INJUNCTIONS. TO PREVENT THE DISTURBANCE OF EASEMENTS. Con-
tinued.

3. Where the owners of part of an entire building propose to tear
down their part thereof to the destruction or great injury of the rights
of the owner for life of the remaining part of the building, consisting in
certain easements established during the unity of seizin, it was held,
that a court of equity had jurisdiction to entertain a bill to restrain the
injurious act. Morrison et al. v. King et al. 30.

INSANITY.

PRESUMPTION.

1. Every man is presumed to be of sane mind until the contrary is
shown; but if derangement or imbecility be proved or admitted at any
particular period, it is presumed to continue until disproved, unless the
derangement was accidental-caused by the violence of disease. Trish
et al. v. Newell et al. 196.

2. There is a distinction in the inferences to be drawn from proof
of an habitual or apparently confirmed insanity, and that which may
be only temporary. In the first place, proof is required to show a res-
toration; while, in the other, the party alleging insanity must bring his
proof of a continued derangement to that point of time which bears di-
rectly upon the subject in controversy. Ibid. 196.

3. It is no more a presumption of law that a person rendered uncon-
scious and incapable of mental action by a stroke of paralysis, will con-
tinue so for four months thereafter, than that he would if the same
effect was produced by a wound on the head. Such a result may follow
in either case, but the law will not so presume. Ibid. 196.

INSTRUCTIONS.

OF THEIR QUALITIES.

1. When each should be correct in itself without reference to others. In an
action against a railroad company to recover for personal injuries,
where the plaintiff's right to recover depends not only upon the fact of
negligence in the defendant, but also upon the degree of defendant's
negligence as compared with his own contributing to the injury, and
the evidence is conflicting and doubtful, his instructions should each
be correct in itself without reference to others in the series or those for
the defendant. In such case an instruction that if the defendant's serv-
ants were guilty of negligence, the defendant is liable therefor, is erron-
eous, in not further requiring the jury to consider the degree of the
plaintiff's negligence. Chicago & Alton Railroad Co. v. Murray, 326.

2. Assuming the existence of a contract. In a suit to recover damages
for the non-delivery of hogs under an alleged contract, the court in-
structed the jury as follows: "It is incumbent on the defendants, under
the contract alleged in plaintiff's declaration, to show an offer to per

!

INSTRUCTIONS. OF THEIR QUALITIES. Continued.

form, or some excuse for non-performance on their part, in order to
excuse themselves from liability to pay damages, if the evidence shows
that plaintiffs were ready and willing to perform their part of the
contract:" Held, not liable to the objection that it assumed the exist-
ence of the contract, and when taken in connection with the others
given could not mislead the jury. Bird et al. v. Forceman et al. 212.

3. Based upon the evidence. Where there is any evidence bearing
upon a question it is not error to give an instruction based upon the
fact sought to be established by such evidence. The weight of the evi-
dence is a question for the jury. Van Horn et al. v. Burroughs et al. 388.

4. Selecting isolated facts. The practice of selecting an isolated por-
tion of the evidence and basing an instruction on it, should not be
encouraged. But this court will not reverse for that reason alone, un-
less it can see that it probably misled the jury. Mix v. Osby, 193.

5. Should not be obscure. In an action to recover for work and
labor done, and materials furnished, in the erection of a church, it
appeared there was a special contract to complete the building by a
certain day at a certain price, payable in installments, and that the
plaintiff did not complete the same, defendants claiming that he had
abandoned the work. The court instructed the jury for the plaintiff,
that if they believed, "from the evidence, that defendants committed
the first breach of the contract by ignoring their obligations under it,
and on account of such breach by the defendants the plaintiff is entitled
to recover for the full amount of the work done by him at the time the
defendants took possession of the building, to be estimated according to
the original contract price, if the jury find from the evidence that such
work has not been all paid for:" Held, that the instruction was obscure
and calculated to mislead. The breach of defendants relied on to jus-
tify an abandonment should have been stated and left to the jury to be
found from the evidence. Cong'l Society of Evanston v. Hubble, 161.

