Page images



SURETY OF THE PEACE, neighboring county, and on the lin,

of the telegraph, is guilty of gross
In a proceeding for surety of the negligence

peace, the question as to just cause 4. Same.--Penal Statute.- Where 2
of fear relates to the time of the in statute fixes the amount which a tel.
stitution of the proceeding, and not egraph company shall pay as a penal-
to the time of the trial. The State, ty if she fails to comply with its re-
ex rel. Dougherty, v. Sayer.......379 quirements, the company cannot

Same. - If, on the final trial of a change the degree or measure of her
proceeding for surety of the peace,

it statutory liability by the adoption of
is found that the fears have, since the rules and regulations ............... Ibid.
commencement of the proceeding, 5. Same.- Paying back the amount
ceased to exist, this fact may be con paid for sending a dispatch, and the
sidered by the court in determining acceptance of the same, unless it is
the time and amount of the recog agreed to be accepted in full of all
nizance to be entered into by the de that the party has a right to recover
fendant, but it will not entitle him to by virtue of the provisions of a pe-
an unconditional discharge at the nal statute, will not bar an action for
costs of the relator....... .....Ibid. the full penalty..................... Ibid.

6. Same.-Damages.-In an action to

recover the penalty given by statute

for a failure on the part of a tele-

graph company to transmit a message,

it is not necessary that the plaintiff
See RAILROAD, 9, 10.

should prove any damages........Ibira!.


Adverse Possession.- When one ten-
1. Rules Limiting Liability.--A per ant in common is in possession of the

son sending a message by telegraph, whole estate, claiming under a deed
who knows of the existence of cer purporting to convey the entire estate,
tain rules and regulations adopted he will be deemed to have ousted his
by the telegraph company touching co-tenants. Nelson et al. v. Davis.474
the transmission of messages, though
he does not use the blank of the tel-

egraph company upon which the
rules and regulations are printed, is Sce VENDOR AND PURCHASER, I.
as much bound by the rules and reg.
ulations as if he had written the mes-

sage sent on such a blank prepared
by the company. The Western Un. 1. Annexation of Contiguous Terri-

YHL. Co. v. Buchanan...............430 tory:- Appeal from the Board of
2. Same.-Gross Negligence.—Tele Commissioners.-In a proceeding ly

graph companies may, within certain an incorporated town to annex con-
limits, establish rules and regulations, tiguous territory, no appeal lies from
which, in cases not depending on the judgment of the board of county

any statute, may govern the manner commissioners. Trustees Town of
• of sending messages, repeated mes. Princeton v. Manck.....

sages, and insured messages; but they 2. Same.- The action of the board of
cannot make such rules and regula county commissioners in annexing
tions as will protect them from lia contiguous territory, not platted or
bility for damages resulting from recorded, to a town, is final, and no
their own gross negligence, or the appeal lies therefrom. Church et al.
gross negligence of their agents and v. Town of Knightstown...........177

... Ibid. 3. Injunction.— Improvement of Strects
3. Same.--A telegraph company having of Town.- Petition, Ordinance, Cori-

in her employment an operator who tract, Jurisdiction of Board of Trus-
does not know of the existence of a tecs.-Under section 8, 3 Ind. Stat.
town which is the county seat of a 128, the board of trustees of a town,

[ocr errors]

have no jurisdiction, without the pe tract of land, it is a condition,prece.
tition filed of a majority of all the dent to his right to enforce the con-
resident owners of lots, &c.; and an tract; and in such a case the com-
ordinance passed and contract made plaint must allege a tender of a deed
for the improvement of the sidewalks therefor. Mather v. Scoles.........
of the town without such petition is 2. Specific Performance. -A party
void, Town of Covington et al. v. asking the specific performance of a

.......532 contract must do all in his power to
4. Same.- Parties.- Where the work fulfill the contract upon


in progress under such void proceed-
ing would be of no benefit, but a VENIRE DE NOVO.
damage to the citizens of the town, a
resident tax payer of the town may, See INTERROGATORIES TO JURY.
for himself and others of like inter-
est, enjoin the prosecution of the




See RAILROAD, 9, 10.



