DEMURRER. See Reversal, 6.

To a bill in equity does not admit the correctness of averments as to the meaning of an instrument set forth in or annexed to the bill. Dillon v. Barnard et al., 430.

DEPOSITION. See Practice, 8, 10, 11.

DISCLAIMER. See Patent, 2.

DISTILLER'S BOND. See Bond; Capacity Tax; Internal Revenue, 8.

DIVESTITURE OF ESTATE. See Trust and Trustee, 1-3.

"DOING BUSINESS."

See Internal Revenue, 4.

DOMESTIC SHIP. See Admiralty Law of the United States.

DOMICILE.

A resident of a loyal State, who, after the 17th of July, 1861, and just after the late civil war had become flagrant, went, under a military pass of a Federal officer, into the rebel States, and in November and December, 1864, bought a large quantity of cotton there (724 bales), and never returned to the loyal States until just after that and when the war was not far from its close-when he did return to his old domicile having, during the time that he was in the rebel States transacted business, collected debts, and purchased the cotton, held, on a question whether he had been trading with the enemy, not to have lost his original domicile, and accordingly to have been so trading. Mitchell v. United States, 350.

ENEMY'S TERRITORY. See Rebellion, The, 6, 7.

EQUITABLE LIEN.

1. A mere personal agreement by one setting up a claim on the government, with another person to pay to such person a percentage of whatever sum Congress, through the instrumentality of such person, may appropriate in payment of the claim, does not constitute any lien on the fund to be appropriated; there being no order on the government to pay the percentage out of the fund so appropriated, nor any assignment to the party of such percentage. Trist v. Child, 441.

2. If such agreement amounted to such an order or assignment as in the case of a debt due by an ordinary person would constitute an equitable lien on the fund, the act of February 26th, 1853, would in the case of a claim on the government prevent its doing so. Ib.

8. To create, for future services of a contractor, a lien upon particular funds of his employer, there must be not only the express promise of the employer to apply them in payment of such services, upon which the contractor relies, but there must be some act of appropriation on the part of the employer relinquishing control of the funds, and conferring upon the contractor the right to have them thus applied wheu the services are rendered. Dillon v. Barnard et al., 430.

EQUITY. See Answer in Chancery; Demurrer; Husband and Wife; Patents, 5, 6; Pleading, 2; Writ of Assistance.

1. Courts of, have not jurisdiction to avoid a will or to set aside the pro

EQUITY (continued).

bate thereof on the ground of fraud, mistake, or forgery; this being within the exclusive jurisdiction of the courts of probate. Case of Broderick's Will, 503.

2. Nor will they give relief by charging the executor of a will or a legatee with a trust in favor of a third person, alleged to be defrauded by the forged or fraudulent will, where the court of probate could afford relief by refusing probate of the will in whole or in part. Ib. 3. The same rule applies to devises of real estate, of which the courts of law have exclusive jurisdiction, except in those States in which they are subjected to probate jurisdiction. -Ib.

4. Although it may be true that where the courts of probate have not jurisdiction, or where the period for its further exercise has expired and no laches are attributable to the injured party, courts of equity will, without disturbing the operation of the will, interpose to give relief to parties injured by a fraudulent or forged will against those who are in possession of the decedent's estate or its proceeds, malâ fide, or without consideration, yet such relief will not be granted to parties who are in laches, as where from ignorance of the testator's death they made no effort to obtain relief until eight or nine years after the probate of his will. lb.

5. Ignorance of a fraud committed does not apply in such a case, especially when it is alleged that the circumstances of the fraud were publicly and generally known at the domicile of the testator shortly after his death. Ib.

6. Whilst alterations in the jurisdiction of the State courts cannot affect the equitable jurisdiction of the Circuit Courts of the United States, so long as the equitable rights themselves remain, yet an enlargement of equitable rights may be administered by the Circuit Courts as well as by the courts of the State. Ib.

7. Any person having a specific lien or vested right in a surplus fund in the registry of the court of admiralty may apply by petition for the protection of his interest under the forty-third admiralty rule. The Lottawanna, 558.

