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In an action for the price of land, evidence An elevator company held an innocent bailee
of fraudulent representations by persons other of wheat belonging to another person than the
than vendor held admissible, where the jury one that deposited it.-Towne v. St. Anthony
were instructed that plaintiff could recover un- & D. Elevator Co. (N. D.) 608.
less defendant relied solely on plaintiff's false
representations.-Morman F. Harrington (Mich.) wheat by an elevator company held the value

The measure of damages for conversion of

at the time of demand, and not at the time it
Where default was made in the condition of received the wheat from a person other than
a land contract, held, that the vendor might the owner.-Towne v. St. Anthony & D. Ele-
treat it as a mortgage, and foreclose. -Jack- vator Co. (N. D.) 608.
son v. Phillips (Neb.) 683.


On sale of goods, see “Sales," $ 6.
§ 1. Nature or subject of action.

Gen. Laws 1883, c. 169, providing that cer: WATERS AND WATER COURSES.
tain actions relating to realty shall be brought
in the county where the subject is situated, § 1. Natural water courses.
else the court shall have no jurisdiction. was A riparian owner on a stream navigable only
not impliedly repealed by Gen. Laws 1895, c. for the purpose of floating logs has an appur-
28, amending Gen. St. 1894, $ 5188.-Kretz- tenant right to build a dam, provided it does
schmar v. Meehan (Minn.) 41.

not obstruct the floating of logs.-Kretzschmar
§ 2. Domicile or residence of parties.

v. Meehan (Minn.) 41.
In determining whether action is properly

Defendant held to have no right to construct
brought against defendant served in a certain booms in the Mississippi river, the effect of
county, so that other defendants may be served which would be to produce log jams, causing
therein, the question is whether he is a bona fide the water to overflow riparian lands above
defendant, and whether his interest is adverse to high-water mark.-Gravel v. Little Falls Imp.
plaintiff.- Barry v. Wachosky (Neb.) 1080. & Nav. Co. (Minn.) 217.
§ 3. Change of venne or place of trial. § 2. Conveyances and contracts.

A district court cannot, on its own motion, Conveyance by a riparian owner of right to
transfer a cause for_trial from one county to

erect booms construed, and held to give grantee
another.-Lefferts v. Bell (Neb.) 680.

the right to overflow grantor's land so far as.
was necessary to enjoy the grant.-Gravel v.

Little Falls Imp. & Nav. Co. (Minn.) 217.

§ 3. Public water supply.
Directing verdict in civil actions, see “Trial," Waterworks company operating under fran-
8 4.

chise from city in distributing water held not re-
Review on appeal or writ of error, see “Ap- sponsible as a warrantor of the purity of the
peal and Error," $ 24.

water distributed.-Green v. Ashland Water
Setting aside, see "New Trial," § 2.

Co. (Wis.) 722.

Knowledge of impurities in water furnished

by water company held to preclude recovery by

consumer injured by its use.-Green v. Ashland
Protection, see “Constitutional Law," $ 4.

Water Co. (Wis.) 722.

A waterworks company knowing of impurities

in the water furnished customers, and failing
See "Estoppel."

to notify them of the danger, held liable to a

customer injured thereby without contributory
of objections to particular acts or proceedings. negligence. -Green v. Ashland Water Co. (Wis.)
See "Pleading," $ 10; "Trial," $ 8.

Error waived in appellate court, see "Appeal Use of water furnished by water company,
and Error," $ 26.

with knowledge of its impurities, held to pre-
Of rights or remedies.

clude recovery by person injured thereby.-

Green v. Ashland Water Co. (Wis.) 722.
See "Insurance," $ 9.


Private rights of way, see “Easements."
See “Guardian and Ward."

Public ways, see "Highways."


Defendant warehouse company issuing receipt Gen. St. 1894, $ 7675, making action of weigh-
conditioned that property should be at risk of master in weighing wheat conclusive, held not
owner as to loss from certain causes held not to constitutional, but the weighing can be impeached
exempt the warehouseman from liability for only where party complaining was free from
damages caused by its own negligence.- Minne- fault.-Vega S. S. Co. v. Consolidated Elevator
sota Butter & Cheese Co. v. St. Paul Cold- Co. (Minn.) 973.
Storage Warehouse Co. (Minn.) 977.

Gen. St. 1891, $ 7675, construed, and held to
One receiving in payment of a claim general make the action of the state weighmaster in
storage tickets for wheat delivered to elevator weighing wheat at terminal elevators conclusive.
held to have no control over identical wheat, but -- Vega S. S. Co. v. Consolidated Elevator Co.
could only claim delivery of the number of bush-|(Minn.) 973.
els named in the tickets, of the grade therein

specified.-Best v. Muir (N. D.) 95.

