ing indictments; Blau v. State, 82 Miss. 519, 34 So. 153, sustaining quashing of indictment returned by grand jury in accordance with expressed charge of court that evidence was sufficient upon which to find indictment, and referring particularly to annotation in 28 L. R. A. 367.

Cited in footnote to State v. Brewster, 42 L. R. A. 444, which holds indictment not avoided by presence of stenographer of state's attorney in grand jury room during taking of testimony.

Cited in note (28 L. R. A. 368) on improper influence on, or interference with, grand jury.

28 L. R. A. 375, BAIRD v. BAIRD, 145 N. Y. 659, 40 N. E. 222. Parol evidence concerning writings.

Approved in Parmerter v. Colrick, 20 Misc. 205, 45 N. Y. Supp. 748, holding oral evidence admissible as to purposes and conditions of delivery of instrument for payment of money, if attempted enforcement would violate agreement or constitute fraud; Lannon v. Lynch, 160 N. Y. 488, 55 N. E. 5, holding parol evidence admissible in action between parties that note or security for payment of money was in fact delivered for purpose quite different from that appearing on its face; Megowan v. Peterson, 173 N. Y. 6, 65 N. E. 738, holding parol evidence admissible in action between parties that trustee of insolvent firm signing note, with word "trustee" after his name, was not personally liable, though representative character not shown on face of note; Underwood v. Greenwich Ins. Co. 161 N. Y. 425, 55 N. E. 936, holding parol evidence admissible that parties intended that binding slip, stating that it should be void on delivery of policy, should not survive rejection of policy and notice to that effect; Snyder v. Ash, 30 App. Div. 185, 51 N. Y. Supp. 772 (dissenting opinion), majority holding parol evidence incompetent that mortgage executed by husband and wife, covering undivided interest of both, was executed by wife merely to release inchoate right of dower in husband's interest; Jamestown Business College Asso. v. Allen, 172 N. Y. 302, 92 Am. St. Rep. 740, 64 N. E. 952 (dissenting opinion), majority holding parol evidence inadmissible to show condition upon which promissory note was delivered. Criticised in Newman v. Baker, 10 App. D. C. 200, holding parol evidence inad missible that parties agreed that deed delivered and accepted should not take effect unless one of parties should do certain acts within a year.

As to consideration.

Approved in Sparling v. Wells, 24 App. Div. 587, 49 N. Y. Supp. 321, holding declarations of mortgagee while owner, that it was without consideration, admissible against assignee of mortgage; Church v. Case, 110 Mich. 625, 68 N. W. 424, holding parol evidence admissible that mortgage was executed without consideration, as mere form, without intent that it should be enforced; Hanes v. Sackett, 56 App. Div. 615, 67 N. Y. Supp. 843, holding parol evidence admissible that mortgagor on conveying premises agreed that grantee should receive balance not yet received from mortgagee; Williams v. Whittell, 69 App. Div. 346, 74 N. Y. Supp. 820, suggesting that parol evidence was admissible as to consideration for execu tory agreement, although in form of instrument under seal, reciting consideration of "$1 and other valuable consideration;" Nortrip v. Hermans, 16 Misc. 314. 39 N. Y. Supp. 415, holding parol evidence admissible as to actual consideration for assignment of contract for purchase of land; Hess v. Allen, 24 Misc. 396, 53 N. Y. Supp. 413, holding oral evidence admissible, in action on contract to pay

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law firm stated annual salary, alleged to be illegal in part because of agreements by attorneys to allow defendants percentage of fees from persons introduced by them, that it was represented that such fees would reduce amount to be paid to attorneys; Mygatt v. Coe, 147 N. Y. 466, 42 N. E. 17, holding parol evidence that husband received part of consideration expressed in deed of wife's premises in which he joined admissible on issue as to his possession of the premises; Medical College Laboratory v. New York University, 76 App. Div. 59, 78 N. Y. Supp. 673, holding parol evidence admissible to show conditions and consideration of conveyance, and failure thereof.

Estoppel by contract.

