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standing in his name in a bank, because it was there subject to his order, or
the order of his daughter ; nor does the delivery of the book of deposit consti-
tute a delivery of the money. Murry v. Cannon, 57.
4. As to gifts of chattels without delivery, see note to Ray v. Simmons, 705.
GOLD. Sec INSURANCE, 18.
GOVERNMENT, See ConstitUTIONAL LAW, 1, 38; CONTRACT, 16.
1. A government de facto, in firm possession of any country, is clothed
while it exists with the same rights as a government de jure. Phillip; v.
2. For certain purposes the states of the Union are regarded as foreign to
each other. Id.
3. The state of Virginia is de facto in possession of the county of Alexan-
dria, and her title has been undisputed since she resumed possession under the
Act of Congress of July 9th 1846. The United States has no power, there.
fore, to consider the legislation of Virginia in reference to the county of
Alexandria as void and of no effect. Id.
1. The obligation of one signing and sealing a guaranty, which it was in-
tended should be signed by him alone, is not impaired by the fact that the
guaranty concluded " in witness whereof we have hereunto set our hands and
affixed our seal. Mitchell'v. McCleary, 379.
2. If a guaranty is absolute, and not a mere offer to guarantee, notice of
its acceptance is not requireil to make the guarantor liable thereon. Id.
3. To constitute' a valid guaranty, there must be a sufficient consideration,
a delivery by the guarantor, an acceptance by the person to whom it is given,
a subsequent delivery of goods or other property under and in accordance with
its terms, and, if it is collateral, request of payment and notice of non-pay-
March v. Putney, 499.
4. Notice is not necessary when the undertaking is absolute. Id.
5. Where the person for whose benefit the guaranty is given becomes in-
solvent, so that no advantage can arise to the guarantor, notice is unneces-
GUARDIAN AND WARD.
1. 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 ar-
rival at age. Marr's Appeal, 312.
2. Where there was a settlement with the ward, and a release to the guar-
dian after she came of age, and on the joint application of the ward and her
guardian, a decree made discharging the guardian, the decrec could not be
vacated without proof of some specific act of fraud in obtaining it, or of some
injury occasioned by it.
HABEAS CORPUS. See Courts, 9, 10.
Ilabeas corpus is not the proper remedy where the relator has been convicted
and sentenced for a criminal offence; if errors have occurred in the proceed-
ings or sentence, a writ of error is the proper remedy. Ex parte Van Flagan,
HAWKERS AND PEDLERS.
1. The legislature under the police power might prohibit entirely the busi-
ness of hawking and peddling ; and the power to prohibit includes the power
to license. Morrill v. The State, 188.
2. Act of 1870 of Wisconsin construed. Id,
HEIR. Sce Conflict of Laws, 7.
HIGHWAY. See MUNICIPAL CORPORATION, 1, 3.
1. As to Act of April 28th 1870, of Pennsylvania. Sec City of Philadel-
phia's Appeal, 313.
2. In a bill for injunction, if the question is doubtful, it is decisive against
the injunction. Id.
3. No usage, however long continued, will justify an encroachment upon a
highway ; but such encroachment, to be remedied by injunction, must be
really an obstruction to the free use of the highway. City of Philadel-
pia’s Appeal, 313.
1. Under the law of Wisconsin only the actual home of the debtor is
exempt, and the absence which will not destroy the exemption is one for a
temporary purpose, with the certain intention of returning. Jarvis v. Moe,
2. A person cannot have two homes at the same time ; and such a removal
as gains a new home is an abandonment of the old. Id.
3. The presumption is that a person is at home where he is found living ;
but this presumption may be rebutted by showing his abode temporary, and
his home elsewhere. Id.
HUSBAND AND WIFE. See EVIDENCE, 10, 12 ; INSURANCE, 19-21 ; Lim-
ITATIONS, STATUTE OF, 5.
I. Marriage and Dworce.
1. Where an illicit connection has once existed, the presumption is that
the connection between the parties continued to be illicit, until that presump-
tion is overcome by distinct proof of marriage. Barnum v. Barnum et al.,
2. Marriage may be proved in civil cases, other than actions for seduction,
by reputation, declarations and conduct of the parties ; but where reputation
in such case is divided or singular opinion it amounts, to no evidence at all.
