to maintain his bill, make a case, both by his pleadings and proof,
that would entitle him to subject property of his debtor not reach-
able, on execution, to the payment of his debt. (Colo.) National
Bank of Commerce v. Appel Clothing Co., 186.
3. CREDITORS' BILLS-Life Insurance-Pleading.-In a pro-
ceeding by creditor's bill to subject a policy of life insurance, pay-
able to a beneficiary on the death of the insured, but in which he
has a surrender value, to the payment of his debt, a complaint not
alleging that the insured was insolvent at the time the policy issued
or was assigned to the beneficiary, nor that the indebtedness sought
to be enforced existed at the time the policy issued, nor that the
policy was taken out or assigned with a view to the creation of
future obligations, nor that there was any fraud either on the part
of the insured or the beneficiary, is insufficient to entitle the plain-
tiff to equitable relief. (Colo.) National Bank of Commerce v. Appel
Clothing Co., 186.
4. CREDITORS' BILLS-Life Insurance.-A proceeding by cred-
itor's bill to subject a life insurance policy in which a beneficiary
has an interest and the insured a surrender value to the payment of
his debts must be governed by the same rules that prevail in cred-
tor's suits against other kinds of property, and before a court of
equity is authorized to compel the surrender of such policy and the
application of the proceeds to the payment of such debts, it must be
alleged and proved that debts existed at the time of the issuing or
the assignment of the policy to the beneficiary, or that it was issued
or assigned with a view of contracting future indebtedness. (Colo.)
National Bank of Commerce v. Appel Clothing Co., 186.
CRIMINAL CONVERSATION.
See Husband and Wife, 18-22.
1. STATUTES, Interpretation of.-In Interpreting a Statute
Which Defines an Offense Well Known at the Common Law, the courts
are entitled to seek aid from common-law definitions of such offense.
(N. Y.) Adamson v. City of New York, 863.
2. CRIMINAL LAW-Accused as Witness.-An Instruction Con-
cerning the Testimony of the Accused given in his own behalf which
concludes with the words: "You are not required to receive blindly
the testimony of such accused person as true, but you are to consider
whether it is true or made in good faith, or only for the purpose of
avoiding conviction," is erroneous. (Neb.) Donner v. State, 789.
3. CRIMINAL LAW-Accused as Witness.-If in a criminal trial
the accused testifies in his own behalf, the court should not, by con-
duct or instructions, in any manner disparage his testimony. (Neb.)
Donner v. State, 789.
1. CONTRACTS-Breach-Damages.-If two persons have made
a contract which one of them has broken, the damages which the
other ought to receive in respect to such breach should be such as
may fairly and reasonably be considered either arising naturally from
the breach of the contract, or such as may be reasonably supposed to
have been in the contemplation of both parties at the time they made
the contract, as the probable result of its breach. (Ind. App.) Kagy
v. Western Union Tel. Co., 278.
2. DAMAGES-Nonsuit.-If the sole object of an action is the
recovery of damages, a failure to prove substantial damages is a
failure to prove the substance of the issue, and entitles the defend-
ant to a nonsuit, although the plaintiff may be entitled to nominal
damages. (Wash.) Woodhouse v. Powles, 1079.
TRIAL-Excessive Verdict.-A verdict for two thousand dollars
for a personal injury, in the absence of evidence of serious external
injury, and almost conclusive evidence that the internal injury relied
upon could not have resulted from the accident, is excessive. (Iowa)
Heinmiller v. Winston Bros., 405.
4. TRIAL-Instructions-Damages.-If, in an action to recover
for personal injury, there is no proof as to allegations of expendi-
tures for medical attendance and hospital charges, instructions to
the effect that such items must be excluded by the jury are properly
refused, if under the instructions given there is no possibility that
such items could be considered by the jury. (Wash.) Liedke v.
Moran Brothers Co., 1058.
5. NEGLIGENCE — Gross - Punitive Damages.-Instructions to
find punitive damages if the jury believe from the evidence that the
injury complained of was the result of gross negligence is reversible
error if there is no evidence whatever of such negligence. (Ky.)
Covington Sawmill etc. Co. v. Drexilius, 593.
See Telegraphs and Telephones.
Acceptance and Cancellation.
DEED.—The Acceptance of a Deed by the grantee is essential
to the passage of title. (Ark.) Ames v. Ames, 68.
