I. Generally.

1. An instruction that the jury may infer a promise to marry, from evi-
dence of conduct of the parties, such as the visiting and understanding of the
friends and relatives, and reception of the defendant as a suitor, is erroneous.
Walmsley v. Robinson, 55.

2. Evidence that defendant kept spirituous liquors for sale at a certain date,
is admissible as tending to show he still kept them. State v. Colston, 122.

3. The result of an examination of a bank's books may be proved by the
persons making it. where the books are too numerous to be examined in
Button v. Driggs, 196.

court.

4. Certified copies of all records in the secretary's office are evidence where
the original would be. Northumberland County v Zimmerman, 125.

5. The commission of the governor is the proper evidence of the appoint-
ment of an officer. Id.

6. A verbal promise, if used to obtain the execution of a writing, may be
given in evidence. Powelton Coal v. McShain, 196.

7. Indebitatus assumpsit will not lie on a special contract unless has been
fully performed by plaintiff. Id.

8. In an action against an express company for a trunk, plaintiff may tes-
tify as to contents. Adams Express Co. v. Schlessinger, 196.

9

Evidence that plaintiff was a person of wealth is admissible.

Id.

10. At common law courts had the power to order inspection of papers, but
in the exercise of such power will not take them from one party and deliver
to the other. Hillyard v. Township of Harrison, 254.

11. Identity of name is evidence of identity of persons in proving a mar-
riage by certificate. Hutchins v. Kimmel, 255.

12. The rule in United States courts as to the introduction of secondary
evidence, is that it must be the best the party has in his power to produce.
Cornett v. Williams, 828.

13. The English rule that there are no degrees in secondary evidence is
not in force. Id.

14. The Act of March 3d 1871, nor the statute of Texas of February 11th
1850, does not change the rule. Id.

15. Where the description in the deeds of demandant is the same as in the
writ, no other identification of the premises is necessary. Rund v. Skillen et

ur., 395.

16. Personal identity may be established by circumstantial evidence. Luke
v. County of Calhoun, 395.

17. Courts will judicially notice the art of photography and its results.
Id.

Id.

18. A photograph is admissible in evidence on a question of identity.
19. In an action for goods sold where the plaintiff's evidence showed that
the defendant agreed to take the goods and pay their cost, a nonsuit cannot
be entered even if there is no evidence of the cost. Watts v. Sawyer, 457.
20. Evidence of the value of the goods is admissible. Id.

21. Whether a memorandum made by a witness can go to the jury depends
upon whether, after examining it, he can state the fact from memory. Id.

22. When a plaintiff introduces secondary evidence of a bill of lading, the
presumption is that he satisfied the court that he could not procure either of
the originals. Dyer v. Fredericks, 458.

23. He cannot afterwards object to the introduction of parol testimony by
defendant, to rebut his evidence.
Id.

24. Evidence of defendant's reputation for wealth is admissible in an action
of slander. Stanwood v. Whitmore, 463.

25. Evidence of conductor's intention, in putting a passenger off a train, is
admissible. Vankirk v. Pennsylvania Railroad, 463.

26. In replevin evidence of title in a stranger is admissible on part of de-
fendant. Schulenberg v. Harriman, 464.

27. Where two persons are murdered at the same time, evidence of the cir-
cumstances of the murder of one, is admissible on the trial for murder of the
other. Brown v. Commonwealth, 581.

28. On a trial for murder evidence that prisoner had in his possession coin,
specie payments being suspended, and that the murdered man had received a
quantity of coin, though several years before, is admissible. Id.

EVIDENCE.

29. The testimony of another prisoner, that the defendant confessed his
guilt through the soil pipes, and he knew him from his voice, is admissible.
Brown v. Commonwealth, 581.

30. A photograph testified to be like the body is properly submitted to the
jury. Udderzook v. Commonwealth, 583.

31. Photography is to be judicially noticed as a means of producing cor-
rect likenesses. Id.

32. G. being in the habit of becoming intoxicated, proof that one called W.
had same habit, is evidence on the question of identity of G. and W. Id.
II. Admissions, Declarations, &c. See supra, 29; HUSBAND AND WIFE, 8;
LIMITATIONS, 3; PASSENGER, 7.

