admissible in a prosecution for crime.-State v.
Height (Iowa) 935.
On a prosecution for sexual intercourse with
a girl under 16 years, admissions by the girl,
not made in the presence of defendant, to the
effect that she had lived with defendant, were
not admissible.-People v. Elco (Mich.) 755.
A defendant is not obliged to rely on the pre-
sumption that his character is good, but may
introduce evidence to that effect.-Biester v.
State (Neb.) 416.
Certain remarks of the prosecuting attorney
in a seduction trial held to refer to the failure
of defendant to testify, thus violating Comp.
Laws, § 10,211.-People v. Payne (Mich.) 739.
Where a party against whom a verdict of
conviction is returned is instrumental in caus-
ing the intoxication of a juror, or is aware of
he waives the misconduct.-State v. Salverson
the fact before the verdict, but fails to object,
(Minn.) 1.
A trial court may limit the number of wit-
Attempt to suppress evidence, to stifle the nesses that may be called to prove facts collat-
prosecution, and prevent a trial by flight be-eral to the main issue.-Biester v. State (Neb.)
yond the jurisdiction, are circumstances from
which unfavorable inferences may be drawn
against the defendant in a criminal case.-Hub-
bard v. State (Neb.) 869.
Testimony that witness had heard defend-
ant had been doing some butchering is inad-
missible on trial for larceny of a steer.-State
v. Bergland (S. D.) 318.
On a trial for larceny of a steer, evidence
that the owner, several months after the lar-
ceny, asked defendant how he liked "my beef,"
and he answered it was good, held inadmissi-
ble, in the absence of evidence that he knew
what was referred to or that he was suspected.
-State v. Bergland (S. D.) 318.
Under Comp. Laws, § 5057, a verdict in a
criminal case is not rendered invalid by an ad-
journment while the jury is out.-State v. Mc-
Donald (S. D.) 447.
Statement by the court, in excluding a ques-
tion to witness, that certain facts already tes-
tified to covered the question excluded, held not
error.-Bannen v. State (Wis.) 107.
§ 9. — Instructions.
The refusal to give a requested instruction
practically covered by one given is not error.—
State v. Maxwell (Iowa) 772.
It is not error to refuse instructions which are
covered by those given.-State v. Soper (Iowa)
774.
Under Comp. Laws, § 5310, entries in a
book regularly kept by a postmaster in his of-
Where the evidence on behalf of the prosecu-
fice of "advices received and money orders tion was circumstantial, an instruction that
paid" are competent evidence of the facts stat-"the proof of guilt must be inconsistent with
ed therein, though it is not shown that any any other rational supposition" was inadequate
statute or postal regulations required the book
on the subject of circumstantial evidence.-State
to be kept.-State v. Hall (S. D.) 325.
v. Brady (Iowa) 801.
A witness who has seen defendant in a mur-
der prosecution sign his name held competent
to testify as to the genuineness of his signa-
ture to other documents.-State v. Hall (S. D.)
325.
Evidence held admissible as part of the res
gestæ of the larceny.-State v. Halpin (S. D.)
"Reasonable doubt" defined.-Bannen v. State
(Wis.) 107.
An instruction that the showing of a specific
fact is prima facie evidence of guilt held mis-
leading.-State v. Brady (Iowa) 801.
In a prosecution for burglary, where state re-
lied on the possession of stolen goods, accused
was entitled to an instruction specifically call-
ing the attention of the jury to his theory as to
honest possession of the goods.-State v. Brady
(Iowa) 801.
In a criminal prosecution, a withdrawal of
evidence erroneously admitted held not suffi-
ciently broad to cure the error.-State v. Brund-
con-idge (Iowa) 920.
87. Time of trial and continuance.
Code, 5373, granting an accused a
tinuance if leave is granted to introduce new
witnesses without four days' notice, is com-
plied with by a postponement of more than four
days.-State v. Snider (Iowa) 762.
A person accused of crime, who flees from
justice after an arraignment and before trial
does not show the diligence contemplated in
the law governing continuances for the purpose
of obtaining witnesses.-Hubbard v. State (Neb.)
Refusal to suspend for an indefinite time trial
of a criminal case to enable defendant to pro-
cure attendance of a witness, where there is no
showing of diligence, held not an abuse of discre-
tion.-Hubbard v. State (Neb.) 869.