An elevator company held to have converted Oil or gas wells, see "Mines and Minerals," $ 3.
wheat not at the time it received it from a per-
son other than the owner, but at the time it

refused to deliver it on demand of the owner.
-Towne v. St. Anthony & D. Elevator Co. (N. Rights under statutes of descent and distribu-
D.) 608.

tion, see "Descent and Distribution,” $ 1.


was completely settled, and not merely until the

executors were ready to pay the other legacies.
See, also, "Executors and Administrators." --In re Batchelor's Estate (Mich.) 911.
§ 1. Testamentary capacity.

Where surviving widow has not exercised her
A testator held competent to revoke a will, right to refuse to accept the terms of a will
although he was incapable of contracting and for more than six months in a case where Gen.
was under guardianship.–Linkmeyer v. Brandt St. 1894, § 4472, applies, it constitutes an elec-
(Iowa) 493.

tion to take under the will.-In re Jones' Es-

tate (Minn.) 551; Jones v. Jones, Id.
§ 2. Requisites and validity.

Devise subject to condition that executor shall
Where a testator signs by mark, it is not es-
sential that his name be written by one of the hold in trust and account annually to beneficiary
subscribing witnesses. -Scott v. Hawks (Iowa) vests legal title in executor.-Weller v. Non

singer (Neb.) 1075.
Where a testator is unable to write his name,

Where rights under will are inconsistent with
making his mark is a "signing." within the those given by law. acceptance of the former is
meaning of the law requiring a will to be "sign- an abandonment of the latter.-Weller v. Xoff-
ed” by the testator.-Scott v. Hawks (Iowa)

singer (Neb.) 1075.

Will construed, and held, that executor had
A testator need not declare an instrument to its par value in lieu of cash.--Cowherd v. Kitch-

right to pay specific bequests in certain stock at
be his last will.–Scott v. Hawks (Iowa) 467.

en (Neb.) 1107.
§ 3. Probate, establishment, and annul- Will construed, and held, that 'residuary lega-

tee was chargeable with debts and mortgage on
Where a witness testified that a testatrix was certain property bequeathed.-Cowherd v. Kitch-
of a remarkable mind, it was prejudicial error en (Neb.) i107.
for counsel to say. “I agree with you; I have
known her all
her life.”—Goldtborp v. Gold- passed to the residuary legatee charged with

Will construed, and held, that the residuum
thorp (Iowa) 471.

certain debts.-Cowherd v. Kitchen (Neb.) 1107.
A question of a witness calling for a fact,
and not based on his previous testimony show-
ing him qualified to speak of the mental condi-

tion of a testator, held properly executed.---Gold- See, also, “Affidavits”; “Evidence.”
thorp v. Goldthorp (Iowa) 471.

Perjury, see "Perjury.”
Where subscribing witnesses to a will are Testimony of accomplices, see "Criminal Law,"
dead, proof of their handwriting is a compli- § 4.
ance with the law as to due execution.-Scott v.
Hawks (Iowa) 467.

§ 1. Attendance.
Executors named in the will, and otherwise a justice of the peace, where no action was pend-

Under Code 1873, 8 3671, a subpoena issued by
not interested, cannot, under Code, $. 3459, con- ing, as named, is void. - Chambers v. Oehler
test probate of codicil revoking their appoint: (lowa) 853.
ment.-In re Stewart's Estate (Iowa) 574;
Hemsted v. Ferry, Id.

A witness is not guilty of contempt for dis.

obeying a subpæna issued without authority.-
Testator's widow held to have no interest au-Chambers v. Oehler (Iowa) 853.
thorizing her to contest his will.-In re Fal-
lon's Will (Iowa) 575; Murphy v. Fallon, Id.

A subpæna issued on July 4th, to appear on

such day, is not void under Code 1873, § 2626,
Under Code 1873, 88 2338, 2340, 2341, a writ- providing that no person shall be required to
ten petition for probate is not necessary to give appear or answer on that day.-Chambers v.
jurisdiction to appoint administrator c. t. a.- Oehler (Iowa) 853.
Seery v. Murray (Iowa) 1058.

§ 2. Competency.
Under Code 1873, $8 2338, 2339, 2353, devisees

3 How. Ann. St. $ 7546, making a wife com-
under a will not probated acquire no rights un-

petent to testify in a prosecution of her hus-
der a settlement with heirs, attached for fraud.- band for nonsupport, hiid not repealed in its ap-
Seery v. Murray (Iowa) 1058.

plication to offenses which were defined by stat.
Will leaving property to wife should be ad- utes since repealed, but re-enacted.-People v.
mitted to probate, although wife died before Malsch (Mich.) 638.
testator.-Brown v. Just (Mich.) 263.

