INDEX.

1147

erly sustained, since plaintiff could have the same | be accomplished by the interposition of a third
relief in defendant's suit as she seeks in her party, but the conveyance to him was executed
own, under Gen. St. Conn. § 876, which provides by the wife alone; both she and the husband re-
that in cases where the defendant has either in lying on his advice, as their attorney, that it
law or in equity, or in both, a counter-claim, he was not necessary for the husband to join there-
may have the benefit thereof by pleading the in. Held, that his failure to join was such a
same, etc.; and under section 877, which provides mistake as equity will relieve against.-Hauss-
man v. Burnham, 22 A. 1065, 59 Conn. 117.
that legal and equitable remedies may be admin-
7. Even though this deed of the wife's was
istered in one and the same suit, and that the
withdrawal of an action after a cross-complaint void, a court of equity may look beyond it, and
has been filed shall not impair defendant's right enforce the contract, in whose attempted fulfill-
ment the deed was executed.-Haussman v. Burn.
to prosecute the cross-coniplaint to judgment.-
ham, 22 A. 1065, 59 Conn. 117.
Welles v. Rhodes, 22 A. 286, 59 Conn. 498.

2. Where a will provides that a daughter of testatrix shall have the use of the homestead during her life, that she shall pay all taxes on it, and keep the building in good repair and fully insured, and that a failure to pay the taxes and insurance for one year shall work a forfeiture, a failure to pay the taxes, in consequence of the devisee's ignorance of her rights, will not work a forfeiture of the devise, and a court of equity will restore the property on payment of taxes and costs.-Tibbetts v. Cate, (N. H.) 22 A. 559.

Administration proceedings.

3. In case the administration of an estate in the orphans' court be imperfect or incomplete, and serious complications are presented, it is proper for the party seeking relief to ask the aid of the court of chancery, and, if an injunction be necessary to protect the interests involved, there is no exception to the jurisdiction of the latter court, whatever may be the progress towards nal settlement in the probate court.-Bechtold .. Read, (N. J. Ch.) 22 A. 1085.

Reformation of contracts.

8. In a suit to reform a deed for mistake in omitting to include in the deed two parcels of land that were bargained for with those conveyed, the complainant and her husband asserted that they did not discover the mistake until lately, although the deed was read over to them at its date, and although some years ago it was ascer tained that the deed included a parcel that was not intended to be conveyed, a mistake that was corrected by a reconveyance for a consideration paid for it. It further appeared that the circumstances were no stronger than those against it, and that the testimony on the two sides is equally positive, that for complainant being greater in amount, but of no greater weight, than the testimony of defendant. Held, that the evidence was insufficient to justify the reformation of the deed. -Linscott v. Linscott, 22 A. 253, 83 Me. 384.

Cancellation and rescission.

