Page 2
II. Prosecution and Punishment. Admissibility of evidence (Contd). § 33. Description, occupancy, and [b]. (Ky. 1882) ownership or possession of buildOn the trial of an indictment for house ing. breaking, evidence that defendant stole things See 8 Cent. Dig. Burg. 88 86, 89. from such house is competent, as illustrating Best and secondary evidence, see "Criminal the motive for the breaking.- Maden v. Com- Law," $ 400 (6, 7). monwealth, 4 Ky. Law Rep. 45. Relevancy of evidence as to condition of prop[c] (Ky, 1905) erty broken into, see “Criminal Law," § 340. On a prosecution for burglary, it was proper to refuse to permit defendant to testify (a)_ (Tex. Cr. App. 1903) that he had received a letter from the owner trial for burglary that since the house was bur Evidence by the prosecuting witness on a of the house alleged to have been burglarized, stating that the writer did not know that de glarized he has put a lock on the door, and fendant was F. (defendant's alias), and that, now carries the key in his pocket, is inadmissihad he known it, he would not have permitted ble to prove that he had control of the house him to be prosecuted, and that the letter con at the time of the burglary.-Johnson v. State, tained money and a request that the letter be 76 S. W. 925. burned.—Radley v. Commonwealth, 89 S. W. Circumstances corroborative of de519, 28 Ky. Law Rep. 477. fendant. [á] (N. Č. 1902) See 8 Cent. Dig. Burg. $ 87. Evidence in a burglary case that witness See post, $ 39, in this Digest. met defendants the day before the former heard of the safe being broken open was ad- See 8 Cent. Dig. Burg. $ 88. Manner of committing offense. missible, as fixing the time of the occurrence as to which he was testifying, and was not See ante, $ 31, in this Digest. objectionable as evidence that the safe was 8 34. Identity and blown open.-State v. Ellsworth, 41 S. E. 548. ownership of property in building or stolen 130 N. C. 690. from building. [e) (Tex. Cr. App. 1905) See 8 Cent. Dig. Burg. $ 85. In a prosecution for burglary, evidence that witness, on the night prior to the burglary, (a) (Tex. Cr. App. 1906) went to the building in question, carefully ex On a trial for burglary, the testimony of amined the lock, and tried the door to see if a witness, on the issue of the identity of wheat the same was securely fastened, was properly stolen from the building burglarized, that the admitted.—Tally v. State, 90 S. W. 1113. wheat he bought from accused and the sample [1]_(Wash. 1900) shown him by the prosecutor were of the same Evidence as to the character of defendant's grade, was competent.-Stevens v. State, 95 S. work when acting as a detective on a police force W. 505. was incompetent on a prosecution for burglary, [b] (Vt. 1900) as tending to show that he was present at the The admission in evidence of the bills of commission of the crime to ferret out criminals. watches, which gave the numbers on the watch-State v. Coates, 61 P. 726, 22 Wash. 601. es, and were offered by a clerk who had charge of the store from which they were stolen be $ 32. Intent, fore and at the time of the burglary, was propSee 8 Cent. Dig. Burg. $ 84. er, in connection with the clerk's testimony, on Other offenses, see "Criminal Law,” 8 371 (6). the question of the identification of the watches traced to defendant's possession shortly after [a] (Ala. 1905) On a trial for burglary of a store, evidence 72 Vt. 142. the burglary.-State v. Fitzgerald, 47 A. 403. as to the condition in which a safe therein was found the morning after it was entered is ad- $ 35. Identity, presence, and acts of missible; such condition being a material cir accused. cumstance to show the intent with which the See 8 Cent. Dig. Burg. $ 83. store had been broken into.-Russell v. State, See, also, ante, $ 31. 38 So. 291. Admissions, see "Criminal Law," $ 409. [b] (Ala. 1905) Declarations of accused, see "Criminal Law," As tending to show the burglarious intent § 406 (6). with which parties broke into a store, testimony Designation of accused, see "Indictment and that the next morning a chisel, hammer, and a Information," § 81 (1). drill, which was an attachment to a jimmy, Opinion evidence, see "Criminal Law.” $ 453. were found near the safe, and that they were Res gestæ, see “Criminal Law," $ 365 (2). not there before, is admissible.—Russell v. State, 38 So. 291. [a] (Ala. 1905) [c] (Iowa, 1900) As a circumstance tending to show that deIn a prosecution for breaking and entering fendant and one indicted with him for the bura house with intent to steal, where the defense glary were traveling, and acting together as denies the intent to steal, and introduces evi- burglars, testimony that one of them paid the dence tending to show that he entered for the hotel bill of both is admissible.-Russell v. purpose of having unlawful sexual intercourse State, 38 So. 291. with a female, in whose room he was discover [b] (Cal. 1901) ed. evidence that the owner of the house had Where one witness in a prosecution for valuable property therein, and that defendant burglary testifies to having seen a man runknew about it, is admissible as bearing on the ning from the burglarized house, evidence of question of intent.-State v. Worthen, 82 N. W. another witness that defendant's shoes corre910, 111 Iowa, 267. sponded with tracks found at the place of the [d] (Tex. Cr. App. 1902) | burglary is admissible, though it is not shown On a trial of an indictment for burglary, that the tracks were made by the man cunalleging that it was committed with the intent ning from the house. People v. Rowell, 65 P. to steal, without describing the property tak- 127, 133 Cal. 39. en from the house burglarized, evidence that [c] (Mass. 1870) certain articles were stolen from the house at At the trial of an indictment for burthe time of the burglary is admissible on the glary, evidence that the defendant was in the question of intent.--Moseley v. State, 67 S. W. neighborhood the day before the night of the 414, 43 Tex. Cr. R. 559. burglary, that he made inquiries about pur chasing tobacco in a manner which showed that Identity of property stolen. they were pretexts, and that he had an apparSee 8 Cent. Dig. Burg. $ 85. ent connection with two other strangers, is See post, $ 34, in this Digest. admissible, in connection with the testimony
of the owner defendant wa that the burg although the that he was monwealth v. [d] (Mass. At the lary, the own that he identi ant by his ple offered eviden fore a justice, burglary, the to the defend ness afterward bad the pleas owner, being witness; but show that said ed as to the I was rightly ex liams, 105 Mas [e] (Mo. 1902 Evidence, and larceny, of fendant as to stolen goods, a fendants ont crime to the to days later, is strong, 70 S. V [1]_(Tex. Or Evidence tl ing after the b leged accomplis State, 42 S. W (Tex. Cr In a proses peared that th watch, of which sion, and which after the burgla the burglar to room while in t seen in the roo to positively id watch belonged from which it identified by hin taken from his was admissible Dect him with t the burglary was purpose of comm 88 S. W. 813. $36. Incr
See 8 Cent. Dig. Best and second Law.” $ 403. Evidence the and that defenda had said that the night; these cir that these men ably saw the safe -Russell v. Stat [b]_(Ala. 1905) Evidence of store, the mornin burglars, of two men- which wit were the photogr: defendant, is ad Russell v. State, [c) (Ala. 1905) Evidence tha burglary, when th the tickets for the ant and his co-in. Page 3
toget pant watch rant patins State 527. [i] E ceny findin State (3) А testim if the
II. Prosecution and Punishment. Admissibility of evidence (Cont'd). 960; (1903) Fields v. Same, 74 S. W. 309 ; alleged to have committed the burglary, and it (1904) Perry v. Same, 78 S. W. 513; (1901) was further shown that the person from whom Brown v. Same, Id. 936; (1901) Archibald V. Same, 83 S. W. 189; (1904) Bartley v. the property was taken was defendant's as Same, Id. 190; (1904) Clark v. Same, Id. sociate in the crime, and participated with him in its commission.-Mass v. State, 81 S. W. 46. 695; (1905) Carroll v. Same, 86 ş.' W. 1012; (1905) Smith v. Same, 90 S. W. 638; [zz] (Tex. Cr. App. 1905) It was error to admit testimony as to the (1905) Stone v. Same, Id. 884; finding of several pounds of tobacco in defend (Utah, 1906) State v. Hutchings, 84 P. 893, ant's bed between the mattresses; it appearing 30 Utah, 319; that he used tobacco, as also did other members (Wash. 1905) State v. Royce, 80 P. 268, 38 Wash, 111. of his family, and it not appearing that the tobacco found belonged to any of the brands [b] Evidence held sufficient to sustain a con. stolen from the burglarized store.—Caddell v. viction of burglary and larceny. State, 90 S. W. 1013. - (Ill. 1905) Flanagan v. People, 73 N. E. 347, 214 Ill. 170; $39. Matters of defense. See 8 Cent. Dig. Burg. $ 87. (Ky. 1904) Jones v. Commonwealth, 79 S. W. [a] (lowa, 1902) 1183, 25 Ky. Law Rep. 2062; (1905) Abrams v. Commonwealth, 85 S. W. 173, 27 Ky. Where, in a prosecution for breaking and Law Rep. 355 ; entering a railroad car, and taking therefrom a pail of “Sterling tobacco," a witness testified (Mo. 1886) State v. Shields, 89 Mo. 259, 1 S. that she saw defendant in possession of a pack W. 336; (1902) Same v. Armstrong, 70 S. W. 874, 170 Mo. 406; age of tobacco resembling the packages stolen, defendant was entitled to testify as to where he (Tex. Cr. App. 1902) Brooks V. State, 70 S. W. 419. got the tobacco.-State v. Brundidge, 91 N. W. 920, 118 Iowa, 92. [c] Convictions of burglary held contrary to [b] (Tex. Cr. App. 1897) the evidence. Where a burglary is alleged to have been --(Ga. 1876) Bailey v. State, 56 Ga. 314; committed on premises occupied by a tenant, evi- (Mo. 1903) State v. King, 74 S. W. 627, 174 dence that the owner of the premises had notified Mo. 647. defendant to stay away is inadmissible, since, [cc] (Ga. 1902) if defendant has the consent of the tenant, ex- Where the evidence on a trial for burglary press or implied, his entry on said premises is was entirely circumstantial, and insufficient to justified.-Trevenio v. State, 42 S. W. 594. exclude every reasonable hypothesis except the $ 40. Weight and sufficiency of evidence. guilt of the accused, it was insufficient to auSee 8 Cent. Dig. Burg. $$ 94-103. thorize a conviction.-Andrews v. State, 42 S. E. 476, 116 Ga. 83. Alibi, see "Criminal Law," § 572. [d] (Ind. 1882) At preliminary examination or at former trial, In a prosecution under Rev. St. 1881, $ see "Criminal Law," $ 548. 1930, providing that whoever in the daytime enConfessions, see “Criminal Law," & 538 (1, 3). ters any dwelling house and attempts to commit Corpus delicti to render confession admissible, a felony shall be imprisoned, etc., evidence held see “Criminal Law," $ 535 (2). sufficient to support a conviction.-Burrows y. Insanity of accused, see "Criminal Law," $ State, 84 Ind. 329. 570 (3). [e] (Ind. 1890) Other offenses, see “Criminal Law," 8 374. Where in a prosecution for burglary the Reasonable doubt, see "Criminal Law," $ conviction rests entirely on circumstantial evi561 (2). dence and the circumstances are in themselves Testimony of accomplices and codefendants, see inconclusive and not of such force as to exclude “Criminal Law," $8 507 (2, 5), 510, 511 (2, 4), the hypothesis of innocence, and accused volun512. tarily proved an unblemished. reputation by a Venue of prosecution, see “Criminal Law," 8 number of witnesses whose testimony remained 564 (1, 4). unchallenged, the conviction will be reversed.-: 8 41. In general. Cavender v. State, 25 N. E. 875, 126 Ind. 47. [f] (Iowa, 1904) See 8 Cent. Dig. Burg. 88 94-103, 109. On a prosecution for burglary, evidence held to sufficiently show the stolen clothing in de8 41 (1). In general. fendant's possession.-State v. Raphael, 99 N. W. 151, 123 Iowa, 452, 101 Am. St. Rep. 334. [a] Evidence held to sustain a conviction. [8] (Kan. 1901) -(Ark. 1902) Ragland v. State, 70 S. W. 1039, On a prosecution for burglary with intent 71 Ark. 65: to commit rape, evidence that accused, de. (Cal. 1904) People v. Lang, 76 P. 232, 142 scribed by the witnesses as a tramp having Cal. 482; irregular and temporary employment in the (Fla. 1902) Walker v. State, 32 So. 954, 44 neighborhood, went to a farmer's house in an Fla. 466"; (1904) Williams v. Same, 37 So. isolated place just as a brother of the farmer's 521, 48 Fla. 63; (1906) Lamps v. Same, 40 wife was ready to leave, and told such brother So. 180, 51 Fla. 51; that he was wanted at a neighbor's, and pre(Ga. 1902) Gilbert v. 'State, 43 S. E. 47, 116 tended to depart in a different direction from Ga, 819: that taken by the brother, and when he was (Idaho, 1905) State v. Burke, 83 P. 228, 11 out of sight returned to the house, and after Idaho, 420; going up to the screen door and assuring him(Ind. 1879) Dawson v. State, 65 Ind. 442; selt that the woman was alone, and against (Iowa, 1904) State v. Raphael, 99 N. W. 151, her protest not to enter the house, pulled open 123 Iowa, 452, 101 Am. St. Rep. 334; Same the screen door and came into the room, but V. McPherson, 101 N. W. 738, 126 Iowa, was driven out by her and frightened away, 77; is sufficient to sustain a conviction for bur(Mich. 1903) People v. McDonald, 94 N. W. glary in the second degree.-State v. Moon, 64 1064, 10 Detroit Leg. N. 175, 133 Mich. P. 609, 62 Kan. S01. 366; [h] (Miss. 1900) (Mo. 1903) State v. King, 74 S. W. 627, 174 Evidence that defendant was a porter in the Mo. 647 ; (1905) Same v. De Witt, 90 Ś. W. depot of a railroad company, and that he left 77, 191 Mo. 51; after the discovery that a car had been broken (Neb. 1904) Kennedy v. State, 99 N. W. 645, open and goods stolen therefrom, and that he 71 Neb. 765 ; was arrested some miles from the burglary, and (Tex. Cr. App. 1902) Garcia v. State, 70 S. that at the time of its commission he stood with: W. 95; (1903) Blackwell v. Same, 73 S. W.'in 10 feet of the car, and in plain view of it,
quentl was a walker a wind out wi that o to a de 40 S. I [k] In loaded fied tha station, tween which a dragged tradicte torn We the burg afterwa corn we lake, bu sacks 1 corn wa eridence tion.-Br [1] (T Circ glary he where it hypothes fendant, required that the sion was cused wa tered his L (m) (Te Wher was show ties who saw him was arres came to ti ing the ho tion but sustain a 410. (n) (Te: Iu a showing ti burglarized ment, and possession state, was ship, or ac property.[0] (Tec Evider to have be dwelling hc therein, esa rant a con 689. [p] (Ter On a of the burgl want of cor Page 4