Approved in Gibbins v. Campbell, 148 N. Y. 414, 42 N. E. 1055, holding discharge of mortgage proper, where mortgagee accepts bequests in will of his father in which he asserted his ownership of same and directed its discharge; Bennett v. Bennett, 50 App. Div. 129, 63 N. Y. Supp. 387, holding unsealed instrument. signed and acknowledged by son of testatrix after her death, reciting his release of all right, title, and interest in her estate in consideration of transfer of land by her to him, and acknowledging full satisfaction of all claims, ineffectual to release his interest; Orth v. Orth, 145 Ind. 210, 32 L. R. A. 308, 57 Am. St. Rep. 185, 42 N. E. 277 (dissenting opinion), majority holding parol promise to testator by sole beneficiary of will to dispose of part of property in favor of another person invalid as to realty or personalty coming within statute of frauds.

28 L. R. A. 379, SULZ v. MUTUAL RESERVE FUND LIFE ASSO. 145 N. Y. 563, 40 N. E. 242.

Comity.

Approved in Re Learned, 12 Misc. 564, 34 N. Y. Supp. 189, holding decision of foreign court as to commissions of committee of lunatic who appeared in action before such court entitled, by way of comity, to weight and respect by court appointing him.

Suits in different jurisdictions on insurance policy.

Approved in Equitable Life Assur. Soc. v. Brown, 187 U. S. 314, 47 L. ed. 193, 23 Sup. Ct. Rep. 123, sustaining right of suit against New York insurance company on policy payable there by one having possession of policy at domicil of insured in other state or territory; Traflet v. Empire L. Ins. Co. 64 N. J. L. 391, 46 Atl. 204, holding judgment against insurance company in action in New York by administratrix appointed in that state, bar to action in other state where insured died, by administrator appointed in latter state.

Distinguished in Steele v. Connecticut General L. Ins. Co. 31 App. Div. 398. 53 N. Y. Supp. 373, Reversing 22 Misc. 253, 49 N. Y. Supp. 647, holding that action on policy by administrator appointed in state of domicil of insured does not abate on commencement of action by ancillary administrator appointed in state where insurer incorporated and loan made, secured by assignment of policy. Service on foreign corporation.

Approved in Steele v. Connecticut General L. Ins. Co. 31 App. Div. 397, 53 N. Y. Supp. 373, holding service on foreign insurance company by delivering writ to superintendent of insurance effective.

Binding effect of by-laws on member of association.

Cited in Clark v. Mutual Reserve Fund Life Asso. 14 App. D. C. 173, 43 L. R. A.

395, holding member of mutual insurance company conclusively presumed to know its constitution and by-laws.

Who are legal representatives, etc., of deceased.

Approved in Leonard v. Harney, 63 App. Div. 299, 71 N. Y. Supp. 546, holding widow of insured entitled to insurance where application provides for payment to such person as applicant directs in his will, which bequeathed policy to her, although policy itself was made payable to insured or his "legal representatives." Who entitled to recover on policy.

Distinguished in Grogan v. United States Industrial Ins. Co. 90 Hun, 523, 36 N. Y. Supp. 687, holding instrument by which insured "requests and authorizes" company to pay the insurance to specified person entitles latter to maintain action on policy.

l

- Legal or personal representatives.

Approved in Geoffroy v. Gilbert, 5 App. Div. 102, 38 N. Y. Supp. 643, holding personal representative of daughter of insured entitled to policy payable to daughter or her legal representatives, where daughter dies before insured; Beil v. Supreme Lodge, K. of H. 80 App. Div. 614, 80 N. Y. Supp. 751, holding widow suing as individual on policy cannot waive prohibition against physician disclosing infformation obtained from patient, under statute authorizing waiver by "personal representatives" only; Re Smith, 42 Misc. 647, 87 N. Y. Supp. 725, holding that death certificate "payable to estate" passes to persons competent to take under statute of distributions, where order was established, not to increase estate of members, but to provide for proper beneficiaries.

Cited in note (30 L. R. A. 610) on who are "legal representatives" within meaning of life insurance policies.

