TENDER, Estoppel Arising from Refusal of.-If the assignee
of a contract for the sale of real property tenders his own promissory
note in payment of the residue of the purchase price, and offers to
execute a mortgage on the property to secure its payment, and the
tender is refused on the express ground that the vendors do not wish
the money, and with a refusal to do anything in the matter, they are
estopped in a suit for specific performance from defending on the
ground that the obligation of the original vendee was personal, and
his note should have been tendered instead of that of his assignee.
(Cal.) Montgomery v. De Picot, 84.
MUNICIPAL CORPORATIONS-Ordinances Control of Thea-
ters. A municipal ordinance making it the duty of the chief of the
fire department to assign a fireman to all performances in any theater,
he to be paid by the manager of such theater, is within the charter
power of the city and a valid exercise of its police power. (Ala.)
Tannebaum v. Rehm, 52.
TRADEMARK.-The Name of a Newspaper is in the nature
of a trademark, and passes by an assignment in connection with the
business in which it is used; but apart from the article or business to
which it is affixed, it confers no right of ownership. (Md.) Sea-
brook v. Grimes, 400.
1. EVIDENCE to Show that Trespassers Expelled were Armed.—
In an action to recover for personal injuries inflicted by the defendants
in an effort to take possession of their property by force, evidence is
admissible on their part to show that the employers of the plaintiff
took possession of such property by force, and were armed when tak
ing such possession and when resisting the defendants' effort to retake
possession. Such evidence shows the character of the force which the
defendants had the right to anticipate and overcome. (Cal.) Walker
. Chanslor, 61.
2. REAL PROPERTY-Right of Owner to Expel Intruders.-At
the common law an owner of real estate had the right to enter upon
it to expel by force intruders, and in doing so was entitled to use all
the force necessary to secure possession, and therefore is not subject
to an action of tort for damages resulting from his entry or from any
assault upon, or physical injury sustained by, one in wrongful posses-
sion, provided no more force is used than is necessary to dispossess
him. This common-law rule remains in force in California, except in
:80 far as it has been changed by provisions of the code relative to the
summary remedy provided therein for the forcible entry upon real
property. (Cal.) Walker v. Chanslor, 61.
3. APPEAL AND ERROR-Rejection of Evidence, When cannot
be Regarded as Nonprejudicial.—If a court errs in rejecting evidence
offered by the defendants in an action to recover for personal injuries
inflicted on them by the plaintiff for the purpose of showing that the
defendants were the owners of real property and entered thereon to
expel an intruder and his employés, and used no more force than was
necessary in so doing, and the jury has awarded plaintiff a sum for
exemplary damages and another sum as actual damages, the judg
ment cannot be affirmed as to actual damages on the ground that it
appears from the evidence that the defendants used unnecessary force
and violence, where it also found that the defendants had not title
and were trespassers ab initio, and had no right or business on the
land, and were there in violation of law. (Cal.) Walker v. Chanslor,
61.
TRIAL-Order of Proof-Discretion of Court.-The order of
proof is a matter within the sound discretion of the trial court, the
exercise of which will not be disturbed on appeal except in case of an
abuse. (Or.) First Nat. Bank v. McCullough, 758.
See Criminal Law, 6-9; Jury.
1. CONVERSION-Sufficiency of Allegations by Administrator.-
A complaint by an administrator alleging that the defendants had the
decedent's money in their possession at the time of the death and
retain the same in their possession, and have converted it to their own
use, sufficiently alleges a taking and conversion of the money before
the death of the decedent; and an allegation that, although often
requested to do so, they refused to pay the same to the plaintiff as
administrator, does not limit the right to recover for a conversion
after the death. (Wis.) Meyer v. Doherty, 967.
2. CONVERSION-Procuring Lunatic to Draw Checks.-A son
who procures his mentally incompetent mother to draw checks upon
her bank account, and obtains the money thereon, is liable to her, or
to her personal representatives after her death, as for a conversion of
the money. (Wis.) Meyer v. Doherty, 967.
3. CONVERSION.-A Demand is Unnecessary to Perfect a Cause
of Action for the conversion of money, where the defendant obtained
it through wrongful conduct, but denies all possession or appropria-
tion. (Wis.) Meyer v. Doherty, 967.
4. CONVERSION.-A Complaint in the Usual Form of Conversion
is sufficient under the rules of the Wisconsin code, without stating the
particulars of the claim. (Wis.) Meyer v. Doherty, 967.
