998 prosecution for obtaining property by false pretenses, although the claims were only primary proof, if they had gone into evidence without objection or demand for full proof. Id. 16. Evidence taken under a petition for the restoration of property which a receiver has permitted to be taken out of his possession cannot be considered by the court in determining the sufficiency of the receiver's answer in a proceeding against him for contempt for such conduct, where it is not introduced as evidence in the contempt proceeding; but, if the answer is sufficient to acquit the receiver, he must be discharged. 462 Oster v. People (Ill.) Declarations. 17. Both a gift of an insurance policy Dying declarations. 19. A dying declaration is not inadmissible in evidence because the decedent did not impart to the one to whom it was made her belief in her impending death, if the exist ence of that fact before the declaration was made is established by other evidence. 353 Worthington v. State (Md.) 353 24. To lay a foundation for the admission of dying declarations by showing a belief in impending death the witness is not required to give the exact words used by de cedent. Worthington v. State (Md.) Relevancy and materiality. As to Total Loss of Insured Building, see INSURANCE, 27. See also supra, 12-16. 25. Upon the question of the reasonableness of conditions in a shipping receipt, evidence is admissible that the consignor was offered a choice of two modes of shipment, one with the conditions chosen, at a New certain rate, and another without conditions, at a higher rate. Mears v. York, N. H. & H. R. Co. (Conn.) 884 26. As bearing upon the question of the condition of property when delivered by a carrier to the consignee, evidence is admissible that the consignee's agent looked at Id. it and made no complaint. 27. One who moved property alleged to have been injured while in the carrier's possession from the railroad station to the consignee's house in fine weather cannot be asked what care he took on rainy days of property committed to his care. Id. 28. In an action for injury to a passenger at a railroad station by being knocked down by scuffling hackmen on a passageway leading to the baggage room, evidence that such scuffling on the part of hackmen was of frequent occurrence, and had caused annoyance and discomfort, if not injury, to other passengers, is admissible as tending to show the danger connected with the use of the passageway, and knowledge, or opportunity for knowledge, on the part of the railroad employees of the existence of such danger. Exton v. Central R. Co. (N. J. L.) 508 29. Defendant in an action to recover for 20. Dying declarations of a woman whom defendant is charged with killing by means of an abortion are admissible in evidence, where they were accompanied by constant affirmation of expectancy of death, and beg-personal injuries caused by the negligence ging the doctor to save her, as she was dying, although ne held out hope of reId. covery. 21. A dying declaration as to who committed the homicide is not inadmissible be cause the name was suggested by a third person and merely assented to by decedent. Id. 22. Dying declarations of a woman whose death was caused by an abortion, that it was committed by one designated merely by the appellation of "Dr." and a surname, are not inadmissible in evidence against an accused bearing that name as not identify ing him, as the question of identity is for Id. the jury. 23. An instrument prepared by an injured person in full possession of his mental faculties and in confident hope of recovery, to be signed as a dying declaration in the event of subsequent conviction of fatal termination of the injury, is not, athough executed under such conviction, admissible in evidence as a dying declaration. Harper v. State (Miss.) 372 of his servant cannot show that the servant was a careful, sober, and painstaking man, when no attempt has been made to show that he was either generally careless, inattentive, or dissipated. Smith v. Middeton (Ky.) 484 30. Upon trial of a merchant for obtaining property by false pretenses evidence is admissible that he had transferred large quantities of goods bought in regular course of business to other stores operated in the names of his wife and relatives and the wife no receipts of his bookkeeper, on a day when the stores were apparently closed, that the latter stores below were taken for them, and that they were sold from Blum v. State (Md.) cost. 322 31. Evidence of expert comparison of the books of one charged with obtaining propa commercial erty by false pretenses with a statement furnished by accused to agency is not admissible, if it is not shown that accused made the statement with the intent to use the agency as an instrument in accomplishing a fraud. Id Weight; sufficiency. 