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The deed was not a legal conveyance, but the agreement having been performed by the maintenance of the father; on his death it would be supported in equity as an estoppel: Id.
ESTOPPEL. See Deed.
FRAUDS, STATUTE OF.
Parol Contract for Sale of Land.-Proof of a parol contract for the sale of land, delivery of possession pursuant thereto, part payment of the purchase money and valuable improvements, are the full nieasure of what is required to take a case out of the Statute of Frauds: Milliken v. Dravo, 67 Penna.
Contributory Negligence.-Where the plaintiff's gig was broken in passing a depression in the highway, it was held, that he was entitled to recover for the injury, provided the accident happened through the insufficiency of the road and without any lack of ordinary care on the part of the plaintiff in the mode of driving and in discovering any imperfection in the gig, although it was unsafe and its defects contributed to the accident: Fletcher v. Town of Barnet, 43 Vt.
Pent Road-Jurisdiction―Justice of the Peace.-In an action against an individual for obstructing a public pent road alleged in the declaration and proved to have been laid through the defendant's land, the title to land is not so involved as to oust the jurisdiction of a justice to try the case. The right to recover would not depend on the defendant's ownership of the land: Bell v. Prouty, 43 Vt.
HUSBAND AND WIFE. See Deed.
Appeal from Order granting Alimony-Reference as to. This court, at general term, can not only entertain an appeal from an order granting alimony, but may order a reference, to ascertain a suitable amount to be allowed: Galinger v. Galinger, 61 Barb.
Decree for Arrears.-A decree for divorce should not direct the payment, by the defendant, of arrears of alimony. The plaintiff should be left to enforce the payment of the alimony previously ordered, in the usual way: Id.
Amount-Where the defendant's property, over and above the debts owing by him, amounted to but $12,550; Held, that alimony to the amount of $600 annually was full as much as should have been allowed to the plaintiff: Id.
Assignment of Policy without Consent.-One of the conditions to a policy of insurance was that it should not be assigned without the consent of the company endorsed on it. In case of assignment without such consent, whether of the whole policy or an interest in it, the liability of the company should thenceforth cease. The assured assigned the policy as collateral security for a lien against the property insured without obtaining the consent of the company; the property was
burned; afterwards the assured paid the lien. Held, that he could not recover for the loss, not having had the consent of the company to the assignment: Ferree v. Oxford Ins. Co., 67 Penna.
Policy-Assignment-Chancery.-When the charter of an insurance company provides that a sale of property insured shall render the policy thereon void, but provides further that the grantee having the policy assigned to him may have the same ratified and confirmed to him, &c., upon application to the directors and with their consent, within thirty days next after such alienation, by giving security, &c., and this was incorporated in the policy of insurance, which was to the assured, his heirs and assigns, it was held that the sale did not render the policy void, it having been assigned to the grantee at the time of the sale; and the assignee having complied with the terms of the policy in making the application to have the assignment ratified and no objection existing to the person of the assignee, the company was bound to ratify the assignment: Boynton v. Farmers' Ins. Co., 43 Vt.
Therefore where under these circumstances the premises were destroyed by fire before the application for ratification of the assignment reached the company, and on receiving it the directors refused to ratify the assignment, it was held that the policy was still in force in favor of the assignee and he was entitled to a decree in his favor against the company for the same amount that his grantor would have recovered had there been no sale and conveyance of the property: Id.
JUDGMENT. See Attorney.
LANDLORD AND TENANT.
Estate at Will-Tenancy from Year to Year-Convertibility-Notice -Trespass.-An estate at will is converted into a tenancy from year to year by the payment of rent; and the conversion is wrought, not by the length of time that the tenant holds and pays rent, but by the fact that the tenant enters and holds under a stipulation to pay annual rent, and pays accordingly: Silsby v. Allen, 43 Vt.
When the estate becomes converted to a tenancy from year to year, six months' notice of the termination of the tenancy, and looking to the end of the year, is necessary: Id.
Innuendo-Indictment.—It is sufficient in indictments that the charge be stated with so much certainty, that the defendant may know what he is called to answer and the court how to render proper judgment. In criminal pleading, courts should look more to substantial justice than artificial nicety: Commonwealth v. Keenan, 67 Penna.
Where no new fact is essential to the frame of an indictment for libel or to be found by the grand jury as the ground of a colloquium which cannot be dispensed with and the only object of an innuendo is to give point to the meaning of the language, it is not proper to quash the indictment on the ground that the innuendo may be supposed to carry the meaning of the language beyond the customary meaning of the word. It is for the jury to say whether the meaning averred in the innuendo expresses the true meaning of the word: Id.
A grand jury may ignore a count, but cannot find less than the whole of any one count: Id.
A petit jury may find part of a count, if it be in itself a substantial offence within the charge in the indictment: Id.
If some of the innuendoes in an indictment for libel extend the meaning of parts too far, but there be others sufficient to give point to it, the jury may convict under the latter alone: Id.
If all the innuendoes be defective, the prosecutor has a right to proceed, to subject the defendant to costs: Id.
A petit jury may impose costs on a defendant under a defective indictment: Id.