28 L. R. A. 384, PEOPLE v. RATHBONE, 145 N. Y. 434, 40 N. E. 395.
Construction of Constitution.

Approved in Re Brenner, 35 Misc. 309, 71 N. Y. Supp. 44, holding Constitution of 1894 adopted with reference to all local offices then existing; Rathbone v. Wirth, 6 App. Div. 311, 40 N. Y. Supp. 535; Re Sweeley, 12 Misc. 182, 33 N. Y. Supp. 369; People ex rel. McClelland v. Roberts, 91 Hun, 111, 36 N. Y. Supp. 677, Affirming 13 Misc. 457, 34 N. Y. Supp. 641,- holding that it will be presumed that constitutional convention had existing laws in view when framing Constitution; Smith v. St. Lawrence County, 148 N. Y. 193, 42 N. E. 592, and People ex rel. Balsom v. Mosher, 163 N. Y. 36, 79 Am. St. Rep. 552, 57 N. E. 88, Affirming 45 App. Div. 74, 61 N. Y. Supp. 452, requiring effect to be given to all provisions of Constitution, if possible; People ex rel. McClelland v. Roberts, 91 Hun, 110, 36 N. Y. Supp. 677, Affirming 13 Misc. 455, 34 N. Y. Supp. 641, holding that intent and meaning of framers of, and people adopting, Constitution are to be gathered, if possible, from plain and ordinary meaning of words used; Re Brenner, 35 Misc. 315, 71 N. Y. Supp. 44, holding provision in new Constitution as to election of officers whose offices may "hereafter" be created not referable back to earlier Constitution so as to include office created before new Constitution; State ex rel. Childs v. Sutton, 63 Minn. 150, 30 L. R. A. 632, 56 Am. St. Rep. 459, 65 N. W. 262, denying wer of court to indulge in speculation as to meaning or wisdon. of plain constitutional provision; People v. Dooley, 69 App. Div. 545, 75 N. Y. Supp. 350 (dissenting opinion), as to lack of power to add to, or take away

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from, Constitution by judicial interpretation; People v. Wadhams, 176 N. Y. 9, 68 N. E. 65, holding that public officer accepting privilege, accorded by pass, of riding in palace car, accepts free transportation within prohibition of constitutional provision.

Who are public officers, and their powers.

Approved in Dempsey v. New York C. & H. R. R. Co. 146 N. Y. 294, 40 N. E. 867, holding railroad policeman a public officer prohibited from receiving free pass for his own benefit; Merzbach v. New York, 163 N. Y. 22, 57 N. E. 96, sustaining right of person holding office of messenger and librarian in district attorney's office to recover for services as notary; Re Searls, 155 N. Y. 339, 49 N. E. 938, holding commissioner appointed to take testimony for use in other state empowered to determine in first instance pertinency and propriety of questions asked

witness.

Cited in dissenting opinion in People ex rel. MacDonald v. Leubischer, 34 App. Div. 596, 54 N. Y. Supp. 869, Affirming 23 Misc. 497, 51 N. Y. Supp. 735, majority denying power of foreign notary appointed as commissioner to take testimony of certain witnesses for use in foreign court, to punish for contempt subpoenaed witness refusing to answer impertinent questions.

28 L. R. A. 386, GIPPS BREWING CO. v. DE FRANCE, 91 Iowa, 108, 51 Am. St. Rep. 329, 58 N. W. 1087.

When title passes.

Approved in Buckingham v. Dake, 50 C. C. A. 503, 112 Fed. 270, holding that title to personalty does not pass until delivery, under contract by which seller is to deliver at specified place and pay freight; Julius Winkelmeyer Brewing Asso. v. Nipp, 6 Kan. App. 736, 50 Pac. 956, holding sale of liquor made at place of delivery where freight charges are paid in first instance by purchaser, but are to be deducted from purchase price; Cameron v. Fellows, 109 Iowa, 538, 80 N. W. 567, holding that sale of beer takes place at customer's saloons, where agent having it in cold storage building takes orders at saloons, delivers liquor there, and collects his pay at same place.

