deprive the accused of ability to distinguish right from wrong, he
should be held responsible for the consequences of his acts. Id., . 407
See PRACTICE IN CRIMINAL CASES, 12, 14, 15, 22, 24, 25, 31, 32.
See EMINENT DOMAIN. RAILROADS.
1. Proving Deed a Mortgage. Evidence that a deed absolute in its
terms was intended to be a mortgage, must be clear, consistent and
satisfactory. Deroin v. Jennings, . .
2. Execution. In the absence of fraud, mere imbecility or weakness of
mind in a grantor, however great, will not avoid his deed, unless
there be evidence to show a total want of reason or understanding.
Mulloy v. Ingalls, . .
: WITNESSES. The presence of the attesting witness to a deed
or mortgage, at the time it is subscribed by the parties thereto, is not
essential, if he is immediately afterwards told by them that such
instument is their agreement, and is by them requested to subscribe
the same as a witness. Id., .
Where a deed is executed and acknowledged in another
state before a commissioner of deeds of this state, a notary public,
or other officer using an official seal, the law presumes a compliance
with the law of the place of execution, and no further authentica-
tion is necessary. But in all other cases there must be attached
thereto a certificate of the clerk of a court of record or other cer-
tifying officer, under his official seal, showing that the person taking
such acknowledgment was the officer therein represented; that he is
well acquainted with his handwriting; that he believes his signature
to be genuine; and that such deed is executed according to the laws
of such state. Hoadley v. Stephens, .
A deed executed and acknowledged by a justice of the
peace, in Virginia, offered in evidence to prove that the grantors had
parted with the legal title to certain real estate therein mentioned;
Held, properly excluded, there being no evidence that it was exe-
cuted and acknowledged according to the laws of Virginia. Id., . 431
. At common law lands could be conveyed only by conform-
ing to the law of the place where the lands were situated, but by
statute, lands in this state may be conveyed by conforming to the
law of the place where the deed is executed and acknowledged. Id., 431
1. Procedure in Contested Elections of County Officers. The board of
justices, chosen under Sec. 26 of the general election law, Gen. Stat.,
359, in case of the contested election for any county office, should re-
duce all the evidence given before them to writing, in order to make
the same available in case of an appeal to the district court; and
though the statute is silent as to whom the custody and control of
such testimony shall be intrusted, there is ample inherent power in
the appellate court, to compel its production upon consideration of
the case there. The trial in the appellate court should be confined
to the testimony so taken, though in case of its loss or destruction,
neither party would be debarred from introducing necessary evidence
to supply such omission. The People v. Martin, .
1. Damages Allowable. An award of damages for the location of
right of way for a railroad, although not contemplated in the statute
(Gen. Stat., Sec. 97, p. 191), contained a provision that the party
owning the premises, part of which were taken for right of way, might
"move back his house" therefrom; Held, valid. O. & N.W. R. R.
v. Menck,.
1. Jurisdiction: VOID SALE. An assessment was levied upon shares of
stock in a ferry company, and suit in chancery commenced to sub-
ject the shares to the payment of such assessment, although the char-
ter of the company gave it no authority so to do. Service was made
by publication, the bill taken pro confesso, decree rendered, and the
shares sold. Held. 1. That the decree was coram non judice, and
void. 2. That the purchaser having procured title to the shares
under color of said proceedings, receiving dividends thereon, held
the same in trust for the original owner. Williams v. Lowe, .
1. By Acts in Pais. Where a stockholder in a railroad corporation has
signed a contract disposing of its assets, knowing its contents, and
voting at meetings of the company to carry it into effect, he cannot
afterward repudiate it, or question the bona fides of the transaction,
no fraud being shown. Clarke v. O. & S. W. R. R.,.
1. Admissions and Declarations. In an action upon a promissory note,
where the defense was that the note had been given in part payment
of real estate, upon which an incumbrance existed, proof that one of
the payees had said that "if the defendant would pay off the incum-
brance plaintiffs would owe the defendant, $5,000," held, inadmissible.
Mills v. Saunders, . .
2. Presumptions. In the absence of evidence showing the purpose and
object of the assignment of a mortgage to a national bank, it cannot
be presumed that it was for a debt created in presenti, in violation of
the National Banking act. Richards v. Kountze, .
200
3. Confessions. The degree of credit, ordinarily to be given to the con-
fession of a prisoner, should be left to the jury, under proper instruc-
tions, with reference to the evidence in each particular case.
But a
confession alone is not sufficient evidence of the corpus delicti. There
should be other proof that a crime has been committed and the con-
fession admitted only for the purpose of connecting the defendant
with the offense. Dodge v. The People,.
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Instructions asked for by a prisoner with reference to an
alleged confession, made by him and admitted in evidence, held,
properly refused, there being nothing in the record showing the na-
ture of the confession, to whom made, its extent, or whether corrob-
orated or not. Id., .
See PROMISSORY NOTES. QUO WARRANTO.
