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quently thereto, M. was "infected with a loathsome, contagious and infectious disease, to wit, syphilis,” which disease afterwards, and at the time M. boarded at the house of D., endangered the lives and health of D. and his family, &c.; of which disease D. was at the time he entered into said lease ignorant. In ten days after the lease was entered into, and when D. became aware of said disease, he refused to board M. any longer at his house. M. then left the premises and sued D. for damages, claiming (at least on the trial) as damages the value of the use of said land for one year and the value of his board for one year. D., as a defence to said action, offered to show (both by his pleadings and evidence) that M. was affected with said disease ; that he, D., was ignorant of the same at the time he entered into said lease; and that he refused to board M. at his house because of said disease, but the court excluded said defence : Held, that this was error: Douglas v. McFadin, 15 Kans.

DAMAGES. See Action.


Construction-Parol Evidence to explain a Written Instrument.—On appeal from a decree reforming a deed on the ground of mistake, the true construction of the deed is before the court, as well as the suffi. ciency of the proof of the mistake: Fryer v. Patrick, 42 Md.

M. and wife mortgaged to P. a lot and buildings, &c., "and also all the household and kitchen furniture in the dwelling on said lot, subject however to the claim of F. thereupon for the unpaid purchase-money for the portion of said furniture now being delivered.” The construction of this clause being in question upon the contention of F. that all the furniture in the house was subject to this claim, it was helil, that the extent of F.'s claim could not be definitely ascertained from this clause, and extrinsic evidence might be admitted to show what it was : Id.

EVIDENCE. See Agent ; Deed. Power of Legislature over Rules of.-While a legislature may not, by the mere machinery of rules of evidence, override and set at naught the restrictions of the constitution, or arbitrarily make conclusive evidence of a fact anything which in the nature of things has no connection with that fact nor reasonably tends to prove it, yet it may make that which, according to the ordinary rules of experience, reasonably tends to prove a fact, conclusive evidence of it: State v. Woodford, 15 Kans.

Equity. See Highway; Municipal Corporations Trusts-Unexecuted Contracts.-A court of equity will execute a trust where there is a valuable consideration ; but if it be voluntary the legal estate must be put out of the settlor ; the question as to its validity being whether it was at first perfectly created : Carhart's Appeal, 78 Pa.

In general, a court of equity will not enforce unexecuted voluntary coutracts inter vivos, but will leave parties to their remedies at law : Id.

The simple avowal by a purchaser at sheriff's sale, whether made at the time of the purchase or afterward, that the purchase was for another, will not support the allegation of a trust : Id.

Power signed a paper stating that if he purchased lands about to be sold by the sheriff, he would hold them on specified trusts for creditors of the defendant in the execution; after his purchase of the land, Held, under the circumstances of the case, not to create a trust in Power : Id.


Decreeing Cancellation and Delivering of Instruments.- A chancellor will not always order an instrument to be delivered up to be cancelled when he would refuse specific performance of the contract; he will leave the parties to their legal remedies : Stewart's Appeal, 78 Pa.

To decree an instrument to be delivered up to be cancelled is a matter in the sound discretion of the court, and the power

should not be exercised except in a very clear case : Id.

Whenever an instrument exists, which may be vexatiously or injuriously used against a party, after the evidence to impeach it has been lost, or which may throw a cloud over the title, and he cannot immediately protect his right by any proceedings at law, equity will afford relief by directing the instrument to be delivered up to be cancelled, or such other decree as justice or the rights of the party may require : Id.

EXECUTION. See Trespass.

FRAUD. See Limitations, Statute of. Account-Bill of Review— Settlement between Guardian and Ward. -Where an account is asked on the ground of fraud, it is not sufficient to charge fraud in general terms; particular acts of fraud should be stated : Marr's Appeal, 78 Pa.

Fraud without damage is no ground for relief at law or in equity : Id.

Fraud used in obtaining a decree, being the principal point in issue, must be established by proof before the propriety of the decree can be investigated : Id.

A bill of review is never sustained on strict law against equity : Id.

A guardian may within a reasonable time be called to file and settle his account, although he may have made a settlement with the ward on his arrival at age : Id.