Special Verdict. See INTERROGATORIES
Pleading.-In an action for trespass TO JURY.

quare clausuin fregit, where the only Interrogatories. General Verdict.-
answer is a general denial, the court Where a general verdict is returned
has no authority to find a justifica for the plaintiff, and answers to
tion of the acts of trespass. That special interrogatories are also re-
defense requires a special plea. John turned, and the answers exclude eve-
son v. Cuddington et al............. 43 ry conclusion that will authorize a

recovery for the plaintiff, a judgment
TRUST AND TRUSTEE. should be rendered for the defendant,

notwithstanding the general verdict.
See CHARITABLE USE; CONVEYANCE, Snyder v. Robinson et al...........311
1, 2, 3



[ocr errors]


Whoever keeps an animal accus.

tomed to attack or bite mankind, with
Sec CHARITABLE USE; CONVEYANCE. knowledge of its dangerous propen-

sities, is prima facie liable to an ac-
tion for damages at the suit of any

person attacked or injured by the

animal, without proof of any negli-

gence or fault in the securing or

taking care of it. The gist of the

action is the keeping of the animal
VENDOR AND PURCHASER. after knowledge of its mischievous

disposition. Partlow v. Haggarty.178
See CONSIDERATION, 2; EXECUTOR | 2. Same'.—Complaint.-Suit to recov.

AND ADMINISTRATOR, 6; FIXTURES; er for injuries received from being
FRAUDULENT CONVEYANCE; PAR bitten and otherwise injured by a
TITION, 4; PAYMENT, I; PLEADING, dog. The complaint alleged that the
1, 2; REAL PROPERTY, ALIENATION defendant kept the dog, and negli-
OF; SHELLEY'S CASE; STATUTE OF gently suffered him to go at large,
FRAUDS, i to 4.

and that he attacked and bit the

plaintiff, without her fault, and great-
Condition Precedent.-Where the ly lacerated and injured her, &c.,
grantee of lands agrees to convey, in and that the defendant had knowl.
part payment of purchase-money, a edge of the fact that the dog was ac-


customed to commit such injuries; Contracts made prior to the procla,
wherefore, &c.

mation of August 16th, 1861, were
Held, that the complaint was good.. Ibid. valid; but during the war the debt

and the remedy were suspended, and

did not revive until the restoration of

... lbid.

9. Enemy.-Right to Sue.--During

the existence of war an enemy can.
1. Constitritional Law.--Power to De not sue in any of the courts of the

clare War.-Congress alone has hostile belligerent power......... Ibid.
power to declare war; and the Pres- 10. Same. -Status of Inhabitant of
ident of the United States has no Louisiana during the War.-An in-
power to declare war or conclude habitant of the State of Louisiana
peace, except as empowered by Con during the war of the rebellion was

gress. Perkins v. Rogers ......... 124 an enemy of all the inhabitants of
2. Same.-Existence of Peace or Iar. the State of Indiana, and could not

Ilow Ascertained.---The existence of maintain an action against any citi-
war and the restoration of peace are zen of this State, in any of the courts
to be determined by the political de of the United States... ..Ibid,
partment of the government; and 11. Same.- Judical Notice.— The
such determination is conclusive up courts will take judicial notice that

on the judiciary..... ......... Ibid. all the inhabitants of the State of
3. Same.--- Judicial Notice. The Louisiana were in insurrection, but

courts will take judicial notice of the they will not take judicial notice that
existence of war or the restoration of any of such inhabitants maintained a
peace, when proclaimed by the Pres loyal adherence to the United States,

Ibid. or that any part of said state was oc-
4. llar of the Rebellion.When it cupied by the military forces of the

became a Civil War:--The late in United States, or that any person had
surrection of the Southern states a license or permit from the Presi-
did not become a civil war, and was dent........

........ Ibid.
not governed by the rules of war, 12. Occupation of New Orleans.—The
until after the proclamation of Presi. legal effect of the occupation of the
dent Lincoln, issued August 16th, city of New Orleans was to permit
1861, pursuant to an act of Congress commercial intercourse between the

of July 13th, 1861...... Ibid. citizens of that city and such citizens
5. Civil War:- Rules of:-A civil of the United States as were licenseri

war is governed by the same rules by the President under the Act of
as a foreign war.....