3. The declarations of a mother as to the marriage of her son, arc admis-
sible after her death, to show that one who claimed and was admitted to be
his son, was illegitimate. Id.
4. General repute in a family, proved by surviving members of it, is ad-
missible upon a question of marriage. Id.
5. Upon a question of legitimacy the declarations of a father that his son
was illegitimate are competent evidence. Id.
6. A decree pro confesso cannot be made upon a libel in divorce. If either
party does not attend, the court must decide on testimony taken ex parte. Kil.
born v. Field et iur., 380.
7. A contract between husband and wife, pending proceedings in divorce,
to pay her a sum of money, the consideration of which was, in whole or iti
part, that she would not oppose the divorce, is void. Id.
8. A father died, leaving a widow. His homestead descended to his two
sons. In consideration of their having the use and income of the whole es-
tate, the sons, in writing, promised the widow an occupancy of a portion
of the premises, and certain farm stock for her use, and a certain
yearly payment. Afterwards, onc son conveyed to the other. The latter then
conveyed the entire premises to his mother by a warranty deed. Then he
dicd, leaving a widow. In an action of dower by the widow of the son,
against the widow of the father, it was held, that there are two dowers in the
estate ; the senior widow having one-third of the whole, and the junior widow
one-third of the remaining two-thirds, as dower ; and that the junior widow
is not now, nor will she be at the death of the senior widow, dowable in any
greater proportion thereof. McLeery v. NicLeery, 424.
9. Under the Ohio Dower Act an estate conveyed as jointure must be such
an estate, as to certainty and kind, that the wife, on the death of her husband,
may take possession of, and hold in severalty, and not in common with oth-
Grogan v. Garrison, 652.
10. An antenuptial contract which conveys an undivided one-third part, or
any other interest in common with others, in lieu of dower, is not a good
statutory bar. ld.
il. Whether such an estate will constitute a good equitable jointure de-
pends on the facts and circumstances of the case, and when such contract is
HUSBAND AND WIFE.
pleaded, the facts, and not the pleader's conclusions, must be stated. Grogan
v. Garrison, 652,
12. The antenuptial covenant of a woman, that she will not claim dower,
cannot, in an action by her for dower, operate to bar such action, either by
way of release or estoppel, where such antenuptial contract does constitute
either a legal or equitable bar. Id.
13. In a proceeding to have a deed declared fraudulent and void as against
the rights of the widow of the grantor, his declarations to the conveyancer
with respect to the deed, and his object and purpose in making it, being con-
temporaneous with its preparation and execution, are admissible in evidence.
Sanborn v. Lang, 57.
III. Separate Estate. See BANKRUPTCY, 20; Gift, 2.
14. A wife may charge her separate estate to pay her husband's debts.
Stephen v. Beale et ut., 252.
15. Where articles of household furniture were purchased by a husband for
his wife, and she agreed to reimburse him, having a separate estate, it was
held that the agreement was valid. Myers et al. v. King, 314.
16. A gift from a husband, who is insolvent, to his wife, is in prejudice of
the rights of subsisting creditors, and she takes no title. Id.
17. A husband borrowed from his wife a note given her for her separate es-
tate, and gave her a note for the amount; this note he afterwards secured by
assigning to her use a judgment he had paid off. Held not a fraud on cred-
itors. Drury v. Briscoe, 379.
18. In order to defeat a settlement made by a husband upon his wife, it
must be intended to defraud existing creditors, or creditors whose rights are
expected shortly to supervene, or creditors whose rights may and do so
supervene. Smith et al. v. Vodges, 743.
19. As to part payment for property by wife and part by insolvent husband,
see Sheaffer v. Fithan, 684.
20. Where land was bought and improved by a wife with money acquired
before marriage and with her subsequent carnings, and the husband acqui-
esced for fifteen years in her holding the land in her own name, it was held
that in a controversy between the parties after a divorce, the property be-
longed to the wife. Jackson v. Jackson, 557.
