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admissible to explain its proper meaning. 1 Greenl. Ev., $ 280; Whart. Ev., $ 961 to 972.
In view of the condition of things as shown to have existed on the 13th day of April, 1885, we feel constrained to hold that the word "telephone," as used in the act of that date, was intended to designate, and in fact really referred to an apparatus composed of all the usual and necessary instruments for the convenient and ready transmission and reception of telephonic messages, and not to a single instrument only.
There was evidence at the trial tending to prove that the Central Union Telephone Company can not supply the facilities to Haughey, provided for in its contract with him for three dollars per month, without actual and very serious loss, and, arguing that the Legislature can not be presumed to have intended to inflict injustice upon any person or corporation, it is insisted we ought to take the company's liability to sustain a great loss in a certain contingency into consideration in determining the legislative intention in enacting the statute in question in this case. This argument is largely based upon the assumption that the company was not at liberty to decline to extend its line to Haughey's farm upon his request that such an extension should be made, and that it will be compelled to maintain such extension so long, as Haughey may require it to be maintained, independently of any contract with him on the subject. This assumption is, however, not well founded. There is nothing in the act of the legislature under review, or contained in any other statutory or common law regulation applicable to the subject, to which our attention has been called, which requires a telephone company to construct a new line against its will or to maintain an old line longer than it may feel inclined to do so in the exercise of a legitimate business discretion. Besides, the power of the legislature to pass the act in question being conceded, this court can not sit in judgment upon either the justice or the expediency of the enactment of such a law. If the law shall prove to be either unjust or inexpedient in its operation, whether upon persons or corporations, the appeal must be to the legislature and not to the courts. 20 Cent. Law Jour. 83. The judgment is affirmed, with costs.
Kentucky, and the reasoning is the same as in the opinion of the United States Supreme Court.
The latter court cites a dictum of Chancellor Kent, in Livingston v. Van Ingen, where he said that “the national power will be fully satisfied if the property created by patent be, for the time given, enjoyed and used exclusively, so far as, under the laws of the seyeral states, the property shall be deemed (fit] for toleration (and use). There is no need of giving this power any broader construction in order to attain the end for which it was granted, which was to reward the beneficent efforts of genius, and to encourage the useful arts."
Another case relied upon by the Supreme Court was Jordan v. Overseers of Dayton.4 Jordan was sued in debt, to recover certain penalties for practicing medicines in violation of an Ohio statute regulating the practice of physic and surgery. His defense rested, in part, upon the ground that the medicine administered by him was that for which letters-patent had issued to his assignor, granting to the latter the exclusive right of making, constructing, using and vending to others to be used, the medicines in question, which was described in the letters patent as a new and useful improvement, and as being a mode of preparing, mixing, compounding, administering and using that medicine. The contention of Jordan was, that the State government could not restrict or control the beneficial or lucrative use of the invention; and that, as assignee of the patentee, he was entitled to administer the patented medicine without obtaining a license to practice physic or surgery as required by the statute. This contention, however, was held to be unsound, and Jordan was held rightly convicted.
Another case relied upon by the Supreme Court was Vannini v. Paine. In that case it appears that Yates and McIntyre were assignees of Vananni, the inventor and patentee of a mode of drawing lotteries, and making schemes for lotteries on the combination and permutation principle. Other brokers issued a scheme for drawing a lottery, under an act for the benefit of a school, adopting the plan of Vannini's patent. Yates and McIntyre filed their bill for an injunction upon the ground, partly, that the defendants were proceeding in violation of the patent rights secured to Vannini. The court replied to this claim that: “At the times Yates and McIntyre made contracts for the lottery privileges set forth in the bill, we had in force, an act of assembly prohibiting lotteries, the preamble of which declares that they are pernicious and destructive to frugality and industry, and introductive of idleness and immorality, and against common general welfare. It, therefore, cannot be admitted that the plaintiffs have a right to use an invention for drawing lotteries in this State, merely because they have a patent for it under the United States. A person might with as much propriety claim a right to commit murder with an instrument, because he held a patent for it as a new and useful invention." 6
A resident of Virginia sold sewing machines manufactured in New Jersey without having taken out a license in accordance with the provisions of a statute. He claimed exemption by reason of the patent on the machine, but was convicted. The Court of Appeals of that State affirmed the judgment of conviction. On appeal to the United States Supreme Court, this claim was also denied. The court said: “Congress never intended that the patent laws should displace the police
NOTE.-This case is one of more than unusual importance. But, closely read, it is only the application of well-settled principles and rules to a new state of facts; and evidently the court does not find itself embarrassed by the novelty of the case; at least not so much as the court which first tried a railroad case found itself treading on unknown territory.