Cited in Wind v. Iler, 93 Iowa, 321, 27 L. R. A. 221, 61 N. W. 1001, holding that title to liquor purchased in Nebraska, by resident of Iowa, and paid for on arrival of bills before liquor itself, passes in Nebraska although right is retained to test liquor on arrival and return that found unsatisfactory.

What is place of contract.

Cited in Emerson Co. v. Proctor, 97 Me. 364, 54 Atl. 849, holding that written proposal signed by one of parties in Maryland, and accepted and signed by the other in Maine, becomes Maine contract.

Cited in note (61 L. R. A. 426) on conflict of laws as to sales of intoxicating liquor.

28 L. R. A. 389, RESSEGIEU v. SIOUX CITY, 94 Iowa, 543, 63 N. W. 184. Right to damages for change of street grade.

Approved in Whaples v. Waukegan, 95 Ill. App. 32, holding paving at other grade than that fixed by ordinance done by city at its peril; Buser v. Cedar Rapids, 115 Iowa, 685, 87 N. W. 404, holding owner entitled to damages on raising grade of street to height originally fixed by ordinance, althoug】 damages pre

viously paid after raising grade to half height fixed; Farmer v. Cedar Rapids, 116 Iowa, 325, 89 N. W. 1105, denying recovery to abutting owner improving premises according to actual grade, when different grade has been established by ordinance, for damages from city's bringing street to established grade.

Cited in footnotes to Searle v. Lead, 39 L. R. A. 345, which denies right to grade street in front of premises without making compensation; Less v. Butte, 61 L. R. A. 601, which requires compensation for injury to abutting property by original establishment of street grade.

28 L. R. A. 391, AXLINE v. SHAW, 35 Fla. 305, 17 So. 411.

What passes as appurtenance.

Cited in footnote to Forrest v. Vanderbilt, 52 L. R. A. 473, which holds naphtha launch not appurtenance of yacht with which used as tender.

Riparian rights.

Cited in footnote to New England Trout & Salmon Club v. Mather, 33 L. R. A. 569, which denies right of action for mere crossing of uncultivated land to reach public waters for purpose of fishing.

Cited in note (40 L. R. A. 393) on separation of riparian rights from upland. Title to land under water.

Cited in footnote to People v. Silberwood, 32 L. R. A. 694, which holds fee of land under waters of Lake Erie in state.

Cited in note (45 L. R. A. 239) on title to land between high and low water marks.

28 L. R. A. 394, HERR v. CENTRAL KENTUCKY LUNATIC ASYLUM, 97 Ky. 458, 53 Am. St. Rep. 414, 30 S. W. 971.

Injunction against nuisance.

Distinguished in Columbia Ave. Sav. Fund, S. D. Title & T. Co. v. Prison Commission, 92 Fed. 803, sustaining right to injunction against polluting waters of stream used for supplying city, only when practically certain that substantial injury to plaintiff or detriment to public will follow; Deaconess Home & Hospital v. Bontjes, 104 In. App. 493, sustaining injunction against continuance of nuisance by charitable institution not suable at law.

Liability of public corporation.

Cited in footnote to Hearns v. Waterbury Hospital, 31 L. R. A. 224, which denies liability of charitable hospital for wrongful neglect of servants.

Distinguished in Gross v. Kentucky Bd. of Managers, 105 Ky. 850, 43 L. R. A. 706, 49 S. W. 458 (dissenting opinion), majority sustaining right to sue board of managers of World's Columbian Exposition for indebtedness due from it.

28 L. R. A. 395, STATE v. FARRINGTON, 59 Minn. 147, 60 N. W. 1088. Sufficiency of indictment.

Approved in State v. Nelson, 79 Minn. 376, 82 N. W. 674, holding indictment charging defendant with embezzlement of money which came into his possession as assignee for creditors which money is also alleged to be property of assignor, without further allegations as to ownership, insufficient.

Cited in note (28 L. R. A. 395) on limitation of general allegations in indictment by specific allegations.

L. R. A. AU.-VOL. III.-67.