1. HUSBAND AND WIFE.
on a contract signed
the husband alone.
CONTRACT BY.-A woman is not personally liable
It is the contract of
by her husband and herself.
Shartzer v. Love, 93.
See PLEADING, 7; MARRIED WOMAN, 2; DEED, 3, 4, 5.
See CRIMINAL PRACTICE, 4, 5, 13.
1. INJUNCTION. PATENT FOR LANDS.-A Court of equity will not inter
fere to restrain the issuance of a patent for lands which would not be
a cloud on plaintiff's title, and does not include any portion of his land,
although the patent when issued would be invalid, and would require
evidence dehors to show its nullity. Taylor v. Underhill, 471.
1. INJURY TO THE PERSON. NEGLIGENCE OF PARENT.- Unless there is some
unusual exposure to danger, it is not negligence on the part of the parent
to allow a child between ten and eleven years of age, ordinarily active
and intelligent, to be in the street. Karr v. Parks, 188.
2. IDEM. That a child five years of age, was permitted to walk in the street
in the day time, within sixty feet of her father's house, where there was
no particular reason to apprehend danger, and in a street almost entirely
unused, would not as a matter of law be held evidence of negligence on
the part of the parent. Id.
8. ACTION FOR DAMAGES FOR PERSONAL INJURY. PLEADING. In an action
for damages, for injury, caused by defendant's street cars, an allegation
by plaintiff that defendant had no lawful right to lay its track, or
run its cars on that portion of the street where the injury was done, is
not irrelevant, or immaterial. Schierhold v. North Beach & M. R. R.
Co., 447.
4. DAMAGES FOR PERSONAL INJURY.- EVIDENCE. CUSTOM.- Evidence that
it was the custom of the inhabitants of a locality to allow boys to play
in the street, does not tend to prove that such use of the street is lawful.
Id.
6. IDEM. EVIDENCE.— Evidence to prove that the cars of another company
were driven down the same grade at less speed than the cars of defend-
ant, is inadmissible. Id.
6. IDEM. NEGLIGENCE.-CONTRIBUTORY.-NONSUIT.-Negligence is generally
an inference from facts and circumstances, which it is the province
of the jury to find, and in an action for damages for injury caused by
negligence, a nonsuit upon the ground of contributory negligence, should
only be granted, when, giving the plaintiff the benefit of all controverted
questions, it is apparent to the Court that a verdict in his favor musi
necessarily be set aside. Id.
7. IDEM.-PRACTICE.-NEGLIGENCE.
QUESTIONS FOR JURY.-Whether there
is negligence on the part of the parents in allowing a child of seven years
old to be in the streets unattended, is a proper question to be submitted
to the jury.
NEGLIGENCE-LIABILITY FOR.-The negligence of the parents in
allowing their child to be alone in the street, does not relieve the de
fendant from liability, if the injury occurred through the gross neg-
ligence of its employee. Id.
9. IDEM. NEGLIGENCE.-AS TO ADULTS AND CHILDREN.-That which would
be but ordinary negligence as to a grown person, may be gross negligence
as respects a child. Id.
10. IDEM. The fact that the street is made for travel, does not justify a
trespass upon the person of one who is there for other purposes. Id.
1. DISCHARGE IN INSOLVENCY.-A judgment rendered against a defendant
subsequent to his discharge in insolvency, in an action commenced before
the proceedings in insolvency were instituted, is not void on the ground
that the judgment was in violation of the restraining order made at the
commencement of the proceedings in insolvency, or that the defendant
was discharged from all his debts and liabilities, including the debt of
the plaintiff prior to the rendition of the judgment. Rahm v. Minis, 442.
2. IDEM. PLEADING. The defendant is entitled to plead his discharge in
insolvency in bar of such action, by supplemental answer. Id.