Courts refuse to quash where the indictment is for a serious offence unless on the clearest and plainest ground, but will compel the party to demur, to move in arrest of judgment or to a writ of error: ld.
LIS PENDENS. See Attachment.
Consent of Landlord.-A landlord in writing extended the lease of his tenants in consideration that they would make certain improvements "at their own cost." The improvements were made. The material-man entered a lien against the building under the Acts of May 1st 1861 and February 16th 1865, authorizing liens for alterations, with the proviso, that there shall be no lien where the alteration has been made by the lessee "without the written consent of the owner." Held, that the premises were not liable to the lien: McClintock v. Criswell, 67 Penna.
The consent to repair in the agreement was only upon the condition of payment by the lessees and was not within the acts: Id.
The consent intended by the acts is an absolute consent, consistent with the right to do the work on the credit of the building: Id.
Negligence-Injury by Falling of a Pole in Street.-Where a street in an incorporated town has been opened and graded by the town authorities and under their jurisdiction, although a portion of it may have been conceded as an easement to a railroad, the authorities are not relieved from the obligation to remove dangerous nuisances: Norristown v. Moyer, 67 Penna.
The use by a citizen of public ways is that of transit only, with such stoppages as business, necessity, accident, or the ordinary exigencies of travel may require: Id.
Loungers who occupy the public highway are obstructions of the public right of way and nuisances: Id.
A railroad by ordinance of the town council and Act of Assembly was laid upon a street; the plaintiff loading a cart on the railroad track from a car was in the street for a lawful purpose: Id.
The plaintiff whilst loading his cart was injured by the falling of a pole in the street, erected by citizens years before, the pole having become rotten. Held, that it was the duty of the town to have had the pole removed and they were liable for the injury to the plaintiff, whether the neglect was wilful or not: Id.
It was not necessary that the town should have had notice of the con dition of the pole: nor it was material that the pole was in such part of the road as not to obstruct the travel: Id.
After the plaintiff was hurt money was raised by charitable subscription and paid to him; this was not to be taken into consideration in estimating damages: Id.
NEGLIGENCE. See Highway, Municipal Corporation, Railroad.
Special Partner-Execution.-V. & S. entered into articles of limited partnership, V. as special partner to contribute $3000 in cash; he contributed in cash about $700, and the remainder in goods; no appraisement of the goods was made and the sign was in the name of S. only, &c. Held, that under the Act of March 30th 1865, V. was to be treated as a general partner: Vandike v. Rosskam et al., 67 Penna.
The goods contributed by V. were subject to all the incidents of property of a general partnership, and were not the sole property of V. : Id.
On an execution against one partner the sheriff can levy only on the interest of the partuer in the firm and cannot seize the goods of the firm: Id.
Firm goods were levied on as the property of S., one of the partners: in an interpleader, the issue was to try whether the goods were V.'s, the other partner. The court in answer to a point charged that the sheriff could levy only S.'s interest in the firm, but added he might seize the corpus. Held, that the point was irrelevant, and the qualification did V. no harm: Id.
If the issue had been whether the goods were the firm's, the qualification would have been error: ld.
RAILROAD. See Municipal Corporation.
Negligence. In an action for death by negligence from cars striking a cart on scales near to a railroad track, evidence was proper that after the accident the track was removed to a greater distance: West Chester and Philadelphia Railroad Co. v. McElwee, 67 Penna.
If the track was too near the scales, a higher degree of care was necessary to avoid the accident: Id.
What is negligence is always a question for the jury, when the measure of duty is ordinary and reasonable care: Id.
When the standard of the degree of care shifts with circumstances, it is always for the jury: Id.
When the standard is fixed; when the measure of duty is defined by law and is the same under all circumstances, its omission is negligence and may be so declared by the court: Id.
When there is such an obvious disregard of duty and safety as amounts to misconduct, the court may declare it to be negligence: Id.
VENDOR AND VENDEE. See Contract.
AMERICAN LAW REGISTER.
STAY AND EXEMPTION LAWS.
THE Constitutionality of "Homestead" and "Exemption" laws was sufficiently treated of in the article published in this journai in March of last year, and as the subjects of our caption are so nearly related in principle in this respect, we shall only incidentally refer to the constitutionality of such laws.
We purpose speaking more particularly of their policy and morality, and perhaps of what we deem experience to have shown should have been the construction of that clause of the Constitution of the United States prohibiting the passage of laws impairing the obligation of contracts.
We are satisfied that a very mistaken view prevails among the public, if not among legislators, as to the practical working of stay laws, even when they are not retroactive. They are always ostensibly passed for the benefit of the poor, as a means of their protection against the rapacious rich; whereas they practically serve as a shield to those who deserve and need it least, and fail to protect those for whose especial benefit they are claimed to be intended. BRONSON, C. J., took a correct view of legislation of this character when he said that "such laws sometimes have their origin in a sympathy for unfortunate debtors, and a feeling of kindness toward the poor. But it will, I think, be found that they more commonly spring from a desire to escape the just punishment of idleness, extravagant living, and gambling specu(201)
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