Several Defendants Sale-Several Defendants — Rights of Purchaser. - In partition case the same rules apply as to parties and estoppel as in other cases. All persons interested in the land should be made defendants, and they and their privies, and none others, are estopped by the decree. Where execution issues against several defendants, and is good as to some, but voidable as to others, any defendant who satisfiies the same,may enforce equitable contribution against his co-defendants. If a defendant in execution acquisce in real estate levy and sale, he is thereby estopped from questioning the title of the purchaser at such sale, on the ground that such writ issued unlawfully against some other defendant therein named. Stark v. Carroll, S. C. Tex. June 1, 1886. 1S. W. R. 188.
3. OFFICER-Municipal Corporation Constitu.
tutional Law-Dedication to Public Uses.-When the plaintiff sues in an official character, and his term of office expires by limitation of law before the termination of the suit, his successor may be substituted as plaintiff on motion; but, where a plaintiff makes a voluntary assignment pendente lite, his assignee does not become a necessary party. The constitutionality of the legislation abolishing the city of Mobile, and creating the port of Mobile as a new municipal corporation, cannot be questioned by a party who does not show that he is in a position to be injured by it; as by being a creditor of the old corporation, whose remedies for the collection of his debt are destroyed. Although trustees, when officers of the Chancery Court, may not have the right to commence an action at law without first obtaining the sanction of the court; yet it may be doubted whether the defendant can interpose this objection in defense of the action, and it certainly cannot be raised for the first time in the appellate court. The State itself, in the exercise of the right of eminent domain, cannot take the private property for public uses, with a regular judgment of condemnation ina proper judicial proceeding first making payment of just compensation to the owner; nor can a municipal corporation dedicate private property to
25. PARTNERSHIP- Surviving Partner- Patent
Equity.—The contract of partnership implies an agreement that all the assets of the firm, including letters patent as well as other kinds of property shall be used for the common benefit of all the partners, and supersedes the relation which the parties would otherwise sustain to each other as co-owners. On a bill in equity maintained against the surviving partner by the administratrix of a deceased partner to obtain sale of the letters patent belonging to the partnership, and for an account of the profits received by the surviving partner from the use thereof since dissolution of the partnership, to calculate the profits annually and to add interest thereon, in the absence of evidence that such profit was or could be annually set aside and invested elsewhere would not be just to the defendants. In such a suit, where the patent was for a product and not for a process or machine for making a product, the profits from the use of the patent would be fairly ascertained by finding the difference between the cost of the articles produced and the amount received from the sale thereof. In estimating the cost, all the elements which go to make up the expenditures in the manufacture and sale are to be taken into account, including, as compensation to defendant for his personal services, 6 per cent. on the sales, and 20 per cent. for "manufacturer's profits,” risk of capital, etc. Plaintiff will be entitled to half the ascertained profits, and, in addition, to half of the amounts collected, and to the half of the property taken at an appraisal by defendant, and further to an order upon the master to pay over to her, onehalf of the net proceeds of the sale of the letters patent. Freeman v. Freeman, S. J. Ct. Mass. June
29, 1886; 2 N. Eng. Rep. 520. 26. Removal of Causes to the Federal Court-Suit
Between State and Corporation.-A suit between a State and one of its own corporations can be removed into the federal court if the construction of the Constitution or laws of the United States arises in the case; and the right to recover does not depend upon the solidity of the claim set up. Southern Pac. etc. Co. v. California, S. C. U. S.. April
26, 1886; 22 Rep. 225. 27. Sale-Validity of Sale of Goods by Insolvent
Debtor to Creditor, as Against Other Credit ors. -A sale of his entire stock of goods by a failing of insolvent debtor, at a fair and reasonable valuation, in absolute payment and satisfaction of a bona fide debt, no interest or benefit being reserved to himself, is pot fraudulent as against his other creditors; and the payment of an additional sum of money by the purchasing creditor, the estimated difference between the amount of his debt and the value of the goods, does not render the transaction fraudulent, when it is shown that the money was paid under an express stipulation that it shonld be applied in payment of the debt due to another bona fide creditor, and that it was so applied. Rankin v. Vandiver, S. C. Ala., July, 1886.
28. SUNDAY—Carrying on Business on-Indictment
-Defense-Religious Belief-The carrying on of one's ordinary business on Sunday is an indictable offense at the common law, and also under the statutes of Tennessee, if conducted so openly as to attract public observation, and tend thereby to the corruption of public morals. It is no defense against such a prosecution that the accused conscientiously believes in observing, and actually observes, the "seventh” rather than the "first” day of the week as the Sabbath. Parker v. State, s. C. Tenn. June 5, 1886; 1 S. W. Rep. 202.