IV. Contracts and Conveyances.
21. The contract of a married woman to pay for services of an attorney in
prosecuting a libel for divorce against her husband is not binding. Whipple
v. Giles, 113.
22. A married woman cannot bind herself by a mere personal contract so
that an action can be maintained against her after the coverture has ceased,
nor will such contract be implied against her by reason of services rendered
during her coverture. Id.
23. As to statutory validation of previous conveyance of land by husbanil
and wife, see Randall v. Kreiger, 500.
24. Weyman, by parol bought land from O'Hara, took possession, made
improvements and paid part of the purchase-money. His wife horrowed the
remainder of the purchase-money from Butterfield, paid it to O'Hara, who
made the deed to her, and she mortgaged to Butterfield, the husband not join-
ing. Held, that the husband owning the equitable title, could not compel a
conveyance of her legal title without refunding the purchase-money she had
paid. Butterfield's Appeal, 123,
25. Butterfield recovered judgment against the wife on his mortgage ; the
land was sold by the sheriff on a municipal claim against both husband and
wife. Held, that this divested the title of both and in the distribution of the
proceeds, Butterfield was entitled on his judgment to recover the amount of
the wife's interest in the fund, being the purchase-money which she had paid.
IDEM SONANS. See EvideNCE, 2.
INFANT. See MisxoMER ; PARENT and Child.
1. Where infants purchased land and gave purchase-money mortgages,
their electing to retain possession after reaching their majority, was a ratifica-
tion). Calles v. Day, 189.
2. Where an infant purchases a chattel and gives a purchase-money mort-
gage, he cannot, on the ground of infancy, aroid the mortgage without also
avoiding the purchase. Curtiss v. McDougall, 500.
3. Plaintiff was present and assenting when his minor daughter entered
into a contract in writing with a school board, as teacher, which was signel
by her in her own name, and not hy him. In the absence of other proof of
any intention on his part to relinquish his right to her wages : Ileld, that he
may maintain an action against the board for such (unpaid) wages. Mona-
ghun v. School District, 252.
4. As to the School Act of 1872 of Wisconsin. Id.
INJUNCTION. See Contract, 6; Covenant, I; EQUITY, 11, 19; High-
WAY, 2, 3; WATERS AND WATERCOURSES, 2.
INNKEEPER. See RAILROAD, 7, 8.
INSANITY. See Evidence, 14 ; INSURANCE, 22 ; WILL, I.
INSOLVENT. See CORPORATION, 25, 28, 31 ; DEBTOR AND CREDITOR,
INSURANCE. See CORPORATION, 8; EVIDENCE, 10 ; SET-OFF, 5; WAR, 1.
1. Where a policy of insurance containing an acknowledgment of the receipt
of the premium, has been issued and delivered to the assured, the insurance
company will not be permitted to allege a want of consideration for its promise
when sucd thereon, after a loss has happened. Ins. Co. v. Cashow, 58.
2. A life-policy reciting the payment of the first quarterly premium cannot
be disproved by the insurance company. Teutonia Life Ins. Co, v. Muller,
3. The testimony of experts and particularly of underwriters is always
admissible upon the question of the materiality of circumstances affecting the
risk. Leoch v. Ins. Co., 532.
4. Where property is insured, and the insurer re-insures, and it is destroyed
by fire, and before the loss is paid, the original insurer becomes bankrupt,
and the assured receives but a small dividend out of the bankrupt's estate,
the re-insurer is still liable to pay the whole amount of the re-insurance to
the trustee of the original insurer, without deducting the dividend, and the
original assured has no claim in respect of the money so paid. Consolidated
Ins. Co. v. Cashow, 58.
5. On a bill of interplender filed in a Marylanıl court, to settle the con-
flicting claims of two parties under a policy of insurance made payable in
Philadelphia, growing out of an assignment of the policy made in the city
of New York, both parties having appeared to the suit, the case must be dis-
posed of according to the law of Maryland. Whiiridge v. Burry, 339.
II. Conditions, &c., in Policies.
6. An over-valuation of property by the insured, is a fraud upon the in-
surance company that avoids the policy, but it is a question of good faith.