1. TRUST-Extension by Implication.—The scope of duration of a
trust will not be extended by mere implication beyond the plain and
reasonable construction of the language employed in creating it.
(Md.) Seabrook v. Grimes, 400.
2. TRUST DEED-Effect of the Payment of the Debt Which It
was Given to Secure.-Upon the payment of a debt to secure which a
deed of trust to real property was given, the property at once, without
any reconveyance, revests in the persons who owned it before. (Cal.)
Nilson v. Sarment, 91.
TUBERCULOSIS.
See Health Regulations.
1. CONTRACT for the Sale of Lands-Tender of a Promissory
Note of a Person Other than the Original Contractor.-If a contract
for the sale of lands calls for notes of the vendee for deferred pay.
ments of the purchase price, his personal liability enters as a con-
trolling element into the contract. Hence, the offer of the notes of
the assignee does not satisfy the contract nor warrant him in assert-
ing the right to specific performance. (Cal.) Montgomery v. De
Picot, 84.
2. VENDOR AND VENDEE. A Grantee in a Bond for a Deed
who assigns his interest in the bond to third persons becomes a trustee
of such interest in their favor, and on the conveyance of the legal
title he holds it for their benefit. (Colo.) Wolfe v. Childs, 152.
3. VENDOR AND VENDEE-Bona Fide Purchaser.-Where one
of the tenants in common in a mining claim executes a bond for a
deed to a person who thereafter assigns a half interest in the bond,
the bond and assignment being recorded, and subsequently the grantee
in the bond obtains a conveyance of the legal title, his successor
takes subject to the rights of his assignees and holds the legal title in
trust for them. (Colo.) Wolfe v. Childs, 152.
See Attachment, 2, 3.
VOLUNTEER EMPLOYÉ.
See Master and Servant, 3, 4.
See Limitation of Actions, 5.
WARRANTY.
See Sales, 8-15.
WATERS AND WATERCOURSES.
1. WATERS-Artesian Wells-Rights in Acquired by Conveyance.
If an owner of lands on which is situated an artesian well conveys
the waters thereof, estimated by inches of miner's measurement, and
subsequently grants part of such lands, subject to the existing rights
of all persons to take waters from such well, the grantee must respect
the rights of the persons having prior conveyance of such water.
(Wash.) Charon v. Clark, 896.
2. WATERS-Artesian Wells-Injunction to Protect Rights in.-
If the owner of lands on which is an artesian well conveys portions of
the waters thereof, his grantees are entitled to an injunction against
a subsequent grantee with notice to prevent such diversion by him of
the waters of the well as infringes on the complainant's rights.
(Wash.) Charon v. Clark, 896.
3. WATERS of Artesian Wells-Conflict Between Grantees of.-
If there are several grantees of waters flowing from an artesian well
by grants of different dates, and it appears that the original grantee
has conveyed more than the actual amount flowing in the well, or the
flow becomes diminished, his first grantee acquires rights paramount
to the subsequent grantees with notice and has the right to retain the
specific amount granted to him. (Wash.) Charon v. Clark, 896.
See Navigable Waters.
See Municipal Corporations, 15-18.
CONSTITUTIONAL LAW.-It is Within the Power of the
State to Adopt a Uniform System of Weights and Measures, and to
require all persons whose business transactions require the use of the
same to conform thereto. (Ark.) McLean v. State, 1037.
In General-Description of Property.
1. WILLS-Parol Evidence, Though not Admissible to change the
language of a will, may be received when necessary to identify the
subjects and objects of the testator's bounty. (Ill.) Collins v. Capps,
232.
2. WILLS.—However Many Errors There may be in a Description,
either of the devisees or of the subject of a devise, the gift will not
be avoided, if enough remains after rejecting the errors to show with
certainty what was intended, when considered from the position of
the testator. (Ill.) Collins v. Capps, 232.
3. WILLS Rejection of False Description.-Where a testator de-
vised the "west half" of a certain quarter section "containing about
seventy-six acres," when the only land owned by him in that county
was seventy-six acres in the north half of that quarter section, the
word "west" may be stricken out and the will be given effect as a
gift of the seventy-six acres in the section which he owned, though
there is a residuary clause. (Ill.) Collins v. Capps, 232.
4. WILLS.-It is Presumed that a Testator Intended to dispose of
his own land. (Ill.) Collins v. Capps, 232.
5. WILLS-Agreement to Make in Favor of a Party, Statements
Which do not Amount to.-A statement by a father and mother that
their son A should have the farm at their death, though made in his
presence, affords no evidence of a binding contract. It is consistent
with the thought that it was their purpose to give him a gratuitous
preference on their deceased. (Mich.) In re Colburn's Estate, 479.