II. Prosecution and Punishment. burglarized and the property stolen.-MeNutt v. I attempting to enter, a conviction was supportState, 9 V. W. 143, 09 Veb. 207. ed by the evidence.-White v. People, 53 N. E. (e) Ter. (r. App. 1998) 570, 179 III. 356. Where the evidence shows that the alleged (C) (lowa, 1904) owners of a burglarized house supervised the In a prosecution for an attempt to break construction of the building, and gave instrue and enter a building, evidence examined, and tions, and that the one having custody and hold sufficient to warrant a conviction.-State v. control was their agent and acted under their Mahoney, 97 N. W. 1089, 122 Iowa, 168. instructions, the ownership is sufficiently prov- [d] (Mo. 1898) ed.- Runnels v. State, 47 S. W'. 470. At 3 o'clock in the morning, accused and [1] (Va. 1900) another were seen coming from the immediate An inlictment for burglary. alleging the vicinity of a store, the door of which was 15 breaking of the store “of P. S. and G. H., doing minutes later found broken open and slightly business under the firm name of S. & H.," was ajar. A half hour before then the door had sufficiently supported by the evidence where the been tried, and found all right. Accused had breaking of the store of such firm was shown,' been convicted of burglary before on his own and one of use partners testified that he was confession, and, on seeing the officers, fled. engaged in huminess in the firm at the place al 'hild, that a conviction of an attempt to commit lased, and that his place of business was broken burglary was warranted. --State v. Carr, 47 S. own, although there was no other specific proof W'. 790, 146 Mo. 1. of ownership or who composed the firm.--Hen- se) (N. Y. Sup. 1901) derson v. Commonwealth, 34 S. E. 881, 98 Va. Where defendants, who were professional 7:4. thieres, entered and emerged from a bank building several times on a certain forenoon, § 41 (9). Proxerution for pos8€8sion of bur- building, then stood together on an adjacent conversed together, and again entered the glars' tools. corner conversing, and afterwards again en(a) (Mass. 1905) tered the building. they were properly comIn a prosecution for having burglar's tools mitted for trial under Pen. Code, 505, proin possession in violation of Rev. Laws, c. 208, viding that a person who, under circumstan$ 41, evidence held sufficient to sustain a ver ces or in a manner not amounting to a burdiet tinding that defendants were the owners glary, enters a building, or any part thereof, of the tools, and that they employed another with intent to commit a felony or larceny, is to hire a room where the tools were secreted, guilty of a misdemeanor.-In re Corcoran, 69 and that the same were subject to defendants' N Y. S. 569, 31 Misc. Rep. 332, 15 N. Y.' Cr. control.-Commonwealth v. Conlin, 74 X. E. R.392. 3.31. 188 Jass. 282. [1] (Tex. Cr. App. 1896) (b) (Mo. 1905) A conviction of an attempt to commit Evidence, on a prosecution of defendant burglary, with intent to commit rape or to for having burglar's tools in his possession and steal, cannot be sustained on eridence merely concealed about his person, held sufficient to that two women were sleeping upstairs in the sustain a conviction. - State v. Layton, 90 s. house, and there had some personal property; W: 7:21. 191 No. 613; Same v. Strickland, 90 that defendant climbed a post onto an outside S. W. 725, 191 No. 616. gallery of the second story, and, when dis(c) (N. Y. 1900) covered, fled, --it appearing that the house had Evidence that defendant, when arrested, been occupied only two or three days, and de after resistance, in company with other men, sendant's testimony being that he thought the all having in their possession revolvers, drills, bouse vacant, and climbed on the gallery to caps, jimmies, dynamite sticks, and other tools sleep.-Moore v. State (Tex. Cr. App.) 37 s. w. such as are adapted for use, and commonly 747. used, by burglars; that their movements were [8] (Tex. Cr. App. 1904) suspicious; that after arrest they talked to Where there was no evidence that defendeach other about being "wanted" elsewhere. -- ant broke into the house where prosecutrix was is sufficient to sustain a conviction for having sleeping in the nighttime with the specific inburglars' tools in possession. Judgment, 63 tent of committing rape upon her, it was inY. S. 18, 49 App. Div. 218, 14 N. Y. Cr. R. sufficient to support a conviction of attempt to 4.58, affirmed. -- People v. Reilly, 59 N. E. 1128. commit burglary of a private residence with in11 N. 1.000. tent to rape.-Price v. State, S3 S. W. 185. Effect of possession of prop$ 41 (10). Attempts. erty stolen, See 8 Cent. Dig. Burg. $$ 80, 104-107. [a] (Ga. 1905) Presumptions and burden of proof in general, Accused was discovered lying under a see ante, & 29. counter in a store a short time before the hour Conclusiveness of evidence on party introducing of closing for the night. He was asleep, or it, see "Criminal Law," $ 556. pretended to be so, and was in a stupor when Evidence of larceny, see “Larceny," 64 (1-8). pulled from under the counter, and did not answer questions put to him. No goods were $ 42 (1). In general. found on his person, por had anything been taken from the store. The accused had been [a] (U.S. C.C.A., Ohio, 1901) drinking, and had been warned earlier in the The possession of goods recently stolen is evening by the arresting officer to go home, but entitled to more or less weight as an inculpatory continued drinking until the arrest was made. circumstance, depending on the facts of each Held sufficient to authorize conviction under case; and unless rebutted by the evidence, or Penal Code 1895, $ 180, declaring that any the explanation of the accused, the jury may person entering a building with intent to steal, act upon it, not only where the accused is char. but who is detected and prevented from so do- ged with the theft, but in a case in which he ing, shall be guilty of a misdemeanor.-Cole is charged with the burglary by which the theft man v. State, 50 S. E. 56, 122 Ga. 135. was accomplished; and the term "recently,” as [b] (M. 180) used in such connection, is a variable one, de Where defendant, charged with attempted pendent for its meaning in each case upon the burglary, made false statements when arrest- other circumstances shown.--Considine v. United, and had a case knife, broken at the point, ed States 112 F. 342 50 C. C. A. 272. in his possession, and the broken part, which [b] (Ala. 1905) exactly fitted the knife, was found wedged be- Evidence that defendant and D. sat totween the stop and door jamb, opposite the lock gether in a car on a train coming from the of the door of the house he was charged with I city where the burglary had been committed the Page 5
II. Prosecution and Punishment. Weight and suficiency of evidence [d]_(Ky. 1899) (Cont'd). Evidence that goods stolen from the broken warehouse were found in defendant's possession the middle of June. He had made a different was sufficient to authorize the submission to the and contradictory explanation to a police officer. jury of the question of his guilt of the breaking. Witnesses from the factory where he had work -Hunter v. Commonwealth, 48 S. W. 1077, 20 ed testified that he had behaved as a good citi- Ky. Law Rep. 1165. zen during their acquaintance with him. He [e] (Mass. 1886) admitted that he had been convicted three times for burglary. Held, that the evidence justified alleged that the defendant attempted to break An indictment, on Pub. St. c. 210, § 8, a verdict of guilty.-Williams v. People, 63 and enter a certain dwelling house in the night. N. E. 681, 196 Ill. 173. time, with the intent to steal therein, and Attempts. in such attempt broke and opened three winSee 8 Cent. Dig. Burg. $ 109. dows in said house, but was intercepted and See ante, $ 41 (10). prevented in the execution of said offense. At the trial, a police officer who arrested the de$ 44. Trial. fendant testified that, on the night in quesSee 8 Cent. Dig. Burg. $8 110–122. tion, he saw the defendant on the piazza in Argument and conduct of counsel, see “Crim- front of said house; that the defendant turned inal Law," $$ 714, 718, 719 (1, 4), 720 (1, 5, the corner of the house, and the witness 8), 721 (6), 7211 (2), 722 (2, 3), 726, 730 (7, 12). followed; that the defendant then ran into the Continuance. see "Criminal Law," $8 589 (4), yard and hid; that the witness searched for 595 (4), 597 (1, 3), 598 (6), 603 (3, 5). him with a lantern, and found him lying on Custody and restraint of accused,' see “Crim- the ground, apparently asleep, and with his inal Law," 8 637 face covered with a handkerchief; that he Deliberations of jury, see “Criminal Law," 8 made conflicting statements to the witness as 857 (2). to his name and residence; and that three Effect of admission of evidence, see "Criminal windows in the lower part of the house, which Law," § 873 (1-5). had been shut, were opened, and the fastenHarmless error, see “Criminal Law," $ 1174 ings, which were on the inside, were turned (2, 4). aside. Held, that the judge properly declined Misconduct of or affecting jury, see "Criminal to instruct the jury, as requested by the deLaw," 88 855 (7), 862. fendant, that, on the evidence, they would not New trial, see “Criminal Law," 88 913 (1), 915, be warranted in finding a verdict of guilty.923 (1), 936 (1), 938 (1, 5), 939 (3), 940, 942 (1), Commonwealth v. Shedd, 140 Mass.°451, 5 944, 945 (2), 957 (2). N. E. 254, Presence of others under indictment for pur-, [1] (Mo. 1891) pose of identification, see "Criminal Law," S Accused proposed to H. to roba store 653. with his assistance. The window of the store Remarks of judge, see “Criminal Law," $ 636 was raised by accused, who assisted H. to en(3, 4). ter the store, and accused took from H. the Right to jury trial on plea of former jeopardy, goods, which he handed through the window. see "Jury," $ 21 (6). H. had informed several people of the intent Time for objection to evidence, see “Criminal of accused to rob the store, and assisted acLaw," § 693. cused only for the purpose of entrapping him. View by jury, see “Criminal Law," 8 651 (1). Held, that it is a question for the jury whether H. entered the store with a felonious intent, 8 45. Questions for jury. and also whether, if H. committed no crime See 8 Cent. Dig. Burg. $ 110. in entering the store, accused was guilty of Assumption as to facts, see “Criminal Law," petit larceny in taking and removing the goods $ 761 (12, 14, 18). after they were handed to him. — State T. Effect of flight, see “Criminal Law," § 759 (5). Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Inference from possession of goods, see “Crim- Rep. 300. inal Law," $ 759 (4). [g] (Mo. 1892) Opinion of judge as to facts, see “Criminal Where a part of the stolen property was Law," $ 762 (3). found in the exclusive possession of the dePurpose of evidence, see “Criminal Law,” 8 fendant, it was sufficient to raise a presumption 763 (17). that he was guilty of both the burglary and Weight of evidence, see “Criminal Law," § 763 larceny, and there was no error in refusing to (8, 19). direct an acquittal at the close of the evidence [a] (Cal. 1897) offered by the state in chief.-State y. Owsley, On trial for burglary the evidence showed 111 Mo. 450, 20 S. W. 194. that defendant, by means of a tunnel leading [h] (N. J. Sup. 1900) from a cellar, entered and robbed a certain bank; The defendants were jointly indicted for that defendant and his confederates entered the breaking into a dwelling house at night. The cellar during the afternoon, and came out at 12 owner of the house testified that he was awako'clock at night. Beld, that the question whether ened by hearing men talking about 2 a. m.. the robbery was committed at night so as to and that thereafter, on the door being broken constitute burglary in the first degree was for open, he fired with his shotgun, and the inthe jury.- People v. McCarty (Cal.) 48 P. 981. truders left. The owner testified that be ree117 Cal. 65. ognized one of the voices as that of one of the [b] (Fla. 1905) defendants, but it was shown that he had made Where defendants were convicted of break- declarations to a detective that he could not ing and entering a building with intent to steal, identify the voices. A physician testified that and it appears from the evidence that the a man came to his office on that night to have building was broken into, and that bacon stolen him treat a number of gunshot wounds on his was found afterwards in possession of defend- face, which was very much swollen, and that ants, whether they gave a reasonable explana- he was the defendant whose voice was not tion of how they came in possession of the re- identified. On cross-examination he testified cently stolen property was a question for the that he would not swear that the defendant jury.-Jackson v. State, 38 So. 599, 49 Fla. 3. was the man whose wounds he dressed. De[c] (Ky. 1897) fendant had a borse and buggy on the night, The court should tell the jury what acts and one had been tied in front of the house. constitute a breaking, that being a question of Ileld, that it was not error to submit the cause law.-Rose v. Commonwealth (Ky.) 40 S. W. to the jury.-State v. Wines, 46 A. 702, 65 245, 19 Ky. Law Rep. 272. N. J. Law, 31.
[1] (N. Y. Defenda along the str in windows He mounted ly pursued reached the 1 a burglar's ji then placed i cape. He h He testified was on the t be had any i Held, that th in defendant evincing an commission 508, making der such ci for the jury. 497, 33 App. 0] (Or. 19 Defenda granary fron were taken. had been bra shed, to an traced, simi granary and tracks of two to a road ar lived. In tl letter was f similar boot from the fie that shortly tried to sell ness testifies defendant a alfalfa seed en, the sac Held, that i tion to ac cient to jus Tucker. 051 [k] (Tex, What try in the c tion of fact W. 99. (Tex. Pen. C fense of bu house by intention of fendant ent it was oper the building business h theft, and burglary, a the jury th roneous.-S [m] (Tex
shown that him under for the p thereof. 11 as to rend question a with the v. State, o [] (Te Under 839a, as a which mak residence a glary, whe one chargi time burg. II. Prosecution and Punishment. [1] (V. Y. Sup. 1978) Page 6
into the salot the beer he i not injured 1 owner's wife ing burglary. [b] (Ter. Where ged breakin and there w the entry of sufficient w if they beli the taking on the law be an accom session.--Du Cr. R. 3. [c] (Tex. Where an entry wil the house, a convict the free consent tion that if tered the hi with intent was not eri tion regardl consent to e S. W. 230. [d] (Tex Where, appeared ti error for the owner's br circums 91 S. W.7
II. Prosecution and Punishment. Trial-Instructions (Cont'd). [h] (Tex. Cr. App. 1905) [h] (Tex. Cr. App. 1905) here, on a prosecution for burglary, the In a prosecution for burglary, a charge theory of defendant was that he went into the that if defendant entered the house on the that in so doing he went through an open door, house for the purpose of visiting a person, and invitation of another party, for the purpose and there was testimony that one of the winonly of sleeping there, he would not be guilty, dows was raised and entry there made, and the was erroneous, as the court should have instructed that, if defendant entered the house court instructed that, if defendant went through for any other than a fraudulent intent to steal, ing it, for the purpose of visiting the person in an open door, or through the window after raisthe jury must acquit.-Bird v. State, 90 S. question, he would not be guilty, such instrucW. 651. tion, in connection with a general charge on reasonable doubt, was a sufficient presentation § 46 (3). As to breaking and entry. of the law.-Carroll v. State, 86 S. W. 1012. [i] (Tex. Cr. App. 1906) [a] (Kan. 1879) The court on a prosecution for daytime Where, in defining burglary, the trial burglary need not differentiate between the judge omitted therefrom the element of the un- force used in a daytime and a nighttime burlawful entry, and made the mere breaking into glary: the force proved being force applied of the building with felonious intent the crime, to the house, applicable alone to a daytime bur. and in another part of the charge correctly de glary.-Wright v. State, 93 S. W. 548. fined the crime, and there was no dispute as to the fact of the entry, defendant was not preju- § 46 (4). As to time of committing offense. diced.-State v. Jansen, 22 Kan. 498. [b] (Ky. 1905) Definition of "nighttime," see "Criminal Law," Where, on a prosecution for burglary, the $ 800 (1). uncontradicted evidence showed a breaking, (a) (Cal. 1904) and the defense was an alibi, it was not error to fail to define what constitutes an unlawful |tion that if the defendant entered the building In a prosecution for burglary, an instrucbreaking.–Radley v. Commonwealth, 89 S. W. in question in the nighttime that is, between 519. 28 Ky. Law Rep. 477. sunset of one day and sunrise of another day[c] (Nev. 1900) Where an indictment charged defendant should find him guilty of burglary in the first with the intent to commit larceny, the jury with breaking and entering a room occupied by a company as a store, and the defendant of visions of Pen. Code. $ 460, 463.-People v. degree, was in conformity with the express profered an instruction to the effect that, before the jury could find a verdict of guilty, the state Perry, 78 P. 281, 144 Cal. 748. [b] (Tex. Cr. App. 1906) must show beyond a reasonable doubt that defendant broke and entered the store, it was not appeared that it was committed in the night Where, on a prosecution for burglary, it error to modify the instruction by striking out time, there was no reversible error in inserting the words “broke and,” since, under the stat: in the charge the general statutory definition of ute, burglary is the entering in the nighttime of burglary, without limiting the entry to one at any bui ding.--State v. Simas, 62 P. 242, 25 night.-Jackson v. State, 91 S. W. 788. Nev. 432. [a] Where, in a prosecution for a burglary § 46 (5). As to character, situation, and occommitted jointly with another, there was evi cupancy of premises. dence that the lock on the door had been broken with a punch, that tracks of two horses led [a] (Ga. 1896) to the premises, and that shortly afterwards Since Codle, $ 4386, defining burglary, dedefendant was associating with another, and clares that all outhouses contiguous to or withjointly engaged with him in disposing of the in the curtilage or protection of the mansion or property stolen, it was not error to instruct dwelling house shall be considered as parts of that defendants, jointly charged with burglary, the same," there was no error, on indictment were guilty, if, while acting together in the for burglary of a dwelling house, to instruct that commission of the crime, either one of them ac- the state charges that the accused did enter tually broke and entered the building.-State v. the chicken house, the same being within the Tucker, 61 P. 894, 36 Or. 291, J1 L. R. A. 246. curtilage or protection of the dwelling house"; [e] (Tex. Cr. App. 1898) the evidence showing that the house actually Where an alleged burglarious entry must broken was in fact a chicken house within the have been made by breaking the lock, and so inclosure, and under the protection of the dwellopening the door, there was no error in failing ing house mentioned in the indictment.--King v. to define the force required to constitute an en State, 25 S. E. 613, 99 Ga. 52. try, the court charging that it must be by [b] (Kan. 1902) force.-Young v. State, 44 S. W. 835. On trial for burglary in the second degree, under Gen. St. 1901, $ 2059, the court should [f]_(Tex. Cr. App. 1900) Where breaking and entering a house by instruct the jury that the building broken into force were essential to a conviction for bur must contain some human being, or have valglary, and defendant's evidence clearly showed uable things kept or deposited therein.-State that the door of the house was open, it was er v. Poole, 70 P. 637, 65 Kan, 713. ror to refuse a special charge to the jury to [c] (ly. 1999 ) Under an indictment for breaking the wareacquit if they believed the entry was made house of W. with intent to steal therefrom, it through an open door, or had reasonable doubt whether it was so made, though the general conviction if the jury believed that defendant was proper to give an instruction authorizing a charge instructed to convict if they believed had broken the opera house" of W. and stolen beyond a reasonable doubt that defendant broke therefrom the articles found in his possession, and entered the house by force, without consent, since defendant was entitled to a distinct the evidence showing such opera house to be a substantive charge presenting such defense. warehouse within the statute.-Hunter v. ComDuke v. State, 57 s. W. 052, 42 Tex. Cr. R. 3. monwealth, 48 S. W. 1077, 20 Ky. Law Rep. 1103. [8] (Tex. Cr. App. 1902) A charge that climbing through a window $ 46 (C). As to owner's consent. that is an unusual place of entry is a suflicient breaking to constitute burglary, and in another (a) (Tex. Cr. App. 1899) paragraph that merely passing through an open Where accused claimed his mother gave him window was not sufficient force, was confusing the key to his father's saloon to get her a bot-Murmutt v. State, 67 S. W. 508. tle of wine, but the evidence showed he broke Page 7
