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much shorter duration. She swears that she never lived with Ribble as his wife. If in fact she lived and cohabited with him as his mistress, the reputation proved and his declarations would not make her his wife. They would not be sufficient to establish the existence of a valid marriage with him. They do, however, tend to strengthen the probability that she may have formed the same kind of meretricious relation with Riegel. The evidence of any marriage with him is too weak and uncertain to establish that relation, and the learned judge erred in holding otherwise.
Decree reversed, at the costs of the appellee, the confirmation of the appraisement to her is taken off, the exceptions thereto are sustained, and the appraisement is set aside.
Deed-Rights Conveyed-Taxes — Redemption.The power of attorney copied at length in the opinion, held to be sufficient authority for the ex. ecution of the deed, also copied in the opinion. The above-mentioned deed was sufficient to vest in the grantee therein named, all the rights of the grantor to the money paid for the real estate therein described at tax sale, and the several amounts paid by such purchaser for taxes subsequently assessed thereon, and the right to reclaim the same from such real estate upon the failure of the tax title thereto. Alexander v. Goodwin, S. C.
Neb., Oct. 13, 1886; 29 N. W. Rep. 468. 3. CONTRACT–Performance-Completion of Build
ing-Fire-Acceptance-Fire Insurance-Right to Proceeds-Mechanic's Lien-Mortgagee Assignment.-If, by a building contract, the builder is to furnish all materials, and the building is to be completed before it is paid for, but, when nearly but not quite done, the owner accepts it, as by moving in by himself or another, the owner there. by becomes responsible for the price agreed to be paid, and if, thereafter, and before entire completion, the building is destroyed by fire, he, and not the contractor, must bear the loss. The holder of a mechanic's lien upon certain property has no claim upon insurance effected by the owner, and assigned after loss, but before the filing of the lienor's bill, to a mortgagee of the property. Galyon v. Ketchen, S. C. Tenn., Sep. 25, 1886; 1
S. W. Rep. 508. 4. CORPORATION- Municipal Corporations-Torts
How Far Bound by Acts of Agents and OfficersNegligence-Evidence- Presumptions— Negligent Construction of Cistern-Instruction, Objections to Testimony-Master and Servant-AppealQuestions not Seasonably Raised- Who are Pel. low-Servants-Damages-Death-Injuries to Person.-A municipality is liable for the torts of its agents in the performance of a public duty, if they are especially employed to superintend the particular work of the city, and are not acting generally in the capacity of public oflicers. When a thing is shown to be under the management of a party or his servants, and an accident occurs in connection therewith which, in the ordinary course of things, does not happen, if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care. Where the evidence was overwhelming that a public work was not properly constructed, and an accident resulted therefrom, held, that it was not error for the court to charge that it was the city's duty to construct a work “suitable and for the purpose intended." The point at issue being whether a particular cis. tern wall was properly constructed, held, that the question whether it was customary to put braces on the inside of cistern walls was properly excluded. The legal presumption is that an accident which results from the improper consturction of a piece masonry is the fault of the principal, and not of his subordinates. An exception to the argument of counsel in his address to the jury, which was not ruled on by the trial court, cannot be considered on appeal. When an accident results from the fall of a certain piece of masonry, evidence tending to show how such a work should be coustructed is material. A workman engaged in one branch of a business cannot be presumed to have assumed the risk arising from other connected branches of the
1. AGENCY.-Principal and Agent - Action on Ac
count-Evidence-Instruction.-A., a harvester company, entered into a contract in writing with B., appointing him its agent for the sale of its machines. One of the provisions of the contract was that A. should use its best efforts to complete and ship all machines therein and thereafter ordered, but should not be responsible to B. for failure to funish machines where the demand exceeded the supply; and another provision was that the sales made by B. upon credit should be to such persons only as were known to be responsible, and of good reputation for the payment of their debts. Held, in an action brought by A. against B. upon an account, to which B. filed a counter-claim for damages, that the evidence of B. that he had sold five machines, and that A. had failed to furnish the same was inadmissible, as there was neither averment nor evidence that B. ordered five machines, nor that A. did not use its best efforts to furnish such machines, if any, as were ordered. Held further, that as there was no evidence as to the character of persons to whom B. sold, that an instruc. tion to the jury that he could not recover for sales made, unless made within the terms of the contract, was correct. Williams Harvester Co., v. Pope, S. C. Iowa, Oct., 13, 1886; 29 N. W. Rep. 438.
