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4. After execution of her will, a testatrix erased the name of a legatee and wrote the name of another over the erasure. The court being satisfied that the testatrix intended to revoke the first bequest only in case she had substituted another valid bequest, admitted evidence to show what the erased name was. — In the Goods of McCabe, L. R. 3 P. & D. 94.
5. A testatrix re-wrote the first part of her will on a separate piece of paper, and then tore off the first part of her old will and burnt it. She then rolled up the rewritten portion with the remainder of her old will, which contained her own and the witnesses' signatures. Held, that as it appeared that the testatrix had intended to destroy a portion of her old will only in case a new portion was substituted therefor, probate must be granted of the portion of the old will which remained, together with the draft of the part destroyed. - Dancer v. Crabb, L. R. 3 P. & D. 98. See INSANITY; NEW TRIAL; VESTED INTEREST.
WINDING UP. — See COMPANY, 2.
“ Upon." — See Motion.
SELECTED DIGEST OF STATE REPORTS.
[For the present number of the Digest, selections have been made from the following volumes of State Reports : 47 Alabama ; 27 Arkansas; 46 Georgia; 8 C. E. Green (New Jersey Equity); 57 Illinois ; 38 Indiana ; 34 Iowa; 60 Maine; 8 Nevada; 51 New York; 22 Ohio State ; 70 Pennsylvania State; 9 Rhode Island; and 31 Wisconsin ; also from 10 Blatebford (United States Circuit Court, Second Circuit).]
Assumpsit on one special and two common counts. Plea in abatement, that the contract on which the action was brought was not actually made in the county in which action was brought, and that the same was not, nor was any part thereof, made specifically payable in that county. These averments were sufficient by statute to defeat the special count. Held, that the plea was a good answer to the whole declaration. — Humphrey v. Phillips, 57 III. 133.
Account STATED. — See ILLEGAL CONTRACT.
Action. 1. The owner of the upper story of a building cannot recover of the owner of the lower story the expense of necessary repairs on the roof made by him. – Ottumwa Lodge v. Lewis, 34 Iowa, 67.
2. Plaintiff's property was damaged by the explosion of a defective boiler on adjacent premises. Held, that he could maintain no action therefor against the owners of the boiler, without proof that they knew or might have discovered the defect. — Losee v. Buchanan, 51 N. Y. 476. And that he could maintain no action whatever against the makers of the boiler. — Losee v. Clute, ib. 494.
See AssuMPSIT; CONFLICT OF Laws, 1, 2; DECEIT, 1, 2; ILLEGAL ConTRACT; LORD's Day; PENAL ACTION; PROXIMATE AND REMOTE CAUSE.
ADMINISTRATION. — See EXECUTOR AND ADMINISTRATOR.
ADMIRALTY. — See SURVIVAL OF ACTIONS.
AGENT. A check, payable ninety days after date, was sent by the indorsee to a bank for collection. The bank presented it for payment, and protested it for nonpayment, without allowing days of grace, although the indorser notified them that he considered it entitled to grace. In an action by the indorsee against the indorser, the latter was discharged, on the ground that the instrument was properly a bill of exchange, and entitled to grace; which decision settled the law of the state, for the first time: whereupon the indorsee sued the bank for negligence. Held, that defendants were liable, and that their doubt of the law was no defence. (MontGOMERY, J., dissenting.) – Georgia National Bank v. Henderson, 46 Ga. 487.
See EVIDENCE, 5; FRAUDS, STATUTE OF, 1; MASTER AND SERVANT.
AMENDMENT. 1. Where the parties agree, or the court gives leave, to amend a bill in equity, the amendment must be actually made before any advantage can be taken of it. - Wilson v. King, 8 C. E. Green, 150.
2. An amendment inserting the names of new plaintiffs is not allowable in an action of trover. - Ayer v. Gleason, 60 Me. 207.
3. The court will not notice admissions in a pleading which are not contained in an amended pleading afterwards filed. — McFadden v. Ellsworth Mill and Mining Co., 8 Nev. 57.
ANNUITY. - See SURVIVORSHIP.
ASSAULT. In a case where, if death had ensued, the defendant would only have been guilty of manslaughter, he cannot be convicted of an assault with intent to murder. – Elliott v. The State, 46 Ga. 159. See BANKRUPTCY, 3.
ASSESSMENT. - See CONSTITUTIONAL LAW.
ASSIGNEE. — See PENAL Action. ASSIGNMENT. — See BANKRUPTCY, 2; LIEN, 1, 2; SPECIFIC PERFORMANCE.
ASSUMPSIT. Plaintiff conveyed an estate to J., with warranty, and, in consequence of a cloud on the title, deposited the consideration money with defendant, “ to remain with him as collateral to said warranty for a reasonable time.” Ten years after. wards, the grantee having died, and the estate having passed to his devisee, plaintiff demanded the money of defendant, who refused to give it up, whereupon plaintiff sued him for money had and received. Held, that the action was not maintainable, but that plaintiff's remedy was in equity. — Ramsdell v. Butler, 60 Me. 216.