II, Prosecution and Punishment. by breaking and entering in the daytime."- of witness, as affecting credibility, see "WitState v. Hullen. 45 S. E. 513, 133 N. C. 636. nesses," $ 344 (4). [k) (Ohio, 1906) Restraining injury to trade or business, see A dwelling house is inhabited, within the "Injunction," 88 55, 56. meaning of Rev. St. 1905, $ 6837, prescribing Restraining interference with business, see "Inimprisonment for life for burglariously entering junction." $ 99. an inhabited dwelling, where the family had Sale of good will of established business, see gone for a vacation, leaving servants in charge, "Good Will." though when it was entered the servants may What constitutes carrying on business within have been temporarily absent.-State v. Mason, state by foreign corporation, see "Corpora77 X. E. 253, 74 Ohio St. 63, tions," $ 642 (1-7); “Insurance," $ 16. (1) (Ter. (r. App. 1903) Words tending to injure in profession or busiWhere defendant was charged with bur- ness as libel or slander, see "Libel and Slanglarizing a private residence in the daytime, the der," $$ 9, 18. court properly charged that on conviction the jury might assess defendant's punishment at BUTCHERS. imprisonment for not less than 2 or more than 12 years. Holland v. State, 74 s. w. 703, 45 License taxes, see “Licenses,” 88 6 (2), 16 (5). Tex, Cr. R. 172. BUTTER. BURIAL. Imitation and adulteration, see "Food." BUYER AND SELLER. BY-BIDDING. BURIAL PLOTS. At auction sales in general, see "Auctions and Gifts for improvement of as perpetuities, see Auctioneers," $ 7. "Perpetuities," $ 87). At sale of property of decedent under order of court, see "Executors and Administrators," $ BURNING. 366. At sale of property of infant under order of ('ivil and criminal liability for burning prop- court, see “Infants," $ 40. erty other than buildings and their contents, see "Fires." BY-LAWS. Civil liability for injuries from fires caused by negligence in general, see "Negligence," $ 21. Of corporations or associations, see “Associa(ivil liability for injuries from fires caused by tions," & 5; “Banks and Banking," $$ 300, operation of railroad, see "Railroads," 88 453- 319;' "Beneficial Associations,” Š 5 (, 2); 458. "Building and Loan Associations," $ 5(1, 2); Criminal responsibility, see "Arson." "Clubs,” $ 4: "Corporations, 88 54-58; "Exchanges," $ 4; "Insurance,” 88 54, 135, BURNT-RECORD ACT. 152 (1-3), 693, 718, 719; “Religious Societies," $ 5; "Trade Unions," $ 3. See "Records," $82, 16. Of counties, see "Counties," $ 55. Of hospitals, see "Hospitals," $ 6. BURYING GROUNDS. Of municipal corporations, see "Municipal Cor porations," $8 105–122. See "Cemeteries." BYSTANDERS. BUSHEL. Injuries from discharge of weapons, see "Weap ons," 8 18 (1, 2). See “Sales," $ 71; "Weights and Measures." Misconduct ground for new trial, see "Criminal Law," $ 930; "New Trial," $ 51, BUSINESS. Presence and conduct at trial, see "Criminal Law," § 659; “Trial," $ 30. Conspiracy to injure in business, see “Conspir- Signatures to bill of exceptions, see "Criminal acy," 88 8, 30. Law,” $ 1092 (12); “Exceptions, Bill of," $ 54. Day or hours of business, presentation and pro: Summoning as jurors, see “Jury,'' | 72 (1-8). test of negotiable paper, see "Bills and Notes," Summoning to aid in making arrest, see "Ar88 404, 416. rest," 69. Disclosure or use of trade secrets, see “Injunction," $ 56. CABLE. Engaging in business on holidays, see "Holi- In navigable waters, see "Navigable Waters," days," f 4. $ 22 (4). Engaging in business on Sunday, see "Sunday," $ 5. CABLE ROAD. Exemption of property used in business from liability for debts, see “Exemptions," $$ 43- See “Street Railroads,” $ 45. 47. Homestead, see "Homestead," $ 36. CABS. Infants carrying on business, see “Infants,” $ 14. Grant of exclusive privileges to hackmen by carInjury to business in general, see “Torts.” § 10. riers, see "Carriers," $ 14. Interference with, as unfair competition, see "Trade-Marks and Trade-Names," $ 77. CADETS. License taxes for occupations, see “Licenses,” $$ 1-42. See "Army and Navy," § 16. Married women carrying on business, see "Husband and Wife," 88 91-100. CADUCITY. Of decedent, continuance by executor or admin istrator, see "Esecutors and Administrators," Property subject to descent or distribution, see $ 93 (1, 2). "Descent and Distribution," $ 8. Page 8
1. Establishment, Construction, and Maintenance. a canal, where it had been used in no proceed which the boundary appears to be on the side ing between the state and landowner, and had thereof, together with a privilege in the canal, been made after the canal was finished, and and an obligation on the part of the grantee, bis withont knowledge or consent of the owners. - heirs and assigns, to maintain the canal wall Smucker v. Pennsylvania R. Co., 6 Pa. Super. forever, and permission to drive piles against Ct. 521. such parts of the wall as have projected into $ 13. Right of way and other interests the canal, and to fasten land ties thereto to prevent any further pressure outward, no right in land. is acquired by the grantee to cover the ends See 8 Cent, Dig. Canals, 88 9-12. of piles so driven with a platform; but a title (a) Under proceedings to acquire land for the is acquired to the land up to the walls of the construction of a canal, a fee simple is ac- canal as they then existed and were delineated quired. on the plan.-Whitman v. Boston & M. R. Co., --(Ind. 1880) Cromie v. Trustees Wabash & E. 83 Mass. (3 Allen) 133. (anal, 71 Ind. 2018; [8] (N. C. 1903) (N. Y. 1865) Higgins v. Reynolds, 31 N. Y. Act 1790, $ 10, provided that a certain 151. canal company might, on failure to agree with CONTRA, see the owner, condemu a right of way "not ex(Pa. 152) Pittsburg & L. E. R. Co. v. Bruce, ceeding the width of 300 feet.” Held, where it 102 P'a. St, 3. did not appear what amount of land, if any, [) ('.. Sup., Ohio) was actually condemned, it would be presumed A private corporation acquired land for that the right of way acquired was canal purposes, under an act whereby, on the easement, and that it was limited to the extent abandonment of the canal, the land was to re- of its use. -Pinnix v. Lake Drummond Canal vert to the original owners. Subsequently, the & Water Co., 43 S. E. 578, 132 X. C. 124. stilte acquired the canal, which it afterwards [L] (Ohio, 1898) abandoned for canal purposes by leasing the In order for the state to acquire title to canal to a railroad company, for the construe- lands for canal uses merely by occupancy and tion and operation of a railroad thereon. Held, use, the occupancy must be exclusive, and so that the land did not revert, and that the orig. I open and notorious as to put the owner on noinal owners were only entitled to compensation tice that the property has been taken by the for such additional burden as would be im- state for its own, with the purpose of incorpoposed on the land by the new use.--11895) rating it as a part of its canal system.-Smith Vought v. Columbus, 11. V. & A. R. ('o., 50) v. State, 52 X. E. 638, 39 Ohio St. 278. V. E. 4.12. 58 Ohio St. 123, affirmed (19) 20 [i] Ohio, 1898) S. C. 398. 176 ( S. 481, 44 L. Ed. 35: private owner of lands adjoining a canal, for Where a basin has been constructed by a Wright v. Same, Id.; Shotwell v. Same, Id.; OSIS) Walsh v. Same, 30 N. E. 412, 58' Ohio the purpose of enhancing the value of his ad$1. 123, atfirmed (1:**) 20 S. Ct. 3:13, 176 U. jacent property, to be used by boats on the S. 409, 41 L. Ed. 548. canal in lading, unlading, passing, and turning, (c), (l'. S. Sup., Ohio) and no purpose to donate the land of the basin Lands acquired for its use by a canal com to the state is shown, the facts that the water pany, a private corporation, under 24 Ohio Laws, of the canal is permitted to flow in and constip. 71, authorizing it to acquire lands for its use tute the water of the basin, and that occasionby donation, grant, or appropriation, without ally boats used by the board of public works in expressing the interest or estate to be acquired making repairs used the basin for lading, unthereby, revert to the owner from whom they lading, and turning, and that occasionally, many were acquired or to his successor on the aban- years after the completion of the basin, endonment of the canal.-(1898) Vought v. co- gineers employed by the board of public works lumbus, II. V. & A. R. CO., 50 N. E. 442, 58 caused the basin to be cleaned out, do not conOhio St. 123, a:firmed (1:00) 20 S. Ct. 398, stitute notice to the owner of the basin lands 176 L'. S. 481, 44 L. Ea. St;' Wright v. Same, that the state has taken possession of the same I.; Shotwell v. Same, Id. ; (1898) Walsh v. as its own for canal purposes, nor such exclusive Same, 50 V. E. 412. js Ohio St. 123,"affirmed occupancy as to imply an appropriation.-Smith 41.90) 30 S. Ct. 383, 176 C. S. 469, 44 L. Ed. v. State, 52 N. E. 638, 59 Ohio St. 278. 18. [j]. (Ohio, 1900) (d) (N11. 1999) Where the possession and use of lands or Rev: St. c. 19. & 8. conferring upon the streams in the construction of the Ohio canal syscommissioners of the Illinois & Michigan Canal term were merely incidental, constructive, or indithe power to lease canal lands, “provided no rect, and not of a character to fairly apprise lease shall be for a period exceeding ten years, both the officers of the state and the owners of does not prevent the commissioners, who are ri the lands that such lands or streams were approparian owners of one-half of a stream, from priated and used in the construction of the canals. entering a consent decree, permitting the oppo- no fee to such lands or streams rested in the site owner to repair a dam which had existed state. -Miller v. Wisenberger, 56 N. E. 454, 61 more than 40 years, and giving him a perpetual Ohio St. 561. Casement, in consideration for which they secur [k] (Ohio, 1900) ed valuable rights to a portion of the water The mere incidental backing of water up a power, when the existence of the dam and the stream, caused by the erection of a dam across right to maintain it had been recognized in a a river, used as a part of the canal system, such resolution of the legislature and in a contract stream flowing into said river, and remaining in between the commissioners and the owners of a state of nature, except as slightly raised by the dam, which agreement the courts bad held such backwater, does not constitute such an apValid. - Sanitary District of Chicago v. Adam, propriation and use of the bed of the stream for 5: V. E. 713, 179 Ill. 406. canal purposes as to vest the fee of such stream [e) (Ind. 1866) in the state.--Miller v. Wisenberger, 56 X. E. Section 6 of the act of February 19, 1838, 454. 61 Ohio St, 561, *for the protection of the canals belonging to (Ohio C. C. 1885) the state," etc., and the act of January 19, The special charter of the Ohio & Penn1946, for the sale of the Wabash and Erie sylvania Canal Company provided that, in Canal, etc., were not intended to be declara- case in the space or period of one year at any tory of the interest held by the state as against one time the canal company should neglect the owners of the soil.--I dgerton v. lluif, 26 to keep its line of the canal in repair, it should Ind. 3.5. be deemed an act of forfeiture. Held, that by [1] (Mass. 1861) virtue of a decree in the Supreme Court findUnder a deed conveying a lot of landing as a fact that the company bad for more bounded on a canal, and referring to a plan by than one year neglected to keep its line of Page 9
I. Establishment, Construction, and Maintenance. duties of the state.-Book v. Pennsylvania R., "Spring Street.” (u compliance with this proviCo., 56 A. 352, 207 Pa. 138. sion, it was determined to fill in such cut for its $ 21. Mortgages. whole length, it being a menace to public health, See 8 Cent. Dig. Canals, $ 28. and unnavigable. Held, that an abutter on the (a) (Ind. 1886) cut, who used it for freighting, was not entitled The continuous use by the public for near- to an injunction restraining such officials froun ly 40 years as a part of the highway of a bridge doing such acts.-Lynch v. Partridge, 73 N. Y. constructed by the state, having a wagonway S. 469, 36 Misc. Rep. 302. for public travel and a towing path for navi [g) (N. Y. Sup. 1902) gators of a canal over which it passed, constitut Delaware & Hudson Canal Company to dis Laws 1899, c. 469, 88 3, 4, empowered the ed possession, and therefore notice of the easement to a purchaser of the canal on mortgage continue the use of the canal which it had conforeclosure.-Shirk v. Board of Com’rs of Car- structed between the Delaware and Hudson roll County, 5 N. E. 705, 7 N. E. 251, 106 Ind. canal company posted along a part of the ca rivers. Thereafter a mesne grantee of such 573. $ 22. Abandonment of canal. nal notices stating that it was private property, that it had been closed to the public use, and See 8 Cent. Dig. Canals, § 29. that trespassing therein was forbidden under (a) (U.S. Sup., Ohio, 1900) A private corporation acquired land for canal penalty of the law, Held, that the act contempurposes, under an act whereby, on the aban: vote of the managers of the company, and such plated an actual physical discontinuance on the donment of the canal, the land was to revert notice was not effectual as against a corporato the original owners. Subsequently, the state tion entitled to use a part of the canal so long acquired the canal, which it afterwards aban. doned for canal purposes by leasing the canal to ment Co. o. Consolidated Rosendale Cement Co., as that part remained a canal.- New York Cew a railroad company, for the construction and 77 x. Y. S. 1093, 38 Misc. Rep. 518. operation of a railroad thereon. Held, that the land did not revert, and that the original owners Actions by or against companies. were only entitled to compensation for such ad. See 8 Cent. Dig. Canals, $ 30. ditional burden as would be imposed on the land See ante, $ 11, in this Digest. by the new use:-Walsh v. Columbus, H. V. & A. R. Co., 20 S. Ct. 393, 176 U. S. 469. 44. L. 23. Injuries to canals, works, or appli. Ed. 548, affirming (1898) 50 N. E. 442, 58 Ohio See 8 Cent. Dig. Canals, $ 14. St. 123 : Vought v. Same, 20 S. Ct. 398, 176 U. S. 481, 44 L. Ed. 554, affirming (1898) 50 [a] (I11. 