After a ward has arrived at full age, he may waive his legal rights to an account and join his guardian in asking for his discharge ; and the court has power to grant it: Id.

Where there was a settlement with the ward, and a release to the guardian after she came of age, and on the joint application of the ward and her guardian a decree made discharging the guardian, the decree could not be vacated without proof of some specific act of fraud in obtaining it, or of some injury occasioned by it: Id.

Action cannot arise from Contract where Plaintiff depends on Frand. -Fisher sold a house to Saylor, agreeing to make good any loss of Saylor in a resale. Saylor sold for less than he gave. In an action against Fisher for the difference there was evidence that the sale of Saylor was collusive and fraudulent. In answer to a point the court charged, if there was any collusion between Saylor and his vendee in the sale, then Saylor “ cannot recover more than the difference between a fair price for the house and the amount paid to Fisher :" Held to be error; the fraud would prevent Saylor from maintaining the action : Fisher v. Saylor, 78 Pa.

Although there were no fraud in the original contract, the foundation of Saylor's right of action, yet, as the sale by him was a condition precedent, he was bound to sell in good faith, and if the sale was collusive, it was fraudulent as to Fisher; it was as if there had been no sale, and there was no right of action : Id.

If the sale had been honestly made, although for less than the market value, Saylor could recover the difference between a fair value and the price paid Fisher : Id.

A right of action cannot arise out of a fraudulent contract, nor out of the fraudulent performance of a condition of the contract : ld.

FRAUDS, STATUTE OF. Parol Promise-Debt of Agent.-- Where K. & W, by a parol agreement with a certam bank, promise that if the bank will cash a certain draft to be drawn by and in the name of a certain agent of theirs upon S. L. & Co., that said K. & W will be responsible for its payment, and afterwards such agent does draw such draft and the said bank cashes the same, and afterwards said draft is dishonored by said S. L. & Co.: Held, that the bank may maintain an action to recover from said K. & W., on said parol promise, the amount paid out on said draft, with interest : Kohn and Weil v. First National Bank of Fort Scott, 15 Kans.

GUARDIAN. See Fraud.

HIGHWAY. Encroachment on-Injunction-Equity Practice.-The Act of April 28th 1870, fixing and widening the line of Chestnut street, provided that it should not interfere with any buildings now erected on the south side of that street;" the front of a building was taken down and a new front erected on the line prescribed by the act; ornamental columns, pilasters, &c., to the front were extended fifteen inches beyond the line : Ileld, that these were not prohibited by the act: City of Philadelphia's Appeal, 78 Pa.

According to the ordinary course of equity practice, when a case is heard on bill and answer, the allegations of fact in the answer are admitted : ld.

In a bill for injunction, if the question is doubtful, it is decisive against the injunction; chancery will not decree an injunction except in a clear case of the invasion of a public or private right: Id.

No usage, however long continued, will justify an encroachment upon a highway; but such cncroachment, to be remedied by injunction, must be really an obstruction to the free use of the highway : Id.

HUSBAND AND WIFE. Validity of Agreements betweenStandard of Proof in such casesBurden of Proof- Invalid Gift from Husband to Wife.—Where articles of household furniture were purchased by a husband in pursuance of an antecedent agreement with his wife, that he should advance the money, and she would reimburse him, which she afterwards did, it was Helil: 1st. Thit agreements of this kind between husband and wife,



when the latter has a separate estate, are valid and binding upon both parties; and if bonâ fide, and consummated, the property purehased by such agency becomes the goods of the wife. 2d. That no higher stand. ard of proof of such agreements is required than in other civil cases; a preponderance of evidence being all that is necessary. 3d. That in an action by the wife to recover damages for the illegal seizure and sale of said articles of furniture, under an execution against her husband, the burden of proof was on her to show that they were her separate property when so seized and sold : Myers et al. v. King, 42 Md.

A gift from a husband, who is insolvent, to his wife, is in prejudice of the rights of his subsisting creditors, and the wife can acquire no valid title to the same: Id.

INFANT. See Misnomer.