same business. Where a party is killed as the result of another's tort, it is proper to show the number of children he left, and that they are dependent on their mother for support, for the purpose of fixing the measure of damages. Mulcairns v. Janesville, S. C. Wis. Oct., 12, 1886; 29 N. W. Rep. 565.
5. COVENANT General Warranty — Stocks of
Agreed Value-Measure of Damages.-Where the original purchaser of land conveyed it under a general covenant of warranty, and the grantee covenanted specially to pay the first vendor the purchase price, the consideration being certain shares of stock put in at a fictitious valuation, the measure of damages in an action by the second vendee for breach of warranty is the agreed value of the stock, with interest from the date of eviction. McGuffey v. Humes, s. C. Tenn., Sep. 22,
1886; 1 S. W. 505. 6. CRIMINAL LAW-Assault and Battery-Intent to
Commit Rape-Advances Invited by Prosecutrix - Battery not Necessarily Included-WitnessFalsus in Uno, Falsus in Omnibus-EvidenceFlight of Accused after Arrest and Bail—Threats of Lynching-Intent to Rape-Offer to Dismiss Prosecution for Money.-In a prosecution for assault with intent to commit rape, where there is no evidence tending to show that the prosecutrix's acts were calculated to invite the advances of the accused, it is not error for the trial justice to refuse an instruction on the part of the defendant based upon such supposed state of facts. The offense of assault and battery is not necessarily included in the crime of assault with intent to commit rape. A prayer of the accused to the effect that the jury should disregard all the testimony of any witness in the case who they belleved had knowingly and intentionally testified falsely to any material matter, is properly refused where the prayer is manifestly directed at the prosecuting witness alone, and there is nothing in her testimony on which it can be based. The defendant, in a criminal prosecution, cannot rebut the effect of evidence on the part of the State showing that, after arrest, he had run away and forfeited his bail by testifying that he had done so because he was afraid of being lynched unless his flight occurred soon after the threats were communicated to him. In a prosecution for assault with intent to commit rape, it is not error to reject testimony tending to show that the prosecuting witness and her father had offered to discontinue the case for $100, in the absence of any evidence showing an attempt at blackmail. State v. McDevitt, S. C.
Iowa, Oct. 14, 1886; 29 N. W. 459. 7.
- Intoxicating Liquors-Sale ofBitters--Former Acquittal.--Where a man had been acquitted on a charge of selling whisky and stomach bitters, the parties stipulating that the trial included all previous offenses for selling intoxicating liquors, the acquittal was a bar to a prosecution for selling dandelion bitters during that time, where the same contained such an amount of intoxicating liquors that the sale constituted an offense. State v. Sterrenberg, S. C.
Iowa, Oct. 14, 1886; 29 N. W. Rep. 457. 8. EQUITY.-Setting Aside Deed for Fraud-Defect
of Title.- Where a bill is brought to set aside a deed of property on the ground of false representations made by the seller, the fraud must be es
tablished by a preponderance of the evidence; and when two witnesses affirm, and two others, no more interested in the subject-matter, and for all that appears fully as creditable, deny the fraud, the bill should be dismissed. When a suit is brought to set aside a deed of property on the ground of false representations made by the seller, and for a defect in the title, if the evidence fails to establish the fraud, the complainant must seek his remedy for the alleged defect in the title in some other action. Allison v. Ward, S. C. Mich., Oct.