8. IDEM. Where a discharge in insolvency is pleaded in bar of an action
commenced before the proceedings in insolvency were instituted, a judg-
ment in favor of plaintiff is conclusive that he was entitled to his judg-
ment, notwithstanding the alleged discharge in insolvency. Id.
4. IDEM.-Where such plea is omitted, the judgment is as conclusive upon
the defendant as it would be had his defence been accord and satisfac-
tion, payment, etc., which he had neglected to plead. Id.
5. IDEM. PRACTICE.-A defendant, against whom a judgment has been ren-
dered subsequent to his discharge in insolvency who has a complete rem-
edy at law, is not entitled to relief in equity by injunction to restrain
the enforcement of the judgment. Id.
1. INSTRUCTION TO JURY.-DISOBEDIENCE OF.-A verdict of a jury, in dis-
obedience to the instructions of the Court, although the instruction
itself was not correct in point of law, is a verdict "against law," under
subdivision 6, Sec. 193, Pr. Act. Emerson v. County of Santa Clara, 543.
2. IDEM. RIGHT TO EXCEPTION ON REFUSAL OF.-Counsel have a right to pro-
pound to the Court, in a jury trial, a proposition of law, as an instruc-
tion to the jury, and is entitled either to have it given, or to have an
exception entered of record for its refusal. If the instruction is given
as asked, he cannot have an exception, having obtained the benefit of
the instruction in the deliberation of the jury; hence, the jury must
obey the instruction, else counsel is left as if he had presented none.
Id.
See CRIMINAL PRACTICE, 6, 7; NUISANCE, 9; PRACTICE, 30.
1. JOINT TENANCY.-A conveyance to a trustee for the use and benefit of two
or more persons, made prior to the passage of the amendatory Act of
April 27, 1855, concerning conveyances, vests the equitable estate in the
cestui que trust as joint tenants. Greer v. Blanchar, 194.
1. JUDICIAL ACT.-The performance of a ministerial act by a judicial officer
does not constitute the act itself a judicial proceeding. People v.
Bush, 344.
1. JUDGMENT OF COURT OF COMPETENT JURISDICTION.-NOT ASSAILABLE IN
COLLATERAL ACTION.- The decree of a Court of competent jurisdiction.
for the sale of lands alleged to be delinquent in the payment of taxes, is
conclusive on the owner, and on the premises, of the truth of the matters
adjudged, and no mere collateral inquiry can be allowed on that point.
Mayo v. Foley, 281.
2. JUDGMENT. ERRONEOUS, WHEN FOR POSSESSION for DefendanTS ALREADY
IN POSSESSION.— A judgment that the plaintiffs take nothing as against
certain defendants, and that those defendants recover from the plaintiffs
the possession of portions of the premises specially described, when those
tracts were, at the time, in the possession of the respective defendants, is
In that respect erroneous. Judson v. Malloy, 299.
Bee ACTION TO QUIET TITLE, 1; PRACTICE, 20, 21, 22
JUDGMENT AND FINDINGS IN FORMER ACTION.
See EVIDENCE, 4.
1. JUDGMENT ROLL.-WHAt Constitutes.-An order sustaining a demurrer
to a defendant's cross-complaint, and the bill of exceptions, constitute
a part of the judgment roll. So also does the motion to strike out
parts of pleadings when referred to in the bill of exceptions. Packard v.
Bird, 378.
2. IDEM.-INTERLOCUTORY DECREE.--An interlocutory judgment comes within
the spirit and meaning of the statutory requirement that the judgment
shall constitute a portion of the judgment roll. Id.
1. JURISDICTION.-STIPULATION.-WAIVING OBJECTIONS TO.-A stipulation
by the parties to an action waiving all objections to the jurisdiction of
the Court in hearing and trying a cause, cannot confer jurisdiction on a
District Court to try the cause in one County, on the day when, by opera-
tion of law, the Court is adjourned in that County, and its term com-
menced in another County of the same district. Bates v. Gage, 183.