1899) N. E: 412,'58 Ohio St. 123,' Wright v. Same, Id., ing limited by Act 1874 (Rev. St. p. 188, c. 19) The power of the canal commissioners be. and Shotwell v. Same, Id. [b] (U.S, Sap., Ohio, 1900) to the Illinois & Michigan Canal, including its Lands acquired for its use by a canal com feeders, basins, and appurtenances, and to the pany, a private corporation, under 24 Ohio Laws, works of improvement (the locks and dams of p. 71, authorizing it to acquire lands for its use the Ilinois river), they cannot maintain a suit, by donation, grant, or appropriation, without ex. as such commissioners, for a public nuisance pressing the interest or estate to be acquired committed to the navigable portion of the river thereby, revert to the owner from whom they outside of their jurisdiction, but this must be were acquired or to his successor on the aban- brought by an information in equity, in the donment of the canal.-Walsh y. Columbus, 11. name of the people of the state, by the attor. V. & A. R. Co., 20 S. Ct. 393, 176 U. S. 469, ney general. Judgment (1898) 75 Ill. App. 450, 44 L. Ed. 548, affirming (1898) 50 N. E. 442, affirmed. ---Canal Com'rs v. Village of East Pea 58 Ohio St. 123; Vought v. Same, 20 S. Ct. 398, ria, 53 N. E. 633, 179 Ill. 214. 176 U. S. 481, 44 L. Ed. 354, affirming. (1898) $ 24. Offenses incident to construction 50 N. E. 442, 58 Ohio St.' 123, Wright v. and maintenance. Same, Id., and Shotwell v. Same, Id. See 8 Cent. Dig. Canals, $ 14. (c) (U.S. Sup., Ohio, 1900) Owners of lands abutting on a canal have Indictment, motion, to quash, see "Indictment Do property interest in the incidental benefits and Information," § 137 (J). arising from the water it affords, and from its facilities for drainage, and cannot on such ground II. REGULATION AND OPERATION. enjoin the abandonment of the canal, or claim $ 25. Power to control and regulate. compensation therefor.--Walsh v. Columbus, II. [a] (N. Y. Sup. 1902) V. & A. R. Co. 20 S. Ct. 393, 176 U. S. A canal constructed by a corporation under 409, 44 L. Ed. 548, affirming (1898) 50 N. E. Laws 1823, c. 238, with power of eminent do442, 58 Ohio St. 123; Vought v. Same, 20. S. main to acquire land, as well as the right to Ct. '398, 176 U. S. 481, 44 L. Ed. 554, affirming divert the waters of 'the Delaware and of the (1898) 50 N. E. 442, 58 Ohio St. 123, Wright Hudson rivers, and actually using some of the v. Same, Id., and Shotwell v. Same, Id. bed of a public stream, is impressed with a [a] (Ind. 1889) After a corporation to which the canal and public trust; and the owner, by whatever name its appendages had been conveyed abandoned subject to such interest, authorizing regulation it calls its transportation business, operates it the canal and renounced its obligation to main. of tolls thereof.- New York Cement Co. v. Con. tain it as a public highway, the most that it solidated Rosendale Cement Co., 76 N. Y. S. could claim was the right to hold the title to 469, 37 Misc. Rep. 746. the property for its own benefit, as any other proprietor might have held it.-Collett v. Board $ 26. Mode of operation. of Com’rs of Vanderburgh County, 21 N. E. See 8 Cent. Dig. Canals, $ 31. 329, 119 Ind. 27. 4 L. R. A. 321. [a] (N. Y. 1903) (e) (Ind. App. 1902) Where a contract between abutting ownThough the state acquired a fee, and not ers for the construction of a ship canal provides a mere easement, in the lands occupied in con- that an unobstructed right of way in every part structing the Wabash & Erie Canal, yet, of the canal shall be kept open for every vessel where a public street was taken, the original entering it to transact business with any of easement of the public therein revived on the the parties, one of the abutting owners will abandonment of the canal.--City of Huntington not be enjoined from mooring a vessel at his v. Townsend, 03 N. E. 36, 29 Ind. App. 269. dock, where it is discharging grain at his ele[1] (N. Y. Sup. 1901) rator, so as to overlap an adjoining dock, it Under Laws 1901, c. 61), an appropriation being larger than his frontage, no harm appear. is made to the superintendent of public works to ing to be done the adjoining owner, and the build a retaining wall and fill in a cut in the custom having obtained for a long period with. Oswego Chinal at a point in Syracuse knowu as out objection. Judgment (1900) 66 N. Y. S.
[b] ( Uni ing that such pls tbe com payment limits.(c] (1 A 1861, A Tessels, the trai along its on tugs sels thro Sturgeon Co. v. L [d] (I A ( woich it geon Bay Leathem [e] (N Whe Canal in amou which h the pres other c comptro previous payment with the in the r would b intended tolls ret -Seymc [1] ( Wb C. 469, Laws 19 the use corporat and und comes to the sam the tem the par another banks for 40 by the 12) to exact to - New dale Cer 716. (3) The regulate different sengers state. 5 Watts Page 10
Assignment of right to have quitclaim deed set Deeds of trust, see "Trusts," $ 56. Deeds or mortgages of homestead, see "Home. close mortgage, see "Mortgages," $ 45). Deeds to purchasers at execution sales, see “Ex- Drafts for money lost in gambling, see "Gam- Entries, receipts, certificates and warrants for of land whyre cancellation of conveyances is dor and Purchaser," 88 82-127. lently conveyed, see “Fraudulent Conveyan-Guaranty of railroad bonds, see "Railroads," $ 138. 237, 246–249, 730. as to creditors or subsequent purchasers, see nue," $ 30. lord and Tenant," $ 193. ters," $ 37 (7). Lease of state school lands, see “Public Lands," $ 173 (27). Lease of tide lands, see "Navigable Waters," $ 37 (7). $ 31. and Settlement," & 18 (1-4); “Deeds," $ Mining leases, see "Mines and Minerals,” $8 19, 08-78: "Fraudulent Conveyances"; "Re- 69 (2), 78 (2, 7). Notice of lis pendens, see "Lis Pendens," $ 20. Minerals," $ 45. Bond of irrigation district, see "Water's and Patents for public lands, see “Public Lands," $8 120-122. $ 164. Building and loan association mortgages, see Pension warrant, see “Pensions,” § 10. “Building and Loan Associations," $ 38 (6). Public records, see "Records," § 11. "Carriers," $ 254 (7). assigned for benefit of creditors, see “As- Satisfaction of mortgage, see “Mortgages," $ 316. School fund mortgages, see "Schools and School Liens," $ 100). Districts," $ 18. Separation agreements, "Husband and 8 10 (7). Wife," § 281. "Ground Rents," $ 11. ping," $ 108. tions," 8 83. "Bills and Notes," $ 438. Transfer of mining property, see "Mines and see "Husband and Wife," $8 32, 74, 90, 201. Us ious contract, see "Usury," $ 93.
I. RIGHT OF ACTION AND DEFENSES. [b] (Mo. App. 1898) One cannot recover on certificates resulting from an alleged illegal transaction, and at the L'ig. Contracts, 88 1195-1201 ; 16 Cent. Dig. annulling the transaction.-Mansfield v. Bank of 41. [c] (Pa. 1871) Equity will not set aside an agreement be. cause of duress when it would not be held in- son v. Jackson, 3 Rand, 504, 15 Am. Dec. 721. For later cases in Am. Digest 1907A and continuations, see same topic and section NUMBER. Page 11
I. Right of Action and Defen ej. Right to cancellation (Cont'd). transaction on placing defendant in statu quo. herself her share of the annual income. The -Musselman v. Knott, 7 Ky. Law Rep. (abbrother did not solicit the conveyance, or know stract) 380. [j] (Mich. 1902) of it, until it had been determined upon. Held, that under the circumstances such conveyance dike, met one against whom he had an al Complainant, on his arrival in the Klonwas not an improper one, and, it appearing that leged cause of action, who paid him $7,000 the grantor was a woman of more than usual on condition that he would release the claim intelligence and business capacity, and that she and leave the Klondike. A few minutes after fully understood the nature and effect of the the money was paid complainant was arrested conveyance, that it would not be set aside as on a charge of robbery, preferred by the one improvident, or obtained by improper means.Vrooman v. Gratilin, 96 F. 270, 37 C. C. A. fendant to defend him; the attorney then ex who had paid the money, and employed de475. acting $200. [b]_(U.S. C.C., D.C., 1837) Complainant was bound over, but on the day assigned for appearance such Equity has jurisdiction to decree the surrender of negotiable notes unconscionably with- attorney did not appear and another was emheld by defendant; and the danger that defend- ployed, When complainant had been in jail deprived of their legal defense, is a sufficient him they could secure his release if he would ant may pass them away, and complainants be for some days, and had paid defendant and such other attorney over $500, they informed ground for interference.-White v. Clarke, Fed. Cas. No. 17,540 [5 Cranch, c. C. 102], affirmed pay back the $7,000, plead guilty, and execute in (1838) 37 U. Š. (12 Pet.) 178, 9 L. Ed. 1016. attorney's fees, all of which he did to secure à mortgage on a farm for $800 for additional [c] (Ala. 1899) Held, that under the circumstanIn the absence of equities, the courts will his release. not relieve a party from the hardships of an ces, the attorney having been sufficiently paid, improvident contract.-Sheldon v. Birmingham the mortgage would be set aside as unconscionBuilding & Loan Ass'n, 25 So. 820, 121° Ala. able.-Coveney 1: Pattullo, 89 N. W. 968, 9 278. Detroit Leg. N. 26, 130 Mich. 275. [k] (Mo. App. 1903) (d) (Ga. 1906) An honest mistake of law, as to the effect herself borrowed money of the husband's father, Plaintiff alleged that her husband and of an instrument, on the part of both contracting to be used, together with a fund owned by parties, when such mistake operates as a gross the two jointly, in the purchase of certain land, injustice to one and gives an unconscionable securing the loan by a deed of trust on the advantage to the other, may be relieved in land, and that, in view that existing difficulties equity, or under equitable pleadings, in between herself and husband might cause a proper case.- Dolvin v. American Harrow Co., separation, the husband and his father con54 S. E. 706, 125 Ga. 099. spired to make the trust deed for a much lar[e] (Ill. 1904) ger sum than was actually advanced, but that Mere inadequacy of consideration is not she signed the deed through fear of losing her ground for relief to claimants under an outstand share of the money owned by the two jointly ing unrecorded title, seeking to set aside a deed and to prevent a further estrangement. She by their grantor of record to a subsequent pur- sought to have the difference between the chaser.- Booker v. Booker, 70 N. E. 709, 208 amount of the deed and the amount actually Ill. 529, 100 Am. St. Rep. 250. advanced credited on the note, and offered, if [1] (Ill. App. 1896) this was done, to pay the latter sum. Held Where a party sui juris and with full men that, on tendering into court the amount actual. tal capacity enters into a contract with a build. ly advanced, the plaintiff was also entitled to ing association sanctioned by law, the court relief on the ground that the contract was uncannot set it aside as oppressive. - Mechanics' conscionable. -Sims v. Sims, 101 Mo. App. 407. & Traders' Savings. Loan & Building Ass'n v. 74 S. W. 449. Vierling, 66 Ill. App. 621. [1] (N. J. 1906) [8] (Ind. App. 1896) A voluntary deed executed by a husband A voluntary family settlement may be set through another to his wife, of all his realty, aside when it appears that the grantor did not will not at the instance of the grantor be deintend to make it irrevocable, or that the set-clared void for improvidence, nor because of tlement would be unreasonable or improvident the absence of provision for revocation or for the lack of provision of revocation.-Rich- reversion of the deed, nor because executed withards v. Reeves (Ind. App.) 45 N. E. 624. out competent advice, unless it is shown that (h) (Iowa, 1906) it was the act of a person whose mental capacOrdinarily where a person has parted with ity was so enfeebled that he did not underhis property in consideration of an agreement stand the effect of the instrument, or of some for support for life, and discord thereafter other recognized ground for equitable interferarises between the parties, the courts are dis Decree (Ch. 1905) 59 A. 676, 68 N. J. posed to give the grantor the benefit of all rea- Eq. 516, reversed.-Fretz v. Roth, 6+ A. 132, 70 sonable doubt and restore the property to him, X. J. Eq. 764. if it can be done without injustice to the [m] (N. Y. Sup. 1903) grantee, though such contracts are legal and A transaction under which an annuitant are not to be disregarded without good reason : received less than $2,700 for annuities presuma. but in the absence of fraud in the procurement bly worth $20,400' will be set aside as uncon: of a conveyance from an aged couple in con- scionable. Judgment (1902) 75 N. Y. S. 763. 37 sideration of the grantee supporting them for Misc. Rep. 435, affirmed.-Roux v. Rothschild, life, the grantee who has abandoned another 79 N. Y. S. 1145, 78 App. Div. 637. home or other employment to assume the re- [n] (N. Y. Sup. 1904) sponsibility, and has entered on and for a pe Where stock in a corporation was delivered riod of years has discharged the obligations of by a stockholder to an officer of the corporation, the contract with reasonable fidelity, is not to under an agreement that it was to be transbe deprived of the benefit of his contract with ferred by the othcer to a capitalist to induce out legally sufficient cause.-Lewis v. Wilcox, him to give the corporation financial and other 108 N. W. 536, 131 Iowa, 268. aid, and it appeared that the officer never in[1] (Ky. 1885) tended to use the stock for the purpose for Plaintiffs agreed to give defendant $1,200 which it was delivered to him, equity nad jurisfor Missouri lands not worth more than half | diction to enforce a rescission of the contract that sum for the loan of $1.800, and thereupon and redelivery of the stock. Judgment (1903) executed a mortgage on their home property in 83 N. Y. S. 15, 40 Misc. Rep. 601, affirmed.Kentucky to secure the entire amount, $3,000. Slayback v. Raymond, 87 N. Y. S. 931, 93 App. Hold, that plaintiff was entitled to rescind the Div. 326. Page 12
I. Right of Action and Defenses. Adequate remedy at law (Cont'd). ant's wife, in exchange for a tract of land, unfects in the title, but his remedy is by action on der a contract in which defendant covenanted the warranty for damages.-Buford's Adm'r v. nants, subject to foreclosure of a second and to convey such tract by deed, with full coveGuthrie, 77 Ky. (14 Bush) 677. [1] (Md. 1898) certain other incumbrances; each party coveEquity has jurisdiction to cancel a sub- nanting that his representations as to title were scription to stock on the ground of fraud, though true, and that he could lawfully convey the an action of deceit might lie.- Negley v. Hagers- same. Defendant, when he conveyed, had no town Manufacturing, Mining & Land Improve-title; the mortgage having been foreclosed, and ment Co., 39 A, 506, 86 Md. 692. his equity of redemption barred. The wife (J) (Mich. 1884) subsequently conveyed part of the land to othA grantee who claims to have had to buy a ers of the defendants, who had notice of the title outstanding in third persons who do not facts. She also assigned the land contract, appear to have asserted it, and whose right is and the assignee paid the balance due, and prodoubtful, can hardly claim rescission on this cured a deed of the land. The contract proground in equity, but must sue on the covenant. vided that either party, failing to comply with ---Haldane v. Sweet, 20 N. W. 902, 53 Mich. its provisions, should forfeit $2,500 to the oth196; Sweet v. Haldane, Id. Defendant was insolvent, but plaintiff did [k] (N. J. Ch. 1877) not become aware of the fact till after he had Sale of land which has been executed will should be canceled for fraud. – Williams v. made the conveyances. Held, that the contract not be rescinded for alleged misrepresentations Stone, 45 P. 1070, 6 Wyo. 405. in reference to the amount of incumbrance on the land where the vendor is able to respond Recovery of consideration and reand the vendee is protected by the covenants in covery at law of property conveyed. his deed.-Porrett v. Halliard, 28 N. J. Eq. (1 See 8 Cent. Dig. Can. of Inst. $$ 16, 17. Stew.) 156. See ante, & 14, in this Digest. [1] (N. C. 1904) Where defendants induced plaintiff to con- Collateral agreement or security. vey to them land for less than its value by See 8 Cent. Dig. Can. of Inst. § 18. agreeing in good faith to erect a building which See ante, $ 10, in this Digest. would make more valuable adjacent land owned by plaintiff, he was not entitled to have the Action on instrument. conveyance set aside on defendants' inability to See 8 Cent. Dig. Can. of Inst. 88 19-21, perform their contract, but was only entitled See ante, &$ 10, 15, in this Digest. to recover the damages sustained.