In a criminal trial, the denial of a motion for
continuance in order to secure evidence is not
reversible error, when it appears that the testi-
mony of the absent witness would be either false
or immaterial.-Hubbard v. State (Neb.) 869.
§ 8. Trial.
Code, § 5484, forbidding reference to a de-
fendant's failure to testify in his own behalf,
does not preclude the prosecuting attorney from
stating that certain evidence stands uncontra-
dicted, though the defendant was the only per-
son who could make the contradiction.-State
v. Snider (Iowa) 762.
Abusive and inflammatory address of prose-
cuting attorney in a trial for seduction held
erroneously permitted and ground for reversal.
-People v. Payne (Mich.) 739.
An instruction that the jury cannot convict
unless all the material averments of the peti-
tion are established beyond a reasonable doubt
does not authorize a conviction without pre-
sumption or proof of defendant's sanity.-
Schwartz v. State (Neb.) 190.
be proven beyond reasonable doubt to be volun-
tary held not erroneous in a criminal case,
when considered with instructions given.
State v. Vincent (S. D.) 347.
The refusal to instruct that confessions must
by those given, is properly refused.-Bannen v.
A requested instruction, covered in substance
State (Wis.) 107.
§ 10. -Custody, conduct, and delib-
erations of jury.
Where a juror was intoxicated, so as to im-
pair his faculties, the burden is on the pre-
vailing party to rebut the presumption of preju-
dice.-State v. Salverson (Minu.) 1.
That the court, over defendant's objection,
permitted the jury to separate for four hours
immediately after taking of evidence had been
concluded, and before the case was argued and
submitted, held not reversible error.-State v.
Salverson (Minn.) 1.
Where a juror uses intoxicating liquors, while
on a trial, so as to impair his faculties, it con-
stitutes such misconduct, when not waived by
the parties, as to invalidate a judgment, unless
no prejudice was clearly shown.-State v. Sal-
verson (Minn.) 1.
Communication by judge after submission of
the cause to the jury, in answer to its inquiry,
that they could recommend defendant to mercy Of jury, see "Criminal Law," § 10.
and that the judge invariably respected such
recommendations, held prejudicial error.-State
v. Kiefer (S. D.) 1117.
Remarks by the court in reply to a question
by the jury as to whether certain alleged facts
have been admitted in evidence held proper.-
Bannen v. State (Wis.) 107.
§ 11. Motions for new trial and in ar-
rest.
Under Code, § 5484, the objection that the
county attorney commented on the failure of the
accused to testify in his own behalf may be
first raised on motion for new trial.-State v.
Suider (lowa) 762.
Whether a new trial should be granted for
intoxication of a juror rests in the sound ju-
dicial discretion of the trial judge.-State v.
Salverson (Minn.) 1.
New trial in a criminal case for alleged mis-
conduct of the jury, sought under Comp. Laws,
87450, held properly denied.-State v. Vincent
(S. D.) 347.
Affidavits of jurors in a criminal case held
not admissible to impeach their verdict.-State
v. Kiefer (S. D.) 1117.
§ 12. Appeal and error, and certiorari.
A verdict for assault with intent to commit
rape, fairly supported corroborating evidence,
should not be disturbed, especially where the
record does not disclose passion or prejudice on
the part of the jury.-State v. Snider (Iowa)
On appeal, held, that trial court's discretion
in refusing a new trial would not be disturbed.
-State v. Soper (Iowa) 774.
On appeal, certain testimony, though imma-
terial, held not prejudicial.-State v. Glucose
Sugar Refining Co. (Iowa) 794.
Alleged irregularities in the issuance of a spe-
cial venire, after the quashing of the regular
panel, which have not been called to the atten-
tion of the trial court nor mentioned in the mo-
tion for a new trial, cannot be considered on
appeal.-Randolph v. State (Neb.) 356.
The evidence on trial for larceny of a steer
being circumstantial, error in allowing the
owner to testify that he asked defendant how
he liked his beef, and he answered it was good,
cannot be held harmless.-State v. Berglaud
(S. D.) 318.
Where it does not affirmatively appear on ap-
peal from a conviction for crime that there
was an adjournment after the jury retired, it
will be presumed that the court remained in
session till the verdict was returned.-State v.
McDonald (S. D.) 447.
Refusal of new trial in criminal case will not
be disturbed, unless there has been an abuse of
discretion.-State v. McDonald (S. D.) 447.
