Taking papers to jury room, see "Trial," 23.
Who to assess damages on default, see "Judg-
ment," 1.

Competency of jurors.

6. Where a lease provides that the lessee
shall do certain things, and, on failure to do so,
shall pay the lessor a certain sum, or forfeit the
lease, the lessee cannot take advantage of the
forfeiture clauses of such lease by failure to per-
1. Where, in a murder case, it appears from form, and thus avoid liability in an action by
the examination of a juror on his voir dire the lessor to recover the sum agreed to be paid.
that he has the ability and disposition to ren--Gibson v. Oliver, (Pa. Sup.) 27 A. 961.
der a verdict on the evidence alone, he is com-
petent, though it will require evidence to change
an impression formed from what he has read.
Commonwealth v. Crossmire, (Pa. Sup.) 27 A.

1. Defendant leased the second story of
its building to a lodge which met weekly. On
lodge nights a gate from the street to a lot at
the side of the building, which gave access to
a privy in the rear, was left open for members
desiring to use the privy. Held, that members
crossing said lot to the privy were not mere
licensees, but were there, if not as of right, at
least on defendant's invitation. Phillips v.
Library Co. of Burlington, (N. J. Err. & App.)
27 A. 478.

-

Estoppel to deny landlord's title.

2. A lessee of land, who, hearing of a con-
flict of title, also takes a lease from the ad-
verse claimant, is estopped to deny the title of
the adverse claimant when sued for the rent.-
Hamilton v. Pittock, (Pa. Sup.) 27 A. 1079.
Leases.

3. Where, during the term of a lease, the
landlord releases the joint and several liability
of the two tenants, and accepts the separate
tenancy of each for one-half, this agreement, if
acted on, though not valid at the time made,
would be valid after the expiration of the term
of the lease.-Walker v. Githens, (Pa. Sup.) 27
A. 36.

4. In replevin for goods levied on under a
distraint for rent, the rent having accrued after
the term of the lease, the tenant may show
that he was no longer in under the lease, but
under a new agreement.-Walker v. Githens,
(Pa. Sup.) 27 A. 36.

Forfeiture.

5. Equity will not decree a forfeiture of
a coal lease for nonpayment of the royalties re-
served, where the lessors have long delayed in
asserting their right to the forfeiture.-Drake
v. Lacoe, (Pa. Sup.) 27 A. 538.

7. A lessor may declare a lease forfeited
as to all the leased premises, the lessee not
having been in possession, though he had deliv-
ered possession of part of it to a third person,
under an agreement of sale.-Carnegie Nat. Gas
Co. v. Philadelphia Co., (Pa. Sup.) 27 A. 951.
Oil and gas lease.

8. An oil and gas lease of 400 acres of land
provided "the test to be drilled on the above
lease, or forfeit this lease." Held, that the test
referred to a test of the oil or gas producing
quality of the land in the vicinity, and that
the lessee, by making a test on land a half
mile from the leased premises, and there discov
ering gas, gave cause for forfeiture.-Carnegie
Nat. Gas Co. v. Philadelphia Co., (Pa. Sup.) 27
A. 951.

9. It appeared that the payee made two oil-
well leases to defendants, numbered 1 and 2,
each on separate portions of his land; that the
note in suit was given in consideration of lease
No. 1. There was evidence that defendants
had drilled a well on No. 2, and expressed to
the lessor a desire to drill another there; that
the latter agreed they might do so, and it should
fulfill the requirements as related to lease No.
1; that such second well on No. 2 proved to be
dry; and that the lessor then expressed the
wish that it had been drilled on No. 1. Held,
that the question as to whether or not the les-
sor waived the right to have a well sunk on No.
1 was for the jury.-Nelson v. Eachel, (Pa.
Sup.) 27 A. 1103.

10. A lease of land for operating for oil and
gas provided that the lessor should receive a
certain portion of the oil discovered, and a
certain rental in case gas was obtained in pay-
ing quantities; that for failure to complete one
well in one year the lessee should pay $500 per
annum, which the lessor agreed to accept for
delay until one well should be completed; that
failure to complete one well or make such pay-
ments should render the lease void; and that,
on failure to complete a second well in two
years, the lessee should pay $1,000, or forfeit
the lease. Held, that it was no defense to an
action to recover the sums specified because of
failure to put down any well in two years
that it was shown by drilling wells in the vicin-
ity of the leased premises that there was on
the latter neither gas nor oil in paying quanti-
ties.-Gibson v. Oliver, (Pa. Sup.) 27 A. 961.
Assignment.