33. Verbal declarations of donor made contemporaneously with the gift
are competent to explain it. Eaton v. Cook, 327.

34. Declarations of one in possession of real estate, are competent to rebut
title of one claiming under him. South Hampton v. Fowler, 395.

35. As to pedigree, are confined to declarations of family. Id.

36. Of party's ancestor not in possession and since deceased, are inadmis-
sible. Id.

III. Experts. See INSURANCE, 15.

37. The testimony of other builders as to the proper height to run a wall,
is admissible as an expert's opinion. Haver v. Tenney, 55.

38. To render an expert's testimony admissible, his pursuit must be one of
science, skill, trade or the like. Hamilton v. Railroad Co., 55.

39. A brakeman is not an expert. Id.

40. Experts can make comparisons between the writing in dispute and
others which are proved to be genuine. State v. Hastings, 122.

41. After evidence of the genuineness of a writing has been given, experts
may be called to attack or support it. Ballentine v. White, 755.

EXECUTION. See COURTS, 4; LANDLORD AND TENANT, 8.

1. A temporary track owned by the contractors who built a railroad, is
personal property and may be seized and sold on execution. Fifield v.
Maine Central Railroad, 200.

2. Delivery can be made by the officer without disturbing the track. Id.

3. Trover would not lie against the railroad company for using the track,
Id.

while they had no notice of the change of possession.

4. Under an execution a leasehold can only be seized and held as real
estate. Titusville Novelty Iron Works' Appeal, 755.

5. The sheriff is no more liable than on a levy on real estate. Id.

6. The description of the premises endorsed on the writ is a good levy. Id.
7. An inaccurate levy may be explained by oral evidence. Id.

EXECUTORS AND ADMINISTRATORS. See ATTACHMENT, 10; PLEAD-
ING, 4; VENDOR AND PURCHASER, 7; WILL, 4.

1. An administrator is not entitled to commissions on the sale of intestate's
land made by the heirs. Key v. Jones, 641.

2. Administrator entitled to interest on a balance in his favor from over-
payments to distributees. Id.

3. His compensation must be governed by the law in force at the time ser-
vices were rendered.

Id.

4. Will not be liable for accepting Confederate currency in payment of
debt, if he exercised diligence, prudence and good faith. Id.

EXPRESS COMPANY.

Express companies cannot sell unclaimed trunks under the Act of Decem-
ber 14th 1863, without exposing the contents. Adams Express Co. v. Schles-
singer, 196.

EXTRADITION. See INTERNATIONAL LAW, 1.

FACTOR. See AGENT, 2, 8, 9.

FALSE PRETENCE. See CRIMINAL LAW, VI.

FENCES. See RAILROAD, 3, 4.

FISHERY. See NAVIGABLE WATERS, 4; WATERS AND WATERCOURSES, 1.
FIXTURES.

1. Where there has never been unity of title of the machinery fixed in a
manufactory, and the ownership of the land, the machinery does not become
a fixture but remains personal property. Adams v. Lee, 458.

2. Machinery being personal property it is not necessary to mention it in a
deed of the land.

FORGERY.

Id.

See CRIMINAL LAW, IV.

FRAUD. See CONTRACT, 17, 18; PARTNERSHIP, 27; VENDOR AND PUR-
CHASER, 13.

1. A wrongdoer is not entitled to the benefit of the doctrine, that one who
mixes his goods with another's, loses his property. Wooley v. Campbell, 128.
2. The procuring of property upon a promise which the party at the time
does not intend to perform, is a fraud. And it makes no difference whether
the property is real or personal, Dowd v. Tucker, 477.

FRAUDS OF STATUTE. See BOUNDARY, 4; HUSBAND And Wife, 6.

1. A sale of any growing produce, in actual existence at the time, though
not in a state of maturity, is not a sale of an interest in land within the
statute. Purner v. Piercy, 256.

2. If the purchaser of goods under an agreement void by the statute, accepts
delivery, the contract becomes valid. Anson v. Dreher, 256.

3. No action can be maintained upon a promise to pay a debt in considera-
tion of forbearance to collect, without proof of a written memorandum. Lang
v. Henry, 318.