5. Admission of Decree in Former Suit Between Same Parties. Saun-
ders brought suit against Wilcox, to enforce the specific performance
of a contract concerning land, and in the decree rendered in his favor
it was adjudged "that for the rent, use, and occupation of the land,
and improvements, and all damages thereto by Wilcox, further suit
must be had or adjustment made therefor by the parties as they see
fit." In a subsequent action between the same parties, for trespass,
waste, etc., alleged to have been committed by Wilcox upon the same
premises, Saunders introduced in evidence the decree of the court
rendered in the former suit, and the deed made to him in pursuance
thereof. To this, objection was made on the ground that Wilcox had
taken an appeal from that decree to the supreme court. Held, that
as the right of appeal did not exist at the time of the rendition of the
decree, the attempt to appeal was a nullity, and the evidence was
properly admissible for the purpose of showing Saunders' title, and
that his damages occasioned by the occupation of Wilcox had not
been adjudicated. Wilcox v. Saunders, .
A paper offered in evidence to establish a tri-partite con-
tract, being signed by one party only, held, inadmissible. Id., . . . 569
See BOUNDARIES, 1. CONTRACT, 1. DEEDS, 1. FALSE IMPRISON-
MENT, 2. FRAUD, 1. PRACTICE, 3, 6. PROMISSORY NOTES.
PARTNERSHIP. PRINCIPAL AND AGENT. RAILROADS. RIPARIAN
RIGHTS.
1. The District Court has jurisdiction over executors and others holding
a fiduciary relation, and may compel the proper application of trust
funds committed to their care. Blake v. Chambers, .
2. Misapplication of Trust Funds. A petition alleged that an executor
had fraudulently invested assets of the estate in land, taking the title
thereto in his own name, never having accounted for the same in his
final report to the probate court. Held, on demurrer, that a creditor
of the deceased had an equitable lien on the land for the payment of
the amount due him from the estate. Id., .
1. Malicious Prosecution: PLEADING SUFFICIENCY OF PETITION.
Although an action for malicious prosecution cannot be maintained,
if the proceedings complained of were had by a court having no
jurisdiction, yet a petition alleging that in consequence of such pro-
ceedings plaintiff was arrested, imprisoned, etc., is sufficient as a com-
plaint for false imprisonment. Painter v. Ives, .
In such an action, the information made by the defendant,
upon which the warrant issued for the arrest of the plaintiff, is admis-
sible in evidence. Id., . ..
-: INSTRUCTIONS TO JURY. There being evidence before the
jury showing that plaintiff was arrested by a sheriff, at the request of
the officer holding the warrant who had telegraphed him for that
purpose, and imprisoned in jail until the arrival of such officer, the
defendant asked the court to charge the jury that "in estimating
damages, in case the jury found for plaintiff, they should not con-
sider the fact of such imprisonment." Held, properly refused. Id., 122
4. Defense. One who procures the arrest and imprisonment of another,
upon void process, is liable in an action for false imprisonment, and
mere good faith in making the affidavit, by virtue of which the arrest
is made, is no defense. Id., .
1. Sheriff's Fees. Under the act of 1875, regulating fees of sheriff, Laws
1875, p. 81, that officer is entitled to the same commission as special
master, where real property sold under a decree of the court is bid
in by the plaintiff, as though the amount of the sale was received and
disbursed by him. And the act is not prospective in such a sense,
as to exclude decrees rendered before its passage, and upon which
orders of sale are afterwards issued. Kountze v. Train,.
See PRACTICE, 15. TAXES, 12.
1. Fraudulent Conveyance: EVIDENCE. The question of intent, in
case of an alleged fraudulent conveyance of property, by a husband
to a wife, is one of fact for submission to a jury. Monteith v. Bax, 166
See LIMITATION OF ACTIONS, 3.
1. Homestead. Judgment was recovered against C., in April. He was
at that time the owner of certain real estate, and in October follow-
ing entered upon and occupied the same with his family. While in
possession, execution issued, levy and sale made. Held, that the
premises were not exempt as a homestead. Bowker v. Collins, . . 494
2. Lien of Judgment. A proper construction of the statutes of this
state, makes a judgment recovered in the district court, a lien upon
all the real estate of the debtor, situated in the county where the
judgment is recovered. But no sale can be had of the proper por-
tion selected as a homestead by the debtor, as long as the premises
so selected are owned and occupied for that purpose. State Bank
v. Carson, ..
3. Mortgage: PRIORITY OF LIENS. Judgment was rendered against
W., at a time when he occupied certain premises as a homestead,
execution issued, levy made, and returned not sold for want of bid-
ders. During these proceedings W., made no claim to any part of
said premises as a homestead, and for a time after the recovery of
the judgment, abandoned the same. Held, in a suit to foreclose a
mortgage given by W., and wife on the same premises, after the ren-
dition of said judgment, that the judgment was the prior lien. Id. 498
1. Causes of Defense: INTOXICATION. Upon a trial for murder, it is prop-
er for the jury to consider any state or condition of the accused, at the
time of the killing, that is adverse to the proper exercise of the mind,
and the undisturbed possession of the faculties; and if there is evi-
dence that the accused was intoxicated when the crime was com-
mitted, the jury may consider the evidence of intoxication as a cir-
cumstance to show that the act was not premeditated, and to rebut
the idea that it was done in a cool and deliberate state of mind, nec-
essary to constitute murder in the first degree. And unless the jury
are satisfied beyond a reasonable doubt that the accused, at the time
of the killing, was in such a state of mind that he could form an in-
tention maliciously to kill, and that he did form such an intention,
they cannot convict him of a higher crime than manslaughter. Smith
v. The State.
See FRAUD. MARRIED WOMEN.
1. Form and Contents. An indictment setting forth all the essential
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