14, 1886; 29 N. W. Rep.528. 9. EVIDENCE.— To Show Character of Possession
Agency. The plaintiff, by his agent, left a hay tedder with the defendant, who had it in his possession at the commencement of the suit. The question was, whether it had been sold or left on trial. Held, in view of the plaintiff's directions to his agent to keep the tedder housed, that what the agent said to the defendant after he refused to accept the machine, namely: to keep it under cover until the plaintiff should come for it, was admissible, as showing the character of the defendant's possession. Lyon 0. Hayden, s. C. Vt. Sept. 6,
1886; 7 East. Rep. 83. 10.
Weight of -- Improvement on Land-Costs-Defendant Recovering for Improvements--Sale.In taking an account of improvements, in an action of ejectment, controlling weight should be allowed to the testimony of witnesses who testified with reference to the location of the improvements, in preference to witnesses who did not take the location into consideration, the improvements on some of the tracts being so placed as to cut off all access to the tracts from the front; and the testimony of witnesses who spoke of the value of the improvements merely should be allowed little weight as against the testimony of those who spoke of the enbancement in the yalue of the land by reason of the improvements. When defendant in ejectment recovers for improvements, and sales are made to satisfy a decree therefor, the complainant may properly be charged with the costs of such sales. Fisher v. Edington, S. C. Tenn., Sept. 21, 1886;
1 S. W. 499. 11. FRAUD.- Sale - Consideration Evidence. -1°
The payment by the purchaser, of a fair consideration, upon a sale of property is strong, although not conclusive, evidence of the good faith of th transaction; and requires clear evidence of fraudulent intent to overcome it. 2. Where, in an action to set aside a conveyance of real estate as in fraud of creditors, the evidence as to the fraudulent intent is not strongly preponderating and the plaintiff has been permitted to introduce, in support of the allegation of fraud, oral testimony as to the making of a chattel mortgage by the grantor in the alleged fraudulent deed, the defendant should be permitted to show what was done with the mortgage after its execution, and the circumstances under which it was given. Nugent v. Jacobs, N.
Y. Ct. Appls., Oct. 5, 1886; 4 Cent. Rep., 185. 12. HUSBAND AND WIFE.- Gift to Wife of Separate
Earnings as Affecting Liability of Debtor.-An agreement between husband and wife that the latter shall receive the compensation to be earned by her in nursing a boarder in the family, who pays the husband for his board, vests in her any claim accruing on account of such nursing, and, there being no question of set-off or counter-claim, it is immaterial that the boarder does not know of such agreement. Riley v. Mitchell, s. C. Minn., Oct. 6, 1886; 29 N. W. Rep., 588.
13.-INSURANCE. -- Fire Insurance Owonership of
Property-Evidence-Trial-Production of Written Instrument - Parol Evidence of Contents of Written Document. Where the defense to an action upon a tire insurance policy is that the insured was not the owner of the premises in question, it is competent to show that the deed under whict the insured claimed had been delivered in escrow only. Where the defendant gives the plaintiff notice to produce a certain instrument known to be in his possession, and the plaintiff fails so to do, it is competent to inquire on crossexamination as to the contents of said instrument. Pangborn v. Continental Ins. Co., S. C. Mich., Oct. 7, 1886; 29 N. W. Rep., 475.
merely as a mortgagee, and has no other rights or remedies than the law accords to mortgagees. The want of a personal agreement by the borrower to repay the money is not conclusive that the conveyance was not intended as a mortgage, but merely a circumstance to be considered with the other evi. dence in the case. Scheiber v. LeClaire, S. C.