1. And first let us examine those cases where a patent right has been set up to overthrow the police regulations of a State.
The court has given a very clear and succinct statement of the case of Patterson v. Kentucky,l and farther comment thereon is unnecessary. That case is found reported, or decided, in the Court of Appeals of
2 11 Bush. 311; S. C. 21 Am. Rep., 220.
6 Webber v. Virginia. 13 Otto, 344, S. C. 12 Cent. L. J. 488 cited and approved ;Patterson v. Kentucky.
197 U. S. 501; S. C., 19 Alb. L. T. 156.
powers of the States, meaning by that term those powers by which the health, good order, peace and general welfare of the community are promoted. Whatever rights are secured to inventors must be enjoyed in subordination to this general authority of the State over all property within its limits.”
This case was reversed upon the point that the statute was unconstitutional, because it required a license of those who only sold articles manufactured in other States. It was an attempt to regulate commerce between the States. This latter point had been decided previously in the same court where the right to sell a patented article was involved.7
In Ohio it has been decided that it is no defense for selling impure provisions without a stamprequired by statute, that the article sold is patented.8 So in the same State a statute, like the one in question in the principal case, was held valid, and the fact that the telephone was patented did not affect its validity.9
In Michigan one peddling an article of which he is also the patentee may be required to take out a peddler's license under a municipal ordinance.10
In Indiana a statute required that any person taking an obligation in writing for which a patent right formed the consideration should, before it was signed by the maker, insert in the body of the obligation above the signature the words "given for a patent right.” This statute was held to be unconstitutional, because it interfered with the right of Congress to legislate concerning patents.ll In this case the court followed the opinion of Justice Davis to the same effect. In this latter case a statute required one selling within the State any article that was patented, to file with the clerk of the circuit court copies of the letters patent, on oath that they were genuine, and that he had authority to sell under them. Justice Davis held this statute void, 12
Afterwards, this latter statute was held vol by the Indiana Supreme Court.13 Afterwards, these cases were expressly overruled.14
The case cited from Indiana,15 was a suit upon a contract for a patent right. A number of cases similar to that has arisen in States where a statute was in force requiring notes given for a patent right to specify that they were so given, else they would be void into whomsoever's hands they might fall. In a number of States such a statute has been held invalid. 16
But the Supreme Court of Pennsylvania has held such a statute valid, 17 and since the decision of Patterson v. Kentucky, there can be little or no doubt of its validity, and the correctness of the Pennsylvania decision.
A statute of the United States provided that any one who should sell, or mix for sale, any naptha and illuminating oils, or oil made of petroleum for illuminating purposes, inflammable at a less temperature than 110 degrees Farenheit, should be deemed guilty of an offense against the revenue laws, and be liable to conviction and punishment in the United States court. This statute was held unconstitutional on the ground that Congress had no power to prohibit trade within the States; but it was held valid so far as it affected territory under the exclusive control of the Federal government. 18
The second point made in the principal case is, that a telephone company is a common carrier. In this the court is supported by the Ohio case,19 It is very difficult to see how a telephone company in this respect differs from a telegraph company.20
All courts, however, have not acceded to the rule that they are common carriers; and some of them have denied it.21
Whether a telegraph company is a common carrier or pot, will probably be settled by the United States Courts' decisions, because of questions arising of commerce between the States; and to these decisions the courts will eventually drift. Already that court has decided that such a company is a common carrier, sub. ject to many of the liabilities of common carriers; and that it is subject to the regulating power of Congress in respect to their foreign and inter-State business.
A telephone company being a common carrier, it may, therefore, be regulated by the legislature the same as any other common carrier; and this regulation by the legislature may extend to the amount of toll the company may charge for its services. Such legislation is not in conflict with the Constitution of the United States; does not impair the obligation of contracts, nor is it, usually, a regulation of commerce between
7 Welton v. State, 1 Otto 275; See Hannibal etc. R. R.Co. v.Husen,5 Otto 465;Guy v.Mayor etc.of Baltimore, 10 Otto 434 ; Tiernan v. Rinker, 12 Otto 129; County of Mobile v. Kimball 12 Otto 691 ; Walling v. Michigan, 116 U. S. 446; Higgins v. Three Hundred Casks of Lime, 130 Mass. 1; State v. Farbush, 72 Me. 493; State v. North, 27 Mo. 464; Daniel v. Richmond, 78 ky. 512; State v. Browing, 62 Mo. 591 ; State v. McGinnis, 37 Ark. 362; Scott v. Watkins, 22 Ark. 556; McGuire v. Parker, 32 La. Ann. 832.