.. Ibid. Congress of July 13th, 1861...... Ibid.
6. Same.-Effect upon Inhabitants of 13. Statute of Limitations.-Between

States in Rivolt. The proclamation Citizens of Different Bclligerent Pow.
of August 16th, 1861, placed all the ers.--The statute of limitations does
inhabitants of Louisiana in a state of not run, during the existence of war,
insurrection, and they became the en between the citizens of different bel-
emies of the United States, and all ligerent powers.....

commercial intercourse between the 14. Same.-- Restoration of Peace.--
citizens of that state and those of the Upon the restoration of peace, the
loyal states during the continuance statute of limitations begins to run;
of the war was unlawful, except such for both the debt and remedy, which
as was specially permitted by the Pres. have been suspended during the war,
.Ibid. revive......

7. Contracts.-Between Citizens of Bel-15. Same.-Although actual hostilities

ligerent Powers.-All contracts made ceased in April, 1865, yet peace was
between the citizens of the rebellious not legally restored until the 20th of
states, on the one hand, and of the loy August, 1866, when the rebellion
al states, on the other, during the war, was declared completely suppressed,
and not licensed by the President, and peace restored, by the proclama-
were void,.......

Ibid. tion of the President....... ..Ibid.
8. Same.- Mlade Prior to the War.-16. Same.- Period Excluded from



Operation of Statuto.-In an action

instituted by a citizen of Louisiana
against a citizen of Indiana, the time 1. City:-Right of City to Construct.
that intervened between the 16th of Cities have power

August, 1861, and the 20th of August, wharves and collect wharfage. City
1866, is to be excluded, in determin of Jeffersonville v. Ferryboat John
ing whether the action is barred by Shallcross et al .....

the statute of limitations......... Ibid. 2. Same. Repair.— The voluntary
17. Same.- New Promise.—A letter expenditure of money by a stranger
written during the existence of the in repairing the wharf of a city will
war of the rebellion, by a citizen of not create a liability against the city.
Indiana to a citizen of Louisiana,

cannot take a case out of the opera- 3. Same.Duty of City to Repair.-

tion of the statute of limitations.Ibid. A city can be compelled to repair
18. Review of Judgment.-Want of her wharves, and may be liable in

Jurisdiction of Courts over Suits be damages for failure to do so...... lbid.
tween Citizens of States at War:-An 4. Same.-Liability of Parties who
action was brought by a citizen of the Use the hardes. - A party who
State of Virginia against a citizen of uses the wharves of a city cannot dlc.
the State of Indiana, in a state court, feat the city's claim for wharsage by
on the 14th day of May, 1861, for showing that the wharves are out of
an accounting of a long standing repair ....

trust for the sale of a large quantity 5. Jurisdiction.-Claims for Wharf.
of lands, for setting aside contracts age.—The State courts have jurisdic-
and conveyances for fraud, recover tion to enforce the collection of
ing money alleged to be due, enforc-

claims for wharfage ....... Ibid.
ing liens, &c., and judgment was 6. Same.- A claim for wharsage
rendered on the 21st day of August, against a domestic vessel is not of
1863, and a suit was brought by the admiralty jurisdiction........ ..Toid.
plaintiff to review the proceedings
and judgment on the 19th day of

April, 1866.
IIcld, that the courts must take judicial See CHARITABLE USES; EXECUTOR AND

notice of the fact that before, at, and ADMINISTRATOR, 5.
after, the rendition of the judgment
sought to be reviewed, Virginia, one 1. Rule in Shelley's Case.-A. made
of the Confederate States, was at his will, as follows: “And it is my
war with Indiana, one of the adher will that my son John shall have that
ing or loyal states of the Union; land as follows: the south-west quar-
and that it was error of law to ren ter of section twenty-two, in town
der the judgment in the proceeding twenty-two, north of range one west,
which had been commenced in the to be for his use his life, and then to
state court, no jurisdiction remain fall to his heirs."
ing in said court for that purpose ; Told, that this gave to the devisee the
and the plaintiff was therefore enti fee simple, according to the rule in
tled to a review of the judgment. Shelley's case. McCray et al. v.
Brooke et al. v. Filer et al.........402 Lippet al....