32. A finding of gift of an insurance policy, including delivery sufficient to make it effective, is supported by declarations of the insured that the policy is the donee's, although it is found among his papers at his banker's after his death. Lord v. New York L. Ins. Co. (Tex.) 596 33. Absence of assets so as to make a grant of administration void is not shown by testimony of the administrator in an action against a railroad company for negligently killing his intestate, that the estate is an unsettled claim against the defendant, and that he does not think that deceased, who died a nonresident, had any other estate in the state. Boston & M. Railroad v. Hurd (C. C. App. 1st C.) NOTES AND BRIEFS. 193 Evidence; mode of proving foreign law and judicial decisions. 141 Burden of proof of husband's debt to wife on account of property received from her: (I.) Scope; (II.) in contests between themselves or persons claiming under them: (a) under the common-law rule; (b) under the civil law; (c) under married women's acts: (1) statement and application of the general rule; (2) exception as to income or profits; (3) proof necessary to satisfy or shift burden; (III.) in contests with creditors: (a) general statement as to; (b) -effect of relationship of parties on preliminary burden: (1) rules generally applicable; (2) rule leaving burden with creditor; (3) rule placing burden on husband and wife: (a) generally; (b) proof necessary to satisfy or shift burden; (c) burden as to consideration for transfer: (1) general rules; (2) proof necessary to satisfy or shift burden: (a) general rules as to degree; (b) recitals in conveyance as evidence; (c) common-law rule as to effect of husband's possession; (d) effect of husband's possession under married women's acts; (e) sufficiency-as to ownership and transfer by wife; (f) sufficiency-as to effect of possession by husband; (g) sufficiency-as to other miscellaneous matters; (3) rule as to judgment taken by wife against husband: (d) burden as to fraud: (1) the general rule; (2) proof necessary to satisfy or shift burden; (IV.) exceptions to the above rules; (V.) conclusion. 817 Burden of proof; as to sale of commodity for future delivery. 876 ditens: ex Dying declarations as evidence:-(I.) In general; (II.) what declarations admissible: (a) of person for whose death the accused is not on trial; (b) of wife against husband; (c) of husband against wife; (d) of infant; (e) of slave; (III.) in what class of cases admissible: (a) in civil cases; (b) in criminal cases: (1) in general; (2) in actions in which death is involved, but not the subject of the inquiry; (IV.) in favor of defendant; (V.) subject of declarations: (a) general rule; (b) antecedent and subsequent matters; (c) opinions and conclusions; (VI.) mental and physical con(a) deceased actually in tremis; (b) sense of impending death; reaflirmance: (1) general rule; (2) apprehension of immediate death; (3) abandonment of hope of recovery; renewed hope; (4) possession of mental faculties; (5) how evidenced: (a) statements of deceased, and surrounding circumstances combined; (b) statements of deceased; (c) circumstances in absence of statement; (d) expression of physician's opinion; (e) sending for physician; (f) sending for priest, sion of witness; officer's certificate; (6) etc.; (g) arranging business; (h) concluburden and degree of proof; (c) belief in after accountability; (d) frame of mind; threats of deceased; (VII.) time elapsing between declaration and death; (VIII.) form and completeness of declaration; oral or written: (a) admissibility of writing; necessity; (b) oral testimony of declarations reduced to writing; (c) partly writ ten and partly oral; (d) substance or exact words: (e) by signs; (f) incompleteness; (g) made in answer to questions; (h) declarations made at different times; (i) proof of condition, and declaration by different witnesses: (j) miscellaneous; (IX.) competency of declarant as witness; (X.) when there is other evidence of same facts; (XI.) questions for court or jury; (XII.) right to impeach or contradict, and to sustain declarant and witness; (XIII.) weight to not liable to an action for false imprisonwhich entitled; (XIV.) questions of prac-ment, although the facts stated are held not tice; (XV.) presence or absence of accused; to have constituted a crime which would (XVI.) accused not prejudiced; (XVII.) authorize an arrest. Whaley v. Lawton women in travail. 353 (S. C.) Of other accident to show landlord's knowledge of defective condition of premises. NOTES AND BRIEFS. 649 False imprisonment; liability to, of one 336 procuring issuance of void warrant of ar To identify actual grantor conveying rest; liability of person making affidavit on land by fictitious name. 903 which warrant issued; liability for magistrate's error. Proof of contempt beyond doubt required. EXCEPTIONS. reasonable 462 FALSE PRETENSES. To Propositions of Law, see TRIAL, 1. EXECUTION. Levy of, see LEVY. NOTES AND BRIEFS. 649 Enforcing stockholders' liability by. 229 FEES. AND ADMINISTRA EXECUTORS When Absence of Assets Shown, see Permitting Transfer of Stock by Execu- See also CORPORATIONS, 5. A claim in behalf of a nonresident against a railroad whose habitat is not shown to be limited to any county in the state, for negligently killing a passenger, may be assets in any county where administration is applied for, so as to give jurisdiction to the probate court to grant letters of administration. Boston & M. Railroad v. Hurd (C. C. App. 1st C.) NOTES AND BRIEFS. 