8 Palmer v. State, 39 Ohio St. 236; S. C. 48 Am. Rep.
9 State v. Telepeone Co., 36 Ohio St. 296; S. C. 38 Am. Rep. 583.
10 People v. Russell, 49 Mich. 617; S. C. 43 Am. Rep. 478.
11 Helm v. First National Bank of Huntington, 43 Ind. 167; S. C. 13 Am. Rep. 995.
12 In re Robinson, 2 Biss. 309; S. C. 4 Fischer, 187.
13 Grover & Baker Sewing Machine Co. Butler, 53 Ind. 454; S. C. 21 Am. Rep. 200; Walter A. Wood Mowing etc. Machine Co. v. Caldwell, 54 Ind., 270; S. O. 20 Am. Rep. 611; Breckbili v. Randall, 102 Ind. 528; S. 0.52 Amer. Rep. 695.
14 Fry v. State, 68 Ind. 552; S. C. 30 Am. Rep. 238; Toledo Agricultural Works v. Work, 70 Ind 253. 15 Helm v. Bank supra.
16 Cranson v. Smith, 37 Mich. 309; S. C. 26 Am. Rep. 514; 5 Cent. L. Jr. 386; Crittenden v. White, 23 Minn. 167; S.
C. 23 Am. Rep.676; Hollida v. Hunt, 70 Ill. 109; S. C.22 Am. Rep. 63; State v. Peck. 25 Ohio St. 29; Woolen v. Banker, 6 Am. L. Rec. 236. See Pendar v. Kelley, 15 Amer. L. Reg. 511.
17 Haskell v. Jones, 86 Pa. St. 173; S. C. 5 W. N. 165 ; 5 Rep. 457.
18 United States v. DeWitt, 9 Wall. 41.
19 State v. Telephone Co., supra. See 10 Cent. L. Jr., 178, 438; State v. Nebraska Telephone Co., 17 Neb. 126; 9. C. 24 Am. L. Reg. 262; See 11 Cent. L. Jr. 359; 38 Am. Rep. 587; 44 Am. Rep. 241; Louisville etc. Co. v. Am, etc. Co., 24 AI. 6 L. Jour. 283.
20 Western Union Tel. Co. v. Pendleton, 95 Ind. 12; S. C. 48 Am Rep. 692; Western Union Tel. Co. v. Blanchard, 68 Geo. 699: S. C. 45 Am. Rep., 480; Western Union Tel. Co. v. Ferris, 102 Ind. 91; McAndrew v. Electric Telegraph Co., 17 C. B. 3; Parks v. Alta California Tel. Co., 13 Cal. 422; New York etc. Tel. Co. v. Dryburg, 35 Pa. St. 298; S. C. 3 Amer. L. Reg. 490; Bowen v. Lake Erie Tel. Co., 1 Amer. L. Reg. (O. 8.) 685; New York etc. Tel. Co. v. DeRútte, 5 Amer. 1.. Reg , 407; Graham v. Western Union Tel. Co., 10 Amer. L. Reg. 319; S. C. 1 Col. 230; Breese v. U.S. Tel. Co., 48 N. Y. 132; S. C. 45 Barb. 274.
21 Commrs. V. Western Tel Co., 6 Am L. Reg. 443; $. C. on appeal, 1 Met. (Ky.) 164; 6 Am. L. Reg. 734; Birney v. N. Y etc. Tel. Co., 18 Md. 341; Western Union Tel. Co. v. Carew, 7 Am. L. Reg. 18; 15 Mich. 525; Western Union Tel. Co. v. Fontaine, 58 Geo. 433.