LIMITATIONS, STATUTE OF. Actions on ground of Fraud What is included under— Pleading.– Sect. 18 of the code, which provides, among other things, that " an action for relief on the ground of fraud,” can only be brought within two years after the cause of action shall have accrued, and that "the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud," applies to actions for damages founded upon fraud, as well as to actions for equitable relief founded upon fraud : Young v. Whittenhall, 15 Kans.

Where the petition in such a case shows upon its face that the fraud upon which the cause of action is founded was consummated more than two years before the commencement of the action, the plaintiff must further set forth in his petition that he did not discover the fraud until within less than two years before the commencement of the action, or his petition will be held defective on demurrer : ld.

LICENSE. See Constitutional Law.
LOCAL OPTION. See Constitutional Law.

MALICIOUS PROSECUTION. Special Damages— Must be declared for — The declaration in an action for malicious arrest was general; under it only such general damages as the law presumes would follow from the arrest could be recovered: Stanfield et al. v. Phillips, 78 Pa.

To recover special damages the declaration should set out with particularity the causes which produced them: Id.

Evidence of special damages can be given only where they have been properly averred in the declaration : Id.

In an action for malicious arrest, under the Act of July 12th 1842, of the plaintiff, who was a merchant, the court allowed a witness to be asked, “ in what manner the plaintiff was injured in credit and circumstances and to what extent:" Held to be error: Id.

Exemplary or Punitive Damages - Want of Probable Cause.-In an action for malicious prosecution, the plaintiff is entitled to recover, if it appear that the defendant instituted, or caused to be instituted, the

prosecution under which the former was arrested, maliciously and without probable cause, and that said prosecution was terminated by the discharge of the plaintiff before the institution of his action : Mc Williams v. Hoban, 42 Md.

If, in an action for malicious prosecution, the jury find for the plaintiff, they are at liberty to take into consideration all the circumstances of the case, and to award such damages as will not only compensate the plaintiff for the wrong and indignity he has sustained in consequence of the defendant's wrongful act, but may also award exemplary or punitive damages as a punishment to the defendant for such act: Ía

In an action for malicious prosecution, the court may properly instruct the jury, that if they find that there were no circumstances connected with the transaction out of which the prosecution arose, which would warrant a reasonable, dispassionate man in believing the plaintiff to have been guilty of the charge made against him, and in undertaking such prosecution from public notives, then there was no probable cause for the prosecution, and the jury may infer, in the absence of sufficient proof to satisfy them to the contrary, that such prosecution was malicious in law : Id.

MASTER AND SERVANT. Liability of Master for injury to Servant-Duty of Master to furnish proper Machinery, &c.-It is the duty of every employer to exercise reasonable care in providing his laborers with safe machinery, suitable tools and appliances, adapted to the uses for which they are designed : Mullan v. Philadelphia and Southern Muil Steamship Co., 78 Pa.

Where a master places the entire charge of his business, or a distinct branch of it, in the hands of an agent, exercising no discretion and no oversight, the neglect by the agent of ordinary care in supplying and maintaining suitable instrumentalities, is a breach of duty for which the master is liable: Id.

The risk which a laborer assumes of injury from the neglect of his fellow, is when they are co-operating in the same business, so that he koows that the employment is one of the incidents of their common service : Id.

The plaintiff was engaged as a laborer, under a stevedore employed by the ship-owner, in unloading a vessel ; the rope by which the load was raised was one that had been spliced by the mate before the arrival of the vessel at port, and was used as a “ single fall,” which was more liable

than “ double fall.” Whilst raising a cask, the rope parted at the splice, the cask fell and injured the plaintiff. Whether the stevedore was a fellow-workman of the plaintiff, and whether the negligence of the mate in splicing the rope was a risk assumed by the plaintiff, were, under the circumstances, for the jury : Id.

It was proper for plaintiff to ask of a witness if, at or immediately after the accident, he heard the stevedore say anything concerning the rope or its insufficiency : Id.

MISNOMER. Party served by wrong Name, though an Infant, bound by.—Where the real party in interest and the one intended to be sued is actually served with process in the cause, even though under a wrong name, be

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