64.

Fact that a prosecuting witness treated two jurors to beer held not to show misconduct.State v. Minor (Iowa) 330.

An instruction to reject the evidence of witnesses if their testimony is not believed is proper.-State v. Minor (Iowa) 330.

Under Code, § 5484, forbidding the state's attorney to "refer" to accused's failure to testify, language used in argument held improper. -State v. Trauger (Iowa) 336.

Where the evidence shows defendant guilty of crime charged or of none at all, instruction as to lower grades of crime is unnecessary.-State v. Sherman (Iowa) 461.

Failure to give instructions as to accomplices furnishes no ground for complaint, where none were asked.-State v. Smith (Iowa) 499.

An instruction defining an accomplice held sufficient, in the absence of a request for further instructions.-State v. Smith (Iowa) 499.

Where an accomplice testifies for accused, an instruction that her testimony must be corroborated is unnecessary.-State v. Smith (Iowa) 499.

It is not error to refuse requests where the case was fully covered by the court's charge. -People v. Hilliard (Mich.) 306.

Requests not warranted by the evidence are properly refused.-People v. Hilliard (Mich.) 306.

Instructions as to circumstantial evidence held proper. Cunningham v. State (Neb.) 60.

Where two persons jointly indicted are tried separately, the court can require presence of one of them in the court room during trial of the other.-Cunningham v. State (Neb.) 60. Rebuttal testimony may be given by witness not indorsed on information.-McVey v. State (Neb.) 1111.

Where effect of alibi was correctly stated in instruction, a reference to it by the court as a part of the defense was not prejudicial.-McVey v. State (Neb.) 1111.

Where the court charged that presumption of innocence continues until guilt is established beyond a reasonable doubt, it is not prejudicial error to refuse to charge that such presumption is a matter of evidence.-McVey v. State (Neb.) 1111.

Where instructions cover the whole ground, the fact that one instruction referred to but a part of the offense is no ground for objection.-McVey v. State (Neb.) 1111.

§ 7. Motions for new trial.

New trial for newly-discovered evidence will not be granted unless it is material, and due diligence has been shown. - Cunningham v. State (Neb.) 60.

§ 8. Appeal and error.

Where affirmative error appears in a charge, accused is not estopped to urge the objection on appeal by failure to ask a different charge. -State v. Goering (Iowa) 327.

Where jury are plainly charged as to degree of evidence necessary to convict, refusal to charge that if they should reject testimony of

of murder in first degree a transcript at county's Refusal of trial court to grant one convicted expense held abuse of discretion.-State v. Robbins (Iowa) 463.

Where witness stated that he did not recollect what was said in a certain conversation, error in excluding a question as to the exact words given was harmless.-People v. Hilliard (Mich.) 306.

The admission of incompetent evidence of a fact otherwise established is harmless.-People v. Schoonmaker (Mich.) 934.

An erroneous ruling cannot be availed of where seasonably withdrawn.-McVey v. State (Neb.) 1111.

The state is not required to file bond as a prerequisite to its prosecution of a writ of error.-State v. Polacheck (Wis.) 708.

CROSS-EXAMINATION.
" § 3.

See "Witnesses,"

CUSTODY.

Of child, see "Divorce," § 5.
Of jury, see "Criminal Law," § 6.

DAMAGES.

Damages for particular injuries. See "Death," § 1; "Libel and Slander," § 2. Breach by buyer of contract for sale of goods, see "Sales," § 5.

by seller of contract for sale of goods, see "Sales," § 6. Injuries caused by public improvements, see "Municipal Corporations," §§ 5-10.

Recovery in particular actions or proceedings. See "Replevin," § 5.

§ 1. Grounds in general.

Evidence held not to show a contract on which damages from failure to deliver goods could be recovered.-Bradley v. Smith (Iowa) 506. § 2. Measure of damages.

The actual value, before the fire, of a house burned through negligence, and not the market value, is the measure of damages for the burning.-McMahon v. City of Dubuque (Iowa) 517.

The actual value of household goods and wearing apparel in use by a family, based on their cost, condition, and age, and not their market value, is the proper measure of damages for their burning through negligence.-McMahon v. City of Dubuque (Iowa) 517.