22 Pensacola Tel. Co. v. Western Union Tel. Co., 6 Otto, 1; Western Union Tel. Co. v. State of Texas, 15 Otto 460; S. C. 14 Cent. L. Jr. 448.
sonableness of the tolls and charges so adopted and established.29 “This power of regulation is a power of government, continuing in its nature, and it it can bə bargained away at all, it can only be by words of positive grant, or something which is in law equivalent. If there is a reasonable doubt, it must be resolved in favor of the existence of the power. In the words of Chief Justice Marshall, in Providence Bank v. Bil. lings, 80 'its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear.'31 " Crawfordsville, Ind.
W. W. THORNTON.
the States.23 The regulation of the tolls may be by commission.24
So the legislature may prevent unjust discrimination in its rates; for this is nothing more than confirmatory of the common law.25
A number of decisions have been made upon questions whether a company, which has received a charter empowering it to regulate and charge tolls for its services, can be controlled by the legislature in the amount of its charges. Thus, where a charter of a railroad company conferred upon the company the power to regulate its tolls for a certain length of time, an act of the legislature regulating the same tolls du. ring that time, was held unconstitutional.26
Yet where the charter of a railroad company provided that the company could "fix, regulate and secure toils and charges” for its services, it was held that the legislature had not yielded up its power to control the rates thereafter.27 This was upon the maxim of interpretation that grants of immunity from legitimate governmental control are never to be presumed; but the presumptions are all the other way.28
Whether or not a regulation of the amount of tolls that can be charged is a violation of the carrier's charter, must eventually depend upon the construction given to these clauses by the United States Supreme Court; because the validity of these limitations or statutes rests upon the question whether they violate the contract between the carrier and State embodied in its charter.
Thus the case of Illinois Central R. R. Co. v. Stone, cited above, was reversed on appeal. The act of incorporation of the company provided that the president and directors might "adopt and establish such a tariff of charges for the transportation of persons and property as they may think fit," and the same “alter and change at pleasure.” It was held that this did not deprive the State of its power to act upon the rea
* Fry v. State, 63 Ind, 552; S. C. 30 Am. Rep. 238; Chi cago etc. R. W. Co. v. Fuller, 17 Wall. 560; Olcott V. County Board etc. 16 Wall. 678; Chicago etc. R. R. Co. v. Iowa, 4 Otto 155; Reik v. Chicago etc. R. W. Co., 4 Otto 164; Chicago etc. R. W. Co. v. Ashley, 4 Otto 179; Winona v. Blake, 4 Otto 180; Blake v. Winona etc. R. R. Co., 19 Minn. 418; S. C. 18 Am. Rep. 345; Beekman v. Sar. & S. R. R. Co., 3 Paige 45; S. C. 22 Am. Rep. 679; Hudson v. State. 4 Zab. 718; Munn v. Ilinois, 94 U. S. 113; S. C. 16 Am. L. Reg. 526; Carton v. Illinois Central R. R. Co.. 59 lowa 118; S. C. 44 Am. Rep. 672; People v. Babcock, 11 Wend. 587; Illinois Central R. R. Co., v. People, 108 m. 541; 5. O. Lan & Eng. R. R. Co’s. 188; Tilley, v. Savau. fiah, etc. R. R. Co., 5 Fed. Rep. 611; Huserman v. Bur. lington etc. R. R. Co., 16 Am. & Eny. R. R. Co., 46; Cincinnati etc. R, R. Co. v. Cook, 37 nio St. 265; S, C. 6 Am. & Eng. R. R. Co's. 317; Attorney General v. ChicagP etc. RW. Co., 35 W is. 425; People v. Boston etc. R. R. Co., 70
1. AGENCY.-Principal and Agent-Brokers-Compensation, Wagering Contracts Margins.- In the buying and selling of stocks upon margins, the brokers employed to conduct such transactions (under the law of Pennsylvania) are regarded as being engaged in wagering contracts, which the law of that State does not recognize, and they cannot recover in assumpsit for services rendered, or excess over the margin, where the bona fides of the transactions show them to have been of a wagering nature. Stewart v. Garrett, Md. Ct. App., May 14, 1886. Atl. Rep., Vol. 4, 399.
N. Y, 569.
24 Georgia R. R. & Banking Co., v. Smith, 70 Geo. 691; Re R. R. Commrs., 15 Neb. 679; K. R. Com. v. Yazoo etc. R. B. Co., 21 Am. & Eng. R. R. Cas 6; Merrill v, Boston & Lowell R. R. Co., 21 Am. & Eng. R. R. Cas. 48.
* Chicago etc. R. R. Co. v. People,69 Ill. 11; S. C. 16 Am. Rep. 599; Wabash etc. R. W. Co. v. People, 105 III. 236.