6. Instructions should not only be correct in their propositions of
law, but should be expressed in clear and concise language, without the
use of words meaningless, or tending unnecessarily to embarrass the
opposite party. Trish et al. v. Newell et al. 196.

7. Need not be repeated. It is not error to refuse instructions when the
legal propositions contained in them are embraced in others which are
given. Bourne v. Stout, 261; Chicago & Alton Railroad Co. v. Murray, 326.
8. Instruction as to facts-not allowable. See JURY, 1.

INSURANCE.

MARINE INSURANCE.

1. Implied warranty. By the rules of the law merchant and the com-
mon law, every voyage policy of insurance of a vessel implies a war-
ranty of seaworthiness, and this warranty relates to the beginning of

the risk, and that is when the vessel sails. Seaworthiness at the com-
mencement of the voyage is a condition precedent; and if it does not then
exist the policy is void, and the insurers are not responsible for a sub-
sequent loss, even if it arises from another cause. Merchants' Ins. Co. of
Chicago v. Morrison, 242.

2. Extent of warranty. This implied warranty imports that the ship
is staunch and sound; of sufficient materials and construction, with
sufficient sails, tackle, rigging, cables, anchors, stores, and supplies; a
captain of competent skill and capacity; a competent and sufficient
crew; a pilot when necessary, and, generally, that she is, in every re-
spect, fit for the voyage insured. Ibid. 242.

3. Distinction as to time policy. But when a vessel was insured from
the 1st day of April to the 30th day of November, 1869, against perils
of the lakes, rivers, canals, fires, and jettison, excepting all losses, perils,
misfortunes, or expenses arising from incompetency of the master, or
insufficiency of the crew, or want of ordinary care and skill in naviga-
ting the vessel, and in loading, stowing, and securing the cargo, rotten-
ness, inherent defects, overloading, and all other unseaworthiness, etc.,
and the policy contained an express warranty that the vessel was then
in safety, and as to the business for which she was to be used, and the
same was destroyed by fire while in port, not resulting from unsea-
worthiness: Held, that this being a time policy, as distinguished from a
voyage policy, the law did not imply a warranty that the vessel should
be seaworthy when she set out upon her first voyage, and that the com-
pany was liable for the loss. Ibid. 242.

WRITTEN CONSENT-WAIVER.

4. A clause in a policy of insurance sued on made it void if gun-
powder was kept in the building insured without written permission,
and it further declared nothing less than a distinct agreement, indorsed
on the policy, should be construed a waiver of any condition or restric-
tion. The assured, at the time of the loss, had a few pounds of gun-
powder kept with the knowledge and express permission of the local
agent of the company. A previous policy had been issued by the same
agent upon the same property, and all premiums had been paid and ac-
cepted by the company, and the agent knew that powder was kept, and
expressly permitted it without calling the attention of the assured to
this clause in the policy: Held, that the failure to have the written
consent of the company indorsed on the policy, under such circum-
stances, did not render it void, but that the condition would be regarded
as waived. Reaper City Ins. Co. v. Jones, 458.

5. As the provision of forfeiture was made solely for the benefit of
the company, it might waive the condition, and, as it performs its bus-
iness through agents, their acts must often operate as a waiver of con-
ditions in a policy. The company being presumed to have knowledge

INSURANCE.

WRITTEN CONSENT-WAIVER.

Continued.

of the facts through their agent, by taking the money of the assured,
and giving him no notice that the policy had been violated, or that the
contract must terminate, before his loss, will not be allowed to resist
payment for such cause. Such an act would be a fraud and a deceit,
which the law will not sanction. Reaper City Ins. Co. v. Jones, 458.
KNOWLEDGE OF THE AGENT.