-Troxler v. Vew Era Bldg. Co., 49 S. E, 58, 137 N. C. 51. Action at law in disregard of in strument. (m) (Or. 1998) In the absence of fraud, an executed sale See 8 Cent. Dig. Can. of Inst. § 22. of real estate will not be rescinded for failure See ante, $ 15, in this Digest of title, but the purchaser must look for protec- $ 17. Ratification. tion to the covenants of the deed.-Fellows y. See 8 Cent. Dig. Can. of Inst. 88 23-27; 16 Evans, 53 P. 491, 33 Or. 30. Cent. Dig. Deeds, $ 210. [n) (Tenn. 1902) Where there is a breach of a covenant of (a) (111. 1898) seisin, the grantee may sue in equity for rescis Directing a physician to call on the gransion, especially where the grantor is insolvent.- tee for payment of his bill for services renderMatthews v. Crowder, 69 S. W. 779, 111 Tenn. ed the deceased wife, is not an election by the 737. surviving husband to treat as in full force a [o] (Tenn. Ch. App. 1898) conveyance based on a promise to support the A vendee in possession under a conveyance husband and wife during life, and furnish with covenants cannot rescind the contract on medical aid, where the grantee owed the husthe ground of defects in the title, in the absence band for rents and profits on account of the of fraud or the vendor's insolvency, and will be use of the premises.- McClelland v. McClelland, compelled to accept a title made good before 51 N. E. 5.9, 176 III. 83. final decree.-Stokes v. Acklen, 46 S. W. 316. [b] (n. 1898) A father, through an intermediary, convey. (p) (Tex, Civ, App. 1898) ed a farm of 240 acres, and one of 320 acres, to Where the vendor was unable to furnish an abstract showing perfect title, as required by the latter to her daughter for life, remainder to the his wife. She conveyed the west half of the contract, the vendee, on surrender of possession daughter's children, if any, and, if none, to and tender of reconveyance, was entitled to a grantor's son. The east half was conveyed to decree rescinding the sale, and for surrender of the son, subject to a life estate in the grantor. the purchase-money notes.-Loring - v. Oxford, The daughter's was charged with the payment 45 S. W. 395, 18 Tex. Civ. App. 415. of taxes and an annual sum to the grantor. [a] (W.Va. 1982) The daughter accepted the deed, and paid the Where a party has been guilty of fraud in charges for six years, when she sought to set making a contract with another, a court of equi- aside the father's deeds, as lacking legal çaty may set aside the contract, or may award to pacity to execute them, and as procured by the injured party compensation for the injury undue influence. Held that, having had conby way of abatement from what may be due the structive notice of those deeds, her acts con: other party under the contract, provided the stituted an acquiescence.--Stager v. Crabtree, 52 amount of such abatement can be ascertained X. E. 378, 177 III. 59. with certainty.-Crislip v. Cain, 19 W. Va. 435. (c) (NI. 1903) Ratification of an assignment of patents $ 16. Insolvency of defendant. See 8 Cent. Dig. Can. of Inst. § 15. procured by fraud cannot be urged as preclud ing suit to restore complainant to his rights in [a] (Denn. 1902) Where the grantors in a deed in fee, with the absence of evidence that he had any know). covenant of warranty, have not such title, the edge of the fraud until it was developed dur ing . Judgment, Bell v. Felt (1902) grantee, though he has not been evicted, may sue in equity for rescission, the grantors being in N. E. 794, 205 I. 213. 102_Ill. App. 218, modified.-Felt v. Bell, 68 solvent.- Matthews v. Crowder, 69 S. W. 779, 111 Tean. 737. $18. Estoppel or waiver. [b] (Wyo. 1896) See 8 Cent. Dig. Can. of Inst. $8 23-27; 16 Plaintiff conveyed all his ranch property, Cent. Dig, Deeds, $ 210; 35 Cent. Dig. Mtg. including a purchase contract for railway land, 195. on which a small balance was due, to defend: | Ratification, see ante, $ 17. Page 13
I. Rigbt of Action and Defenses. $ 19. Conditions precedent. (b) (Cal. 1900) See 8 Cent. Dig. Can. of Inst. 88 29 38; 16 Where a plaintiff who seeks to set aside Cent. Dig. Deeds, $ 212; 35 Cent. Dig. Mtg. a conveyance as fraudulently induced alleges that. $ 194; +2 Cent. Dig. Release, $ 43. it was made in consideration of promises of monConditions precedent to actions by or against ey, care, and maintenance, which have not been trustee in bankruptcy, see "Bankruptcy," j | kept, and defendants deny such promises, and 284. allege that the conveyance was made in payment Conveyances by insane persons, see "Insane of a debt plaintiff owed them, a failure of the Persons," $ 66. complaint to offer to put defendants in statu Rescission by act of party, see “Contracts," 88 quo is cured by defendants' answer; defendants 201 200. having given nothing. on their own showing, To rexission or cancellation of executory con- which could be the subject of restitution.-Lar tract of sale, see “Vendor and Purchaser," kin v. Mullen, 60 P. 1091, 128 Cal. 449. $$ 97, Os. (c) (Cal. 1904) A contract will not be canceled if there is $ 20. In general. no offer by plaintiff to pay for work done and Sep 8 Cont. Dik ('an. of Inst. $ 28; 16 Cent. material furnished by defendant thereunder, or Dig. Deeds, $ 212. to place the latter in his former position.--Sul(a) (Mich. 1857) livan v. California Realty Co., 75 P. 767, 142 No rescission of a roid contract by which Cal. 201. the complaining party receives nothing is neces. [d] (Colo. App. 1902) sary before invoking the aid of equity to set it Where a husband and wife executed a aside. Waterbury v. Andrews, 31 X. W. 575, trust deed of their homestead to secure av ex7 Vich. 1. tension of a loan then secured by a valid trust (b) (Mo. 19) deed of such homestead, such new trust deed The deed of an insane person may be can should not be canceled, at the suit of the reled without restoring to an innocent third per- wife, who does not offer to pay the debt, make son the amount of a loan made to the grantee on good her covenants, or to reinstate such forthe faith of his apparent title.--Mckenzie v. mer lien, solely on the ground that the notary Donneil. 52 S. W. 12, 151 Mo. 461. who took the acknowledgment of the deed was (c) (w. n. 1897) a stockholder of the corporation, grantee thereIt is not necessary before bringing a suit in.--Hirzel v. Schwartz, 68 P. 1056, 17 Colo. in equity to annul a forged deed of land and App. 470. have it canceled and the record of it declared (o (111. 1899) raid that the legal owner should establish his In an action for the cancellation of a sale title and obtain possession of the land by eject of land, complainant sutliciently attempts to put ment at law.-Hoopes v. Devaughn, 43 ir. Vå. defendant in statu quo by offering in the bill to 417, 27 S. E. 201. return the note given for the price, and tender ing it at the trial.- Wenegar v. Bollenbach, 51 21. Performance by plaintiff. X. E. 192, 180 III. 222. See 8 Cent. Dig. Can. of Inst. § 29. [1] (111. 1903) (a) In order to entitle a party to a rescission Where a derd is given to satisfy a debt of a contract on the ground of a mutual missupposed to be $10,000), when in fact it is only take, the condition of affairs must be such $1,000, payment of the true amount of the debt that a substantial restoration can be made.is a condition precedent to cancellation for the Barker v. Fitzgerald. 10. III. pp. 334, judymistake.--Powell v. Plant, 23 So. 399. ment affirmed, 68 N. E. 430, 201 Ill. 325. [8] (111. 1903) $ 22. Notice and demand. Complainant was induced by the fraud of Sp 8 ('ent. L'ig. Can. of Inst. $ 30. a joint purchaser and defendants to purchase a (a) (Ala. 1999) third interest in patents to be used in foreign To maintain a bill to cancel a mortgage, countries, which required a rearly tax to he given to secure the payment of a sum for the paid on patents, and forfeited them if not work. privilege of selling a patent right in a given tered for two successive years. Complainant paid ritory, on the ground that plaintiff was induced the taxes up to the time his bill for rescission to execute it by false and fraudulent representa- was filed. After the date on which defendants tions of defendants, plaintiff must show a de claimed the patents lapsed, they offered to command for a cancellation of the contract and de plainant to surrender what he had paid for his fendants' refusal.-- Stephenson v. Allison, 26 So. interest in the patents. Held, that defendants 2M), 123 Ala. 439. could not defeat the suit for rescission for (b) Mass. 19.12) fraud on the ground that the patents had been Where a bill alleged that respondent bad forfeited, and complainant could not place them obtained numerous conveyances of property in statu quo. Judgment, Bellv. Felt (1902) from his mother by fraud and undue intluence, 102_Ill. App. 215, moditied.-Felt v. Bell, 68 and sought on behalf of the complainants. re X. E. 794, 203 III. 213. spondent's brother and the administrator of his [h] (n.) mother's estate, to rescind such conveyances, To entitle a defrauded vendee to a resciswhich were of long standing, no notice of re- sion, he must do equity; but it does not follow poission was necessary.- Parker v. Simpson, 62 that he must be able to return the property in V. E. 401, 180 Mass. 331. question in the condition in which he received it. Exhausting security. -193) Bell v. Felt, 102 Ill. App. 218, modified See 8 (ent. Dig. Can. of Inst. § 31. Felt v. Bell (1903) 68 N. E. 794, 205 Ill. 213. [1]_(111. 1904) No paragraphs in this Digest. H. falsely represented to plaintiff that he $ 23. Restoration of former status was unmarried, and, after proposing marriage of parties. to her, and being accepted, he induced her to See 8 Cent. Dig. Can. of Inst. $ 32. convey a valuable farm to G., his mother-inAs prerequisite to right to reseind compromise, ceal his marriage, he and his wife had previ: law, in exchange for certain lots, which, to consee "Compromise and Settlement," $ 18 (3). ously transferred to G, in order that she might (a) (Ark. 1999) transfer the same to plaintiff. G. thereafter A vendor of mortgaged lands, conreged in conveyed the farm to H., who induced plaintiff consideration of the vendee's assuming the to convey the lots to bim in exchange for his morigage, is not entitled to a rescission of the note for $3,500, and subsequently conveyed to sale, on the ground of mistake or fraud. with his attorney certain land in Arkansas, of little out placing or offering to place the vendee in value, which he induced plaintiff to accept in statu quo.-Hoover v. Binkley, 51 S. W. 73, 66 exchange for the note. G. had no interest whatArk. 615. ierer in the transaction, and H. acted as the I. Right of Action and Defenses. Conditions precedent (Cont'd). Page 14
I. Right of Action and Defenses. Conditions precedent - Restoration of a cancellation of the deed.-State v. Blize, 61 consideration or benefit (Cont'd). P. 735, 37 Or. 404. ceeds. The first of said notes not being paid, [u] (Or. 1906) W. and F. took it up, and obtained judgment same, but never voluntarily delivered it to the Where the grantor in a deed executed the thereon against the corporation, and on execution sale w. became the purchaser of the land, grantee and never consented to receive as a and received a sheriff's deed. Afterwards he part of the consideration the grantee's note took up the other $5,350 note and the $12,000 and certain stock, which the latter left with the debt. Held, in a suit at the instance of a stock- grantor on taking the deed from a table without holder, who had paid in only $140, to set aside deed, and no obligation rested on the grantor the grantor's permission, no title passed by the the sheriff's deed on the ground that the cor to offer to return the note and stock as a condi. poration was defrauded by a sale to it at a tion of the right to have the deed set aside as fictitious value, that there was no error in re. quiring, as a condition of the relief, that w. a cloud on title.-Pierson v. Fisher, 83 P. 621, 48 Or. 223. be reimbursed the amounts so invested by him. (uu) (Or. 1906) -Fleckenstein v. Waters, 61 S. W. 615, 160 A decree for the cancellation of a deed Mo. 649. cannot be sustained without a return or a tender [99] (Mo. 1901) A petition to cancel a trust deed given to by the injured party of all property rights or secure à chattel mortgage debt fails to state franchises that may have been received as a cause of action where plaintiff does not make consideration for the deed. - Pierson v. Fisher, a tender of the amount admitted to be due, or 85 P. 621, 48 Or. 223. [v] is. C. 1898) excuse for such failure.-Fry v. Piersol, 66 S. Where plaintiff was seised in fee of two W. 171, 166 Mo. 429. pieces of land, and was induced by fraudulent (r) (N. H. 1900) representations as to his title to relinquish one A quitclaim deed made in settlement of a piece in consideration of a deed to the other, suit commenced by a purchaser of land at a upon discovery of the fraud, in order to mainvoidable execution sale against his judgment tain an action to set aside his conveyance of the debtor and his wife will only be set aside on one piece, it was not necessary to restore the the payment of the creditor's claims, the con other so as to put the parties in statu quo, it sideration paid at the setilement, and interest being his property.-Du Pont v. Du Bos, 29 S. thereon.-Thompson v. Currier, 47 A. 76, 70 N. E. 665, 52 s. c. 244. H. 259. [vv] (Tenn. 1898) (rr) (N. H. 1905) Where a married woman has received the Where, in a suit to set aside a deed for money on her mortgage which is void because fraud, the only consideration plaintiff received defectively executed, she cannot have it set was the note of a third person, who subsequent aside without restoring the money with interly became bankrupt, it was not necessary that est.-Cox v. Railway Building & Loan Ass'n, 48 plaintiff should offer to return the note, either S. W. 226, 101 Tenn. 490. in the bill for rescission or before bringing suit, [w] (Tenn. Ch. App. 1900). the court being entitled to require such return The consideration paid need not be tenas a condition to granting relief.—Thorpe v. dered, or an offer to repay it made, in a bill to Packard, 60 A. 432, 73 N. H. 235. cancel a deed on the ground of fraud and inca[s] (N. J. Ch. 1904) pacity of the grantor.---Jones v. Galbraith, 59 Cancellation of a purchase-money mort-S. W. 350. gage will not be decreed unless the mortgagor [ww] (Tenn. Ch. App. 1900) offers to restore the status of the parties which celed must pay, with interest, the actual One who seeks to have a deed of trust canexisted before execution of the mortgage by a redelivery of the property purchased. — Anderson amount received by him on the loan for which v. Anderson Food Co., 57 A. 489, 66 N. J. Eg. I he gave the deed of trust.-Palmer v. Bosley, 209. 62 S. W. 195. [x) (Tex, Civ. App. 1900) (88) (N. Y. Sup. 1901) In an action to cancel and set aside a deed Where a wife, having already received as having been procured by fraud and undue full consideration for her right of dower, com influence and for an inadequate consideration, pels her husband by duress to make a conveyance to her as a condition to her releasing fer to return the specific property received by it is not necessary that the plaintiff should of her right of dower in certain lands, an offer to him, but it is sufficient if he offers to return restore to her the right of dower which she the 'value thereof.-Wells v. Houston, 57 S. W. released is not necessary to maintenance of ac- 581, 23 Tex. Civ. App. 629. tion to set aside the conveyance to her,--Van [xx] (Tex. Civ. App. 1902) Dyke v. Wood, 70 N. Y. S. 32+, 60 App. Div. The doctrine that cancellation is only to 208. be granted on payment of the debt and legal [t] (Okl. 1896) interest is not applicable to a suit to cancel Cancellation of a conveyance procured by a building and loan mortgage and contract fraud will not be denied because the grantor which is alleged by plaintiff not to represent did not return or tender property, which he the real contract, but to be a device to evade acquired in the transaction, where he did not the usury laws.-Walter v. Mutual Home Sav. know that he was making the conveyance, and Ass'n, 68 S. W. 536, 29 Tex. Civ. App. 379. was led by the grantee to believe that such [y] (Tex. Civ. App. 1901) property was being received for something oth- Where a deed of trust and deed to property er than the conveyance.-Ellison v. Beannabia are procured by an attorney from his client 46 P. 477, 4 Okl. 347. through fraud and undue influence, the client is (tt) (Or. 1900) entitled to a cancellation of such instruments Laws 1893, p. 136, provides that a branch without, as a condition precedent, paying the insane asylum shall be established in the east- attorney the balance of a fee for services renern part of the state. In pursuance of this dereil.-Jinks v. Moppin, 80 S. W. 390. statute the state officers purchased land, pay- (yy) (Tex. Civ. App. 1906) ing full value therefor, and agreed with the In a suit to set aside a conveyance of grantor to erect buildings thereon for such land on the ground of fraud, it appeared that asylum. Held, that the fact that the act of plaintiff conveyed land worth $2,000 to de1833 was held unconstitutional did not revest fendant in consideration of a vendor's lien note title in the grantor, as the state has power for $700, and a deed to a town lot, and that to hold title to real estate, and, the deed being before the discovery of the fraud, plaintiff no more than voidable, it was incumbent on transferred the note to a third person, who resuch grantor to rescind, and offer to return fused to retransfer it to plaintiff so as to enable the purchase price to the state, before seeking lbim to surrender it for cancellation. Held, Page 15