3 Sloan v. Pacific R. R. Co., 61 Mo. 24; S. C. 21 Am. Rep. 397. See State v. Richmond etc. R. R. Co., 73 N. C. 527; S. C. 21 Am. Rep. 473; Philadelphia etc. R. R. Co. v. Bowers, 4 Houst. 506; Farmer's Loan etc. Co. v. Stone, 18 Cent. L. Jr. 472 ; See Illinois Central R. R. Co. v. Stone, 20 Fed. Rep. 468; S. C. 18 Am. Rep. 416; Hamilton v. Keith, 5 Bash. 458.
Railroad Co.v. Natchez R. R. Co., 21 Am. & Eng. R. R. Cas., 17; See Laurel Fork etc. R. R. Co. v. West Va. Transportation Co., 25 W.Va. 324.
» Ruggles v. People, 108 U. S. 5:26; See U.S. v. Ruggler, 11 Am. & Eng. R. R. Cas. 49.
2. AMBASSADORS AND CONSULS.-Act Fixing Sal
aries-Effect of Subsequent Acts Appropriating Less for Services. According to the settled rules of interpretation, a statute fixing the annual salary of a public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments, which merely appropriated a less amount for the services of that officer for particular fiscal years, and which contained no words which expressly, or by clear implication, modified or repealed the previous law. United States v. Langston, S. C. U. S., May 10, 1886. S. Ct. Rep., Vol. 6, 1185.
3. CORPORATION. Consolidation Eristence
Laws— States-Contract-Policy-Const.Art.16, § 7-Conflict of Law-Foreign Court-DecreeProperty-Although consolidating corporations of
two States are to be taken as one, yet that one has no legal existence in either State except by the laws of that State. No State will enforce a contract made elsewhere, repugnant to its policy, or injurious to its interest; and a contract made in New York for the issue of bonds and the creation of a mortgage by a corporation, in contravention of the constitutional prohibition of a tictitious increase of corporate debt, or without notice in Pennsylvania, will not be enforced. The decree of a foreign court cannot determine the validity of a mortgage on property in this State, or transfer any title. Pittsburg etc. Co's. Appeal, s. C. Penn., May 31, 1886. Atl. Rep., Vol. 4, 385.
receiving stolen property, it is improper, though not reversible error, for the court to instruct the jury that if they found the defendant guilty they must designate upon which count of the indict. ment they so found. A general verdict in such cases would be sustained, and it is often difficult to determine of which offense the party is guilty when there is no doubt of his guilt of one or the other. A general instruction that possession of property, which is shown to have been recently stolen, if unexplained, is evidence or guilt, is not erroneous, the court not being asked to confine the instruction to the first count of the indictment. Where the defendant is found in possession of stolen property, and the proof shows his possession to have been a guilty possession, slight circumstances may authorize a jury to determine whether he has been guilty of the theft, or of receiving the property knowing it to have been stolen. A conviction for receiving stolen property is good, although a cocviction for stealing would have been sustained by the same evidence, if the jury so found.
Cook v. State, S. C. Tenn., June 12, 1886.
6. DEED.-Construction. Where the premises of a
deed contain an express grant to a man and his heirs for a term of years, then the limitation for a term will qualify and lessen the grant in fee. The intention of the parties to a deed is to be ascertained from the entire instrument, not from any particular words or phrases without references to the contract, and the instrument shall operate ac. cording to the intention, unless it be contrary to law. It is plain that the grant in this case is for a term of years. Berridge v. Glassey, S. C. Penn., May 1886. Pittsburg L. Jour. (N. S.) V. 16, 452.