Where vendor broke contract of sale, and evicted vendee, held, the measure of damages was the difference between the value of the land at the time of eviction and the sum the vendee had agreed to pay.-Scheerschmidt v. Smith (Minn.) 34.

In an action for personal injuries, plaintiff may prove such physical pain and mental St. Ry. Co. v. Emminger (Neb.) 675. suffering as resulted from the injury.-Omaha

In an action for personal injuries, plaintiff may recover the amount of physician's bill, though he has not paid it.-Omaha St. Ry. Co. v. Emminger (Neb.) 675.

plaintiff could recover for bodily pain and mental In action for personal injuries, instruction that anxiety to an amount not greater, and no less, than testimony shows he is entitled to, held not erroneous.-Boltz v. Town of Sullivan (Wis.)

870.

§ 3. Excessive damages.

A judgment of $3,500 for a stiff arm will not be interfered with as excessive.-Detzur v. B. Stroh Brewing Co. (Mich.) 948.

§ 4. Evidence and assessment.

In an action for failure to properly put machinery in place, the expense incurred in putting the machinery where defendant was required to

DECEDENTS.

DECEIT.

DECLARATION.

DECREE.

DEATH.

§ 1. Actions for causing death.

Under McClain's Code, § 3731, an heir's share of moneys recovered for death by wrongful act may, by proceedings under Code 1873, 88 3150-3154, be subjected to payment of a judgment against the heir.-Casady v. Grimmelman (Iowa) 1067.

In action by widow for wrongful killing of her husband, where complaint shows he left a widow and minor children, no specific allegations as to pecuniary damages are necessary. Haug v. Great Northern Ry. Co. (N. D.) 97. Four thousand dollars damages for causing death of plaintiff's husband held excessive.Rudiger v. Chicago, St. P., M. & O. Ry. Co. (Wis.) 169.

Rule stated for computing damages for causing death.-Rudiger v. Chicago, St. P., M. & O. Ry. Co. (Wis.) 169.

Evidence as to whereabouts of witness at time of accident held inadmissible.-Rudiger v. Chicago, St. P., M. & O. Ry. Co. (Wis.) 169.

The right of action conferred by Rev. St. 1898, §§ 4255, 4256, held not to prevent a personal representative from bringing an action for the death of his decedent, under the provision of Rev. St. 1898. § 4253, that actions for personal injuries shall survive.-Brown v. Chicago & N. W. Ry. Co. (Wis.) 748.

The length of time a decedent survived a personal injury is material only as to the damages recoverable in an action brought by an administrator for his death.-Brown v. Chicago & N. W. Ry. Co. (Wis.) 748.

Rev. St. 1898, §§ 4255, 4256, held not to authorize an action for the benefit of brothers and sisters of decedent whose death was caused by the wrongful act of another.-Brown v. Chicago & N. W. Ry. Co. (Wis.) 748.

Rights of action for death losses sustained by surviving relatives are wholly statutory, and therefore do not exist unless clearly thus given.-Brown v. Chicago & N. W. Ry. Co. (Wis.) 748.

DEBTOR AND CREDITOR.

See "Assignments for Benefit of Creditors"; "Creditors' Suit"; "Fraudulent Conveyances"; "Insolvency."

DEEDS.

Admissions by grantor, see "Evidence," § 7.
Cancellation, see "Cancellation of Instruments.”
Covenants in deeds, see "Covenants."
In fraud of creditors, see "Fraudulent Convey-
In trust, see “Trusts,” § 1.

ances."

Deeds by or to particular classes of parties. Married women, see "Husband and Wife," § 2. Sheriffs, see "Execution," § 5.

Deeds of particular species of property. See "Mines and Minerals," § 2. Separate property of married women, see "Husband and Wife," § 2. Water rights, see "Waters and Water Courses," § 2. Particular classes of deeds. Tax deeds, see "Taxation," § 7.

§ 1. Requisites and validity.

The grantee in a deed prior in time takes precedence over a subsequent grantee of the same land from the same grantor, in the absence of evidence establishing the latter's claim of adverse possession.-Orman v. Smith (Iowa) 526.

Evidence held to show title in complainant, subject to a certain interest in defendant.Hall v. Dobbin (Mich.) 641.