11 Where the assignees of a coal lease con
tracted with a corporation, leasing to it the
right to mine the coal at an advanced royalty,
containing wholly different stipulations from
those in the original lease, reserving to the as-
signees a right of re-entry for condition broken,
and expressly assuming payment by them to
the lessors of the royalty reserved in the orig
inal lease, the privity of estate between the as-
signees and the lessors is not at an end, so as
to relieve them from paying the royalties re-
served in the lease for coal mined by the cor
poration.-Drake v. Lacoe, (Pa. Sup.) 27 A
538.

12. One taking an assignment of a lease on
its face containing notice of liability to for
feiture is bound to ascertain whether it has
been forfeited.-Carnegic Nat. Gas Co. v. Phil-
adelphia Co., (Pa. Sup.) 27 A. 951.
Landlord's lien.

13. Under Act June 16, 1836, providing that
after sale under execution of goods and chat-
tels on leased premises rent due the landlord
shall first be paid from the proceeds, the land-
lord, in notifying the sheriff of his claim, is

not required to state the amount due with ab-
solute precision.-Timmes v. Metz, (Pa. Sup.)
27 A. 248.

14. The execution creditor has no right to
require the landlord to distrain on goods on the
premises, under penalty, if he fail so to do, of
their value being deducted from the amount
claimed by him out of the proceeds of sale.
Timmes v. Metz, (Pa. Sup.) 27 A. 248.

Recovery of possession.

15. Under Act April 5, 1876, (Revision,
576,) providing for summary proceedings to dis-
possess a tenant for default in the payment
of rent, after a demand in writing signed "by,
the person entitled to such rent or his agent,'
any one of a number of joint tenants or ten-
ants in common named as landlords in a lease
may make demand in writing for the payment
of rent, and sign and give the notice required
by the statute to confer jurisdiction in sum-
mary proceedings.-State v. Klein, (N. J. Sup.)

27 A. 902.

Renting on shares.

16. A lease of a farm provided that the
lessee should pay to the lessor, as rent, "the an-
nual sum of one-half the income of said farm,"
and that all grain raised on the farm should be
fed out there, and what feed was bought should
be paid for out of the undivided profits of the
farm. Held, that the lease was not on the
shares, but for an annual sum, and therefore
the lessor had no title to the crop raised during
the term.-McLellan v. Whitney, (Vt.) 27 A.
117.

LARCENY.

See, also, "Mechanics' Liens."
Of assignee for expenses, see "Insolvency," 3.
Of attachment, see "Attachment," 3.
Of judgment, see "Judgment," 13-15.
Of landlord, see "Landlord and Tenant," 13, 14.
Of mortgage, see "Mortgages," 4.
Of taxes, see "Taxation," 21, 22.
On lands of decedent, see "Executors and Ad-
ministrators," 4, 5.

Of employe for wages.

1. A tailor shop, where goods are made up,
and a merchant tailor store, where the goods
are sold, both owned by the same person, are
parts of the same business, carried on as one,
though in different rooms; and hence the work-
men employed in the tailor shop are entitled to
a preference in the fund arising from a sale of
the goods in the store, under Act June 13,
moneys due for labor and services rendered by
seamsters and seamstresses employed by mer-
chant tailors within six months of the transfer
of such business shall be a lien thereon, and
entitled to a preference in payment.-Sproul v.
Murray, (Pa. Sup.) 27 A. 302.

Accessory before the fact, see "Criminal 1883, (P. L. 117,) which provides that all
Law," 1.

What constitutes.

While the waste coal carried from a
mine by a stream on the land of another is
real estate, and belongs to such other, yet one
who unlawfully enters on the land in a boat;
scoops up the coal lodged along the channel
and bank of the stream; cleans and sifts it;
deposits the cleaned coal, little by little, on a
flatboat; transports the boat load to bins; and
shovels the coal from the boat to the bins,
may be convicted of larceny, since the load-
ing, transportation, and unloading are not so
connected with the severance of the coal from
the land as to be one and the same continu-
ous act of trespass.-Commonwealth v. Steim-ness,' in the act of 1883, should not be limited
ling, (Pa. Sup.) 27 A 297.