4. CRIMINAL LAW. - Evidence of Merchant as to
Sale of Boots to defendant, relevant when-Practice Impeaching Witness as to Contradictory Statements-Effect of Failure to Object when Instructions are Given-Motion for Nero Trial based upon Previous Expression of Opinion by Juror.Evidence of a merchant to the effect that he had sold defendant boots and shoes and that the latter wore a number six, where there is other evidence showing that certain tracks found in the dust, where the crime is alleged to have been committed, were of that size is relevant. State v. Bobb, 76 Mo. 501. To impeach a witness as to contradictory statements alleged to have been made, his attention must be called to the time, place and person involved in such statement. He may be recalled by way of rebuttal to explain what was said. 1 Green, Ev. $ 462. Where a defendant fails to object to the giving of instructions at the time, and for the first complaint of them in his motion for a new trial, the Supreme Court will not consider them(Henry C.J.,dissents from this point.) Where the motion for a new trial is based on the fact that one of the jurors had expressed an opinion previous to the trial, of the defendant's guilt,and the affidavit of the person with whom the conversation was had, shows that the juror said: “From what he knew and heard he had both formed and expressed an opinion, and from his then knowledge and information he believed the defendant was guilty and that he would be in favor of sending him up for ten years," and where the jurors affidavit shows that he did have a conversation with such person, but that he did not use the language attributed to him; that he said“from what I have heard, I do not believe that I can be one of the jurors, because if the evidence should turn out like I heard it was, I think he ought to be sent up for ten years," where such juror further states that he never talked with any witness about the case; that he had conversed with no one about the facts except his wife and above affiiant; that his wife told him what she had heard from another lady, and that it was the information thus received from his wife to which he he had reference in the above conversation, and where such juror is accepted, without objection on the part of defendant, after an examination in open court, with full knowledge on the part of defendant's attorney as to above conversation-Such juror is competent, and the information the juror had, was received from mere rumor, and he was without prejudice or bias. State v. Reed, S. C. Mo., June
7, 1886. 5.
General Verdict on Two CountsGeneral Instruction where there are Two Counts - Stealing and Receiving Stolen Property-Conviction on Either Count.-On an indictment containing two counts; one for stealing, the other for
7. DIVORCE.-Domicile of Wife-Evidence – Juris.
diction of Parties-Residence-Denial Construed -Cohabitation. The general rule is that the domicile of the wife follows that of the husband. This is based upon the unity of husband and wife, and generally implies continuing, though temporarily interrupted, cohabitation. Proof of the domicile of the husband is sufficient, prima facie, to establish that of the wife. A divorce procured in Salt Lake City while neither of the parties was a resident of the territory, is null and void. To give the court jurisdiction in an action for divorce, at least one of the parties must be a bona fide resident of the State or territory where the action was brought. A denial in the language of the petition “that defendant denies that said marriage was unlawful and wrongful, and denies that he has cohabitated with L. W. S.," etc., "in a state of adultery," is not a denial of the cohabitation. Smith v. Smith, S. C. Neb., May 27, 1886. N. W. Rep. Vol. 28, 296.
8. EJECTMENT-Both Parties Claiming Under
Common Source-Plaintiff may prove Common Source by Defendant Secondary EvidencePractice- Waiver of Insufficiency of Answer.-1. In ejectment where plaintiff and defendant claim through a common source of title, it is sufficient for the plaintiff to deduce his title from the common source of title. It is sufficient for plaintiff to show prior possession as owner, either in himself or grantor, and if it appears that defendant holds under the common grantor it is unnecessary to go further: the title of the common grantor is acknowledged, and so far, the rule that the plaintiff must recover on the strength of his own title is departed from. Hence, unless the defendant can trace his title or right to the true owner, if such
common grantor is not the true owner, or can show a better title to the interest of such grantor, the plaintiff must prevail. 2. Plaintiff may prove the common sonrce of title by the defendant. 3. A sufficient foundation for the introduction of secondary evidence is laid where it is shown that the original deeds are lost or not in control of the party, and where it appears that the public records have been destroyed by fire, resort to secondary evidence to establish what the lost records would show is permissible, and the abstract and index to the record of deeds required to be made by $$ 3816 and 3819, Rev. Stat.' Mo., 1879, are competent evidence for this purpose. 4. Where answer of defendant only denied the “material allegations” of petition, and where no objections at trial are taken, the Supreme Court refused to consider it. 73 Mo., 57; 81 Mo., 275. Smith v. Lindsey, S. C. Mo., June 7, 1886.
gee; and the time of annexation, whether before or after the execution of the mortgage-is immaterial, except that when an article is annexed subsequently, and is of doubtful nature, stronger evidence of an intention to change its character is required. To convert a chattel into a part of the realty, or an irremovable fixture, there must befirst, actual annexation to the land, or to something appurtenant thereto; second, application to the use or purpose to which that particular part of the realty is appropriated; and, third, an intention by the party annexing it to make a perma. nent accession to the freehold; though a chattel which is permanently annexed, and which cannot be severed without material injury to the premises, becomes a part of the realty, irrespective of the intention of the party annexing it. An upright steam engine, resting on brick or plank on the ground, and sustained in place by its own weight, being connected by a band with a gin in a house about eight feet distant, and used to furnish motive power for ginning cotton, both for the owner and for other persons for toll, being erected by the mortgagor subsequent to the execution of the mortgage, and having a house erected over it on sills resting on the ground, so that it cannot be removed without breaking or removing the house, is prima facie a chattel, but becomes a part of the realty if so intended by the party erecting it; and the question of intention under these circumstances, by which its character is to be determined, must be submitted to the jury. Tillman v. Delaney, S. C. Ala., May 9, 1886.