Wis. Oct. 12, 1886; 29 N. W. Rep. 570. 18. LEGACY-Will.—The law conclusively presumes
that a legacy is to be paid only out of the personality; and if that is insufficient, the legacy is lost unless a contrary intention is shown on the face of the will. Where a will directs a legacy to be paid out of testator's estate by the executor, and no reality is devised to the executor, payment of the legacy will be confined to the personality; no infer. ence to change the reality can be drawn from a subsequent residuary clause devising all the remainder of testator's estate, “real, personal and mixed,” to a third person. White v. Kauffman,
Md. Ct. App. Oct. 9, 1886; 4 Cent. Rep. 159. 19. NEGLIGENCE.-In an action for personal injuries
alleged to have been sustained by a servant, through the negligence of the defendant employer to provide safe and suitable machinery and tools, and to give suitable and proper instructions, a request by the defendant for a ruling "that unless the jury find that the plaintiff was a man of manifest imbecility, the verdict must be for the defendant” is rightfully refused. Allen v. Merrick, etc. Co., S. J. C. Mass. Oct. 12, 1886; 5 Boston Law Record, No. 10.
14. JUDGEMENT-Arrest of-Motion for Judgment
Non Obstante Veredicto.-Where, in the trial of an action on a lease to recover damages for a failure to perform the conditions of the lease, a verdict is rendered in favor of the plaintiff, and the defend. ant submits a motion in arrest of judgment, and the court thereupon renders a judgment in favor of the defendant notwithstanding the verdict, if the petition shows that the plaintiff is entitled to to any relief, such judgment of the court will be reversed. Carl v. Granger Coal Co., S. C. Iowa, Oct., 13, 1886; 29 N. W. Rep. 437.
Fraud-Mistake---Res Adjudicata.A judgment in an action of tort to recover money alleged to have been obtained by fraud, is not a bar to a subsequent action to recover the same money, on the ground that it had been paid under a mistake of fact. Facts offered in evidence to prove an issue are not themselves in issue, and the judgment is no evidence in regard to them. When a creditor has received more than was due him from his debtor, the excess is deemed so much money of the debtor in the hands of the creditor for the use of the debtor; and if, on a subsequent transaction between the parties, the debtor becomes again indebted, such excess will be presumed to have been applied by the creditor upon the subsequent indebtedness when it accrued, and the debtor will not be deprived of the benefit of such application by force of the Statute of Limitations, in an action by the creditor for the entire indebtedness. Belden v. New York, N. Y. Ct. Appls., Oct. 5, 1886; 4 Cent Rep. 180.
20. PARTNERSHIP.-Accounting How and When
the Right to, Arises-Action or Suit-Partnership-Trover-Accounting.-One partner cannot, by wrongfully terminating the contract of partner. ship, and tortiously seizing and appropriating the joint property, create a right to compel an ac. counting in equity with reference to the operation, after possession taken, or as to the avails of property wrongfully converted. An action in trover by one partner against another, for tortiously seizing and converting the joint property, should not be consolidated with proceedings in equity for an account brought by the defendant in the trover case. McGraw v. Dale, S. C. Mich. Oct.
7, 1886; 29. N. W. Rep. 477. 21. PLEADING-Section 101, Civil Code Ky.Meaning of “ Subsequent” as There Used- Trusts - Resulting Trusts- Purchase of Land with Another's Means-Statute of Frauds-Agreement to Redeem Land of Another from Execution Sale.The word “subsequent,” as used in section 101 of the Civil Code, as to departures from defenses or grounds of action pleaded, refers to a pleading subsequent in its character to a reply, and not to the time when one may be filed. The statutory provision in Kentucky that when a deed is made to one person, and the consideration shall be paid by another, that no trust shall result in favor of the latter, does not apply where the grantee takes the deed without the consent of the one paying the consideration, or where the grantie, in violation of a trust, purchases the lands with the means of another. An agreement whereby one party was to redeem the other's land from an execution sale, and occupy the land so redeemed as the latter's lessee for a time following, in consideration for his act, is not a contract for the sale of land, and hence not within the statute of frauds. Bedford v.
16. MECHANIC'S LIEN.-Possession of Land
Right of Owner.-When one who has put in the possession of land by the agent of the owner, with the verbal understanding that he was to purchase the land, contracted for materials and labor for the erecting of improvements upon the land, held, that the contract was personal one with the person in possession, and that no lien attached to the improvements as the property of the owner of the land. Wilkins v. Litchfield S. C. Iowa, Oct. 9, 1886; 29 N. W. Rep. 447.