9. Conveyances by an aged parent to a child, in consideration of the agreement by the latter to support and provide for the former, are upheld if the transaction appears to have been free from fraud, and the evidence does not show that 4. In an action on notes made by defendant confidence has been reposed by the infirm in the for the accommodation of his brother T., by stronger, but does show that the parties dealt at whom he was employed, and made payable to T., arms-length.-Mott v. Mott, (N. J. Ch.) 22 A. 997. 10. An aged mother, subject to mental infirmiand by him indorsed and discounted at plaintiff bank, defendant attempted to reform the notes, ties, while on a visit to her son, in whom she reposed implicit confidence, conveyed to him all alleging and testifying that plaintiff's cashier, R., took them merely because plaintiff had loaned her property, real and personal, without any outr. more than was lawful under the national side advice, to the exclusion of a daughter for banking law, and wanted other names on T.'s whom she had previously had great affection. paper, so the fact would not be discovered by Held, in an action to set aside such conveyance, the bank examiner; that R. agreed that defend- brought by the guardian of the mother, who had ant should not be liable, and that he would trans- subsequently been adjudged a lunatic, that the fer to him, for his protection, certain bonds and burden was on the son to show that the transacstock of T., held by plaintiff; and that he pre- tion was fair and free from fraud in all respects; sented to R. a letter from T., directing this to and that his evidence that the conveyance was be done, which R. said was satisfactory. All made to him in reliance on his oral agreement to these allegations were denied by R. under oath. support her as long as she lived, and to make a will in her favor to protect her if he predeceased Held, that the evidence was insufficient to warrant reformation of the notes, being oath against her, was not sufficient to establish the fairness oath, with the persuasive evidence of the notes of the conveyance, especially when there is eviin favor of plaintiff; and that the facts that dedence that immediately prior thereto he falsely fendant was pecuniarily irresponsible and his suggested or represented to the mother that her notes worthless; that the notes, without notice daughter was endeavoring to rob her of her properto defendant when they became due, were charged ty, and that she had better convey it to him for her to T.; that, at the time of the alleged agreement protection. -Mott v. Mott, (N. J. Ch.) 22 A. 997. with R., T. had drawn in excess of the amount allowed by the national banking law; that T. had stocks and bonds deposited with plaintiff; that defendant had not previously signed notes; that after T.'s failure R. told defeudant that there were not enough collaterals to cover the notes; and that plaintiff, though T. was sane for years after his failure, waited until he became insane before suing defendant on the notes,-were not equivalent to another witness for defendant to support his oath as against R.'s.-Mifflin County Nat. Bank v. Thompson, (Pa. Sup) 22 A. 714.

5. Rev. St. U. S. $$ 4170, 4312, provide that a conveyance of an interest in a vessel shall recite at length the certificate of registry with the colA bill of sale was insuffilector of customs. cient under those statutes, and without a compliance with them the schooner could not be used in the coasting trade, for which purpose it was built. Held, that the seller's executors could be compelled to reform the bill of sale.-Sprague v. Thurber, (R. I.) 22 A. 1057.

6. A husband conveyed property to his wife on the sole consideration of her promise to reconvey to him. The reconveyance was attempted to

11. When the only consideration for a conveyance by an aged and infirm mother to her son is the son's promise to support her during life, the son is guilty of a fraud in not giving her written evidence of the promise, of which she can avail herself if her mind gives way, or other instruments of evidence shall fail.-Mott v. Mott, (N. J. Ch.) 22 A. 997.

12. A brother, who claimed by descent from bis father, brought ejectment against his sister, who claimed under a voluntary deed from the father. On the issue of the father's insanity when the deed was executed, plaintiff's experts testified that he had been suffering with a softening of the brain for a year or more before; that an attack of paralysis, five days after the execution of the deed, was an exacerbation of the disease, and conclusive proof that the father was incompetent when the deed was executed. Defendant's evidence showed that the father continued in his employment, as chief engineer of a large establishment, for nine months after the execution of the deed, and a physician who examined him two months thereafter pronounced him competent. Held, that it was proper to charge that if the

disease was not of such a character as to unfit the father for his ordinary business the deed should not be set aside, and he declared incompetent, on the scientific theories of experts, based on the paralytic stroke five days after the execution of the deed.-King v. Humphreys, 22 A. 19, 138 Pa. St. 310.

Jurisdiction-Accounting.

cluded. Held, that such subsequent damages were properly brought into the original bill, since its scope as a preventive measure included them, and they might have been recovered by an action for contempt.-Waterman v. Buck, (Vt.) 22 A. 15.

19. Where defendants filed an answer to a supplemental bill, presenting certain objections, and asking the same advantage as though they had been taken by demurrer, a subsequent trial on the merits constitutes a waiver of their right to such privilege, if it ever existed.-Waterman v. Buck, (Vt.) 22 A. 15.

Amendment.

20. Where a suit is brought by an executor after distribution of an estate to construe the will, plaintiff cannot by amendment seek to quiet his title as trustee to the land devised, which has been conveyed to him as trustee by the devisee, since such amendment would change both the cause of action and the capacity in which plaintiff sues. -Miles v. Strong, 22 A. 959, 60 Conn. 333. Practice-Plea of limitation.