A deposit of deeds in escrow for delivery after grantor's death held a valid delivery notwithstanding grantor remained on the property and exercised ownership up to his death.-Jenkinson v. Brooks (Mich.) 640.

Where deed is delivered, it becomes operative as a conveyance, though not to be recorded during life of grantor.-Brown v. Hartman (Neb.) 776.

Destruction of deed after delivery does not devest title of grantee.-Brown v. Hartman (Neb.) 776.

Evidence held sufficient to vacate transfers by a husband to his wife during his last sickness, on the ground of undue influence.-Disch v. Timm (Wis.) 196.

Of estate of decedent, see "Descent and Distribution"; "Executors and Administrators," § 5.

§ 6. Operation and effect of divorce, and rights of divorced persons.

On divorce from bed and board the divorced wife is barred from dower and homestead rights, regardless of common-law rules.--Gallager v. Gallager (Wis.) 145.

On divorce from bed and board and division of property under the statute, relations of parties as to property rights, except as preserved in the decree, are terminated.-Gallager v. Gallager (Wis.) 145.

DOCKETS.

9-19.

Defenses.

If the husband's cruelty is disproportionate to the wife's offense, her conduct affords him no justification.-Walton v. Walton (Neb.) 392. No conduct on the part of a wife that does not threaten great and immediate bodily injury will justify the husband in beating or choking her. Walton v. Walton (Neb.) 392.

§ 3. Proceedings and relief.

Whether cruelty of the husband is so far disproportionate to the wife's offense as to be unjustifiable is a mixed question of law and fact.-Walton v. Walton (Neb.) 392.

Whether a wife's disobedience provoked the husband's cruelty is a question of fact.-Walton v. Walton (Neb.) 392.

DUE PROCESS OF LAW.

See "Constitutional Law," § 8.

EASEMENTS.

§ 1. Creation.

Prescriptive rights may be acquired in an alley, though it was laid out as such.-Moon v. Mills (Mich.) 926.

§ 2. Use and obstruction.

A grantor of a right of way cannot object to a use thereof by the grantee on the ground that he must pass over the land of a third person, from whom he has obtained no right of way.Godden v. Coonan (Iowa) 852.

Abutting owner on a right of way, who erects an obstruction which does not tend to injure the other owners, cannot be compelled to remove it. -Moon v. Mills (Mich.) 926.

EJECTION.

§ 4. Alimony and allowances.

Where the husband was worth $24.000, held, that $5,000 permanent alimony and counsel fees of $700 were proper.-Walton v. Walton (Neb.) 392.

The wife, by praying for a reasonable sum as permanent alimony, elects to take such sum in lieu of dower.-Walton v. Walton (Neb.) 392.

Permanent alimony in the sum of $5.000 held excessive.-Berdolt v. Berdolt (Neb.) 399. As no alimony can be granted wife on divorce for her fault, an agreement by the husband to pay her a monthly sum is a matter of contract, and cannot be enforced by attachment for contempt.-Glynn v. Glynn (N. D.) 594. § 5. Custody and support of children. Where a decree has settled custody of children in one parent, the court will not give them into custody of the other by committing them to strangers with whom that other lives. -Norval v. Zinsmaster (Neb.) 373.

Decree for divorce in favor of husband held not to change statutory duties or rights touching his son.-Glynn v. Glynn (N. D.) 594.

EJECTMENT.

See, also, "Real Actions."

§ 1. Right of action.

Ejectment may be maintained against a purchaser in possession under void or irregular foreclosure of mortgage.-Bowen v. Brogan (Mich.) 942.

Plaintiff must recover on the strength of his own title.-Comstock v. Kerwin (Neb.) 387. § 2. Pleading.

An ouster may be admitted by the pleadings. -Carpenter v. Carpenter (Mich.) 703.

A plea of the general issue, together with evidence that defendant had been in possession for 12 years claiming title, held sufficient evidence of ouster.-Carpenter v. Carpenter (Mich.) 703.

A counterclaim for improvements in an action for possession of land held sufficient as against a general demurrer.-Parker v. Vinson (S. D.) 1023.

A general denial of the allegation in defendant's counterclaim for improvements puts in issue the value of the improvements.-Parker v. Vinson (S. D.) 1023.