ceives and uses the company's gas, after they have closed their servicepipe and removed their meter, and given him notice thereof. Id Criminal Law-Murder—Aiding to commit Suicide.—Aiding another to commit suicide is murder: Commonwealth vs. Pratt. Promissory Note-Invalidity of Indorsement.—In an action by the indorsee against the maker of a promissory note, the defendant cannot show in defence that the plaintiff procured the indorsement by undue influence from the payee, when he was of unsound mind and incapable of making a valid indorsement, if the payee or his legal representatives have never disaffirmed it; or that the payee, for a valuable consideration, had agreed to give up the note at his death to the maker, reserving meanwhile the right to collect the interest thereon: Carrier vs. Sears. Decedent―Order of Sale for Payment of Debts.—An administrator cannot maintain a petition for leave to sell real estate for the payment of debts of his intestate, if there are no debts due from the estate which can be enforced at law: Lamson vs. Schutt. Guardian and Ward-Liability for Support.-In the absence of an express contract, no action can be sustained against a guardian to charge him personally with the support and education of his ward. And if he has permitted his ward to remain in the care and custody of another, without any express contract for any definite period of time, he may terminate his personal liability to pay for their support and education by giving notice to that effect, although at the time of giving notice the ward is sick and unable to be removed: Spring vs. Woodworth. Guardian and Ward-Effect of Foreign Appointment.—One who has been appointed under the laws of another state to be the guardian of a child whose legal domicil is in that state, has no absolute right to the custody of the person of his ward in this Commonwealth; but his official position will be considered by the Court as an important element in determining to whom the custody of the child shall be granted: Woodworth vs. Spring. The appointment in this Commonwealth of a guardian over a child whose legal domicil is in another State, and who has a guardian appointed under the laws of that State, does not deprive this Court of the power, in its discretion, to decree the custody of the child to the foreign guardian: Id Criminal Law-Evidence of Wife.-In the trial of a complaint against a man for an assault and battery upon his wife, she is a competent witness in his favor: Commonwealth vs. Murphy. Lost Note-Action by Holder.-The owner of a lost note cannot maintain an action at law against the indorser, in a case where a bond to indem nify the defendant against being called on a second time to pay the note would not afford to him an adequate protection: Tuttle vs. Standish. Town-Liability for Defective Highway.-A town is not responsible in damages if a horse, being frightened by an accident, breaks away from his driver and escapes from all control, and afterwards, while running at large, meets with an injury through a defect in a highway: Davis vs. Dudley. Will-Construction-Perpetuity.-Under a will which, after various specific devises and bequests, contains the following provision: "If any thing remains, my will is that the residue shall be deposited in the Worcester Savings Bank, and to be appropriated by my executors to the relief of my heirs, if they at any time shall need pecuniary assistance;" the entire beneficial interest in the residue vests in those who are the heirs at law of the testator at the time of his death, and, if they all desire it, and the executors consent, the trust may be annulled, and the property distributed amongst them, upon their executing a release to the executors: Smith vs. Harrington. Note payable in Instalments—Indorsement when overdue— Mortgage.— A note payable by instalments is overdue when the first instalment is overdue and unpaid; and one who takes it afterwards takes it subject to all equities between the original parties: Vinton vs. King. The same defences may be made in an action on a mortgage, the Statute of Limitations excepted, which might be made in an action on the debt which the mortgage was given to secure : Id. SUPREME COURT OF NEW YORK.1 Actuns by Public Officers-Facts assumed to be true on the Trial.-Actions by public officers, as such, should be brought in their individual names, with the title of their office added: Paige vs. Fazerckerly. 