his criminal act one which is done within that state. Such presence need not be actual; it may be constructive. Simpson v. State, 75. & State WHERE CRIME IS DEemed Committed. —A criminal act begun in one state and completed in another renders the person who does the act liable to indictment in the latter state. Simpson v. State, 75. 4. AGE OF DISCRETION-MENTAL CAPACITY.-Upon the trial of a boy between the ages of ten and fourteen years for any offense it is not error to give in charge to the jury section 4294 of the code. That section relates alone to mental capacity. Gordon v. State, 189. 5. INTOXICATION TO EXCUSE CRIME must be of such a degree as to render the offender incapable of entertaining an intent to commit such crime. If it falls short of this it is worthless as a defense. Warner v. State, 415. 6. ALIBI-INSTRUCTION.-The proof of an alibi in a criminal case is suffi. cient when it satisfies the jury, with reasonable certainty, that the accused was not present when the crime was committed. Hence, it is error justifying the granting of a new trial to charge: "The prisoner in this case has attempted to set up an alibi. The court charges you that when the defendant attempts to set up an alibi, that the burden of proof is upon him to satisfy you beyond a reasonable doubt that the alibi is true." Miles v. State, 140. 7. DEADLY WEAPON, WHAT IS.-The question whether an instrument with which a personal injury is inflicted is a deadly weapon depends upon the manner of its use, rather than upon the intrinsic character of the instrument itself. State v. Norwood, 498. See APPEAL, 10; Burglary; CONTEMPT, 4; Extradition. CROSSINGS. See RAILROADS, 11-15. CUSTODY. See MARRIAGE AND Divorce, 7, 8; Parent and CHILD, 2 CUSTOM. 1. A USAGE INCONSISTENT WITH A CONTRACT cannot be given in evidence to affect it. Baltimore Baseball Co. v. Pickett, 304. 2. A USAGE to be admissible must be proved to be known to the parties, or to be so general and well established that knowledge and adoption of it may be presumed, and it must be certain and uniform. Baltimore Baseball Club v. Pickett, 304. 3. A CUSTOM OR USAGE WILL NOT BE PERMITTED TO VARY THE TERMS OF A SPECIAL CONTRACT. Hence, if a contract is entered into by which one person employs another for a stated period, the employer cannot justify his discharge of the employee on the ground that a custom existed in the business giving him the right to cancel the contract on ten days' notice that the employee was deficient in his work. Baltimore Baseball Club v. Pickett, 304. 4. GENERAL USAGE, WHEN NOT A PROPER SUBJECT OF PLEADING AND PROOF.-Evidence as to the existence of a general usage will not be received for the purpose of giving meaning to language and abbreviations ●mployed in an assessment-roll. Power v. Bowdle, 511. DAMAGES. See CARRIERS, 12, 13; MASTER AND SERVANT, 3-7; NEGLIGENCE, 6; RAIL ROADS, 20, 22; SALES, 4; TRESpass, 1, 4. DAMS. See WATERS, 1. DEADLY WEAPONS. See CRIMINAL LAW, 7; HOMICIDE, 3, 4 DEATH. See CONTRACTS, 3, 4; MORTGAGES, 1-3. DEBTOR AND CREDITOR. 1 CREDITORS, WHO ARE PROTECTED AS.-If a statute declares a mortgage void, as to the creditors of the mortgagor, unless filed in the office of the registrar of deeds, the word "creditors" does not include those persons whose debts were contracted before the execution of the mortgage and while there was no default in not filing it, and who have in no manner altered their position to their detriment before such filing. Union Nat. Dank v. Oium, 533. 2 CHTTEL MORTGAGE-A CREDITOR WHO MAY ASSAIL a chattel mortgage as void for want of recordation is not a mere general creditor of the mortgagor, but one who, by attachment or otherwise, secures a lien. He must also be a creditor who dealt with the mortgagor subsequently to the execution of the mortgage and without notice thereof. Union Nat. Bank v. Oium, 533. DECLARATIONS. See AGENCY, 1, 2; HOMICIDE, 5. DEEDS. 