WILLS, evidence, extrinsic, omissions or defects in wills cannot be sup plied by, 280. evidence, extrinsic, respecting mistakes in the description of land, 283. evidence, extrinsic, that testator used words in a way peculiar to himself, 285. evidence, extrinsic, to charge a legacy on lands, 280. evidence, extrinsic, to correct false descriptions, 289–294. evidence, extrinsic, to establish parol trust in a devise or bequest, 230. evidence, extrinsic, to establish that provision for a widow was intended to be in lieu of dower, 280. evidence, extrinsic, to explain, general rule as to admissiblity of, 279, 280. evidence, extrinsic, to identify persons, 286. evidence, extrinsic, to prove that land was unintentionally omitted, 284. evidence, extrinsic, to prove that the testator intended to devise other land than that described, 289. evidence, extrinsic, to show circumstances under which changes or interlineations were made, 286. evidence, extrinsic, to show that the word "children" was intended to mean illegitimate children, 286. evidence, extrinsic, to show the elements of false description. 290. evidence, extrinsic, to show the meaning of the words used, 285, 286. evidence, extrinsic, to show the state of the testator's property and the circumstances surrounding him, 284, 285. evidence, extrinsic, to show to which of two persons or things the words in a will refer, 287. evidence, extrinsic, to supply omitted descriptions, 290. evidence of extrinsic writings, 281. evidence of surrounding circumstances at the execution of a will, heirs, evidence to prove that omission was intentional, 284. insane delusions, when invalidate, 775. intention of testator cannot be shown by extrinsic evidence, 280. intention of testator, showing by extrinsic writings, 281. intention of testator, whether prevails, 279. lands, mistake in describing, 283. latent ambiguity, evidence to remove, 286, 287. misdescriptions and misnomers, extrinsic evidence to correct, 288, 289. mistake apparent on the face of a will, 283. mistake, extrinsic evidence to correct when the will furnishes the basis for the correction, 283. mistake in names of legatees or devisees, 288. mistake in the writing or execution of a will, evidence to prove, 282. omissions of the subject matter of devises and bequests cannot be supplied, 283. AM. ST. REP., VOL L.-59 WILLS, papers referred to and identified by, need not be protected as part of, 231. posthumous instruments, test to determine what are, 266. reformation of, in equity, 283. WITNESSES, Competency of, must be decided by the court, 373. lunatics, competency of, as, 373. INDEX. ABANDONMENT. ABANDONMENT OF LAND on the part of one who has purchased and paid for it, but has not received a conveyance of the title, is not inferable from his absence therefrom for a number of years. (Chapman v. Chapman, 845.) See Waters, 13-17. ACCESSARIES AND ACCOMPLICES. 1. THE TESTIMONY OF AN ACCOMPLICE, though uncorroborated, may be sufficient to sustain a conviction for murder, but, in such cases, the trial court should proceed with the greatest caution. (Campbell v. People, 134.) 2 THE TESTIMONY OF AN ACCOMPLICE is not sufficient to sustain a conviction for the alleged murder of her child, if it appears that she is an ignorant and depraved woman, having no conception of the nature of an oath or of the punishment to which she might be subjected for testifying falsely, that she was herself accused of the murder, that she felt aggrieved by the marriage of the defendant to another, and that she had made statements out of court inconsistent with the defendant's guilt, and had, in her testimony, been contradicted in some respects by several other witnesses. (Camp bell v. People, 134.) ACCOMMODATION. See Negotiable Instruments, 6-8. ACCOUNTS. See Bills of Particulars; Trial, 1. ACCRETION. See Waters, 3-5. ACTIONS. 1. ACTIONS-SPECIAL APPEARANCE.-A party may appear specially in an action for the purpose of having the service of summons upon him, and an order continuing the action against him in a representative capacity, vacated, without giving the court jurisdiction to ren der a personal judgment against him. (White v. Johnson, 726.) 2. PRACTICE.-IF SPECIAL APPEARANCE TO OBJECT TO JURISDICTION is, after the objection is overruled, followed by a general appearance, the question of jurisdiction is not open to collateral attack. (Parsons v. Venzke, 669.) ADVERSE POSSESSION. See Vendor and Purchaser, 4; Waters, 18. AFFIDAVITS. 1. AN AFFIDAVIT IS SIMPLY a declaration on oath, in writing, sworn to by a party before some person having authority under the law to administer oaths, and need not be entitled in any particular cause, or in any particular way, or be preceded by any caption. (Hertig v. People, 162.) 2. AN AFFIDAVIT HAVING NO VENUE, but subscribed by a notary public of the county, is good, for the court will take judicial notice that he is a notary of the county, and will presume that he administered the oath only in the county in which he was authorized to act. (Hertig v. People, 162.) See Attachment, 1. AGENCY. 1. PRINCIPAL AND AGENT, WHO ARE NOT.-Vendors of livestock, who del ver it in a pen of a railway corporation for shipment, according to the stipulations of their contract of sale, are not, in so doing, agents of the purchasers, so that the latter are chargeable with the contributory negligence of the former in not discovering that such pen contained salt water in such quantity and condition as to be dangerous to such stock. (Norfolk etc. R. R. Co. v. Harman, 855.) 