Bee COUNTY JUDGE, 8; NUISANCE, 1, 2; PROBATE COURT, 1; JUSTICE OF THE
PEACE, 1; COUNTY COURT, 2.
1. JUROR.-COMPETENCY OF.-Where a juror in a criminal proceeding, upon
examination as to his qualification to try the case, states that he has
formed a fixed decided opinion in regard to the guilt or innocence of the
defendant, a subsequent statement by him on cross-examination, that his
opinion is not an unqualified one, and that he could try the case and
render a verdict according to the evidence, notwithstanding any pre-
viously formed opinion, will not remove his disability as a juror. People
V. Well, 268.
2. IDEM.-CHALLENGE OF.-Where a challenge for cause was erroneuosly
disallowed by the Court, and the juror then peremptorily challenged, if
the defendant exhausted the number of peremptory challenges to which
he was entitled before the jury was completed, the practical result of
the erroneous disallowance of defendant's challenge for cause was to
contract the number of peremptory challenges to which he was entitled,
and may have been seriously prejudicial to the defendant. Id.
8. JUROR.-MISCONDUCT OF.-The mere disclosure by a juror of a verdict
already agreed upon, sealed up and delivered to the clerk by the jury,
is reprehensible, but in the absence of any damage caused thereby to
either party to the action, or of any fraudulent conduct on the part of
the juror, it is not of itself sufficient to invalidate the verdict. Ingersoll
V. Truebody, 603.
1. JUSTICE OF THE PEACE.-JURISDICTION OF.-A judgment rendered by a
Justice of the Peace, for the principal and interest due on a promis-
sory note, and for a further sum of fifty per cent. on the amount of
such principal and interest, under a stipulation to that effect contained
in the note, which latter sum added to the principal exceeds in amount
the sum of three hundred dollars, is void for want of jurisdiction in the
Justice to render it. Reed v. Bernal, 628.
2. JUSTICE'S COURT-APPEAL FROM.-In an appeal from a Justice's Court a
failure to produce in the County Court a duly certified copy of the
docket of the Justice of the Peace, is a failure to prosecute the appeal
within the meaning of section 867 of the Code. People v. Elkins, 642.
1. LANDLORD AND TENANT.-ACTION ON LEASE.-In &n action upon a lease,
where the question of title is not involved and cannot be raised, the con-
sequence of entering into the contract can only be avoided by showing
some fraud or mistake which would have been sufficient to set aside the
lease itself. Mason v. Wolff, 246.
See CRIMINAL LAW, 4, 5; CRIMINAL PRACTICE, 12.
1. LEASE.-FORFEITURE OF, FOR NON-PAYMENT OF RENT.-To work a forfeit-
ure of a lease for non-payment of rent, the demand must be made for
the precise sum due, on the premises, or wherever the rent is payable.
Gage v. Bates, 284.
LEVY, EXCESSIVE.
See ATTACHMENT, 1, 2.
See STATUTORY CONSTRUCTION, 7.
1. CLERK OF COURT.-REMEDY AGAINST, For Refusal to ISSUE EXECUTION.—-
Where the Clerk of a Court refuses to issue an execution upon a simple
money judgment, the remedy is by motion in the proper Court, or by
action against him, and not by application for a writ of mandamus.
Fulton v. Hanna, 278.
1. MARRIAD WOMAN.-CONTRACT BY, PRior to MarriAGE.-SPECIFIC PERFORM-
ANCE. When a married woman has, prior to her marriage, entered into
a contract which is binding upon her, a specific performance may be
decreed notwithstanding her subsequent marriage. Love v. Watkins, 547.
SEPARATE PROPERTY. EXECUTORY CONTRACT.- An executory con.
tract for the sale of the wife's separate property, executed by the husband
and wife in the mode prescribed by the statute, defining the rights of
husband and wife, is valid and binding on the wife, and may be enforced
by a decree of specific performance. Id.
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