13. In an action to compel defendant to account for profits realized by him in the sale of 103 acres of coal land, all the evidence, except defendant's, showed that the land had been purchased and the title taken in defendant's name, pursuant to an oral contract whereby the profits to be realized on its sale were to be equally divided between complainant, who had inspected the land and advised its purchase, and defendant, who had furnished the purchase money, and a third person, who had examined the title, and that this oral contract was put in writing after the purchase of this land. Defendant testified that only such land as was purchased after the contract was put in writing was intended to be embraced within its terms, but this was shown 21. It is generally too late in suit in equity to to be inconsistent with his own admissions that complainant was jointly interested with him in interpose a plea of limitations after the master's the land in question, made to persons to whom report is in, where the point was not taken on he had endeavored to sell it. Held, that the demurrer or in answer, though it is within the power of the court, in the furtherance of justice, land in question constituted a part of the subject-matter of the contract, and that defendant to allow the plea in an extreme case at any time. would be compelled to account to complainant-Webb v. Fuller, 22 A. 384, 83 Me. 405. for his share of the profits.-Standish v. Babcock, (N. J. Ch.) 22 A. 734.

14. On the hearing on a bill for an account, the only evidence as a general rule, material or competent, is such as goes to prove or disprove the complainant's right to an account. Evidence as to items, at that stage of the cause, is inadmissible; but where the account consists of but a few items, and they are all fully proved by the evidence submitted on the principal question, there the court may decide, by the same decree, that the complainant is entitled to an account, and also the amount that he is entitled to recover.-Standish v. Babcock, (N. J. Ch.) 22 A.

734.

15. When a party claims by his bill that he has been acting as trustee or agent, and as such is entitled to an accounting with his cestui que trust or principal, it is his duty to present with his bill his account; and, if he fail to do so, it is proper for the court, after the taking of testimony, and upon the hearing, when a reference to a master is asked for, to suspend the hearing, and require the complainant to make and present such account.-Morgan v. Morgan, (N. J. Ch.) 22

A. 545.

Pleading.

16. When the plaintiff in equity seeks relief from the effects or results of some fraud, accident, or mistake, he should in his bill fully and explicitly state the circumstances, so as to present a clear picture of the particulars, or how the fraud was committed, and how the plaintiff was misled;

of the character and causes of the accident or mis take, and how it occurred.-Merrill v. Washburn, 22 A. 118, 83 Me. 189.

17. A bill brought by the guardian of a lunatic to have a deed executed by her to her son set aside, which charges that defendant fraudulently procured the deed from his mother either while she was non compos, or when her mind was deranged or unsound or weak, or by undue influence exerted by him over her, describes with sufficient particularity the acts relied on as invalidating the deed, since the charge that he fraudulently procured the deed is specifically set forth, and the guardian could not have knowledge of the peculiar and special phase of fraud adopted.-Mott v. Mott, (N. J. Ch.) 22 A. 997.

18. On a bill in equity to prevent defendants from depositing sawdust in a river to the injury of plaintiff's meadow, a temporary injunction was granted, and the assessment of the damages was referred to a master. Defendants having disregarded the injunction, plaintiff brought a supplemental bill to have further damages in

Masters in chancery.

22. No question as to the rejection of evidence by a master can be heard in the appellate court, unless the exception to the report required by R. L. Vt. $ 730, is duly filed in the court of chancery.-Baxter v. Blodgett, (Vt.) 22 A. 625.

23. Where a bill and a supplemental bill to recover damages for a continuing nuisance were referred to different masters, and it is doubtful what period is covered by the report of each, and there is a great difference therein as to the amount of the entire damage, and the proportion which defendants should bear, the cause will be referred de novo to another special master.Waterman v. Buck, (Vt.) 22 A. 15.

ERROR, WRIT OF.