29. TITLE TO PROPERTY- What Acts Constitute
Passage or Retention of.- The property in a manufactured article does not pass to the purchaser by his order to the manufacturer and its acceptance; there must be the selection and appropriation of one particular article, and facts showing an intention to pass the title to, or property in it-and if the manufacturer, on receipt of the order, selects a particular article, and forwards it by railroad as directed, taking the bill of lading in his own name attaching to it the draft for the price, and endorsing it to the freight agent at the place of destination, with instructions to "deliver to bearer on presentation; " these facts show an intention to retain the title until payment, and a loss by accidental fire falls on hin. Jones v. Brewer, S. C. Ala. Dec. Term, 1885-86.
judgment where they are empowered in their discretion to sell real estate and reinvest the proceeds; and if safety and profit can be combined, neither should be unnecessarily sacrificed by changing investments already made. The will gave the life legatees $5,000 each by specific bequest, and it is not reasonable to suppose that the testator did not mean to have the income of these bequests go for the comfortable support of the life legatees if the income of the residue should fall short; and if he meant to have the income of the bequests go for such support of the life legatees, there is no ground on which to decide that he did not mean to have the bequests themselves, or any other property belonging to the life legatees, go to the same purpose before recourse to the capital of the residue, given over in remainder. Where the residue was devised to an association with the name of "Home for the Aged," and there is a corporation formerly called “The Association for the Aid of the Aged," the name of which was subsequently changed to “The Townsend Aid for the Aged,” and the existence of no other association is shown which so closely corresponds to the desig. nation in the will, the capital of the residue should go to “The Townsend Aid for the Aged.” Where a legatee, to whom was bequeathed a government bond or its equivalent in money, declined and for. mally renounced the bequest, the rule obtains, that lapsed and void specific or pecuniary legacies fall into the residue in the absence of any indica • tion to the contrary. Peckham v. Newton, S. C.
R. I. May 14, 1886; 2 N. Eng. Rep. 508. 32. VENDOR AND VENDEE-Contract-Rescission
Assumpsit-Common Counts.-When an executory contract for the sale of land is rescinded by mutual consent of the parties thereto, or by the act of the vendor, he must restore whatever bas been received by him thereon prior to such rescission, and the law implies his promise to do so. In such a case the vendee may recover in assumpsit on the common count for money had and received. Such an action does not put in issue the title to the land, but only the fact of rescission after payment. Benton v. Marshall, S. C. Ark July
3, 1886; 1 S. W. Rep. 201. 33. Executory Contract-Rights and Liabil.
ities of Purchaser-Accident to Land.—The pur. chaser of real property under an executory contract, is the equitable owner, and must sustain any accidental loss accruing after bis purchase, and before the conveyance of the legal title, he being entitled also to any benefit which may accrue to it during that time. Martin v. Carver, Ky. Ct. App.
June 10, 1886; 1 S. W. Rep. 199. 34. WAY8-Dedication--Reversion-Notice.- Where
the owner of land conveys the same to be used for street purposes only, coupled with a covenant for reversion unless the lands are so used, the use of such land for other than street purposes, without the grantee's consent, will not divest his title, nor will reversion accrue until he has had reasonable notice of such misuse, and an opportunity to correct the same. What would be a reasonable notice to enable the grantee to protect himself against a reversion depends upon the circumstances of each particular case. Carpenter v. Graber, S. C. Tex.,
June 22, 1886; 1 S. W. Rep. 178. 35. Wills—Testator's Capacity-Contesting Pro
bate-Evidence.- Where the probate of a will is contested on the ground of the testator's insanity,
30. TRIAL-Demurrer-- Objection to Admission of
Evidence-Admissions-Execution -- Exemptions -Ilusband and Wife-Joint Note.--An objection made by the defendant to the reception by the trial court of any evidence on behalf of the plaintiff, for the alleged reason that plaintiff's pleadings disclose no cause of action, is in the nature of a general demurrer. On the argument of such an objection the court will assume every material allegation of the objectionable pleading as having been admitted to be true in fact. Under the laws of Missouri, ($$ 3295, 3296, Revision 1879,) where two persons execute their joint and several note, and afterwards intermarry, the marital interest of both in their property may be subjected to the payment of the debt, and neither can claim exemption. Conrad v. Howard, s. C. Mo., June 7,
1886; 1 S. W. Rep., 212. 31. TRUST-Will-Legacy-Trustees under a will
must be prudent and vigilant and exercise a sound