2. Act June 13, 1883, (P. L. 117,) amends
Act April 9, 1872, so as to greatly enlarge the
classes of employes whose wages, due "from
any person or persons or chartered company
employing clerks, miners, mechanics, or labor-
ers, either as owners, lessees, contractors, or
under-owners of any works, mines, manu-
factory, or other business," shall be a lien on
the property, and entitled to a preference in
payment. Held, that the words "or other busi-

to business of the same general nature as
those specifically enumerated, which was the
construction given to the act of 1872, but that
the class of employers is enlarged by neces-
sary implication to correspond with the classes
of employes enumerated in the act, and that
the words "other business" in the act include
all kinds of business in which any of the
classes of employes named in the act are en-
gaged.-Sproul v. Murray, (Pa. Sup.) 27 A. 302.

Limitation.

Of indebtedness, see "Municipal Corporations,"
45.

LIMITATION OF ACTIONS.

See, also, "Adverse Possession."

Against administrator, see "Executors and Ad-
ministrators," 17.

- infant, duty of court, see "Infancy." 2.
By landowner whose property is taken, see
"Eminent Domain," 11.

Claims against decedent's estate, see "Execu-
tors and Administrators," 4, 5.
When statute applicable.

1. Supp. Revision, p. 489, provides that
where a bond and mortgage be given for the
same debt, all proceedings to collect the debt
shall be, first, to foreclose the mortgage, and

if at the sale of the mortgaged premises un- Acknowledgment-Part payment.
der said foreclosure proceedings the premises 11. A claim of plaintiffs, H. and G., agains
shall not sell for a sum sufficient to satisfy defendant, is taken out of the statute by a
the debt, then it shall be lawful to proceed credit for produce delivered by defendant to H
on the bond for the deficiency, and that all for use in his family, and credited on the se
suits on the bond shall be commenced within count by G., by direction of H., given in d--
six months from the date of the sale of the fendant's presence, without objection on b
mortgaged premises. Held, that the right of part, there being no other account on whic
action on a bond secured by mortgage is not credit could have been given.-Cuthbertson v.
barred by the lapse of six months after sale Hill, (Vt.) 27 A. 71.
of the mortgaged premises in proceedings in-
stituted to foreclose a prior mortgage.-Wheel- Pleading.
er v. Ellis, (N. J. Sup.) 27 A. 911.

2. In an action to foreclose a mortgage ex-
ecuted as security for all sums then due or
thereafter to be due, the mortgagee is entitled
to be allowed, as part of the sum due, a note
of the mortgagor made payable to a firm of
which the mortgagee is the surviving member,
or to bearer, even though recovery on the note
itself is barred by the statute of limitations.-
Gleason v. Kinney's Adm'r, (Vt.) 27 A. 208.
When statute applicable-Set-off.

12. Where in assumpsit plaintiff puts in
evidence causes of action barred by limita-
tions, and to a plea of set-off by defendant
pleads limitations in his replication, defendant
was properly allowed to file a plea of limita-
tions.-Heath v. Doyle, (R. I.) 27 A. 333.
Limited Partnership.

See "Partnership," 10.

Liquidated Damages.

3. A replication to a plea of set-off that
the supposed debts did not accrue to defendant See "Damages,” 1, 2.
within "six years next before the pleading
thereof" is bad, under Pub. St. c. 212, § 14,
providing that defendant may set off any

Liquor Selling.

claims "which exist at the time of the com- See "Intoxicating Liquors."
mencement of the action" and also at common
law.-Heath v. Doyle, (R. I.) 27 A. 333.

Accrual of cause of action.

4. Mutual accounts are not barred by lim-
itation so long as there are items of debit and
credit within the statutory period.-Cargill v.
Atwood, (R. I.) 27 A. 214.

5. Where the husband takes possession of
his wife's separate property, and holds the
same for her, an express or direct trust is
created in favor of the wife and her heirs,
against whom the statute of limitations does
not operate, unless the trustee repudiates the
trust, and claims the property adversely.-Drake
v. Wild, (Vt.) 27 A. 427.

6. The fact that a trustee disposed of his
estate by will, without mentioning therein the
separate property of his deceased wife, which
he held in trust for his daughter, is not such
a repudiation of the trust as to put the statute
of limitations in operation against the daugh-
ter. Drake v. Wild, (Vt.) 27 A. 427.

7. Since a husband cannot maintain an ac-
tion against his wife, limitations do not begin
to run against a claim by him against her till
after her death. In re Gracie's Estate, (Pa.
Sup.) 27 A. 1083; Appeal of Union Trust Co.,

Id.