2. DEED-Revesting of Title by Cancellation.-The title to land
cannot be revested in the grantor by a surrender and cancellation of
the deed. (Ark.) Ames v. Ames, 68.
3. DEED-Estoppel to Claim Under After Cancellation.—If a
grantee, a short time after the execution of the deed, goes to the
grantor and, asserting that he has destroyed the deed and never ac-
cepted it because not executed in accordance with his wishes, demands
the execution of a new deed to his wife and children, which is done,
he and his grantees are estopped to claim under the original deed.
(Ark.) Ames v. Ames, 68.
4. DEEDS Consideration.-A deed from a parent to his child
will not be set aside upon the ground of mere inadequacy of con-
sideration. (Ala.) McLeod v. McLeod, 41.
5. DEEDS-Parent and Child-Presumption of Undue Influence.-
A deed of gift from parent to his child alone and of itself raises no
presumption of undue influence, as the parent is presumed to be the
dominant party. (Ala.) McLeod v. McLeod, 41.
6. DEEDS-Parent and Child-Undue Influence-Burden
Proof. In an action by a parent against his child to set aside a con-
veyance made by the former to the latter, on the ground that it was
executed under undue influence, the burden of proof is upon the
former to establish that fact. (Ala.) McLeod v. McLeod, 41.
7. DEEDS-Undue Influence-Confidential Relations. If the
donor and the donee stand in confidential relations, a presumption
of undue influence affecting the validity of the gift arises only where
the doner is the weaker party. (Ala.) McLeod v. McLeod, 41.
8. QUITCLAIM DEED, Effect of as Against Prior Unrecorded
Warranty Deed.-An unrecorded warranty deed has precedence over
a subsequently executed and recorded quitclaim deed purporting to
remise, release, and quitclaim the grantor's interest in the premises.
(S. Dak.) Fowler v. Will, 938.
DE FACTO LEGISLATURE,
See Constitutional Law, 1.
DEFINITIONS.-The Word "Interest'
the nature of property, less than title. (Kan.)
Mechanics' Ins. Co., 460.
means any right, in
Garner v. Milwaukee
1. DIVORCE-Pleading-Several Cases in One Count.—A com-
plaint in divorce alleging three statutory grounds in one count should
not be treated as an action on one of the grounds stated alone, and
dismissed for failure of proof thereof. Such complaint, if unchal-
lenged, is sufficient to sustain a judgment upon any one of the grounds
alleged. (Wash.) Page v. Page, 1054.
2. DIVORCE-Personal Indignities.-Evidence of a wife that her
husband almost continuously called her vile names and charged her
with infidelity, corroborated by the unimpeached testimony of a dis-
interested witness, supports a divorce on the ground that such hus-
band was guilty of personal indignities toward his wife, rendering
her life burdensome. (Wash.) Page v. Page, 1054.
3. DIVORCE-Failure to Support.-Evidence by a wife that her
husband spent so much of his earnings for drink that he did not
make such suitable provision for her support as his earnings would
warrant, if corroborated by a disinterested witness, is cause for di-
vorce on the ground of failure to support. (Wash.) Page v. Page,
1054.
4. DIVORCE-Habitual Drunkenness.-As cause for divorce ex-
ists when one spouse has a fixed habit of frequently getting drunk,
although he or she is not drunk all the time, nor necessarily inca-
pacitated from pursuing during the working hours of the day ordinary
unskilled labor. (Wash.) Page v. Page, 1054.
5. DIVORCE-Assignment of Alimony.-Alimony granted in a
suit for divorce is not assignable. (Mich.) Fournier v. Clutton, 638.
6. DIVORCE-Assignment of Alimony-Tender-Waiver of Res-
toration of Consideration.-If before seeking by suit to set aside an
assignment of a decree for alimony, the plaintiff undertakes to make
a tender of the consideration received therefor, which the assignee
refuses to accept, a more formal tender is excused. (Mich.) Fournier
v. Clutton, 638.
See Husband and Wife, 16, 17; Nuisance, L
See Bills and Notes; Principal and Agent.
DYING DECLARATION.
See Homicide, 6.
1. RIGHTS OF WAY by Prescription.-To establish a way by
prescription the use must be adverse, uninterrupted, exclusive, con-
tinuous, and under a claim of right. (Ill.) Schmidt v. Brown, 261.