2. AGENCY — APPOINTMENT AND AUTHORITY OF SUBAGENTS.-As a general rule, an agent has no right to delegate his authority to a subagent without the consent of his principal. If, in the absence of such consent, he does delegate his authority, the subagent whom he appoints will be regarded as his agent, and not the agent of the principal. (Davis v. King, 104.) 3. AGENCY – IMPLIED AUTHORITY TO EMPLOY SUBAGENT.-The consent of a principal to his agent to employ a subagent may be given expressly or by implication. (Davis v. King, 104.) 4. AGENCY-LIABILITY OF AGENT FOR ACTS OF SUBAGENT.-If an agent has the consent and authority of his principal to employ a subagent, he may employ one; and if, in so doing, he, in good faith, selects a suitable and proper subagent, he is not responsible to his principal for the acts and omissions of such subagent. (Davis v. King, 104.) 5. AGENT, LIABILITY FOR SUBAGENT.—If a subagent, employed with the consent, express or implied, of the principal to collect a note, wrongfully returns it to the maker, who destroys it, giving a renewal note in place thereof to the subagent, the principal agent is not answerable for the act of the subagent in surrendering the note. (Davis v. King, 104.) See Brokers; Corporations, 1, 12; Evidence, 1, 6; Insurance, 14, 15: Sales, 8. ALIENATION OF AFFECTIONS. See Husband and Wife, 1-6; Witnesses, 4. AMENDMENT. See Pleading, 7. ANNEXATION. See Municipal Corporations, 2. APPEAL. 1. COURTS JURISDICTION OF APPELLATE PROCEDURE.-If the amount involved in an action was greater than one thousand dollars, and an appeal was taken to the appellate court, where the judgment was reduced below that sum, and an appeal is then taken by the appellant to the supreme court, the latter has jurisdiction though the decision of the appellate court has reduced the amount in controversy to a sum less than one thousand dollars. (Chicago etc. R. R. Co. v. Davis, 143.) 2. APPEAL-WAIVER OF.-One cannot accept or secure a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and cannot possibly be affected by the reversal of the judgment. (Tyler v. Shea, 660.) 3. RIGHT OF APPEAL IS NOT WAIVED by accepting a benefit under a judginent which the appellate court has power to modify, so as to make it more favorable to the appellant, without reversing or modifying that part of it in his favor, and of which he has secured the benefit. In such case, the appeal can be taken only from the adverse portion of the judgment. (Tyler v. Shea, 660.) 4. APPEAL, WAIVER OF.-One who appeals from an order refusing an execution to put him in possession of land, on the ground that defendants are in default, waives his right to appeal for a new trial in the appellate court, from a prior judgment declaring that such defendants are entitled tɔ a deed of the land from him, on payment of a certain amount of money within a specified time, and that such appellant shall be immediately entitled to exclusive possession of the land, in case of their default. (Tyler v. Shea, 660.) 5. APPEAL-QUESTIONS CONSIDERED.-If a party appeals for a new trial of the case in the appellate court, the whole case is open to investigation, and not merely that part of the judgment adverse to the appellant. (Tyler v. Shea, 660.). 6. NEGLIGENCE-QUESTION OF FACT-REVIEW ON AP. PEAL.-All that the law requires of one about to pass over a railroad crossing, whether he is a trespasser or licensee, or there by implied invitation, is for him to use ordinary care to avoid danger and injury to himself. Whether he performs this duty to himself is a question of fact, the determination of which is not reviewable on appeal. (Pomponio v. New York etc. R. R. Co., 124.) 7. VOID JUDGMENTS.-Affirmance of a void judgment on appeal does not impart any validity to it, especially if it is affirmed on grounds not touching, but overlooking, its invalidity. (Pioneer Land Co. v. Maddux, 67.) 8. VOID JUDGMENTS-COLLATERAL ATTACK.-If a judg ment is void, its validity is not affected by the denial of a motion to vacate it, made many years after its rendition, nor by the affirmance on appeal of the order denying the motion to vacate. Such affirmance is not conclusive of the validity of the judgment as against a collateral attack. (Pioneer Land Co. v. Maddux, 67.) 9. APPELLATE PRACTICE – MOTION FOR VENIRE DE NOVO is correctly overruled, if the special findings are not ambiguous, uncertain, nor contradictory, and embrace all the issues and are sufficient to sustain the judgment. (Bowell v. Dewald, 240.) 10. APPELLATE PROCEDURE.-AN EXCEPTION IN THE FOLLOWING FORM: "To these findings of fact and conclusions of law, and to each of them, the contestant excepts," is insufficient to assail any finding of fact, and the only question presented on appeal is, whether the facts are antagonistic to the conclusions of law and the judgment. (Moyer v. Van de Vanter, 900.) 11. APPELLATE PROCEDURE-WAIVER.-If, from the record, it appears that a demurrer to a replication was overruled, and, by agreement of the parties, the issues joined were submitted to the court for trial, it will be presumed that, if any error occurred in the action of the court on the demurrer, such error was waived. (B. 8. Green Co. v. Blodgett, 146.) |