1. A DEED CONSISTS OF the name of the parties, the consideration, a description of the subject granted, the quantity of the interest conveyed, and, lastly, the conditious, reservations, or covenants, if any there be. Any words indicating an intention to transfer the estate, interest, or claim of the grantor are sufficient to constitute a deed. Evenson v. Webster, 802. 2 WHAT IS SUFFICIENT.—A paper commencing with a statement that it is a will between S. S. and H. L., by which S. S. declares that he has made agreement with H. L. that the latter is to take care of him until his death day, and that S. S. gives H. L. all his goods, chattes, and real estate, except fifty dollars, which he leaves to G. J., and that H. L. is to pay G. J. when the land is sold, or within five years from date, is, when dated and signed by S. S., a sufficient conveyance of his real property. Evenson v.. Webster, 802. 3. A CONVEYANCE UPON CONDITIONS SUBSEQUENT passes the title to the grantee, subject to be divested by the failure to perform the conditions. Evenson v. Webster, 802. CONVEYANCES-RESCISSION FOR FAILURE OF CONSIDERATION.-A conveyance of land made in consideration of support for life cannot be rescinded and canceled by a subsequent conveyance by the grantor to another person without the consent of the first grantee, merely because "Cold storage business." DEFINITIONS. Stewart v. Atlanta Beef Co., 112. "Creditors." Union Nat. Bank v. Oium, 533. "Day laborer." Briscoe v. Montgomery, 192. Franchise. State v. Scougal, 756. Fugitive. State v. Hall, 501; In re Sultan, 433. "Gross Negligence." Merchants' Nat. Bank v. Guilmartin, 182, "Heirs." Leavitt v. Dunn, 15. "Inaccessible." Atlanta etc. Ry. Co. v. Gravitt, 145. "Laboring person." Farinholt v. Luckhard, 953. "Paid." Conyers v. Postul Tel. Cable Co., 100. "Slight care.' Merchants' Nat. Bank v. Guilmartin, 182. "Slight care and diligence." Merchants' Nat. Bank v. Guilmartin, 182. DELIVERY. See SALES, 1. DELUSIONS. See WILLS, 6, 8, 9. DEMURRAGE. See RAILROADS, 16, 17. DEPOSITIONS. LA WITNESS WHOSE TESTIMONY IS TAKEN OUT OF THE STATE Annexes TO HIS DEPOSITION COPIES OF PAPERS instead of the originals, the court in its discretion may allow them to be read in evidence. L'Herbette v. Pittsfield Nat. Bank, 354. DEVISE. WILLS. IF A SPECIFIC DEVISE IS MADE OF REAL PROPERTY WHICH IS SUBJECT TO A MORTGAGE, the devisee, in the absence of an expression of a contrary intent, on the part of the testator, is entitled to have such property exonerated from the mortgage, even though the personal estate is insufficient to pay the general legacies. Brown v. Baron, 331. DISTRIBUTION. WILLS-CONSTRUCTION-MODE OF DISTRIBUTION.-Under a will devising property to be divided equally between two named persons and the children of another, such children take per stirpes, and not per capita, if it appears by evidence aliunde that the first two persons are sisters, and the latter a brother of the testatrix, that the latter was very fond of her sisters, and of their children, and the children of her brother, and had a favorite among the children in each of the three families, but did not desire her brother to take any of the property on account of his financial embarrassment and past conduct. White v. Holland, 87. See INSURANCE, 15. DIVIDENDS. See CORPORATIONS, 15-19, DOGS. See ANIMALS. DRAINAGE See WATERS, 2-4. DYING DECLARATIONS. EASEMENTS. WAYS-RIGHT OF WAY AS DEFENSE TO EJECTMENT.-The existence of a right of way over certain land is no defense to an action of ejectment by the owner of the fee. A right of way does not justify exclusive possession of the land by the party to whom such right belongs. Burnet v. Crane, 395. EJECTMENT. EMINENT DOMAIN. PROPERTY ALREADY DEVOTED TO A PUBLIC USE. -The intention of the legislature to grant the power to take land or property already devoted to another public use must be shown by express words or by necessary implication. Louisville etc. R. Co. v. Whitley County Court, 220. ENTIRETY OF CONTRACT. See INSURANCE, 5. EQUITY. See ATTACHMENT, 2; INSANE PERSONS, 3, 4 ESTOPPEL. 