17. MORTGAGE--Deed Absolute-- Rights of Transferee
- Evidence.-Whenever property is transferred, no matter in what form or by what conveyance, as the mere security for a debt, the transferee takes
Graves, Ky. Ct. App., Sep. 23, 1886; 1 S. W. Rep.
534. 22. -Power of Appointment – Exercise of —
General Residuary Bequest-Intestacy.-By a will made in exercise of a testamentary power of appointment among children, contained in a marriage settlement, a testatrix appointed certain shares in the settled funds to her children, and one share, in an event which happened, to her grandson. The will also contained a general residuary bequest to her two sons of "all the rest, residue of, and remainder of my personal estate and effects whatsoever and wheresoever, and of what nature or kind soever,
* * and over which I have any power of disposal by this my will.” Held, that the share improperly appointed to the grandson was not undisposed of, bnt passed to the two sons under the terms of the general residuary bequest. Re Hunt's Trusts, Eng. Ct. Apps., 1886; 54 Law Times Rep. 6.
facts which defendant offered to prove by such evidence, and a correct instruction was given by the court to 'the jury applicable to such facts, the error in rejecting the evidence was cured. Interrogatories intended to elicit special findings by the jury were prepared by the court, and the jury's attention was directed to them by an instruction, but, through oversight, the jury did not receive the interrogatories, and no special findings were made. Held, that as the interrogatories were intended to elicit answers upon immaterial matters, the omisssion to give the question to the jury was not prejudicial error. Upon the trial of an action against a railroad company to recover douvle the value of a horse killed by a train, the value not baving been paid after notice and proof of the injury by affidavit, the statement in the return of the constable who served the affidavit upon the agent of the railroad company, that such service was made by giving a copy of the affidavit to the agent, may be corrected by the constable's evidence showing that he served the original affidavit. Liston v. Central Iowa Etc. Co., Oct. 14, 1886; 29 N. W. Rep., 145.
23. PRACTICE-Error, Writ of - Final Decree
Consent to Jurisdiction.-In proceedings to enforce a vendor's lien a decree in favor of plaintiff for a certain sum, and ordering a sale if the same be not paid within a certain time, cannot be taken up on writ of error, even by consent of parties, as it is not a final decree. Gibson v, Widener, S. C. Tenn., Sep. 17, 1886; 1 $. W. Rep. 497.
24. Quo WARRANTO– Voter-Check-List- Revised
Laws, $$ 71, 2644, 2656–Parol EvidenceNaturalization-Revised Laws, Chap. 74–Civil Authority.-While the vote of a person whose name is on the check-list, and who is a resident, cannot lawfully be rejected, yet the list is not conclusive that he is a legal voter. In making a checklist of voters, the annual assessment-list, which is completed, and the last one preceding the time of making the check-list, governs; thus, in making a voting list in April, 1886, the assessment-list of 1885 should be used. Parol evidence is not admissible to prove that a foreigner has been naturalized, the question being whether he was a voter; a certified copy of the record is required. The statute requiring check-lists did not change the power of the board of civil authority. State, ex rel. v. O'Hearn, S. C. Vt., Sep. 8, 1886; 7 East. Rep. 87.
26. .--Right of Way--Contract ---Mortgage.-
An agreement made, on the purchase of rights of way by a railway corporation, to pay therefor in bonds of the purchasing corporation, is within the powers of such corporation; and the facts that the line of the purchasing corporation was not formally located on the line proposed to be purchased, and was subsequently located on a different line, do not affect the question of corporate power. A contract made by an individual, in connection with others, with a railroad corporation in which he is a director, binding the corporation to purchase certain property from bim and his associates, such director having participated in the action of the corporation in assuming the obligation is within the rule which invalidates all contracts made by a trustee fiduciary, in which he is personally interested, at the election of the party he represents. Such contract is not rendered valid by the fact that its effect was merely to substitute the corporation for certain of its individual promoters, who had previously contracted for the pnrchase; nor by the fact that the property consisted of real estate, track, etc., of another railroad corporation which the present vendors had purchased under a mortgage foreclosure; the transaction in question not being an arrangement for the reorganization of an existing railroad within the provisions of Laws 1873, chap. 710. Munson, V. Syracuse Etc., Co., N. Y. Ct. of Appls.. Oct. 5, 1886; 4 Cent. Rep., 191.