4. The statute is as much violated by parol proof of a part as of the whole
of an agreement. Id.

5. A promise to pay the workmen in a shop, as part of the consideration for
the purchase of the stock, if assented to by the workmen, is within the statute.
ld.

An agreement not to carry on a business in a certain locality for five years,
is within the statute and void if not in writing. Gottschalk v. Witter, 583.

7. A parol agreement by a party who has purchased the interest of a part-
ner, to pay one half the old partnership debts as a consideration, is not within
the statute. Haggerty v. Johnston, 587.

GIFT.

1. An assignment of a policy of life insurance never delivered is invalid.
Trough's Estate, 122.

2. A gift of a chose in action cannot be made by words in futuro or in præ-
senti unaccompanied by delivery.

Id.

3. Where donor retains possession of a bond or chose in action given or
assigned, he may cancel it. ld.

4. Intention to deliver does not execute the gift. Id.

5. A seal does not import a consideration, if the instrument is not delivered.
Id.

6. A bond endorsed to another but retained in endorser's possession does
not pass to the endorsee. Zimmerman v. Streeper, 123.

7. The endorsement indicates a prospective gift and without delivery is in-
operative. Id.

8. In the case of an intended gift of a legal estate, capable of a legal
conveyance not made, the gift is revocable; there being a locus pœnitentiæ as
long as it is incomplete. Wadhams v. Gay, 419.

9. A gift or trust, capable of being made by a legal conveyance, is as im-
perfect when created by an executory decree providing no means of execu
tion, as when created by an executory contract. Id.

GOOD-WILL,

1. GOOD-WILL, 1, 329, 649, 713.

2. A contract by the vendor of a good-will, &c., not to engage in a special
business within the state, so long as the vendee should continue in the said
business, is not void as in restraint of trade, and may be enforced by a court
of equity. Bear v. Chase, 563.

GRANT.

1. In a statutory grant, unless there are restrictive words, there is an im-
mediate transfer of title. Schulenberg v. Harriman, 459.

2. No one can question the validity of a grant by the United States, when
the latter is satisfied.

Id.

3. No one can take advantage of a condition subsequent, but the grantor
or his heirs. Id.

4. The manner of asserting the condition to restore the estate depends on
the character of the grant.

GUARANTY,

56.

Id.

1. A guarantor is entitled to notice of principal's default. Gaff v. Sims,

2. If notice is not given guarantor is discharged. Id.

HABEAS CORPUS.

1. The courts of the United States have power to issue writs of habeas
corpus to relieve from imprisonment persons confined under sentence of a state
court, where the record shows that the state court had no jurisdiction of the
alleged offence. Brown v. United States, 564.

2. Bridges was indicted, convicted and sentenced in a state court for perjury,
committed in a proceeding before a United States commissioner, under an Act
of Congress. He sued out a habeas corpus before the United States Circuit
Court. Held,

(1.) That the indictment showed that the perjury alleged was not a crime
against the state, and that the proceedings of the state court were therefore
void.

HEIR.

(2.) That the United States court had power to discharge the relator. Id.
See PARENT AND CHILD, 1, 6; WILL, 5.

HIGHWAY. See HUSBAND AND WIFE, 36.

1. A town is not liable for a bridge being out of repair, which became so
suddenly by reason of a freshet. Jaquish v. Town of Ithaca, 319.

2. Notice to any one of the supervisors of a defect in a bridge, is notice to
the town. Id.

3. After notice, if no precautions are taken, the town is chargeable with neg-
ligence. Id.

4. It is sufficient allegation of a defect in a highway to allege that an injury
resulted from a stump in the said highway. Cremer, Adm'r v. The Town of
Portland, 324.

5. Evidence of permanent injury may be given in an action for defect in
highway. Id.

6. It is only where the evidence is uncontradicted, that the question of suffi-
ciency of the highway, or of contributory negligence of plaintiff, can be taken
from the jury. Id.

7. Any want of ordinary care will prevent a recovery.
Id.
Slight negligence" is not want of ordinary care, but want of extraordi-
Id.

8. "
nary care.