An undertaking on appeal from judgment
of conviction imposing payment of fine and
costs of prosecution held not satisfied by sur-
render of defendant for imprisonment.-City
of Lead v. Klatt (S. D.) 582.
Where, in accordance with directions of a
mortgagee of a growing crop, an elevator com-
pany, on receiving the crop, for several years
paid the labor claims, such payments were in-
sufficient to show a local custom, so as to au-
thorize the elevator company to pay such
claims in a subsequent year.-First Nat. Bank
v. Minneapolis & N. Elevator Co. (N. D.) 436.
Compensation for property taken for public
use, see "Eminent Domain," § 2.
Damages for particular injuries.
See "Death," § 1; "Fraud," § 2; "Injunction,"
§ 5; "Trespass," § 1.
Breach by buyer of contract for sale of goods,
see "Sales," § 6.
Breach by seller of contract for sale of goods,
see "Sales," & 7.
Failure of bank to protest checks, see "Banks
and Banking," § 2.
Injuries to married women, see "Husband and
Wife," § 2.
Use of counterfeit label, see "Trade-Marks and
Trade-Names," § 1.
Recovery in particular actions or proceedings.
See "Trover and Conversion," § 2.
1. Grounds and subjects of compen-
satory damages.
Evidence held not to preclude the mother from
recovering for the services of her daughter in
nursing her during an illness caused by de-
fendant's negligence.-Beringer v. Dubuque St.
Ry. Co. (lowa) 931.
include the services of plaintiff's nurse, though
In a verdict for personal injury, the jury may
she has rendered no bill.-Styles v. Village of
Decatur (Mich.) 622.
Damages in the nature of anticipated profits
on expected sales are too speculative to au-
Spring Co. v. Kuhn (Neb.) 508.
thorize a recovery therefor.-Silurian Mineral
In an action by an infant in the care and
custody of its father for personal injuries, it is
error to instruct the jury that his lessened earn-
ing capacity is an element of damages, unless
would be entitled to his own earnings.-Chicago,
it is limited to the period from which the child
B. & Q. R. Co. v. Krayenbuhl (Neb.) 880.
2. Measure of damages.
Recovery of damages for breach of an agree-
ment to procure an assignment of corporate
stock to be held as collateral held, under the
evidence, not prevented by uncertainty as to
the amount of damages.-First Nat. Bank v.
Park (Iowa) 826.
In an action to recover for breach of con-
tract in selling sheep which afterwards proved
to be diseased, an instruction as to measure
of damages held proper.-Burnham v. Meredith
(Neb.) 553.
§ 3. Inadequate and excessive damages.
Where plaintiff suffered a fracture of the
Renting on shares, see "Landlord and Tenant," neck of the femur by the premature starting
§ 4.
Ground for divorce, see "Divorce," § 1.
of a street car as she was attempting to alight,
a verdict of $3,000 was not excessive.-Bering-
er v. Dubuque St. Ry. Co. (Iowa) 931.
Verdict for $1,375 in action against railroad
for carrying passenger beyond station held not
so excessive as to require reversal.-Guthier
v. Minneapolis & St. L. R. Co. (Minn.) 1096.
Where a colored man was discharged from
his employment by illegal acts of defendant,
Of party to action ground for abatement, see See "Fraud."
"Abatement and Revival," § 1.
§ 1. Actions for causing death.
A verdict for $6,000 for death of boy about
4 years old held excessive.-Hively v. Webster In pleading, see "Pleading."
In an action against a railroad company for
negligently causing the death of a boy be
tween 11 and 12 years of age, the damages As evidence in civil actions, see "Evidence,"
awarded held not so inadequate as to justify
the granting of a new trial.-Snyder v. Lakes evidence in criminal prosecutions,
Shore & M. S. Ry. Co. (Mich.) 643.
In an action against a railroad company for
negligently causing the death of a boy between
11 and 12 years of age, an instruction allowing
the jury to consider the probable expense of
educating deceased held not erroneous in the
connection in which it was given.-Snyder v.
Lake Shore & M. S. Ry. Co. (Mich.) 643.
In an action for negligently causing the death
of a boy between 11 and 12 years of age, an
instruction that evidence of deceased's special
aptitude for a certain line of business might be
considered in determining the earning capacity
of deceased was proper.-Snyder v. Lake Shore
& M. S. Ry. Co. (Mich.) 643.