Fire Ins. Co. v. Vaughan, 555.
7. Policies like other contracts, are to receive a reasonable construction,
so as not to defeat the intention of the parties. West v. Citizens' Ins. Co.,
8. A policy issued to a mercantile partnership on a stock of goods owned
by the firm and with which they are carrying on business is not avoided by
a sale by one partner to his copartners, who continue the partnership business,
of his interest in the stock of goods. Id.
9. In case of loss after such sale and transfer, the remaining partners,
being the real parties in interest, should sue on the policy, and in such action
they are not limited in the amount of recovery to their interest in the part-
nership goods before such sale and transser, but can recover for the whole
10. A policy of insurance which contains a condition that the insured pro-
perty shall not be alienated or encumbered, may be avoided by the insurer
where a sale or encumbrance is effected without his consent. Homs Ins. Co.
v, Lindsey, 685.
11. In an action on a policy of insurance which contains a condition, the
petition must allege performance of the condition, Id.
12. A policy that if the interest insured be not in fee simple in case of real
estate, or absolute as to personal property, such must be made known to the
company, and expressed in the policy, mcans when the united interest of the
insured in the property was less than absolute. Rankin v. Andes Ins. Co., 58.
13. The owner may sue in his own name, although it may be written on
the face of the policy : “Loss, if any, payable to A. B.; as mortgagee.”
Martin v. Franklin Fire Ins. Co., 229.
14. The direction on the policy to pay to the mortgagee is not an assign-
ment of the policy. Its legal effect is that of a direction in advance as to the
mode of payment, which, when made, is performance in the manner agreed
to by the insured. Id.
15. In an action on such a policy in the name of the insured, if the insurer
has paid the insurance-money to the mortgagee, he may plead such payment
as performance, and the rights of the mortgagee can be protected, and the
insurer obtain indemnity against a subsequent suit by the mortgagee by the
payment of the money into court. Id.
III. Marine Insurance.
16. In all contracts of marine insurance there are certain implied condi-
tions which are of the same force as if written in the policy, and are distin-
guishable from mere representations. Lectch v. Atlantic Mut. Ins. Co., 532.
17. Among these conditions, in case of an insurance on cargo, is that it
shall be stowed in a safe and proper manner and in the usual and customary
place for the carriage of goods of the kind insured. Any breach of this con-
dition by which the risk is varied and the perils increased avoids the policy.
18. Gold being stowed in the rear of the vessel under the cargo, and the
testimony being clear that that was not the customary place and was a place
of greater hazard than the cabin, where coin is usually stowed, the judge
should have directed the jury, as a matter of law, that that was a material
variation of the risk. Id.
IV. Life Insurance.
19. A policy of insurance taken on the life of a husband for the sole use of
his wife, and payable to her or her assigns, is a chose in action of the wife's,
which she has the right to assign or otherwise dispose of with her husband's
Whitridge v. Barry, 339.
20. The signature of a feme corort to the assignment of a policy of insurance
effected for her sole use, made with the consent of her husband is sufficient,
without his signature. But whatever the nature of the transfer, from regard
to the interests of husband and wife, it must be made with the concurrence
of the husband, express or implied. Id.
21. A policy of insurance was taken on the life of a husband for the sole
use of his wife, and payable to her or her assigns. The wife, influenced by
the importunity of her husband, amounting to duress, attached her signature
to a blank printed form not attached to the policy, without name of assignee
or date, or designation of the policy, and with no direction from her as to
filling the blanks or delivery of the assignment or policy. B. having
advanced to the husband certain promissory notes to a large amount, which
he had finally to pay, upon the faith of the husband's securing him by the
assignment of policies of insurance and other property, the husband caused
the assignment to be filled up with a transfer of the policy aforesaid to B.,
and delivered this assignment and subsequently also the policy itself to B.
Upon the death of the husband, in a contest between the wife and the assignee
of B, (for the benefit of creditors), as to which was entitled to recover on the
policy, it was held, 1. That B.'s assignee could claim no greater right than
B. held in the policy ; 2. That the wife was entitled to recover. Id.
22. Insanity, whereby all power of self-will is lost, will excuse the act of