See, also, Appeal; Certiorari; New Trial.
When lies.

of

The supreme court of errors of Connecticut, sitting in the first judicial district, has no jurisdiction to hear a writ of error from a judgment of the superior court in the third judicial district, under Gen. St. Conn. § 1145, which provides that "writs of error in matters of law only may be brought from the judgment the superior court to the supreme court of error in the judicial district where the judgments are rendered or the decree passed, and, being without jurisdiction, the same could not be conferred by waiver of objection thereto 22 A. 259, 59 Conn. 496. by the parties.-Chipman v. City of Waterbury.

ESCAPE.

What constitutės prison breach.

1. Where a prisoner, being in the corridor of a jail, unlocks a door between the corridor and one of the cells, and thence escapes, he commits prison breach.-Randall v. State, (N. J.) 22 A. 46. Indictment.

2. Prison breach by a prisoner imprisoned for a crime not punishable with death is à misdemeanor under Crimes Act N. J., (Revision, p. 228, § 12,) and it is not necessary that an indictment therefor should allege that the offense was committed "feloniously" nor "unlawfully," in the absence of those terms from the statute. -Randall v. State, (N. J.) 22 A. 46.

8. An indictment which charges defendant with "breaking out" of prison is sufficient under

Crimes Act N. J., (Revision, p. 228, § 12,) which | purchased the same as agent for plaintiff, the describes such offense as "breaking prison. ". Randall v. State, (N. J.) 22 A. 46.

See, also, Dower; Easements; Homestead; Ten- ership of the property, nor is it fraud, or evi

administrator, as agent for his heirs, collected
rents thereafter accruing. He informed O. that
he was about to collect the rents, and she made
no objections thereto, but admitted the execu-
tion of the deed, and that the title was in McC.
and heirs. The agent informed plaintiff of her
statements, and he paid the rent relying thereon.
The heirs paid taxes, and repaired the premises,
and exercised exclusive ownership, to which O.
made no objection. O. afterwards recovered the
premises in ejectment on the ground that McC.
had fraudulently procured the deed from her,
and sued plaintiff for mesne profits, recovering
a verdict. Held, that her conduct constituted an
equitable estoppel; and the tenant, on assigning
to her his claim to recover the rent from the ex-
ecutor and heirs, would be entitled to an injunc-
tion to restrain the entry of judgment on the ver-
dict.-Ruckelschaus v. Oehme's Adm'r, (N. J.)
22 A. 184.

14. The fact that in making such admission
the owner did not intend to mislead the tenant
will not defeat the equitable estoppel thus aris-
ing.-Ruckelschaus v. Oehme's Adm'r, (N. J.) 22

A. 184.

EVIDENCE.

L., with the same indorsers; that this note
proved to be a forgery, though plaintiff had be-
lieved it genuine; and that said indorser had filed
the country, and plaintiff was ignorant of his
whereabouts. Held, that this was sufficient to
excuse non-production of the note, and to justify
secondary evidence of its contents. -West Phila-
delphia Nat. Bank v. Field, (Pa. Sup.) 22 A. 829.
5. The contents of a lost record of the organi
zation of a plantation organized for election pur-
poses may be proved by parol evidence.-
Prentiss v. Davis, 22 A. 246, 83 Me. 364.
Declarations and admissions.

6. Where plaintiff alleges a cause of action
growing out of the failure of defendant's dece-
dent to fulfill an oral promise to devise land to
plaintiff's wife, but does not seek to enforce any
contract, but to recover for the fraud of decedent
in inducing him to expend large sums of money
on the land, for which he has not been reim-
bursed, he may give in evidence the declarations
of the decedent to the effect that plaintiff's wife
was to have the land, and show that his expend-
itures were made in reliance upon such assur-
ances. Wainwright v. Talcott, 22 A. 484, 60
Conn. 43.

See, also, Assumpsit, 6, 7; Divorce, 6, 7; Eject- before he is clothed with the trust, cannot be re-
ment, 3-5.

Burden to prove wills, see Wills, 7, 8.