ATTACHMENT. 1. An attachment is not dissolved by the defendant's death before judgment. - Lord v. Allen, 34 Iowa, 281.
2. One who occupies land with a right to cut and sell wood growing thereon, accounting to the owners of the land for the proceeds of such sales, after reimbursing himself for his expenses, has no attachable interest in the wood. — Provis v. Cheves, 9 R. I. 53. See TIME.
ATTORNEY. Where a judgment is recovered for costs only, the judgment debtor is bound to take notice of the lien of the attorney of the judgment creditor thereon, and cannot satisfy the judgment by payment to any one but the attorney. Otherwise
(EARL, C., dissenting), where the judgment is for damages and costs. — Marshall v. Meech, 51 N. Y. 140. See HUSBAND AND WIFE.
AVERAGE. — See GENERAL AVERAGE.
AWARD. An award that defendant has a right to keep up his dam to a certain height, and to keep thereon flash-boards twelve inches wide, at all times except in times of freshet, is bad for uncertainty of meaning of the word “freshet.” – Harris v. Social Manufacturing Co., 9 R. I. 99.
BAILMENT. — See LORD's Day.
BANKRUPTCY. 1. Action on a bill of exchange. Plea, defendants' discharge in bankruptcy. Replication, setting forth facts invalidating the discharge under section 29 of the Bankrupt Act. Held, bad, because a state court has no jurisdiction to impeach a discharge, as fraudulently obtained. - Oates v. Parish, 47 Ala. 157.
2. A “poor debtor law” of a state, permitting a debtor taken on execution to be discharged on making a general assignment of his property for the benefit of the judgment creditor, is not in conflict with, or superseded by, the Bankrupt Act. — Jordan v. Hall, 9 R. I. 218.
3. A judgment in an action of trespass for assault and battery is a debt provable in bankruptcy. – Manning v. Keyes, 9 R. I. 224.
See PENAL ACTION; TIME. BETTERMENT. — See Constitutional Law, State, 2; MUNICIPAL CORPORA
Bills AND NOTES. An absolute promise in writing to pay a specified sum at a future day certain, for the hire of a chattel, is a promissory note, although the same instrument contains other stipulations as to the use and return of the chattel. — Gaines v. Shelton, 47 Ala. 413.
See AGENT; CHECK; EQUITY; FRAUDS, STATUTE OF, 3; INDORSER ; INTEREST; WAR.
Bona FIDE PURCHASER. — See CORPORATION, 4. Bond. — See EXECUTOR AND ADMINISTRATOR, 1; SURETY; VENDOR AND
BREACH OF PROMISE. — See MisjoinDER.
NATIONAL BANK, 3.
CHATTEL MORTGAGE. The mortgagor of personalty has no interest therein which can be taken on execution. – Vanslyck v. Mills, 34 Iowa, 375.
CONDITION. — See COVENANT, 1; TELEGRAPH.
CONFLICT OF FEDERAL AND STATE AUTHORITY. 1. The saving in the Judiciary Act of a common-law remedy in the state courts, includes all remedies pursuing the course of the common law, though the cause of action exists only by statute; and therefore a statutory action on the case by an administrator, to recover for the death of his intestate, caused by being run over by defendant's vessel in Narragansett Bay, may be brought in a state court. — Chase v. American Steamboal Co., 9 R. I. 419.
2. The provision in the Act of Congress of 1793 (1 Sts. at Large, 334), that no injunction shall issue from a United States court to stay proceedings in any court of a state, applies only to proceedings actually commenced in a state court. - Fisk v. Union Pacific R.R. Co., 10 Blatchf. 518. See BANKRUPTCY, 2.
CONFLICT OF Laws. 1. The courts of a state where lotteries are unlawful will not entertain a suit to wind up a partnership formed for the purpose of carrying on a lottery in a state where lotteries are lawful. — Watson v. Murray, 8 C. E. Green, 257.
2. Plaintiff, a French subject, brought suit in France, in a court of competent jurisdiction, against defendants, his wife's parents, American citizens residing in France, to compel them to make him an allowance for his support, which they were, by the law of France, bound to do, according to his needs and their ability, so long as plaintiff's wife or any of his children by her should be living. Defendants appeared and defended the suit, and the court decreed that they should pay plaintiff a certain annuity. Plaintiff then brought an action on that decree, in a Circuit Court of the United States, to recover instalments of such annuity due and unpaid. Held, that the action could not be maintained. — De Brimont v. Penniman, 10 Blatchf. 436.
CONSTITUTIONAL Law. Plaintiff bought stock in the defendant company, whose charter, subject to amendment, alteration, or repeal, at the pleasure of the General Assembly, provided that no stockholder should be liable beyond the amount of his shares for any loss sustained by the company, or any debt due on the shares. Afterwards, the General Assembly enacted that a company might fill up its capital stock, if reduced from its original amount by losses, by assessment on the stockholders ; pursuant to which law, defendant assessed plaintiff. Held, that the act authorizing the assessment was constitutional. - Gardner v. Hope Ins. Co., 9 R. I. 194.