1. MARRIED WOMEN-ESTOPPEL AGAINST BY AGREEMENT.-If, after judg ment has been entered on a mechanic's lien against husband and wife, counsel enter into an agreement to amend the record so as to change the given name of the wife, strike off the judgment, and permit the judgment defendants to file an affidavit of defense, the wife is estopped to subsequently repudiate such agreement. Jobe v. Hunter, 639. 2 BANKS AND BANKING.If the holder of a check, relying upon the statements of the officers of the bank on which the check is drawn, is induced to take a course different from that which he otherwise would have taken, and is thereby misled to his prejudice, the doctrine of estoppel applies. Simmons Hardware Co. v. Bank, 700. IF, AFTER THE EXECUTION of a paper styled therein as a will, but purporting to give all the property of the signer to another person, a sister of the signer executes another paper that she will not make any claim of the property or estate of such signer, she is estopped from thereafter asserting any claim of title to such property. Evenson ▼. Webster, 802. See CORPORATIONS, 21; JUDGMENTS, 4. EVICTION. Bee LANDLORD AND TENANT. EVIDENCE. L JUDICIAL NOTICE. THE COURTS WILL TAKE JUDICIAL NOTICE OF THE VERNACULAR LANGUAGE OF THE PEOPLE AND ITS MUTATIONS, and hence will take notice whether given words, letters, and figures are or are not couched in ordinary language in use by the court and people. Power v. Bowdle, 511. 2 JUDICIAL NOTICE WILL BE TAKEN BY THE COURTS OF A USAGE WHICH HAS BECOME GENERAL, but if a usage is special, that is, limited to a particular locality, or business, or class of people, this rule is often inapplicable, and evidence may be received to show the existence of the alleged usage. Power v. Bowdle, 511. & JUDICIAL NOTICE WILL BE TAKEN OF SUCH ORDINARY ABBREVIATIONS AS ARE IN COMMON USE. Power v. Bowdle, 511. 4 PRESUMPTION AGAINST PRESUMPTION.-IF THE PAPERS AND RECORDS in an old case, wherein there was a verdict and judgment, are not to be found, the presumption that the clerk did his duty in recording the papers is overcome by the stronger presumption that the court had before it the necessary proceedings to authorize the verdict and judg. ment in question. Wiggins v. Gillette, 123. 6. WILLS-EVIDENCE TO AID CONSTRUCTION OF.-Parol evidence is admissible to show the circumstances surrounding a testator at the time of making his will, in order to arrive at a proper construction of its terms. White v. Hulland, 87. & RES JUDICATA.-WHEN THE RECORD DOES NOT SETTLE THE QUESTION oral evidence is admissible to show what was in fact decided. Fahey v. Esterley Machine Co., 554. 7. RES JUDICATA.-The records on a former appeal in the same action may be looked into for the purpose of ascertaining what facts and questions were then before the court. Plymouth County Bank v. Gilman, 782. & A MARRIAGE CERTIFICATE IS ADMISSIBLE IN EVIDENCE without express proof that it was signed by the priest who performed the ceremony, where it is shown that the parties were married by a priest in church, and there received the certificate, as this is evidence tending to show that the signature attached thereto, purporting to be that of the offici ating priest, is genuine; and that it was he who gave them the certif cate. Fratini v. Caslini, 843. 9. Book Account Against Married Woman is not proof prima facie el services rendered, and an express undertaking of such married woman to subject her separate estate to liability for their payment. Moore ▾ Copley, 664. 10. PHOTOGRAPHS are admissible in evidence of members of plaintiff's family when they are testified to as being correct likenesses, for the AM ST. REP., VOL XLIV. — 68 |