Laws 1897, c. 248, requiring notice to be giv-
en to a municipality of injury caused by de-
fects in its streets, does not apply to an action
by the personal representatives of a person,
whose death was caused by such defects.-Orth
v. Village of Belgrade (Minn.) 843.
In an action against a street railway com-
pany for negligently causing the death of a boy
six years of age, a verdict fixing the damages
at $2,750 held not excessive.-Gray v. St. Paul
City Ry. Co. (Minn.) 1106.
In an action by an administrator to recover
damages to a wife from the death of her hus-
band, the fact that she has subsequently re-
married is immaterial.-Chicago, St. P., M. &
O. Ry. Co. v. Lagerkrans (Neb.) 358.
The election by the widow of a member of
the relief department of a railroad company
to accept the provisions of a relief certificate in
which she is the beneficiary does not bar an
action by the personal representatives against
the railroad company, under Comp. St. c. 21,
for the benefit of the minor children.-Oyster
v. Burlington Relief Department of Chicago, B.
& Q. R. Co. (Neb.) 699.
Judgment recovered by administrator in ac-
tion for wrongful death, under Comp. St. c. 21,
§ 2, is for the exclusive benefit of the widow
and next of kin, and the fact that the admin-
istrator, in his petition for damages, fails to
name all the legal beneficiaries, will not bar
any legal distributee from receiving his share.
-Oyster V. Burlington Relief Department
of Chicago, B. & Q. R. Co. (Neb.) 699.
Under Rev. St. 1898, §§ 4255, 4256, a non-
resident alien mother held not entitled to main-
tain an action for the death of her sou, in-
stantly killed, or who died without conscious
pain. McMillan v. Spider Lake Sawmill &
Lumber Co. (Wis.) 979.
"Criminal Law," § 6.
Part of res gestæ, see "Evidence," § 3.
DEDICATION.
§ 1. Nature and requisites.
The platting of ground and the designation
thereon of certain tracts as streets and alleys
held equivalent to a deed in fee simple thereof
to the public.-Blennerhassett v. Town of Forest
City (Iowa) 1044.
Absolute deed as mortgage, see "Mortgages,"
$ 1.
Delivery in escrow, see "Escrows."
Estoppel by deed, see "Estoppel," § 1.
In fraud of creditors, see "Fraudulent Convey-
In trust, see "Trusts," § 1.
Reformation,
Parol or extrinsic evidence, see "Evidence," § 9.
see "Reformation of Instru-
Deeds by or to particular classes of parties.
See "Executors and Administrators," § 5.
Deeds of particular species of property.
See "Easements," § 1; "Homestead," § 2.
Particular classes of deeds.
Tax deeds, see "Taxation," § 12.
Of trust, see "Mortgages."
1. Requisites and validity.
The circumstances under which a conveyance
was made, and the injustice to him and his
heirs if it is upheld, may cast on the grantee
the burden of showing lack of undue influence
or fraud.-Bennett v. Bennett (Neb.) 409.
Equity will carefully scrutinize a transaction,
where there is ground to believe that influence
has been acquired over a person of a weak
mind.-Bennett v. Bennett (Neb.) 409,
Mental weakness, if it is taken advantage of
to procure a conveyance by fraud, held ground
for setting it aside.-Bennett v. Bennett (Neb.)
The allegation that a conveyance was with-
is not open to objection as indefinite.-Bennett
out consideration sufficiently states a fact, and
v. Bennett (Neb.) 409.
Petition in a suit to cancel a conveyance by
an old man of weak mind held to state a cause
of action.-Bennett v. Bennett (Neb.) 409.
§ 2. Construction and operation.
The character "&" in a deed means "and.".
Beedy v. Finney (Iowa) 1069.
A deed held to convey a life estate, and not a
fee, under Code, § 2914.-Beedy v. Finney (Iowa)
1069.
The word "heirs" in a deed held to mean
common heirs of grantor and life tenant, and
not heirs of each.-Beedy v. Finney (Iowa)
1069.
Parents who had deeded their property to
their son, taking a bond conditioned to furnish
support, held not restricted to suit on bond,
but entitled to cancel the conveyance.-Wan-
ner v. Wanner (Wis.) 671.
3. Pleading and evidence.
Evidence held insufficient to show that one
giving land by deed was not of sufficiently
sound mind, or was unduly influenced.-Reeves
v. Howard (Iowa) 896.