6. WILLS, Agreement to Make in Favor of a Son, When does
not Sustain an Action for His Services.-An agreement between par-
ents and their son that he shall live with them on a farm and work
there until their death, when it is to be given to him, does not, in
the event of their surviving him, support an action in favor of his
representatives for the value of his services, the farm not having
been given to him nor to his heirs. (Mich.) In re Colburn's Estate,
479.
7. WILLS-Contract to Defeat Probate, When Void.-A contract
by beneficiaries in a will to compensate the executor and trustee
named therein if he will defeat its probate, so that the estate will
descend to them in fee and thereby cut off an interest in remainder
created by the will in favor of one not a party to the agreement,
is against public policy and no recovery can be had thereon. (Iowa)
Cochran v. Zachery, 307.
8. WILLS-Agreement to Contest, When Champertous.-A con-
tract whereby the executor and trustee in a will agree, for a consid-
eration, to contest the probate of the testament is void as a species
of champerty or maintenance. (Iowa) Cochran v. Zachery, 307.
Fraud, Undue Influence, Unnatural Disposition.
9. WILLS-What Amounts to Undue Influence.-The influence
which vitiates a will must be exerted upon the testator to such a
degree as to amount to force or coercion, or by importunities which he
could not resist, so that the motive was tantamount to force or fear.
(Md.) Saxton v. Krumm, 393.
10. EVIDENCE in Will Contests.-The contents of former wills
may be admitted in will contests as tending to establish fraud, duress
or undue influence in the will contested. (Utah) In re Young's
Estate, 843.
11. WILLS-Unnatural Disposition of Property.-Neither an illicit
relation between the testator and his beneficiary, nor an unjust and
unnatural disposition of his property, is sufficient per se to warrant
a conclusion of undue influence. They are circumstances properly to
be considered by the jury in connection with evidence of undue in-
fluence, but are not in themselves evidence either of fraud or undue
influence. (Md.) Saxton v. Krumm, 393.
12. WILLS.-Where a Testator Gives All His Property to His
Mistress, and makes no provision for his relatives, including an aged
and dependent sister, this raises no presumption of undue influence,
and the will must be given effect in the absence of any other vitiating
circumstances. (Md.) Saxton v. Krumm, 393.
13. WILLS-Life Estate in Perishable or Consumable Property.—
A bequest for life of property which is consumed in use, such as a
newspaper plant, together with the subscription list and goodwill of
the business, vests title absolutely in the life tenant. (Md.) Sea-
brook v. Grimes, 400.
14. WILLS-Legacy, When Lapses. On the death of the legatee
of a pecuniary legacy before that of the testator, the legacy lapses.
(Mass.) Dresel v. King, 459.
15. WILLS-Lapsed Legacy, When Passes Under a Residuary
Clause. On a bequest of legacies to several persons, if one of them
dies before the testator, his legacy is ordinarily to be disposed of
under the residuary clause, if there is one. (Mass.) Dresel v. King,
459.
16. WILLS-Lapsed Legacy, When Goes to the Next of Kin and
not to the Residuary Legatees.-If a testator, after making a disposi
tion of part of his property, directs his executors to convert the rest
into cash and divide it among legatees previously named in propor-
tion to their several legacies, and one of them dies before the
testator, the legacy lapses, and does not go to the other legatees
under the residuary clause, but to the next of kin. (Mass.) Dresel
v. King, 459.
17. WILLS-Lapse of a Legacy Given by the Residuary Clause.—
If a legacy is itself part of a residuary clause, it cannot fall into that
residue, and must pass as intestate estate if it lapses by the death
of the legatee before that of the testator. (Mass.) Dresel v. King,
459.
Privileged Communications.
1. EVIDENCE- Privileged Communication-Personal Nature of
the Privilege.-A communication made to an attorney is privileged
or not at the option of his client. If the client waives the privilege,
neither the attorney nor anyone else may invoke it. (Utah) In re
Young's Estate, 843.
EVIDENCE-Privileged Communication-Effect of Statute.—
The mere fact that common-law privilege is declared in a statutory
form does not extend the scope of its operation. (Utah) In re
Young's Estate, 843.
3. EVIDENCE-Privileged Communications-Construction of Stat-
ute. If the statute respecting privileged communications is merely
declaratory of the common law, the statute should be applied under
the ules in force at the common law. (Utah) In re Young's Estate,
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