193 Recovery for causing death, as part of assets; jurisdiction of probate court to grant administration; how defense taken that person improperly appointed administrator. 195 For Inspecting Coal Mines, see CONSTI- An exclusive right of fishing in a public navigable river cannot be established by prescription where it was not perfected before the state succeeded to the rights of the Crown, since, the state being without power to grant an exclusive right, none will be Enforcing stockholders' liability against. presumed. Slingerland v. International Con Power to sell property; authority to have transfer of stock entered in corporate books. 616 Handwriting of drawer of check or draft; duty of drawee, or acceptor, to know. 930 HOMESTEAD. 584 debtor and his daughter twenty-seven years Land occupied as a homestead by a old, during his lifetime, may be subjected to the claims of his creditors after his death Quarantine Law as Regulation of Com-intestate, although the daughter continues HEALTH. merce, see COMMERCE. As to Quarantine, see QUARANTINE. To prohibit the landing, within an infected district, of healthy persons from a vessel coming from a foreign port, is within the power of the board of health under La. act No. 192 of 1898, which authorizes the board to provide for the general sanitation of the state and the regulation of the isolation of cases of infectious or contagious diseases, and also for a maritime and land quarantine against places infected with such disease. Compagnie Francaise v. State Board of Health (La.) HIGHWAYS. 795 Requiring Abutting Owners to Repair Burden of Showing Care, see DENCE, 8. Question for Jury as to Defects, EVI see 762 to reside thereon and notwithstanding she is non compos mentis, under Kan. Gen. Stat. 1899, chap. 2442, providing that land occupied as a homestead by an intestate at the time of his death, and continued to be so occupied by the widow and children after his death, shall be exempt from distribution and the payment of debts, § 2444 providing that in case there is no widow the children shall be entitled thereto, and § 2445 providing that if the widow marry again, or when all the children shall reach their majority, the property shall be divided. Battey v. Barker (Kan.) NOTES AND BRIEFS. 33 Homestead; rights of child or children in homestead of parent:-(I.) Scope; (II.) rights during lifetime of owner: (a) the general rule; (b) as affected by conveyances and encumbrances by owner: (1) generally; (2) the rule under special statutory provision; (c) as affected by disposition of estate by will; (III.) descent or continuance to 1. When a duty to repair an adjacent family: (a) provisions for,-their purpose sidewalk is lawfully imposed upon a prop- and policy; (b) under the usual and ordierty owner, he is liable, according to the nary provisions; (c) under provisions conintention of the legislature, for all damages ferring title; (d) of homestead in comresulting from a failure or refusal to per-munity property; (e) dependence of right form that duty. Lincoln v. Janesch (Neb.) on existence of widow; (IV.) governed by what law; (V.) the selection or setting 2. A statute imposing upon lotowners apart: (a) under general provisions-necesthe duty of repairing sidewalks adjacent to sity of; (b) under laws providing for settheir property, and making them liable for ting off after death of owner: (1) purpose, injuries resulting from defective walks, does construction, and effect of such laws; (2) not impose on abutters an absolute duty to methods of; (VI.) who are children entitled repair on their own motion, but only a duty to take: (a) minor children; (b) adult to repair after being notified so to do by children; (c) unmarried daughters remainsaid authorities, where other sections give ing with family; (d) adopted children; (e) the mayor and council and street commis-grandchildren; (f) illegitimate children; sioner complete jurisdiction and control over streets and sidewalks, and provide that in case any lotowner refuses to repair his walk the proper officer may cause the walk to be built, and that the cost thereof shall be assessed against the property. Id. NOTES AND BRIEFS. Highways; municipal liability for failure to keep in safe condition; limitation of lot owner's liability over to city; paramount duty on municipality to repair sidewalks; lotowner's primary liability for failure to (g) constituent part of family; (VII.) necessity of indebtedness or insolvency; (VIII.) against what debts a protection: (a) the general rule; (b) exceptions; (IX.) in what property claimed; (X.) as affected by title or estate of parent; (XI.) as affected by domicil of child; (XII.) rights acquired with relation to other interests: (a) generally; (b) as against creditors; (c) as against executors or administrators of the deceased parent; (d) as against heirs; (e) as against the widow: (1) to joint or common enjoyment; (2) with reference to right |