I. Right of Action and Defenses. otes, which he assigned to a bank, the bank not (c) (La. 1897) amining the records, but taking the word of A summary proceeding by rule does not as to the title. there is nothing to estop G. lie by a mortgagee to set aside å prior mortgage, om having relief from the deed.-Gill v. Fu- duly inscribed, on the ground of simulation or -te, 78 S. W. 188, 117 Ky. 257, 25 Ky. Law fraud in the consideration, but the procedure is p. 1367. by an ordinary action.- Baldwin v. Bordelon, [d] (La. 1899) 22 So. 196, 49 La. Ann. 1088. A notarial act between father and daughter, [a] (Mass. 1896) arporting on its face to be an act of sale to the Where a vendee seeks not only a return of aughter on terms partly cash and partly credit, the purchase money already paid, but a canpresented by notes of the vendee secured by cellation of his note for the balance, and a disortgage on the property sold, cannot be set charge from the covenants of the mortgage Eide by the father on the ground that the act given to secure the same, because of the vendor's Fidenced in reality a donation to his daughter, nonperformance of an agreement under which the - which he had devested himself of everything sale was procured, his remedy is by bill in equity. e had, leaving himself nothing for subsistence, I-Rackemann v. Riverbank Imp. Co. (Mass.) 44 hen the father has discounted the notes of his N. E. 990, 167 Mass. 1, 57 Am. St. Rep. 427. aughter to a third person, and the property it (e) (Mass. 1898) lf has passed to a third purchaser in good Since St. 1877, c. 178 (Pub. St. c. 151, $ Lith, before the suit for annulment of the act 4), provides that the Supreme Judicial Court as instituted.-Lawson v. Conolly, 26 So. 612. shall have jurisdiction in equity of all cases and La. Ann. 1753. matters cognizable under the general principles (N. Y. Sup. 1898) of equity jurisdiction, such courts have concurIt is incumbent on the assignee of a bond rent jurisdiction with courts of law to set aside ad mortgage, void as between the original par- a deed of real estate procured by fraud, and to es, to make out a case for equitable relief in obtain a reconveyance of the property.–Weeks -fense to a suit to cancel the same, to allege v. Currier, 51 N. E. 416, 172 Mass. 53. d prove that he took the assignment in good [1] (N. J. 1906) ith, and paid value therefor:--Colton Imp.Co. by the state to cancel a lease of state lands Equity has jurisdiction of an information Richter, 35 N. Y. S. 486, 26 Misc. Rep. 26. [f] (Tex. Civ. App. 1900) under water for misrepresentations on the part A deed executed by plaintiff and her hus- of the lessee that it was the owner of the shore and, who abandoned her on the day following front, on which the lease was conditioned. e execution of the deed, cannot be set aside on Mt. Zion Sanctuary v. Morris Cummings Le ground that she was induced to execute it by Dredging Co., 63 A. 985, 69 N. J. Eq. 829. ason of certain fraudulent promises of her [8] (N. J. Ch. 1904) asband, where there is no evidence to show that Equity has jurisdiction of a suit to rescind Le defendant had any notice of the contemplated a contract for fraudulent misrepresentations and andonment at the time he bought the land, or to compel restitution of the money obtained at there were any circumstances which would thereunder.--Hubbard v. International Mercanat a prudent man on inquiry as to a fraudulent tile Agency, 59 A. 24, 68 N. J. Eg. 434. tent.-Goree v. Goree, 54 S. W. 1036, 22 [h] (N. Y.) ex. Civ. App. 470. An action to cancel a mortgage is main[g] (W. Va. 1906) tainable either in equity, independent of statA decree of cancellation of a deed for land ute, or under Code Civ. Proc. & 1638, authorizr fraud, or duress, or want of consideration, ing actions “to compel determination of a nnot be made against a purchaser for valuable claim” to real property, "including any lien or nsideration without notice of the facts taint- incumbrance upon said property." --(1897) Livg the deed with fraud, duress, or want of ingston v. Moore, 44 N. Y. S. 125, 15 App. Div. nsideration.-Dunfee v. Childs, 53 S. E. 209. 15, appeal dismissed Same v. City of Albany | W. Va. 225. (1900) 56 N. E. 148, 161 N. Y. 602. (Ohio, 1903) On a cause of action authorizing the canII. PROCEEDINGS AND RELIEF. cellation of a lease of lands for oil and gas purposes, containing a prayer for specific persjoinder of causes of action, see “Action,” | formance and a prayer, in the alternative, "for $ 38 (1), 45, 46. such other and further relief in the premises ght of action by husband or wife or both, as equity and good conscience require," the ee "Husband and Wife," 8 207. court may decree the cancellation of the lease as ght to have service of process by publication, to the portion of the leased premises which the ee "Process," $ 86. lessee, in breach of his contract, had failed to tutory new trial as of right, see "New Tri- drill, in lieu of specific performance.-Coffinberry 1," $ 178 (4). v. Sun Oil Co., 67 N. E. 1069, 68 Ohio St. 488. mmary proceedings in bankruptcy for can- (1) (W. Va. 1904) ellation of conveyance of property of bank- The equitable remedy of cancellation is upt, see "Bankruptcy," $ 288 (1). within the exclusive jurisdiction of equity, 2. Form of remedy. though the facts which are the occasion for canect of existence of remedy at law on juris- cellation are many times available by way of an iction of equity, see ante, $8 9-16. action at law or a defense.--Carney v. Barnes, 49 S. E. 423, 56 W. Va. 581. ] (U.S. Sup., Ky., 1899) [k] (W. Va. 1906) the hands of bona fide purchasers, and to to the exclusive jurisdiction of courts of equity. modified.-Louisville, N. A. & C. Ry. Co. "Courts," $ 264 (2). (Iowa, 1904) As dependent on amount or value in contro- can only be rendered by a court of equity. $ 18. Page 16
the (0SUI ins an no T. su his cu me est fo ple T.
by th he m th er ca la L R
§ 34 (3) CANCELLATION OF INSTRUMENTS. [3 Dec. Dig. '06-Page 2048] $ 35 (2) II. Proceedings and Relief. Limitations and laches (Cont'd). $ 35 (1). In general. [a] (U.S. C.C., Cal., 1902) The grantor in a deed is not an indispen- to the defendant all of the grantor's right, title, [b) (Ind. 1854) ground that the conveyance was induced by [n] (Pa. Super. Ct. 1904) fraudulent representations, in which it appears A remainderman, who has been induced to that complainants hold a bond in consideration assign his interest in an estate to another re- of the conveyance, all parties interested in the mainderman at an inadequate price by repre-estate and bond must be notified and become parsentations of the latter as to the good health of ties.-Dockray v. Thurston, 43 Me. 216. the tenant for life, sufficiently explains his de- [d] (Tex. 1898) lay in instituting proceedings by showing that In an action to vacate a deed for fraud, he was old and weak in health, that he lived a persons who claimed under defendant, and inlong distance from the residence of the defend tervened, were not prejudiced by an order perant, and that he did not learn of the physical mitting the withdrawal of defendant's answer. condition of the life tenant until after her death. -(Civ. App.) Temple Nat. Bank v. Warner, 44 -Obney v. Obney, 26 Pa. Super. Ct. 116. S. W. 1025, reversed 47 S. W. 515, 92 Tex. 226. [0] (Tenn. 1902) (el (W. Va. 1888) Plaintiff's decedent was killed December Where a son holds lands, as trustee for 20, 1895, and thereafter an action was brought his father, to convey to whom the father may in the federal court for his alleged wrongful direct, and the father directs him to convey it death, and to set aside an alleged fraudulent to another when a certain contract to support release. The suit was pending in the federal him shall be executed and delivered by that court until September, 1900, when it was held other person, and such person by representing that that court had no jurisdiction to deter- to the trustee that he has executed and delivered mine the validity of the release, whereupon, such contract, procures the contract to be exon November 1, 1900, a bill was filed in the ecuted, where such conveyance was canceled by state chancery court to set such release aside. a court of equity without having the trustee Held, that plaintiffs had not been guilty of before the court, the appellate court will resuch laches as would bar their right to relief. verse the decree canceling the deed and remand -Russell r. Dayton Coal & Iron Co., 70 S. the cause to have the trustee made a party.W. 1, 109 Tenn. 43. Humphreys v. Humphreys, 31 W. Va. 561, 8 (p) (Wash. 1904) S. E. 283. [f] W.Va. 1904) Match Co., 77 P. 497, 35 Wash. 315. $ 35 (2). Parties plaintiff. § 34 (4). Statutory limitations. [a] (U.S. C.C., Ga., 1898) To a suit for the cancellation of a mort[a] (Kan. 1903) gage on the ground of fraud the mortgagor is a An action to set aside a deed for fraud is necessary party.-Oakes v. Yonah Land & Minordinarily barred in two years after the filing ing Co., 89 F. 243. of such deed for record in the office of the reg [b] (lla. 1898) ister of deeds of the county where the land is A father (since deceased) and mother hapsituated.-Rogers v. Richards, 74 P. 235, 67 ing conveyed the fee of land to a daughter, reKan. 706. serving a life estate, one who took a deed from [b] (W. Va. 1892) the daughter alone after she and her mother Under Code, c. 104, § 14, the period of five had conveyed the land by a deed of trust, can, years, limiting a suit to avoid a voluntary without joining the mother, maintain a bill to conveyance, begins to run from the making of set aside the deed of trust as fraudulently prothe conveyance.- Reynolds' Adm’rs Gaw- cured only so far as the remainder is affected. throp's Heirs, 37 W. Va. 3, 16 S. E. 364. -Gandy v. Fortner, 24 So. 425, 119 Ala. 303. (c) (Wis. 1900) [c] (D. C. 1905) Plaintiff's cannot maintain suit to cancel An equitable beneficial owner of real esdeed where they are barred from recovering tate, the title to which is in the name of anthe land itself by defendant's adverse posses- other, may maintain in his own name a bill in sion for the statutory time.-McCann v. Welch, equity against a building association to cancel 81 N. W. 996, 106 Wis. 142. a bond and a deed of trust on the real estate. given by such other person at his request to $ 35. Parties. See 8 Cent. Dig. Can. of Inst. $8 55-6.; 35 secure a loan nuade by the building association. Cent. Dig. Mtg. & 195; 40 Cent. Dig. Princ. on the repayment of the loan; and it is no defense that the bond was a sealed instrument. & S. § 77. the real purpose of the suit being not to rescind Persons as to whom instruments may be can- the bond or to be relieved from its operation, celed, see ante, $$ 30, 31. but to relieve the complainant's real estate Persons entitled to cancellation, see ante, $8 from the operation of the deed of trust.-Whelp 27, 28, Bringing in new parties, see “Parties," $ 51 (1). lera". Ross25 App. D. C. 207. [d] (1900) Joinder or intervention of husband or wife, see M. and another owned a tile and brick "Husband and Wife," § 222. mill, and, to secure their joint note, mortgaged Main titles, divisions, and section NUMBERS in this Digest and in later Am. Digests agree exactly. Page 17
II. Proceedings and Relief. Pleading-Bill, complaint, or petition [h] (Kan. 1902) (Cont'd). Where a grantor of land sues to set aside the deed on the ground that he was fraudulent. $ 37 (5). Averment of ground of cancella- ly induced to trade for land not worth as much tion in general. as represented, but the complaint does not al lege the value of the property which he convey: (a) (Cal. 1899) ed, nor state the difference between the value of A complaint alleging that the transfers of that conveyed and that which he received, and property were made in view of immediate death, also alleges that he was to have one-half of and that defendant was to carry out certain writ. the property exchanged for a block in which ten instructions in case plaintiff should die, and he had a half interest, and that defendants had asking for a reconveyance of the property, plain- fraudulently induced him to accept less than tiff not having died, is not uncertain and ambig- one-half of what he received, but does not uous, in that such written instructions are not state that the defendants agreed to give hini set out, as the instructions are immaterial, the one-half of what was received, the complaint gist of the action being to compel a reconvey is defective, in that there is a confusion of ance.-Kyle v. Craig, 57 P. 791, 125 Cal. 107. theories, and that there are insufficient facts [b] (Colo. App. 1898) A complaint in an action to cancel a alleged to sustain any theory. - Grentner v. Fehrenschield, 68 P. 619, 64 Kan. 764. lease of a mortgage, executed without the mort [i] (ky. 1882) gagee's authority, sufficiently shows that the A deed will not be canceled for a mistake person who executed the release had no such where the petition fails to allege that a misauthority, by alleging that the debt was unpaid, take was made, and merely asks that the deed and the property was released without plain- be canceled because of a want of consideratiff's knowledge or consent.---Lincoln University tion.— Jenkins y. Netherland, 3 Ky. Law Rep. v. Richardson, 52 P. 682, 11 Colo. App. 151. (abstract) 538. [c] (Ga. 1898) [j] (Mo. App. 1903) An amended petition sought the cancella Plaintiff alleged that her husband and hertion of a note of plaintiff to defendant on two self borrowed money of the husband's father, grounds,-one on the ground of fraud in its pro- to be used, together with a fund owned by the curement, in that the maker had signed it on two jointly, in the purchase of certain landthe representation that it was for a smaller securing the loan by a trust deed on the landamount and for a different consideration, and and that, in view of the possibility of existing the other on the ground of forgery or a fraudu- difficulties between herself and her husband lent alteration of the vote. Held, that there causing a separation, the husband and his fawas no error in overruling a demurrer to peti-ther conspired to make the trust deed for a tion on the ground of inconsistency.--Armstrong much larger sum than was actually advanced, v. Penn, 31 S. E. 158, 105 Ga. 229. but that she signed the deed through fear of [d] (n11. 1904) An allegation, in a bill to set aside a bill losing her share of the money owned by the of sale of stock inade by complainant to a two jointly, and to prevent a further estrargecreditor in satisfaction of debts for which the ment. Plaintiff sought to have the difference bestock was held as collateral, that the stock actually advanced credited on the note, and tween the amount of the deed and the amount was worth a specitied sum above the liens on it, is not an allegation of market value, and is offered, if this was done, to pay the latter defective for failing to aver that he could have tion that plaintiff was in danger of immediate amount. Held, that as there was no allegasold the stock for more than he got for it, or that he was kept in ignorance of its value, or loss through some action about to be taken by the holder of the deed of trust that would prethat he did not know its worth.-Wetherell v. Johnson, 70 N. E. 229, 208 nl. 247. vent plaintiff from pleading failure of consid[e] (M11. 1901) eration when an effort was made to collect the An allegation, in a bill to set aside a bill debt, and as there was no unconditional tender of sale of stock made by complainant to a of the amount actually due, the bill did not creditor in satisfaction of debts, that com state a cause of action founded merely on the plainant's attorney in the matter was disquali- allegation of failure of consideration. --Sims v. fied from purchasing the stock, is defective for Sims, 101 Mo. App. 407, 74 S. W. 449. failing to allege that he purchased the same, [k] (N. Y. Sup. 1904) or that any stock was purchased through him, assignment of a bond and mortgage, an allega In a suit to set aside an alleged fraudulent or that he had any interest in the purchase by tion in the complaint that defendant falsely and the creditor.