In action against carrier for failure to deliver
goods, see Carriers, 3.

14.

for breach of contract, see Contracts, 11-

for nuisance, see Nuisance, 8, 9.
for price of goods, see Sale, 12-14.

on insurance policy, see Insurance, 24-26.
criminal cases, see Criminal Law, 4-6.
election contest, see Elections and Voters, 14-

17.

Of agency, see Principal and Agent, 1.
damages, in condemnation proceedings, see
Eminent Domain, 25-30.
death, see Death, 1, 2.
negligence, see Negligence, 11-14.
partnership, see Partnership, 1-8.
payment, see Payment, 1.

undue influence, see Wills, 5, 6.

Presumption, see Death, 3.

Reception of, see Trial, 1-3.

Rulings on, review, see Appeal, 19, 20.

To establish account, see Account Stated, 1.

7. The admissions of an administrator, made
ceived in evidence against him, or bind the heirs
or creditors of the estate.-Webster v. Le Compte,
(Md.) 22 A. 232.

8. In an action for arrears of salary, where
plaintiff claims under a parol agreement made
with M., president of defendant company, a let-
ter (as to said agreement) written by M. to a
third person several months thereafter, and while
plaintiff was performing his duties thereunder,
was inadmissible as evidence, since it constituted
no part of the res gesto.—Chapin v. Cambria Iron
Co., (Pa. Sup.) 22 A. 1041.

9. In an action against an attorney's exec-
utor for an accounting, a statement of the ac-
count in the handwriting of the attorney is ad-
missible in evidence against the executor, even
though it is not proved that the statement was
delivered to the principal.-Johnson v. McCain,
(Pa. Sup.) 22 A. 979.

10. In a suit by a bridge company against a
county for the value of its bridge taken by the
county for public use, the return made by the
bridge company of the value of its capital stock
to the auditor general is competent evidence for

explain ambiguity in description of deed, see the purpose of showing the value of the stock as
Deed, 3.

Weight and sufficiency, see Appeal, 16-18.
Judicial notice.

1. It is common knowledge, of which courts
take judicial notice, that vacant buildings, as a
class, are more exposed to damage from fire than
they would be if occupied; and therefore, in an ac-
tion on the policy, the testimony of witnesses tend-
ing only to establish such fact is unnecessary and
inadmissible.- White v. Phoenix Ins. Co., 22 A.
167, 83 Me. 279.

Best and secondary.

3. Where, in an action by a teacher against
a school-district for his salary, the defense is
that he was discharged by the board on account
of cruelty to a pupil, the minutes of the board
are the best evidence of the teacher's dismissal,
and therefore oral evidence as to his acts of cru-
elty is inadmissible.-Whitehead v. School-Dis-
trict of North Huntingdon Tp., (Pa. Sup.) 22 A.
991.

4. In an action on a note made by defend-
ant to the order of two others, and by them in-
dorsed to plaintiff, plaintiff proved that when
the note fell due one of the indorsers took it up,
giving plaintiff in lieu of it a note made by one

made for the company by its officers under oath.
-President, etc., for Erecting a Bridge over the
Juniata River v. Juniata County, (Pa. Sup.) 2
A. 896.

opinion of a witness who was interested in and
present at negotiations between parties, that a
contract was made between them, is not admissi-
ble.-New England Monument Co. v. Johnson,
(Pa. Sup.) 22 A. 974.

12. In an action for breach of contract, the

13. Plaintiff, in an action against the sherif
and an attorney for false imprisonment in arrest-
ing plaintiff for the non-payment of the costs of a
writ of possession issued as a capias, claimed to
have been in poor health at the time of the ar-
rest, and in an unfit condition to be taken from
home. The sheriff, having testified that he made
inquiries of plaintiff's neighbors as to his health,
was asked, "From the information you received
from Mr. Tenney's [plaintiff's] neighbors in that
behalf, what conclusion did you come to as to
his condition, with what you had seen of Mr.