8. Where a daughter gives a father money
to be invested in property for their joint ben-
efit, and the father takes the property in his
own name, the statute of limitations imme-
diately begins to run against a claim by her
for the money so furnished.-In re Fink's Es-
tate, (Pa. Sup.) 27 A. 724; Appeal of Hoon, Id.

Interruption by legal proceedings.

Local Laws.

See "Constitutional Law," 6, 7.

LOST INSTRUMENTS.
Action on lost note-Indemnity.

Where the assignees of a lease indorse
the note of a third person, and deliver it to
the assignor, who is the payee, in consideration
of the assignment of such lease, the assignor
can, in case such note is lost, and after its
maturity, maintain an action of assumpsit
against the assignees for the original consider-
ation of such assignment, without first tender-
ing to defendants an indemnity bond, and filing
a copy of such note with the statement.-Reis
inger v. Magee, (Pa. Sup.) 27 A. 962.

LOTTERIES.

Action for penalty-Affidavit for attach-
ment.

Act April 28, 1886, (Supp. Revision. p.
29, pl. 9,) provides that any person who shall
set up a lottery prohibited by the laws of the
state shall be liable to a penalty, and that suit
to recover the penalty may be instituted by
attachment, but that the affidavit shall contain
"the title or titles of the statute or statutes
under which such penalty or penalties have ae-
crued." The fifty-first section of the crimes act
(Revision, p. 236) declares what lotteries are
prohibited. Held, that it is necessary to set
out in the affidavit to procure the attachment,
not only the title of the gaming act, but also
the title of the crimes act.-Walcott v. Skahill.
(N. J. Sup.) 27 A. 912.

9. Under Gen. St. (Revision 1888,) § 889.
providing that when an action has been com-
menced in the name of wrong person the court
may allow another person to be substituted as
plaintiff, such substitution is not the commence-
ment of a new action, but may be made after See "Insanity."
expiration of the time for commencing an ac-
tion.-Bowen v. National Life Ass'n, (Conn.) 27
A. 1059.

Acknowledgment-New promise.

10. A general promise by a debtor to pay
"something on account," without specifying the
debt on which the payment is to be made, is
sufficient, in an action by the creditor, to take
the case out of the statute of limitations, unless
the debtor proves that the promise relates to a
debt other than the one in suit.-Wilcox v.
Clarke, (R. I.) 27 A. 219.

Lunatic.

Maintenance.

Of wife, see "Husband and Wife," 17.

MALICIOUS PROSECUTION.
Probable cause.

Where a conviction might have been had
in a trial for larceny but for the erroneous di-
rection of an acquittal on the ground that the
act complained of was merely a trespass, an

instruction, in an action for malicious prosecu-
tion, that there was no probable cause for such
prosecution, is error.-Steimling v. Bower, (Pa.
Sup.) 27 A. 299.

MALPRACTICE.

Contributory negligence.

In an action against a homeopathic phy-
sician for malpractice, evidence having been
given by witnesses as to how the case should
have been treated, but also how the allopathic
school would treat it, defendant having request-
ed a charge on the subject, the court should
have instructed that the jury were not to con-
sider the relative merits of the two schools, but
that, so far as defendant was to be judged by
either, it was by the tenets and practices of his
own school.-Force v. Gregory, 27 A. 1116, 63
Conn. 167.

MANDAMUS.

and the mayor signed the resolution, under the
impression that the salary of the counsel was
not included. Held, that a writ of mandamus
would not issue to compel the mayor to sign a
warrant for the counsel's salary, where the
mayor answered that two years previous the
counsel had been paid a large sum in excess of
his salary due at that time, as well as in excess
of that due now, which sum counsel still re-
tains.-O'Hara v. Fagan, (N. J. Sup.) 27 A.

1089.

Parties defendant.

7. In a mandamus proceeding to compel the
mayor and board of aldermen to meet in joint
session with the common council to elect city
officers, as required by law, it is unnecessary
that the writ issue against the latter body,
who have not refused to so meet, but have al-
ways been desirous so to do. Littlefield v.
Newell. 27 A. 110, 85 Me. 246.

8. In such proceeding it is better practice
to join as parties defendant the minority of the
recusant body who have been willing to com-
110. 85 Me. 246.

City as party, see "Municipal Corporations," 46. ply with the law.-Littlefield v. Newell, 27 A.
Jurisdiction.