ESTOPPEL.

1. Where assignees of a patented invention, grant to A, and afterwards, not regarding that grant, grant, though without warranty, to B., if A. reconvey to them, B. has the right by estoppel against his grantors. Littlefield v. Perry, 205.

2. Where a person having a patent for a certain invention and also an application for a patent for an improvement on it pending, grants the patent and any improvements thereon, and the application is rejected and he then again applies for a patent for an improvement (this lust improvement varying in some respects from that for which the application was rejected), he will not-upon the court's being of opinion that the last improvement is, notwithstanding its variations, in sub. stance, the same as that which he applied for in his rejected applica tion-be allowed to deny that that application was for an improve

ESTOPPEL (continued).

ment. He is estopped, by his grant describing it as an improvement, from doing so. Littlefield v. Perry, 205.

3. Where one having a title to two lots purchased from the State, but for which he has as yet no patent, makes a deed of them, in form absolute, to another, and then subsequently twice mortgages them, with a third lot, which he owns, to that other, the grantee of that other is not estopped by his grantor's acceptance of the mortgages of the three lots, to assert ownership, under the deed in form absolute, of the two. Grosholtz v. Newman, 481.

EVIDENCE. See Answer in Chancery; Practice, 8, 10, 11; Trust, 2, 8. 1. In a suit upon a judgment of a sister State, objections to the form and sufficiency of the evidence offered to prove the record on which the action is brought cannot be sustained, in the face of a certificate from the proper officer that the record is "a true and faithful copy of the record of the proceedings had in the said court in the said cause;" the cause, namely, on which the suit was brought. Maxwell v. Stewart, 71. 2. The answer to a question put by an insurance company to an applicant for insurance, on a matter going to affect the risk, as written down by the agent of the company, when he takes the application for insurance, and which is signed by the applicant, may be proved by the evidence of persons who were present, rot to have been the answer given by the applicant. Insurance Company v. Mahone, 152.

2. The opinion of a medical witness that a person was not worthy of insurance, in June of one year, is not competent evidence in a suit or a policy issued on the 30th of August of the same year; there being no issue made in the pleadings as to the health of the assured prior to the date of the policy. Ib.

4. Under a stipulation that “all original papers filed in the case" (a suit against a life insurance company, on a policy of life insurance), and "which were competent evidence for either side," may be read in evidence, the written opinions of the medical examiner of the company, and of its agent appointed to examine risks, both made at the time of the application for insurance and appended to the proposals for insurance, and both certifying that the risk was a first-class risk, are competent evidence on an issue of fraudulent representation to the company, to show that the company was not deceived. Ib.

5. Evidence that the general agent of an insurance company, sent by it to examine into the circumstances connected with the death of a person insured, after so examining, expressed the opinion that it would "be best for the company to accept the situation and pay the amount of the policy," is not competent on a suit by the holders of the policy against the company. Ib.

6. Under the act of Congress (Revised Statutes, 858) enacting that "in courts of the United States no witness shall be excluded in any civil action because he is a party to or interested in the issue to be tried, Provided," &c., the parties to a suit (except those named in a proviso to the enactment) are on a footing of equality with other wit

EVIDENCE (continued).

nesses, all are admissible to testify for themselves, and all are compellable to testify for others. Texas v. Chiles, 488.

7. When a debtor has once given a warrant of attorney to confess a judgment, he knowing, beyond peradventure, that the holder of it could enter judgment, obtain a lien, and get a preference, the fact that entry of judgment on the warrant was a surprise to him, and wholly unexpected by him, is not evidence against an assignee seeking to recover from the person to whom he gave the warrant the proceeds of a sale made on a judgment obtained on the warrant. Clarion Bank v. Jones, 325.

8. Where a debtor, knowing that his creditor is insolvent, accepts a draft drawn on him by such creditor, the draft being drawn and accepted with the purpose of giving a preference, the transaction is a fraud on the Bankrupt Act, and the assignce in bankruptcy can recover from the acceptor the amount of the draft. Foz v. Gardner, Assignee, 475.