A naked trustee is not incompetent as a wit-
Estate of decedent is not liable for attorney's ness under the statute disqualifying a party in
fee for services rendered at request of legatee interest from testifying to facts equally within
in a contest of the will.-Atkinson v. May's the knowledge of a person since deceased. -
Estate (Neb.) 343.

Jenkinson v. Brooks (Mich.) 610.
Objections to sufficiency of a probate notice

In a prosecution for statutory rape, it may
held without force.-Jackson v. Phillips (Neb.) | be shown, to enable prosecutrix to testify, that

no lawful marriage ever took place between her

and defendant, though they went through the
$ 4. Construction.

ceremony.--People v. Schoonmaker (Mich.) 931.
Will construed, and held that, as to certain
land devised, the will was ineffective for insuffi- defendant to prove by plaintiff's former attorney

Under Gen. St. 1894, $$ 5662, 6180, offer by
ciency of description.-McGovern v. McGovern
(Minn.) 970.

confidential communications by plaintiff as to

the merits of the case held properly refused.-
A devise in trust subject to condition that the Struckmeyer v. Lamb (Minn.) 987.
property shall not be incumbered by beneficiary,
or liable for his debts during existence of trust, to conversation between alleged widow of de.

Evidence, on application for administration, as
held valid.- Weller v. Noffsinger (Neb.) 1075.

cedent and decedent concerning a contract of
§ 5. Rights and liabilities of devisees marriage, held inadmissible, under Code Civ.
and legatees.

Proc. $ 329.-Sorensen v. Sorensen (Neb.) 68.
Code 1873, § 2396, providing for bond to stay Every person is prima facie a competent wit-
sale of decedent's estate, does not apply to action ness in all cases.-Sorensen v. Sorensen (Neb.)
by heirs to recover property unlawfully seized 68.
by devisee.-Seery v. Murray (Iowa) 1058.

Where there is reasonable doubt, a witness
Legatee of an annuity pending the settlement will be deemed competeut.-Sorensen v. Soren-
of an estate held entitled thereto until the estate sen (Neb.) 68.

One directly interested in suit held not incom- $ 4. Credibility, impeachment, contra-
petent to testify as to transactions with de-

diction, and corroboration.
cedent, where evidence of decedent as to such Where the issue involved defendant's recol-
transactions was read in evidence by his repre- lection of the transaction and his credibility,
sentative.-Kroncke v. Madsen (Neb.) 202. and he testified to being sober, testimony as to

A party to an action is a competent witness to his drinking habit during such time is admissi-
prove transaction with agent of the other party, ble in rebuttal.-Kuenster v. Woodhouse (Wis.)
since deceased.-German Ins. Co. v. Frederick

(Neb.) 1106.

A complaint for the same cause of action
A surviving husband held competent to testify plaintiff, though not verified or signed by plain-

held admissible to impeach the evidence of
on the issue whether the wife gave securities to ti tr himself.—Lee v. Chicago, St. P., M. & 0.
defendant.-Brown v. Johnson (Wis.) 900.

Ry. Co. (Wis.) 714.
§ 3. Examination.
Cross-examination as to a prior attempt to

murder deceased held not an abuse of discretion,
though witness had not testified in reference Liens for work and materials, see "Mechanics'
thereto.-State v. Smith (Iowa) 499.

Redirect examination should be confined to

matters explaining or rebutting new matter See “Process."
brought out on cross examination.-Backus v.

Particular writs.
A. H. Barber & Co. (Minn.) 939.

See "Attachment,” 8 4; "Certiorari"; "Execu-
Redirect examination as to matter fully cov-
ered on original examination held error.-Backus

tion"; "Habeas Corpus”; “Injunction”; “Man-

damus"; "Replevin.'
V. A. H. Barber & Co. (Minn.) 959.

Certiorari to justice of the peace, see “Justices
The latitude which a cross-examination may of the Peace," 8 3.
take rests largely in the discretion of the trial Writ of error, see "Appeal and Error."
court.-Barr v. Post (Neb.) 123.

Where plaintiff in an action for assault and WRONGFUL ATTACHMENT.
battery offered no evidence that he had paid
or become liable for a physician's services, the See "Attachment," $ 9.
physician could not be cross-examined as to
whether he had been paid or rendered a bill.

-Barr v. Post (Neb.) 123.
A witness called to prove execution of mort-

gage sued on cannot be cross-examined as to See “Taxation," § 4.
fact that one witnessing it was not present, or
that the mortgagor had other property similar
to that mortgaged.-Fisher v. Porter (S. D.)


See “Torts."

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