Evidence. Where the law fixes

the intention of the testator from the

terms of a will, parol evidence of
Sce SALE, 3, 5.

the condition, character, and habits

of the devisee, as well as declarations

made by the testator at the time of

making the will, in order to show

that the testator only intended to

give the devisee a life estate, are in-


3. Construction. It is a well settled
See DESCENT, I; EXECUTOR AND AD. rule, that all the parts of a will are

to be construed together and in rela-


tion to each other, so as, if possible, the testator was to secure his widow
to form one consistent whole; and a competency, and if it was neces-
that words and limitations may be sary that she should sell the land,
transposed, supplied, or rejected, she might do so; but the balance of
where warranted by the immediate the estate unconsuined at her deatlı
context or the general scheme of the she could not devise.
will, but not merely on conjectural Hild, also, that the word heirs, as used
hypothesis of the testator's intention, in the clause of the will which gave
however reasonable, in opposition the estate, except one thousand dol-
to the plain and obvious sense of the lars, to the heirs of his daughter S.,
language of the instrument; and meant children.
such a construction should be placed | Held, also, that real estate purchased
upon the will as to sustain and up with the proceeds of the sale of the
hold it in all its parts, is this can be real estate devised by the will to the
done consistently with the established wise for her life, after the death of
rules of law and construction. the wife and the payment of the one

Grimes' Ex'rs v. Harmon et al...198 thousand dollars to the daughter S.,
4. Same.- Parol Evidence. --Mistake. belonged to the children of S. Rapp

Ambiguity. — The general rule is, et al. v. Matthias............ ·332
that parol evidence of the intention
of a testator is inadmissible for the

purpose of explaining, contradicting,
or adding to ihe contents of a will, 1. Impeachment.-A party whose wit-
but that its language must be inter nesses are impeached by evidence of
preted according to its proper signi. bad character, or by evidence that
fication, or with as near an approach they have made statements contrary
thereto as the body of the instrument to the testimony given upon the wit-
and the state of circumstances 'exist. ness stand, may sustain them by evi-
ing at the time of its execution will dence of their general good charac-
admit of. The doctrine in reference ter for truth und veracity. Seeger v.
to mistakes in wills is, that courts of Pfeifer

equity have jurisdiction to correct 2. Action by Heir.-In an action
them when they are apparent upon

brought by a widow as the heir of
the face of the will; but they must her hushand, where she claims that
be so apparent, and must be such as under and by virtue of a contract
may be made by a proper construc made with her husband by the de-
tion of the terms of the will; other fendant, her husband became the
wise there can be no relief. Parol owner of certain property in contro-
evidence, or evidence dehors the will, versy, and that she, as the heir of her
is not adınissible to vary and control husband, has the right to compel the
the terms of the will, although it is defendant to charge himself with the
admissible to move a latent ambi. property as administrator of the hus-

Ibid. band, neither the plaintiff nor dc-
5. Same. Bequest for Life.--Heirs. fendant is, by the last exception of
Children.-A testator bequeathed all

the second section of the act defining
his real and personal property to his who shall be competent witnesses,
wife, “ for her use and benefit during competent to testify as a witness as
her natural life,'' and after her death to any matter that occurred prior to
all that remained unconsumed was the death of the husband, unless re-
to be sold, and one thousand dollars quired by the opposite party or by
paid to his daughter S., and the the court. Pea v. Pea.............. 387
balance was to be divided among 3. Husband and Wife.-On the trial
the heirs of his daughter S., share of an action by husband and wife for
and share alike; the wife to have injury to the wise, the husband is in-
the right to sell and dispose of said competent to be a witness. Now-
property, both real and personal, as house v. Miller et ux..

she wished.

4. Expert.--Insanity.—Physicians who
Hild, that the wife took only a life are engaged in practice, and have

given the subject of medical juris-
Hold, also, that the evident intention of prudence some attention, by reading

« PreviousContinue »