23. RAILROAD COMPANIES. · Fencing—“ Crazy"
Horses---Code Iowa $ 1289--Evidence Improperly Rejected.--Error Cured-- Special Findings-Failure to Deliver Interrogatories to Jury--Immaterial Matters -- Fences--Double Damages--Service of Afidavit Upon Company's Agent -- Correcting Return of Constable.---Under section 1289 of the Code of lowa, a railroad company is required to fence its track for the protection of crazy borses as well as for the protection of animals possessing good " horse sense.” In an action against a railroad company for damages for the killing of a hore by defendant's train, at a point where defendant had a right to build a fence, but had failed to do so, the fact that the train did not strike the horse, and that the horse was injured by running in front of the train into a bridge, does not relieve the railroad company of liability. Where evidence offered by defendant was rejected by the court, and, after all the evidence was in, a written admission was filed by the plaintiff, conceding the
27. TENANCY-Joint Tenants and Tenants in
Common- Title Derived from one Co-TenantEquity-Confirming Title-Husband and WifeImprovements Made upon Land by Co- TenantConveyance--Subrogation.-Action or Suit --Joinder or Parties--Requiring Party to InterveneDemurrer-Trespass-Title-Nuncupative WillFixtures-Buildings Constructed upon Lands with Permission - Nuncupative Will. – Where one claims title to a particular piece of land by warranty deed from a grantor who is a tenant in common of that with other lands, a court of equity will confirm the title in the grantee, if it can be done without prejudice to the rights of the co-tenants of the grantor. Where a husband makes improvethe trustee to sell. Harris v. Petty, s. C. Tex. Oct. 16, 1886; 1. S. W. Rep. 525.
ments on his wife's lands with community funds, he is entitled to reimbursement to the amount of his share of the funds used; and when by inheritance from his children, he becomes a co-tenant of that with other lands, and makes a warranty deed of the land in question, his grantee is entitled to be subrogated to his right to the money so used. In an action of trespass to try title to lard, it was alleged in the answer that a certain person, not a party to the action, claimed some interest in the land, and asked that he be made a party, and required to assert whatever claim he might have. Held, that it was error to sustain a general demurer filed by such third person. In an action of trespass to try title to land, a demurrer to an allegation in the complaint claiming title by a nuncupative will was properly sustained. Building constructed upon land within the right of way of a railway, with its permission, the fee being in some one else, are not chattels, so as to pass by a nuncupative will. Furrh v. Winston, S. C. Tex. Oct. 15, 1886; 1 S. W. Rep. 527.
31. USURY.–Usurious Contract-Validity-Parent
and Child-Rights of Parent-Equitable Ornership of Property.-Where one proposed to advance money to another for the purchase of a house provided the legal title was conveyed directly to himself, and the purchaser would agree to pay rent at a given rate per month, after which the property would be re-conveyed to the purchaser or his wife, and it appeared that this contract was only a cover to obtain a usurious rate of interest, held, that the contract was illegal, and that the borrower should pay only what he justly owed, after deducting the usurious interest. A father cannot, by any arrangement entered into with the holder of the legal title, appropriate property belonging to his minor child as equitable owner. Tiller v. Cleteland, S. C. Ark. Sept. 29, 1886; 1 S. W. Rep. 516.