MARINE INSURANCE.

1. In taking out insurance on a vessel, the
owner impliedly warrants her seaworthiness at
the beginning of the voyage.-Dodge v. Boston
Marine Ins. Co., 27 A. 105, 85 Me. 215.
Policy ineffective
premium paid.

Recovery back of

1. Each house, under Const. art. 4, § 6, is
"judge of the elections and qualifications of its
own members." An election held in a town to Seaworthiness— Warranty.
choose members of the legislature was without
results, and it was contended that a certain
stitute made it the duty of the town council to
order a new election. This the council refused
to do, on the ground that such an election would
be illegal, under a proper construction of the
statute. Held, that the supreme court had ju-
risdiction of a petition for mandamus to compel
the council to order an election, and, upon the
hearing of such petition, to declare the true in-
terpretation of the law. Stiness, J., dissenting.
-State v. Town Council of South Kingstown,
(R. L.) 27 A. 599.

To municipal boards and officers.

2. A peremptory mandamus will issue to
compel the payment of state and county taxes
by a city where it has collected sufficient
money for the purpose.-Shields v. City of Pat-
erson, (N. J. Sup.) 27 A. 803; Same v. Grear,
Id. 807.

3. Where it is made the duty of the two
branches of the city government, "the board of
mayor and aldermen" and the "common coun-
cil,' to meet in joint convention at a certain
date to elect city officers, mandamus will lie,
at the petition of a committee of one branch
consenting to so meet, to compel such action
by the other.-Littlefield v. Newell, 27 A. 110,
85 Me. 246.

4. A private relator cannot obtain a man-
damus to compel a committee to construct a
particular sewer, as directed by ordinance to
do, when it appears that the council has re-
fused to make any appropriation therefor, and
opposes the granting of the writ.-Congrega-
tion of Mission of St. Vincent de Paul v.
Street & Sewer Committee, (N. J. Sup.) 27 A.
799.

Controlling action of board of al-

dermen.

5. Under Pub. Laws, c. 474, § 16, el. 2,
of March 27, 1885, incorporating the city of
Pawtucket, and providing that, in case of a
failure to elect any officer under the provisions
of the act, the board of aldermen shall order
the city clerk to issue his warrant for another
election to fill the vacancy, the action of the
board in that regard is not reviewable on pe-
tition for mandamus unless there has been an
abuse of discretion.-State v. City of Pawtuck-
et, (R. I.) 27 A. 449.

Claims allowed by city through

mistake.

6. A city council passed a resolution to pay
the salaries of the city officers, including that of
counsel of the commissioners of adjustment,

2. Where a vessel is unseaworthy at the
inception of the voyage for which insured, the
insurance does not attach, and the premium
paid may be recovered as money paid without
consideration.-Dodge v. Boston Marine Ins.
Co., 27 A. 105, 85 Me. 215.

Wife.'

MARRIAGE.

See, also, "Divorce;" "Dower;" "Husband and
Agreement in consideration of, see "Frauds,
Statute of," 8.

Validity.

1 Where a first marriage is void, owing
to the fact that one of the parties had a spouse
living at the time of its celebration, the va-
lidity of a second marriage is not impaired
thereby, though there has been no decree an-
nulling it.-Dare v. Dare, (N. J. Ch.) 27 A. 654.
Age of consent.

2. R. L. (Act 1839) § 2349, provides for
the annulment of a marriage when either party
had not at the time of the marriage attained
"the age of legal consent." By Acts 1886,
No. 63, the age under which a female was held
incapable of consenting to unlawful carnal
knowledge was raised to 14 years. Held, that
the period of disability to contract marriage
was governed by the common law, and was not
affected by the act of 1886.-Fisher v. Bernard,
(Vt.) 27 A. 316.

Proof.

3. The fact of marriage may be proven by
the oral evidence of one who was present at
the ceremony.-McQuade v. Hatch, (Vt.) 27
A. 136.

4. In a suit to annul a marriage on the
ground that, at the time of its celebration, de-
fendant had a wife living, an admission of
such previous marriage in the answer is suth-
cient to establish it, when corroborated by the
production of evidence of a certified copy of
the record thereof in the bureau of vital statis-

ties, and of the record of a suit commenced by
defendant against the person alleged to have
been the other party to the previous marriage,
to annul it.-Dare v. Dare, (N. J. Ch.) 27 A.
654.