-Weiherell v. Johnson, 70 N. E. fraudulently procured the publication of the 2:29, 208 Ill. 217. [f] (Ind. 1878) record of such assignment to be made in the A complaint counting on a deed from plain- newspapers under false names, for the purpose tiff to defendant, executed upon the condition of preventing plaintiff's discovery of the fraud, that defendant would support plaintiff, alleging was irrelevant.-Day v. Day, 88 N. Y. S. 504, that plaintiff put defendant in possession and 95 App. Div. 122. commenced to reside with him and continued [1] (Tenn. Ch. App. 1897) so to reside until a certain date, but that defend the deed thereto was in fact a mortgage, and A bill to recover realty on the ground that ant failed to provide for and support plaintiff as required by the deed and praying for a cancel that the mortgage debt had been paid, is not lation, was sufficient to withstand a demurrer. subject to demurrer by defendant purchasers --Iershman v. Hershman, 63 Ind. 451. from the grantee for failure to allege that they [g] (Ind. 1884) had notice of the trust, since that is a matter A complaint alleged that plaintiff executed of defense. Overall v. Avant. 46 S. W. 1031. to defendant several notes payable in painting, [m] (Tex. Civ. App. 1905) and that, to secure the performance of the notes, a complaint alleged that, acting under the plaintiff executed a mortgage, and that contem- fear of impending litigation, and in consideraporaneously the parties executed a contract re- tion of the execution of a will in his favor, plainciting that the work should be furnished within tiff executed deeds to his wife; that, some 19 three years or the notes be void, that plaintiff years prior to the institution of suit, plaintiff had been ready and willing to do the work, but procured the will to be executed, and recorded that defendant had failed to furnish it though the deeds; that the will was withdrawn by the more than three years had elapsed, and it was wife, who asserted rights under the deeds. Conprayed that the notes and mortgage be declared sequently plaintiff asked to have the deeds set void and delivered up for cancellation. Held, aside. There was no allegation that there was that the complaint was not demurrable, but no intention on plaintiff's part to deliver the made a prima facie case for the complainant.- deeds, but there was an allegation that there Vilellan v. (oflin, 93 Ind. 436. was no actual delivery thereof. Held, that the Page 18
II. Proceedings and Relief. Pleading-Bill, complaint, or petition | stock, as well as evidence tending to prove these (Cont'd). allegations, were immaterial, in view of the complaint alleged that plaintiff had for several further allegation that the note was wholly years been sick, and easily susceptible to persua intended that plaintiff should pay the same. without consideration and that it was never sions of others, and that defendant, knowing Bass v. Sanborn, 95 S. W. 955, 119 Mo. App. her enfeebled condition, and his great influence 103. over her, and corruptly intending to defraud [v] (Or. 1877) her, proposed to support her for life in consideration of a conveyance, and that she was over An allegation which charges a party with come by such persuasions, and believed that his having made false representations is, in a suit promises would be kept. Held, that the allega-sentations, insufficient, unless it alleges that the to set aside a conveyance because of such repretions of the complaint relative to the fraud were sutficient.- Tomlinson v. Tomlinson, 70 N. E. and was by them misled to his injury.-Horrell party injured relied upon such representations, 881, 162 Ind. 530. [p] (Ind. App. 1902) V. Manning, 6 Or, 413. [vv] (Pa. Super. Ct. 1897) Where in an action to cancel a bond and One cannot be relieved from his written mortgage on the ground that plaintiffs, have contract, upon the ground of fraud, without specomplied with certain terms and conditions, cifically 'alleging the facts constituting the fraud. which were represented to be, but were not in Lewis v. Dunlap, 5 Pa. Super. Ct. 625. fact, the terms and conditions of the instru [w] (R. I. 1896) ments themselves, and no mistake or facts A bill to set aside for fraud a release given showing fraud are alleged, a demurrer to the by complainants to respondent of claims against complaint should be sustained.-Marley v. Na- the estate of a decedent, which does not aver tional Building, Loan & Savings Ass'n, 62 N. that moneys drawn by respondent from the sav. E. 1023, 28 Ind. App. 369. ings bank were the property of intestate, nor that [a] (Kan. 1902) Where a grantor seeks to set aside the the omission to include these moneys in the indeed because of fraud of defendants, based on ventory of the estate was with intent to defraud, misrepresentations, he must allege and prove other property than that included in the inventory nor that the representation that there was no what the misrepresentations were, that they was false, nor that complainants relied on such were false, that he believed them to be true, and that he relied and acted upon them.-- representations, and were induced thereby to give Grentner v. Fehrenschield, 68 P. 619, 64 Kan. the release, but leaves such facts to mere in764. ference, is insufficient.--Corey y. Howard (R. I.) [r) (Ky. 1876) 37 A. 16, 19 R. I. 723. A party complaining, to obtain rescission [ww] (Tenn. Ch. App. 1900) of an executed contract, must allege and prove A bill making general charges of fraud, a distinct case of fraud where fraud is the vithout averments of fact on which the charground relied on for relief; but in cases of ges are based, is insufficient.--Upchurch v. An derson, 02 S. W. 1115. executory contracts equity will not assist a [x] (Tex. Civ. App. 1902) party who has, even by innocent misrepresentations, induced the other party to act.—Mat- conveyance for fraud, that vendees knew the Allegations, in a petition to set aside a they v. Wood, 75 Ky. (12 Bush) 293. value of the property when the conveyance was [s] (Mich. 1875) A bill which seeks to have a trust deed made, and with such knowledge fraudulently canceled as void, in that it is in violation of a concealed its value from their grantor, knowing that he was ignoraut of its real value, are maprior agreement to execute a will making a different disposition of the property deeded, and terial, whey made and taken with other aptherefore fraudulent, and which expressly avers propriate allegations.- Wells v. Houston, 69 S. the invalidity of the deed, where the case has W 183, 29 Tex. Civ. App. 619. [xx] (Tex. Civ. App. 1904) been prosecuted and decided on this theory, is In a suit for the cancellation of a convey. held not impeachable for inconsistency, though ance made by plaintiff to defendant in exchange some of its averments seem to have been fram- for a leasehold interest in lands the petition ed on the theory of calling the trustees to account for dereliction of duty, and so far affirm- defendant by false representations that the alleged that the conveyance was obtained by ing the trust and demanding its execution.- leasehold abounded in valuable minerals, and Mundy v. Foster, 31 Mich. 313. [t] (Mich. 1906) that a corporation composed of good business 'A bill by a corporation alleged that its that the petition stated a good cause of action. men was operating mines on the premises. Held, promoters perpetrated a fraud on the corpora: 1 --Cooper v. Maggard, 79 S. W. 607. tion and its stockholders by entering into a se [y] (Tex. Civ. App. 1904) cret agreement whereby one of them should obtain royalties on the goods manufactured by the sued to rescind his deed because the exchange Where one party to an exchange of lands corporation, and that the agreement was a cloud on its business. Held, that the bill alleged a was accomplished by fraudulent misrepresenta tions of the other as to the title to the land cause of action for fraud so as to be good as against a demurrer even though the allegation conveyed by him, it was sufficient to allege the specific misrepresentation, without setting out with respect to the agreement being a cloud, was the facts affecting the title.-Corbett v. Jeinsufficient to invoke equitable relief.-Fred Macey.Co. v. Macey, 106 N. W. 72.2, 143 Mich. Gregor, 84 S. W. 278. (yy(Tex. Civ. App. 1906) 138, 12 Detroit Leg. N. 918, 5 L. R. A. (N. In an action to cancel a note for fraudulent S.) 1036. representations, a complaint alleging generally (u) (Mo. App. 1906) the materiality of the representations, and alWhere, in an action to cancel a note, the leging facts from which the materiality might be bill alleged that the note was given for certain inferred, was sufficient as against a general deshares of stock which one of the defendants murrer.-Karner v. Ross, 95 S. W. 46. falsely and fraudulently represented were of [z] (Va. 1902) a certain value, and further alleged that this An action will not lie to rescind a consa me defendant represented that, if plaintiff tract for misrepresentation unless the misreprewould execute the vote for the stock, the de; sentation is set out in the pleading, and is as fendant referred to would pay the note, and to a material fact, and fraudulently made, with that it was so executed for the accommodation intent to deceive.--Scott v. Boyd, 42 S. E. 918, of this defendant without any consideration, 101 Va. 28. and on the representation of the defendant that [zz] (Wis. 1902) he would protect plaintiff on the note and pay A complaint in an action to rescind a con. for the stock, the allegations as to fraudulent veyance of land induced by the grantor's fraud representations concerning the value of the l averring that the land showed to the grantee Page 19
II. Proceedings and Relief. nce (Cont'd). and that the purport of the deed, which was Presumptions and burden of written by defendant, was different from what proof. had been represented, it was competent to ask Cent. Dig. Can. of Inst. $$ 100, 101; 35 plaintiff who told him that the deed conveyed - Dig. Mtg. $ 197. all bis interest in the land, in order to corrobo(Kan. 1896) rate further testimony of plaintiff that, as soon an action to rescind a contract of ex as he learned that fact, he put up notices on the on the ground that defendant fraudulent- land repudiating his deed. - Hodge v. Hudson, resented that the property conveyed by 51 S. E. 954, 139 N. C. 358. as unincumbered, while in fact it was [f] (N. C. 1905) ged, plaintiff has the burden of showing of fraudulent representations inducing its exe In a suit to set aside a deed on the ground orance of the mortgage, where it was re- cution, testimony as to defendant's purchase of and its existence was also shown by an et of title furnished plaintiff.-Ferguson shown to have a legal title was irrelevant. a mortgage on the land from one who was not lig, 46 P. 936, 57 Kan. 453. Hodge v. Hudson, 51 S. E. 954, 139 N. C. 338. [g] (Tex. 1898) is not the rule in this commonwealth Where plaintiff's petition, in an action to pon a bill in equity to set aside. a trust executed by the plaintiff to the defend- who were in possession of the property in ques. set aside a deed, charged certain interveners, e burden of proof is upon the defendant tion, with the reasonable rental value thereof, v that the plaintiff understood the deed. - there was no error in permitting witnesses to v. Buttrick, 165 Mass. 547, 43 N. E. 507, testify to the value of such property at the time St. Rep. 530. Mo. 1906) of the trial, as it was proper to ascertain such here, in a suit to set aside as a cloud on value thereof during all the time interveners contract for the sale of land made by were in possession, in order to determine its reaIfs' broker, plaintiffs claimed that the bro sonable rental value. (Civ. App.) Temple Nat. as only authorized to sell all their land Bank v. Warner, 44 s. w. 1025, reversed 47 S. e, and that the powers of attorney did W. 515, 92 Tex. 226. [h] (Tex. Civ. App. 1898) ntain the entire contract, while defendemanded specific performance, and the consideration for which was, in part, an agree In an action to set aside a conveyance, the prayed for commissions, the burden was ment to make certain repairs on other property, endants to show the execution of such evidence that it was afterwards agreed that if of attorney, after which the burden shift- plaintiff would sell the other property to anplaintiffs to show that by accident, fraud, other, and release defendant from the repair ual mistake a material part of the agree-contract, defendant would reconvey a certain vas omitted.-Kilpatrick v. Wiley, 95 S. portion of the property in controversy, and that 3, 197 Mo. 123. plaintiff would not have sold except for such N. Y. Sup. 1897) an action by a vendee of land to rescind agreement, was admissible to show a waiver of e for fraud, the burden of showing laches, failure to comply with repair contract.-Lancas defendant's claim for damages for plaintiff's lefendaut. --Boon v. James, 47 N. Y. S. ter v. Richardson, 45 S. W. 409. | App. Div. 627. (Tex. Civ. App. 1901) Admissibility. Where a deed executed by an agent is void Cent. Dig. Mtg. 197; 42 Cent. Dig. as not being within the authority of the agent, ise, $ 46. it is not error to reject defendant's evidence that (Ala. 1899) the agreed price was the full value of the land.lough an attempted mortgage is void as a Morton v. Morris, 66 S. W. 94, 27 Tex. Civ. ance, yet it may be looked to for the pur App. 262. [3] (Tex. Civ. App. 1904) ascertaining other terms of the contract, r that the entire controversy involved in exchange of estates in lands for a certain period, In an action to rescind a contract for an ceedings for its cancellation may be set: brought on the ground of defendant's misrepre. layes v. Southern Home Building, & sentation as to his title, a lease to defendant of Ass'n, 26 So. 527, 124 Ala. 663, 82 Am. the lands in question, referring to a prior lease ). 216. ul. 1900) from the land department to his lessor, which it here, pending proceedings for the rescis- seems was void, should have been admitted in a contract for an exchange of real es evidence, as conveying whatever title was then cause of defects in the title to the proper: S. W. 98, 35 Tex. Civ. App. 10. owned by the lessor.-Singleton v. Houston, 79 veyed by defendant, the latter removed [k] (Tex. Civ. App. 1905) ostantial defects, it is no objection to the jon, on the trial, of documentary proof of set aside the mortgage on the ground that it Pending a suit by the mortgagor of land to defendant free from substantial defects, had been obtained by duress, he died, and his ch title was not exhibited before the filing son, who had purchased the land, intervened, plainant's bill.–Bollnow v. Novacek, 56 seeking to set aside the mortgage on the same 01, 181 III. 463. Ind, 1898) ground. Held, that it was not error to admit in an action to cancel as forgeries notes evidence the date of the filing of the original | to have been given in compromise of a petition in the action by the father on the issue. suit, it is proper to show the truth of the -Gray v. Freeman, 84 S. W. 1105. slander, and a general rumor in regard $47. Weight and sufficiency. as affecting the judgment of the alleged See 8 Cent. Dig: Can. of Inst. $$ 102, 103; 42 as to whether there was a liability so Cent. Dig. Release, § 46. hat he must give the notes.--Miller v. [a] (Ala. 1902) ) N. E. 272, 149 Ind. 326. In order to set aside the deed as procured
property t signment persons, o tions as to ing the ne without c lent chai plaintiff had full for himsi expressly in regard for in t1 47 X. E. (d) (1 Wh ant had her hus) to them would & and the to give refused complai restored as a ( proof 1 doubt.422. [e] W contai embod relied contra tion is ing wi tions. Iowa, [1] I sough had 1 payed sessic tain does in fu the tiffs ley 2:38. 18
veva fied been his of i Not had the ing fact not N. [ Page 20