9. EstOPPEL-Judgment-Res Adjudicata-Mortgage-Consideration-Extension of Time-Ven
or and Vendee-Bona Fide Purchaser-Lis Pendens.-Matters that have been adjudicated in a former suit will not be considered in a second action, Where, at the time of the execution of a promissory note by the husband, he agreed that his wife should execute a mortgage on certain real estate possessed by her, to secure the same, which mortgage, a few days afterwards, was duly executed and acknowledged, and by reason of which the credit on the note was extended two years, held, that there was a sufficient consideration for the mortgage. Where a person purchases real estate while an action is pending to subject the property to the payment of a certain debt, the purchaser is chargeable with notice of the claim, and, whatever the form of the decree under the issue made by the pleadings, takes subject to same. Nelson v. Bevins, s. C. Neb., May 27, 1886, N. W. Rep. Vol. 28, 331.
13. HOMESTEAD, Abandonment— Writing not Necessary — Removal — Intent — Husband's Intent Governs.-There may be an abandonment (without any writing) of a homestead which will terminate its existence and exemption. An actual removal from a homestead, without any intent to return to it as a home or place of abode, constitutes an abandonment. As head of the family, it is for the husband to determine and fix the domicile of the family, including that of the wife; so that when he and his wife remove from a homestead, he having no intention of returning, that fixes the character of the removal as an abandonment. Williams v. Moody, S. C. Minn., June 1, 1886, N. W. Rep. Vol.
10. EVIDENCE-Admissions-Judgments — Conclu
siveness-Laches.-When the admission of a party is the foundation of a claim asserted against him, the whole of his statement must be taken together. The unreversed judgment of a court of competent jurisdiction is conclusive, and cannot be collaterally attacked. Wimbish v. Breeden, 77 Va., 324. A case in which, from the lapse of time, death of parties, destruction of records, and loss of papers, there can no longer be a safe determination of the controversy, and the status should not be disturbed. Perkins v. Lane, S. C. App. Va., May 6,
1886, Va. L. J. Vol. 10, 411. 11. —- Declarations as part of Res Gestre-Dec
larations of the engineer of a railroad train, made five minutes after an accident occurred, and after a child who was run over by the train had been removed from under the car, and carried away a quarter of a mile or more, are not admissible in evidence, against the defendant railroad company, as part of the res gestæ, for the purpose of showing the negligence of the engineer. Durkee v. Central, etc. Co., S. C. Cal., May 18, 1886, Pac. Rep., Vol. 2, 130, 12. FIXTURES - Mortgagor and Mortgage- Vendor
and Vendee.-In determining the character of chattels annexed to the freehold-whether they are removable or irremovable as fixtures-the same rules prevail as between mortgagor and mortgagee, as between vendor and vendee, with possibly a more liberal application in favor of the mortga
14. HUSBAND AND WIFE, Wife's Separate Estate
-Business-Constable.- Where a feme covert, her husband having been sold out by the sheriff, carries on his business with her separate estate, gives him money with wbich to buy a horse, which not being sufficient, he borrows more as her agent, the horse having been levied on for his debt, there is no fact sufficient to constitute legal fraud, and the constable who made the sale, after receiving notice that the horse was hers, was liable. Tibbins v. Jones, S. C. Penn., May 24, 1886, Atl. Rep. Vol. 4, 383.
15. JOINT TENANTS AND TENANTS IN COMMON.
-Adverse Possession - Co-Tenant – EvidencePresumption-Although the possession of a tenant in common is not necessarily adverse to his cotenant, it may yet be regarded as such where one holds possession under a claim of entire ownership, and his co-tenant has knowledge of it. It is not necessary to show by direct and pointed evidence that the co-tenant bas such knowledge. It is sufficient if it is not shown otherwise, and the circumstances are such that it may reasonably be