9. A landowner may maintain an action against a town for not keeping a
highway in a suitable and proper manner. Gilman v. Laconia, 704.

10. Towns may maintain case for the obstruction of highways they have
built. Laconia v. Gilman, 704.

11. In an action for an injury received on a highway, where plaintiff
refused to submit to more than one medical examination, plaintiff can show
that previous to trial she requested to have physicians to examine her, in
order to rebut the unfavorable influence of her refusal. Durgin et ux. v.
Town of Danville, 756.

12. No rule of law can be laid down as to what width of track in a certain
depth of snow constitutes a highway in good repair. Id.

13. Refusal to charge that because plaintiff had driven over the road three
times a week for three weeks, it was carelessness on his part to upset, and
therefore he could not recover, is not error.

HOLIDAY.

Id.

A statute of Michigan provides that "February 22d, among other days,

HOLIDAY.

is to be treated for all purposes of holding courts, &c., as Sunday;" a judg-
ment rendered on that day is therefore void, and no bar to a subsequent suit.
Hemmens v. Bentley, 705.

HOMESTEAD. See BANKRUPTCY, 6.

1. The time at which the status,' as head of a family, under the Homestead
Act, is to be determined, is when the proceeds of a sale of a homestead is
finally disposed of by the court. Cooper v. Cooper, 197.

2 If he has ceased to be at that time, he is entitled to no exemption. Ild.
3. The Homestead Act of Wisconsin must receive a liberal construction.
Weisbrod v. Daenicke, 705.

4. Though the owner of a lot bounded by a street takes the fee to the centre
of the street, he cannot occupy it, and therefore the street is not to be reckoned
in determining the owner's homestead exemption. Id.

HUSBAND AND WIFE.

I. Marriage and Divorce.

See TRUST AND TRUSTEE, 2; WITNESS, 6.

See infra, 25; JUDGMENT, 8, 9.

1. A marriage valid where celebrated, is valid everywhere, and vice versa.
Hutchins v. Kimmel, 257.

2. Prima facie, a contract of marriage good at common law will be deemed
valid everywhere, and the burden of proving that there are exceptional regu-
lations, is on the party so claiming.

Id.

3. Upon granting a divorce, whether on account of the fault of the wife or
the husband, the court has power to award to her possession of the home-
stead. Brandon v. Brandon, 149.

4. When the record shows that a divorce was granted on account of the
habitual drunkenness of the wife, this court cannot hold that it was error to
give to her the care and custody of two infant children, in the absence of any
evidence showing that the husband was a suitable person to have such care
and custody.

Id.

5. A judgment for alimony is not released by the parties remarrying.
Brenner v. Brenner, 584.

6. A promise to release in consideration of marriage is void by the Statute
of Frauds.

Id.

7. Nor is such judgment satisfied by a second judgment after a subsequent
divorce. Id.

8. In an action for breach of promise, defendant may give evidence of
plaintiff's admissions, that she did not care for him, though made after de-
fendant's final refusal to marry her. Miller v. Rosier, 700.

9. In such action evidence of defendant's pecuniary circumstances is admis-
sible. Id.

10. An instruction that plaintiff should be awarded such damages as would
place her in as good condition pecuniarily as if the contract had been fulfilled,
is wrong. Id.

II. Curtesy and Dower. See infra, 34.

11. A widow's claim for dower is not barred by a deed, in which she joined,
though it is subsequently set aside as fraudulent against creditors. Richardson
v. Wyman, 194.

12. Wife may require a consideration moving solely to herself for her
release of dower. Baily v. Litten, Adm'r, 397.

13. Her release will be good if consideration moves to her husband. Id.
14. Where husband's consent to his wife's deed is not in proper form, he
can recover the land as tenant by the curtesy after her death. Houck et al. v.
Ritter, 584.

15. That grantee gave wife a note of the husband's as consideration for
the land, is inadmissible in evidence in ejectment by the husband. Id.

III. Separate Estate. See infra, 31.

16. Notes given to trustee of wife for debt due to husband who is insolvent,
are in prejudice of the rights of creditors and are void as against them.
Farmers' Bank v. Brooke, Trustee, 397.

17. A purchaser of the notes from the trustee, will, however, be presumed,
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