II. Proceedings and Relief. f awarded (Cont'd). refusal the former filed a petition for ejectment (Tex. Civ. App. 1906) and cancellation, and in the alternative prayed an action to cancel a deed, the plain that the court would fix the value of the land not entitled to a foreclosure of his ven- and render judgment for the difference in the ien, where he does not in his pleading set value of the two lots. Held that, in so far as d pray for its foreclosure, his prayer for it sought to cancel the contract and recover the 1 relief being insufficient to war a fore- land, it could not be maintained, but that the :--Cecil v. Henry, 93 S. W. 216. petition should have been retained to have the (Wis. 1897) court determine the difference in value of the landowner had five children. He was two lots and render a money judgment.-Parold and feeble, and had lived for many sons v. Ambos, 48 S. E. 696, 121 Ga. 98. with a married daughter. Without the (e) (IlI. 1903) edge of the other children, the daughter, Where a purchaser who is fraudulently inin concert with her husband and R., who duced to take an interest in patents sues to regreed to procure a deed of the land for G. scind the contract for the fraud, he is entitled ,200, procured a deed for $3,000 through to interest on the sum paid from the date of influence, the daughter and her husband filing his bill to rescind. Judgment, Bell V. 3 the proceeds. The conveyance Felt (1902) 102 Ill. App. 218, modified.-Felt to a member of R.'s family, and she con v. Bell, 68 N. E. 794, 205 II. 213. the land to G., who paid the $4,200 as [f]_(111. 1906) The father died soon afterwards, and Where the grantee had never received any f his heirs sued to set aside the deed to for the conveyance should be allowed in the de rents of the land, interest on the money paid fraudulent, and joined R., the intermegrantee, and the other heirs, as defend cree setting it aside. -Peck v. Bartelme, 77 N. It was proved that G. was'a bona fide E. 216, 220 I11. 199. [g! (Mass. 1905) aser, and the intermediate grantee mere Where a bill by a corporation alleged a zominal party to the transaction. Held though the deed could be set aside as defendant and another, who were its promoters fraudulent sale of certain real estate to it by , the cause would be retained, and plain and directors, a prayer for rescission and damis heirs, and the innocent defendant heirs, each be allowed to recover one-fifth of ages was not inconsistent.--Old Dominion Cop lue of the land from those defendants who | E. 653, 188 Mass. 315, 108 Am. St. Rep. 479. per Mining & Smelting Co. v. Bigelow, 74 N. ced the fraud on the original grantor. [h], (N. Y. Sup. 1898) 2. Getzinger, 71 N. W. 75, 96 Wis. 559. It appeared that, after defendants acquired title to plaintiffs' property, they placed on it three Recovery of consideration or mortgages, which entirely exhausted the equity, of damages. and before the judgment was signed the property Cent. Dig. Can. of Inst. 88 118, 120; 35 was actually sold to a third person under fore 1. Dig. Mtg. 8 195. closure. Held that, as it had thus become imative, additional, or incidental, relief in possible to restore plaintiffs to their original posiral, see ante, $ 57. tion, a judgment for damages was proper.to defendant, see post, $ 59. Daiker v. Strelinger, 50 N. Y. S. 1074, 28° App. Div. 220. (U. S. C, C. 1898) nder a bill to rescind a contract on the [i) (N. C. 1904) 1 of false representations, no recovery can the fraud of defendant to execute to him a deed Where the owners of land were induced by d on the theory that the alleged false of the mineral rights in the land for an express, entations constituted an independent coled consideration of $500, when they supposed | parol contract, the breach of which en they were executing, pursuant to a prior agreecomplainant to receive back the money ment, a contract giving defendant an option to id, because of defendant's failure to de- purchase such interest for the sum of $3,000, what he had contracted to furnish.-Hu- and defendant entered on the land, and removed Guggenheim, 89 F. 598. (Ark. 1906) timber, etc., and subsequently the owners sued There an administrator, on purchasing the for cancellation of the deed, they were entitled st of an heir in real estate, falsely rep. may have done to the land, but not to damages to judgment for such damages as defendant ed to her that the conveyance would not e her reversionary interest in the dower as of the amount of the agreed purchase price. omestead, and it appeared that the heir -Gillis v. Arringdale, 47 S. E. 429, 135 N. C. 295. bave been willing to sell her interest le consideration paid her had the dower [j] (N. C. 1905) omestead not been included, the convey Where a vendee, who has obtained a deed having been annulled in an 'action by the by fraud. has conveyed the property to a bona n so far as the reversionary interest was fide purchaser, equity in a suit to cancel the ned, a claim by the heir that the ad- deed, will give the original grantor a personal rator should pay her the amount he had judgment against his grantee for the difference ed from the lands in excess of what he between the price he received for the land and er was properly denied.--Reeder v. Mere- what be paid for it.-Sprinkle v. Wellborn, 52 13. S. W. 558. 78 Ark. 111; Same v. Ford, S; E. 666, 140 N. C. 163, 3 L. R. A. (N. S.) 174 W. 5.60, 78 Ark. 603; Same v. Click, Id.; 111 Am. St. Rep. 827. v. Sissell, Id. [k] (Tenn. 1897) (Colo. 1903) In an application for a rescission of a con vhere the complainant sought the cancel-tract of purchase of land, or for an abatement of a deed only, and did not ask for any of the price, growing out of the failure of some elief, he was not entitled to a judgment consideration entering into and forming a part mages, even though the facts showed him of the inducement to the purchase, a court will, entitled thereto.-Rubie Combination Gold in the absence of fraud, endeavor to make good *o. v. Princess Alice Gold Min. Co., 71 P. the loss sustained by the purchaser.-Leiker v. 31 Colo. 158. Henson (Ch. App.) 41 S. W. 862. Ga. 1901) [1] (Tenn. 1902) 2 an exchange of land it was stipulated Defendants sold land to plaintiff in fee, he value should be fixed by appraisers. taking notes in payment, and transferred the finding was set aside by decree, and in notes for other land, and plaintiff paid the Pantime the umpire died. One of the par- notes. Defendants had no title to the land ien notified the other that he revoked the sold plaintiff, excepting a life estate, and were asion and rescinded the contract. and de- insolvent. Held, in a suit for rescission be d possession of the land. On the latter's cause of the breach of defendant's covenant of Page 21
II. Proceedings and Relief. Wash. 1905) [d] (Ill. App. 1895) value of his interest therein, in an ac- of the deed is sufficient.-Roche v. Norfleet, 63 [e] (Ind. 1886) Where, in a case of equitable cognizance, (Wis. 1902) here the court required the grantee to a contract which for any reason ought not to e to the grantor a deed in fee, and free be enforced is insisted on, it will be sufficient incumbrances save if the party whose rights would be affected a purchase-money makes it appear that he has done nothing which ge, of the land received from the gran- has made it impossible for the court to decree a a condition for the entering of a judg- rescission in case it is warranted, and in such or the grantee rescinding a conveyance case the decree can be so framed as to protect of the grantor's fraud, the rights of ter were fully protected.--Lockwood v. the rights of all parties.-Higham v. Harris, 39 N. W. 492, 113 Wis. 474. 8 N. E. 255, 108 Ind. 246. [1] (Iowa, 1905) Wis. 1905) Where, in a suit to set aside a deed because bere plaintiffs conveyed their real estate the vendee had fraudulently represented that ersonal property worth $300 to defend there was no coal under the lands, it appeared consideration of the support of plain that coal had been mined therefrom by an ring their lives, and the payment of $150 | innocent purchaser from the vendee, but plainintiffs' daughter, in a suit to set aside tiff did not manifest a willingness to receive ansfer for breach of the contract by de-a partial reconveyance, there was no basis for ts the payment to the daughter could a decree in favor of plaintiff.Garrett v. Slav made the basis of an equitable claim ens, 105 N. W. 369, 129 Iowa, 107. a party to the conveyance, and who received the fraud and misrepresentation through which Cent. Dig. Can. of Inst. 8 126. the conveyance was procured.-Bainter v. Fults, st, $ 62, in this Digest. 15 Kan. 323. [h] (Mass. 1894) Judgment or decree and enforce A decree, dismissing a bill in equity for ment thereof. the cancellation of a mortgage of land and Cent. Dig. Can. of Inst. 88 127-129. note secured thereby, given by the plaintiff of cancellation or surrender, see post, to a third person and by the latter assigned to the defendant, before maturity, the plains in which default judgment is authorized, tiff having, in ignorance of the assignment, made 'Judgment," $ 94. payments of principal and interest to the asas ground for equitable relief, see "Judg- signor, should be modified so as to be without § 443 (1). prejudice to the plaintiff's right to redeem the ngs to sustain default judgment, see land from the mortgage.--Biggerstaff v. Margment,” s 101 (2). ston, 36 N. E. 785, 161 Mass. 101. ed answer or other pleading on applica- [1] (Mich. 1883) to open default, see "Judgment," $ 161. Where a decree for the cancellation of a mortgage requires the mortgagor to make a cer(Cal. 1897) finding by the court of all the facts nec tain payment to the holder of the mortgage, it to annui a deed made by complainant be made, and further provide that, in case of should fix the time within which payment must Eition, conveying a portion of the land in default, the mortgaged premises be sold as on nd a judgment decreeing to complainant foreclosure. - McKenna v. Kirkwood, 15 N. W. nd so conveyed, are sufficient to vacate -d, and hence to show complainant to have 898, 50 Mich. 544. [j] (1ich. 1883) erest in the land, without any formal de A decree for the rescission of a deed and of vacation.-Sullivan v. Lumsden, 50 for reconveyance may stand in lieu of the re- 118 Cal. 664. conveyance until made.-Thorn v. Thorn, 16 N. (Cal. 1903) W. 324, 51 Mich. 167. wife was advised that it was necessary [k] (Pa. 1868) sfer the legal title to certain land to an- On a bill for the cancellation of an insurin order that a suit to oust a tenant ance policy on the ground that it was issued for be maintained, and accordingly transfer three years, but by mistake “five years” was without consideration, to her husband, inserted, and that after the expiration of three at purpose. He thereupon conveyed it, years, and within five years, the property was et consideration, to a third person, for burned, and that defendant has begun an action rpose for which the first conveyance was at law on the policy, where the evidence is con Afterwards this third person repudiated flicting as to the time for which it was issued, Held, in an action by the wife to have | Appeal of Edmonds, 59 Pa. (9 P. F. Smith) [1] (Va. 1896) to purchase land because of the vendor's recancellation reconveyance.—Jones fusal to convey after full payment of the price, es, 74 P. 143, 140 Cal. 587. it was asked that the vendor be required to re(111. 1902) fund the price, together with the moneys exa suit in equity to have a note deliv. pended by complainant for the benefit of the p to be canceled it is improper to incor- property, including taxes thereon paid by him. into a decree dismissing the bill findings Defendant denied full payment of the price, and may prejudice an action at law on the showed a certain balance due by exhibits, for Judgment (1901.98 III. App. 327, af- which he asked a decree against complainant, --Vannatta v. Lindley, 64 N. E. 735, 198 | offering to execute a deed on payment thereof. , 92 Am. St. Rep. 270. Upon a hearing on the pleadingi and exhibits, Page 22
II. Proceedings and Relief. and effect of a conveyance executed in due form leges and Universities"; "Corporations”; “Exof law.-Wilkins v. McCorkle, 80 S. W. 831, changes": “Ferries" "Joint-Stock Compa112 Tenn. 689. nies”; “Partnership"; "Railroads"; "Reli[c] (W. Va. 1903) gious Societies"; "Street Railroads"; "TeleThough one, to whom land has been con- graphs and Telephones"; "Turnpikes and Toll veyed, but who has lost the land by a decree Roads"; "Warehousemen.” canceling the deed to his grantor and the deed Powers and functions of political or municipal from his grantor to him for fraud of the gran- bodies, see "Counties"; "Municipal Corpotor, has conveyed the land away, he will not rations"; "Schools and School Districts" ; be compelled to pay the purchase-money notes "States"; "Territories" ; "Towns"; "United given his grantor whether he has been made lia- States." ble or not to his grantee on account of his Sale of animals with warranty of capacity to warranty.-Womelsdorf v. O'Connor, 44 S. E. get or bear offspring, see “Sales," $$ 261 (6, 7), 191, 53 W. Va. 314. 273 (1), 279, 280, 284 (2). [d] (W. Va. 1903) Testamentary capacity, see "Wills," 88 21-55. A purchaser of land under a general war. To make particular contracts, see “Contracts," ranty deed will not be compelled to pay the $ 92; also “Bills and Notes," § 101 ; "Deeds," purchase-money notes, where there has been $ 68; “Mortgages," $ 76; "Release," § 15; a decree canceling the deed vesting title in his "Sales," $ 16; “Vendor and Purchaser," $ 10. grantor because of fraud in the grantor in pro. To receive tender, see “Tender,” $ 7. curing the deed, and canceling for such fraud the deed to such purchaser.-Womelsdort v. CAPIAS. O'Connor, 44 S. E. 191, 53 W. Va. 314. Ad respondendum, see "Arrest," $ 33; "ConCANDIDATES. tempt," $ 55. Ad satisfaciendum, see "Costs," $ 281; “Di. For office, form and contents of ballots, see vorce," § 268; “Execution," $8 421-453. "Elections," $8 160–196. On indictment, see "Criminal Law," $ 263. For office, nomination, see "Elections,” 88 120- Pro fine, see "Fines," $ 9. 159. Privileged communications concerning, see "Li CAPITA. bel and Slander," § 48 (3). Taking per stirpes or per capita, see "Descent CANT. and Distribution," $ 43; "Wills," $$ 530-533. See "Partition." CAPITAL. CANVA SERS. Corporate capital in general, see "Corpora tions," 88 16, 60-169; also "Banks and BankSee "Hawkers and Peddlers.” ing," $8 36–38, 241 ; "Railroads," $ 15; "Street License taxes, see “Licenses," § 15 (6). Railroads," & '15; "Waters and Water CoursRequirement of license as regulation of com- es," $8 186, 234. merce, see "Commerce," § 67. Exemption of corporate capital from taxation, see "Taxation," $ 238. CANVASS OF VOTES. Liability of corporate capital to taxation, see "Taxation," 88 119, 120, 127, 138, 147, 167. See "Elections," 88 237–263. Of joint-stock association, see "Insurance," s Under local option law, see “Intoxicating Liq- 33. uors," $ 35. Of partnership, see “Partnership," $872, 305, CAPACITY. 355, 356, 361. Of trust estate, see "Trusts," $8 126, 272 (1-3); Change as to capacity in which party sues or is “Wills," $ 681 (1-10). sued, see "Parties," § 59 (4). Place of taxation of capital invested in busiFiduciary capacity, see "Assignments for Bene- ness, see "Taxation," $ 264. fit of Creditors" ; "Attorney and Client Place of taxation of corporate capital, see “Brokers"; "Executors and Administrators “Taxation," $ 276. "Factors"; "Guardian and Ward"; “Princi- Statement of capital of corporation for taxapal and Agent"; "Trusts." tion, see “Taxation," $ 367. In which property is received or held as element Valuation of corporate capital for taxation, see of offense of embezzlement, see "Embezzle "Taxation," $8 378 381. ment," $ 10. Legal capacity of apparent maker of instrument CAPITAL PUNISHMENT. as element of forgery, see "Forgery;" 12 (3) See "Arson," $ 45; "Criminal Law," $ 1219; Personal disabilities in general, see “Bastards" “Rape," $ 64. "Convicts"; "Husband and Wife"; "lofants"; "Insane Persons." CAPITATION TAXES. Powers and duties of officers, see "Ambassa dors and Consuls" ; “Attorney General"; See “Taxation," 88 55, 308. "Bankruptcy"; "Clerks of Courts”;. "Coro. For highway purposes, see “Ilighways," $ 150, ners"; "Counties"; "Court Commissioners"; For school purposes, see "Schools and School "Courts"; "Customs Duties"; "District and Districts," $ 109. Prosecuting Attorneys"; "District of Columbia”; “Elections” ; “Highways"; "Insolvency"; "Inspection"; "Internal Revenue" ; "Jus CAPTAIN. tices of the Peace"; "Municipal Corpora- See "Army and Navy"; "Militia." tions"; "Notaries" ; . "Officers"; "Post Of- of police, see "Municipal Corporations," $8 fice''; "Public Lands"; "Receivers"; "Regis 179-190. CAPTION. Of certificate or return of deposition, see “Depr Powers and functions of associations and cor- ositions," 8 74. porations, see "Associations”; “Banks and of declaration, see "Pleading," $ 43. Banking"; "Beneficial Associations";. “Build- of indictment, see "Indictment and Informaing and Loan Associations"; "Clubs"; "Col- tion," $8 21-26.
Main titles, divisions, and section NUMBERS in this Digest and in later Am. Digests agree exactly. Of information, see "Indictment and Informa Page 23 |
The distinction between the commission of a burglary at night as opposed to during the daytime is
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