28. TRESPASS QUARE CLAUSUM.-Possession
Evidence of Title.-A petition in an action for trespass to land, and for carrying a way timber therefrom, which alleges that defenda nt "entered the close of plaintiff,—that is to say, a certain tract of land, and the lines and boundaries thereof," and cut down and carried away a lot of timber therefrom, without otherwise alleging possession or seizin of the land or ownership of the wood by plaintiff, is demurrable. The act of March 10, 1854. allowing an owner of land, althought not in actual possession, to maintain trespass quare clausum, is not in force, and possession must be shown. A deed of special warranty from a person who does not appear to have had any title himself is not sufficient evidence of ownership or possession to enable the plaintiff in an action of trespass quare clausum fregit to maintain his action. Duzan v. Ferguson, Ky. Ct Appls. Oct. 5, 1886; 18. W. Rep. 539.
32. VENDOR AND PURCHASER-Action for Price
Defense of Defect of Title.- In the absence of fraud, a person who has been let into the posses. sion of property under a deed, and never has suffered eviction, either actual or constructive, cannot controvert his vendor's title, nor defend against payment of the purchase money on account of defects therein, real or supposed, but is re. mitted to the covenants in the deed. Morris 1.
Ham, S. C. Ark., Sep. 25, 1886. 1 S. W. Rep. 519. 33. VENDOR AND VENDEE-Vendor's Lien-Pri
ority-Purchase by Partners-Dover.-The proceeds of a sale to satisfy a vendor's lien of land purchased with partnership funds, and for partnership purposes, is assets for the payment of the obligations of the partnership, after the satisfaction of the lien, and such sale is not subject to a right of dower in the wife of one of the partners. Sher. ley v. Thomasson, Ky. Ct. of Apps., Sep. 25, 1886;
1S. W. Rep. 530. 34. WATERS AND WATER-COURSES – Rights of
Property in Water-Tenants in Common in the Use of the Flow of a Stream-Evidence-Experts -- Testimony as to Capacity of a Ditch to Carry Water-Appeal-Conflicting Evidence. A court
equity has power to ascertain and determine the extent of the rights of property in water flowing in a natural water-course, acquired by persons who hold and are entitled to them, and to regulate, between or among them, the use in the flow of the water in such a way as to maintain equality of rights in the enjoyment of the common property. The capacity of a ditch to carry water does not require for its proof unusual scientific attainments or peculiar skill. It may be established, like any other fact, by competent testimony; and witnesses who have had long experience in measuring and selling water are as competent to testify to the fact as experts. A finding made upon substantially conflicting evidence is not reviewable. Frey v. Lowden, s. C. Cal., Aug. 31, 1886; 11 Pac. Rep. 838.
29. TROVER-Evidence-Presumption.-In genera
it will not be presumed that A. made a certain contract with B. from the fact that he had made simi. lar contracts with other parties. Defendant was authorized to and did purchase a horse on the plaintiff's credit; the defendant retained possession, and the plaintiff claimed to have a lien; the defendant exchanged this horse for another; that the plaintiff claimed that it was by his consent, and that the first lien was discharged in consideration of his having a lien on the second horse, held, that the bill of sale, executed by the first vendor to the defendant at the time of purchase, although the plaintiff was not present, was admissible in behalf of the defendant, to prove that he was the sole owner. Aiken v. Kennison, S. C. Vt. Sept. 10, 1886; 7 East. Rep. 90.
30. TRUSTS – Power of Trnstee to Sell Land
“Natural Guardian” of Cestuis Que Trust.Where land owned by a woman was conveyed to a trustee in trust for her children, her husband joining in the deed, which gave the trustee power to sell the land during the minority of the cestuis que trust, upon a request from their “egal and natural guardian,” held, that a request to sell made by their father was sufficient to authorize
35. WILL.-Charge on Land-Legacy.-A testator
directed his executor to satisfy and pay his just debts, etc., out of his "estate," and gave and bequeathed to K. $200, which he directed his executor to pay out of his "estate.” Testator then gave, devised, and bequeathed all the rest, residue, and remainder of his estate, real, personal, and mixed, to his niece, J. C. Held, that the real es