1 From the Hon. O. L. Barbour, Reporter of the Court. If, in an action brought by one as "chamberlain, &c.," no objection is taken, on the trial, that the plaintiff is not chamberlain, it will be assumed, on appeal, that the fact of his being the incumbent of the office was understood, or taken for granted: Id. When it is obvious that a fact was assumed on the trial, it is as much in the case as if it were expressly proved: Id. When a court of review is satisfied, from the general scope and tenor of the proceedings on the trial, that a particular fact was not a matter of contest, nor a ground of objection there, but was assumed or taken for granted in the conduct of the cause, it may and should conclude that the fact was as it was as. umed to be: Id. Fire Insurance-Material Stipulations.—Evidence of Assent to other Insurances. A stipulation, in a policy of insurance, that the insurance shall be void, in case the assured, or any other person with his knowledge, shall have or make any other insurance on the property, not notified to the insurers, and mentioned in, or indorsed upon, the policy, is a material part of the contract between the parties: Gilbert vs. The Phoenix Insurance Company. The parties to a contract of insurance have the right to stipulate, between themselves, as to the nature and kind of evidence by which the assent of the insurers to other insurances shall be manifested. And when they have thus stipulated, the court has no power to substitute any other kind of evidence, differing in kind or degree: Id. Variance-False Representations.-When it appears that the defendant was not, and could not have been, misled by a variance between the complaint and the proof, the variance may be disregarded, without amendment: Craig vs. Ward et al. A party making a representation false in fact renders himself liable in an action for fraud, although he did not actually know the representation to be false at the time: ld. If a party makes a material representation, without knowing whetner it is true or false, and it turns out to be false, an action lies for the fraudu lent raisrepresentation: Id. Sheriff-Indemnity to Bidders.-A sheriff acts officially, in selling the property of a stranger to the execution as the property of the defendant therein. He may take an indemnity from the plaintiff, for such an act, when done in good faith, but cannot give an indemnity to the bidders at the sale: Bell vs. Pratt. Where an under-sheriff agreed with the bidders at a sheriff's sale to warrant the title to the property sold, held, that the agreement rested upon no consideration of benefit to the sheriff, except as it necessarily tended to increase the fees and perquisites of his office; and that in that respect it was void, as against public policy: Id. A sheriff, while in the discharge of his official duty, cannot divest himself of his official character, and do as an individual what he cannot do as a public officer: Id. Divorce Suit-Dower.-The late Court of Chancery had no authority, in a divorce suit, to require a married woman to accept a gross sum from her husband in lieu of, and in satisfaction of, her dower. And her acceptance of such a sum, in the lifetime of her husband, will not defeat her dower: Crain vs. Cavana. Her release of dower, to her husband, pursuant to an order of the court, although acknowledged in due form, would be a nullity: Id. Hops Personal Property.-Hops growing and maturing on the vines, which are produced by the annual cultivation of the owner, are personal chattels within the meaning of the Statute of Frauds; and as such are subject to sale like other personal property: Frank vs. Harrington. Railroad Companies-Liability as Carriers of Passengers.-It is not unlawful, nor against public policy, for a railroad company to convey passengers by stage to and from one of its stations and an adjacent village, in connection with and as a part of its business of transporting passengers upon its road; nor is a contract made by it thus to carry a passenger, ultra vires: Buffit vs. Troy and Boston Railroad Company. Such a contract is lawful, and the corporation is estopped from denying its validity: Id. Where a railroad company employs an individual to convey passengers to and fro between a village and a station on the railroad, in stage-sleighs furnished, together with the horses and drivers, by him, such company is liable in damages for any injury sustained by a passenger in consequence of the overturning of a stage-sleigh through the negligence of the owner or his servant: Id. INDEX TO THE PRINCIPAL CASES CONTAINED IN THIS VOLUME ACTION ON THE CASE. See SALE OF GOODS, III. 2. DMIRALTY. I. Pleading on Libel for Information. See STEAMBOAT, 3. II. Jurisdiction. See STEAMBOAT, 4. GENCY. I. Undisclosed Principal. Agent for foreign principal, selling goods by sample, without disclosing See FRAUD. NTECEDENT DEBT. Where a good Consideration. See BILLS AND NOTES, II. RREST. I. How made on Civil Process-Escape. 1. An officer is not bound to call for aid in the service of mesne process, 2. An officer is bound to use all reasonable and proper personal exer- 3. An officer effects an arrest by laying his hand upon a person whom VOL. 10.-49 (769) . 471 |