9. On a suit against a county on its bonds issued to a railroad company, a transcript from the books of the county commissioners in which appeared a letter from the president of the road, dated at a certain time, and speaking of the road as being “now located," is no evidence of itself that the road was at the time not completed. Chambers County v. Clews, 317.

EXCEPTION. See Practice, 8, 4, 5, 6, 8.

GENERAL ISSUE. See Pleading, 5, 6.

GOVERNMENT BONDS AND NOTES.

1. The bonds and treasury notes of the United States payable to bearer at a definite future time are negotiable commercial paper, and their transferability is subject to the commercial law of other paper of that character. Vermilye & Co. v. Adams Express Company, 138.

2. Where such paper is overdue a purchaser takes subject to the rights of antecedent holders to the same extent as in other paper bought after its maturity. Ib.

8. No usage or custom among bankers and brokers dealing in such paper can be proved in contravention of this rule of law. Ib.

4. It is their duty when served with notice of the loss of such paper by the rightful owner after maturity to make memoranda or lists, where the notice identifies the paper, to enable them to recall the service of notice.

Ib.

GRANT IN PRÆSENTI. See Breach of Condition; Condition Subsequent; Husband and Wife, 2.

Where a statute contains words of present grant, they must be taken in their natural sense to import an immediate transfer of title, although subsequent proceedings may be required to give precision to that title and attach it to specific tracts. Schulenberg v. Harriman, 44.

HOGS. See "Cattle."

HOMESTEAD. See Texas.

HUSBAND AND WIFE.

1. When husband and wife join in making a deed of property belonging to him, to a third party, in trust for the wife, the fact that such party was not in the least cognizant of what was done, and never heard of nor saw the deed until long afterwards, when he at once refused to accept the trust or in any way to act in it, does not affect the transaction as between the husband and wife. Adams v. Adams, 186. 2. A deed by husband and wife conveying by formal words, in præsenti, a portion of his real property in trust to a third party, for the wife's separate use, signed, sealed, and acknowledged by both parties, all in form and put on record in the appropriate office by the husband, and afterwards spoken of by him to her and to other persons as a provision which he had made for her and her children against accident, here sustained as such trust in her favor, in the face of his answer that he never "delivered" the deed, and that he never meant that it should be absolute except in certain contingencies which did not arise. Ib.

ILLINOIS.

1. Under the statutes of Illinois the designation of parties, as partners, in the opening of the declaration, is not a simple designatio personarum, and surplusage; but amounts to an averment that they contracted as partners. Cooper & Co. v. Coates & Co., 105.

2. A bill of lading for goods sent to a purchaser, and not objected to by him, amounts to a liquidation of an account within the statute of, giving interest on "liquidating accounts between the parties and ascertaining the balance," there being no other transaction between the parties. Ib.

3. And a draft drawn for the price of goods sold and delivered is equivalent to a demand of payment, and, there being no proof of credit, and the bill having been received without objection, equally brings the case within the statute of, which gives interest on money due and “withheld by unreasonable and vexatious delay." Ib.

IN ODIUM SPOLIATORIS. See Minnesota.

INSOLVENCY. See Bankrupt Act, 9.

INSURANCE. See Evidence, 2–5.

INTEREST. See Illinois, 2, 3; Patents, 8; Usury.

INTERNAL REVENUE. See Capacity Tax; Rebellion, The, 1-5.

1. Although the act of Congress of July 13th, 1866, declares that no suit shall be maintained for the recovery of any tax erroneously or 'illegally assessed, until an appeal first be made to the Commissioner of Internal Revenue and a decision had, yet this does not prevent the defendant in a suit brought by the government from setting up as a defence the erroneous assessment or illegality of the tax. Clinkenbeard v. United States, 65.

2. The term "capital," employed by a banker in the business of banking, in the one hundred and tenth section of the Revenue Act of July 13th, 1866, does not include moneys borrowed by him from time to