Relationship of brother and sister held not to
raise a presumption of fraud as to deed of
brother giving land to sister.-Reeves v. How-
ard (Iowa) 896.
Grantee, in a deed by which he assumed and
agreed to pay a mortgage on the land conveyed,
held presumed to know the provisions of the deed
relating to the assumption of the mortgage.--
Cruzen v. Pottle (Neb.) 858.
DE FACTO OFFICERS.
DEFAMATION.
See "Libel and Slander."
DEFAULT.
Judgment by, see "Judgment," § 2.
On foreclosure of mortgage, see "Mortgages,"
§ 6.
DEGREES OF CRIME.
In application for writ of mandamus, see
"Mandamus," § 3.
Of municipal authority, see "Municipal Corpo-
rations," § 2.
DELIVERY
Of deed, see "Escrows."
Of goods sold, see "Sales," § 3.
Of mortgage, see "Chattel Mortgages," § 1;
"Mortgages," § 1.
Of property taken in replevin, see "Replevin,"
§ 2.
Before action, see "Limitation of Actions," § 1.
Of deeds delivered as escrow, see "Escrows."
Where a deposition was taken, to be used
only if the witness was unable to attend at the
trial, and prima facie evidence of her inability
is offered, which is disputed only by the un-
sworn statements of counsel, there was no er-
ror in permitting it to be read.-Styles v. Vil-
lage of Decatur (Mich.) 622.
Under Rev. Codes, § 5682, right to introduce
deposition of adversary does not extend to
isolated parts thereof.-First Nat. Bank v. Min-
neapolis & N. Elevator Co. (N. D.) 436.
DESCENT AND DISTRIBUTION.
See "Executors and Administrators"; "Wills."
Inheritance and transfer taxes, see "Taxation,"
§ 13.
1. Rights and liabilities of heirs and
For payment of bill or note, see "Bills and Of action, see "Dismissal and Nonsuit," § 1.
Notes," § 5.
Review in criminal prosecutions, see "Criminal | considered, and held sufficient to establish the
Law," § 12.
intercourse.-Fischer
Of estate of decedent, see "Descent and Dis-
tribution."
fact of adulterous
Fischer (Mich.) 633.
In an action by a wife for limited divorce,
evidence held to support decree of separation.-
Widstrand v. Widstrand (Minn.) 432.
Evidence examined, and held sufficient to sus-
tain judgment.-Humphrey v. Humphrey (Neb.)
856.
Under Code Civ. Proc. § 96, property rights
not growing out of the marriage relation should
be adjudicated in an action for divorce, though
not properly joined.-Reed v. Reed (Neb.) 857.
4. Alimony, allowances, and disposi-
tion of property.
A judgment holding a defendant to a divorce
proceeding in contempt for failure to pay coun-
sel fees was void for want of jurisdiction, where
the parties had become reconciled and dismissed
the action before the order was entered.-Dillon
v. Shiawassee Circuit Judge (Mich.) 1029.
Of judgments, see "Judgment," § 3.
As evidence in civil actions, see "Evidence,"
§ 8.
Of proceeds of foreclosure, see "Mortgages," Of parties as affecting venue, see "Venue," § 1.
§ 6.
Of proceeds of partition sale, see "Partition,"
DORMANT JUDGMENTS.
See "Judgments," § 10.
1. Establishment and maintenance.
Under Code, § 1941, providing for establish-
ment of drains, a finding against petitioners,
though it might not have been made in the or-
der of sequence required by the statute, held,
on appeal, to preclude a presumption that a
finding in their favor had been made in the or-
der required.-In re Bradley (Iowa) 780.
Proceedings under Code, tit. 10, c. 2, for es-
tablishment of drains, are, as to costs, sub-
Of municipal corporations, see "Municipal Cor- ject to Code, § 3853, granting costs to the suc
porations," § 1.
cessful against the losing party.-In re Bradley
(Iowa) 780.
Successful remonstrants in proceedings under
Code, tit. 10, c. 2, for establishment of drains,
Reference in divorce proceedings, see "Refer- are entitled to judgment for costs, and not re-
ence," § 1.
knowledge thereof, and until after defendant See "Contracts," § 1.
had remarried, held barred from relief by
laches.-Hurley v. Hurley (Iowa) 895.
Evidence in an action by a husband for
divorce on the ground of adultery of the wife Excise duties, see "Internal Revenue."
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