6. Notice of conditions to the assured. When the agent of an insurance
company takes an application of insurance, knowing that the assured is
keeping interdicted articles prohibited by conditions usually printed in
small type, and difficult to read, and gives no notice to the assured of
the stringent character of such conditions, but consents to the keeping
of such articles, the company will be held to have waived the right of
forfeiture. Ibid. 458.

INTEREST.

PROMISSORY NOTE.

1. Readiness to pay at the specified time and place-effect thereof on accru-
ing interest. See PROMISSORY NOTES, 2.

2. Effect of a state of war in that regard. Same title, 3.

ON FORECLOSURE.

3. Of compound interest. See MORTGAGES, 15.

ITS ALLOWANCE IN AN AWARD.

4. Whether proper, and at what rate. See ARBITRATIONS AND
AWARDS, 2.

JUDGMENTS.

UPON WHOM BINDING.

1. Where land was attached and a grantee of the plaintiff filed an
interpleader, claiming title as against the attaching creditor, which the
latter attempted to defeat by showing a prior deed from himself to the
defendant in attachment and notice thereof to the party interpleading,
and the defendant in attachment was in court only by constructive
service: Held, that a judgment in favor of the party interpleading was
not binding as between the two grantees in any future contest between
them in respect to the title. Needham v. Clary, 344.

VACATING A JUDGMENT TO LET IN A DEFENSE.

2. Appellant was sued jointly with another in trespass for an assault
and battery. His co-defendant employed counsel who filed a plea of
the general issue for both, there being no service. The counsel, about
three years afterward, procured the entry of a nolle as to the co-defend-
ant, and abandoned the defense of appellant, on the ground that he had
paid no fee, and his default was taken, and damages assessed at $500,

JUDGMENTS. VACATING A JUDGMENT TO LET IN A DEFENSE. Con-
tinued.

upon which judgment was rendered. He at the same term moved to
set aside the judgment and for leave to defend, showing that he was
not guilty, and that the other defendant who had committed the tres-
pass had agreed to defend. The court overruled the motion: Held,
that the court erred in refusing the motion. Souerbry v. Fisher, 135.

3. And herein, of the power of the court over the record during the term. In
a suit against several where it appeared that the attorney for the de-
fendant served with process, entered the appearance of the other de-
fendants not served, without any authority whatever, and where such
defendants, at the same term, after judgment against them, appeared
and asked to have the judgment against them set aside, and a new trial
granted, and showed a valid defense: Held, that it was error to refuse
the motion. Leslie et al. v. Fisher, 118.

4. During the term the record of the court may be altered, changed,
or amended as justice may require; and the court may vacate a judg-
ment, and let in parties not served to defend. Ibid. 118.

HOW FAR JUDGMENT CONCLUSIVE.

5. In a collateral proceeding. See EVIDENCE, 15, 16.
JUDGMENT IN ATTACHMENT.

6. When limited to the amount claimed in the affidavit. See ATTACH-
MENT, 3.

JURISDICTION.

OF JUSTICES OF THE PEACE.

A bill for an act entitled "An act to increase the jurisdiction of justices
of the
peace and police magistrates,” printed in the Session Laws of 1871,
did not become a law. See STATUTES.

JURISDICTION IN CHANCERY.

JURY.

QUESTIONS OF LAW AND FACT.

See CHANCERY, 1.

1. According to the practice in this State the court is not justified
in instructing the jury that any fact has or has not been proved, where
any evidence has been admitted bearing upon the point, except where
a question of law is involved, as in the proof of title. Stobie et al. v. Dills,
432.

2. Credibility of witnesses. When the testimony of the witnesses is
conflicting as to any material fact, the weight to be given to one witness
more than to another should be left to the jury. Chicago City Railway
Co. v. Young, 238.

3. As to the existence of probable cause. In a suit for malicious prose-
cution, the court can not rightfully say to the jury, that there is, or is