2. RIGHT OF WAY, Use of, When Adverse and not Under a
Mere License.-If an agreement between land owners, though oral
and therefore void under the statute of frauds, purports to give a
right of way to one over the lands of the other, and the use of the
right of way continues under a claim of right for twenty years, the
use is adverse and will ripen into a prescription. (Ill.) Schmidt v.
Brown, 261.
3. PRESCRIPTION.-The Claim of Right Need not be Well
Founded to create title by prescription if adverse possession is held
under it. Hence the claim may rest on a parol agreement, void under
the statute of frauds. (Ill.) Schmidt v. Brown, 261.
4. PRESCRIPTION-Use, When Need not be Exclusive.—It is
not fatal to the claim to a right of way by prescription that others
as well as the claimant used such way. (Ill.) Schmidt v. Brown, 261.
5. A WAY is an Inheritable Estate if appurtenant, and passes to
the heirs and grantees of the land to which it is attached. (Ill.)
Schmidt v. Brown, 261.
6. A WAY is Appurtenant to Land if it leads thereto, and is use-
less except in connection with it, and has been used solely for access
to it. (Ill.) Schmidt v. Brown, 261.
7. A WAY is in Gross When there is not a dominant estate to
which it is attached. (Ill.) Schmidt v. Brown, 261.
8. SERVITUDE, Purchase of Property Subject to.-A purchaser
of a servient estate charged with an easement discoverable on exam-
ination takes his title subordinate thereto. (Ill.) Schmidt v. Brown,
261.
9. WAYS, Right to Remove Obstruction. One having a right of
way over the lands of another, who places obstructions therein, may
lawfully enter upon the land subject to such way and peaceably re-
move the obstructions therefrom, because, as to him, they constitute
a private nuisance which he has the right to abate. (Ill.) Schmidt
v. Brown, 261.
ELECTION OF REMEDIES-When not Conclusive.-If, in at
tempting and designing to make an election, one does an act or com-
mences an action in ignorance of substantial facts which proffer an
alternate remedy, and the knowledge of which is essential to an in-
telligent choice of procedure, he may, when informed, adopt a differ-
ent remedy. (Neb.) Lamb v. Rooney, 795.
1. ELECTION FOR BONDS-Three-fifths of Voters.-A constitu-
tion providing for the assent of three-fifths of the voters therein,
voting at a municipal election to be held for that purpose, authorizing
a bond issue, and a city charter providing for the assent of three-
fifths of the voters voting on such question at such election, require
only three-fifths of the voters actually voting on such question,
although the vote may have been taken at a general election, at
which many persons voting for public officers cast no vote on the bond
question. (Wash.) Fox v. City of Seattle, 1037.
2. ELECTIONS Canvassing Returns.-If, in canvassing election
returns, a discrepancy is found to exist between the tally list and
the certificate of the officers of election as to the number of votes
any candidate received, the certificate only can be considered by the
canvassers of the returns. (Colo.) People v. Tool, 198.
Injunction to Prevent Election Fraud,
3. ELECTIONS-Injunction to Prevent Frauds. An application
for an injunction to restrain election officers from committing elec-
tion frauds presents a purely judicial, and not a political, question.
(Colo.) People v. Tool, 198.
4. ELECTIONS-Injunction-Original Jurisdiction.-The supreme
court of a state has original jurisdiction to issue an injunction upon
the application of the attorney general to restrain election officers
from committing, or permitting others to commit, election frauds.
(Colo.) People v. Tool, 198.
5. EQUITY JURISDICTION-Injunction to Prevent Election
Frauds-Canvassing Returns.-If a court of equity has issued an
injunction to prevent election frauds, it has inherent power to ren-
der the injunction effectual by undoing frauds committed in viola-
tion of it, and preventing advantage being taken of such frauds,
and to this end may restrain election officers from canvassing re-
turns which are clearly the result of a fraud committed at such
elections. (Colo.) People v. Tool, 198.
6. INJUNCTION to Prevent Election Frauds.-The state, through
its attorney general, has a right to an injunction to restrain the
commission of a conspiracy to violate the election laws by padding
election lists, permitting repeating and falsifying returns. (Colo.)
People v. Tool, 198.
EMINENT DOMAIN-Damage to Property Taken for Public
Use. A constitutional provision forbidding the taking or damaging
of private property for a public use except on due compensation be-
ing made to the owner, while primarily intended for formal con-
demnation proceedings, is equally protective of the owner of private
property, when no condemnation is had and his property is taken
or damaged by a public use. (Miss.) King v. Vicksburg Ry. etc. Co.,
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