Page:Harvard Law Review Volume 5.djvu/427

411 RECENT CASES. 411 if these bonds were held good, the indebtedness would be increased, if the town officers should not do their duty in applying the proceeds to the payment of the old bonds. Damages — Railroads — Abutting Owners. — Where a railroad has been built along a street, abutting owners may recover prospective damages, the measure of damage being the difference in value before and after the injury. Highland Ave. & B. R. v. Matthews, 10 So. Rep. 267 (Ala.). This rule had been previously applied to municipal, and is now extended to private corporations. Equity — Specific Performance — Statute of Frauds — Part Perform- ance. — An oral agreement to convey land is not taken out of the statute of frauds by the payment of the purchase money. Forrester v. Flores, 28 Pac. Rep. 107 (Cal.). The true rule is conceived to be as follows: Payment of the purchase money will not take the contract out of the statute of frauds on the ground of fraud, since the vendor can recover the money at law, and the law presumes that he is made whole by the recovery with costs; but payment of the purchase money, as part performance, will take the contract out of the statute of frauds, since the acceptance of the money by the vendee must be taken as an admission of the agreement alleged, and, therefore, a partial carrying out of its terms. Equity — Injunction — Rights of Tax-payer. — A resident and tax-payer of a school district who lives near the legally located school-house, and who has children of proper age to send to school, and whose taxes will be materially increased by a removal of the school-house two and a half miles further from his residence, has such an individual interest in the subject-matter, not common with all other tax-payers of said district, that he may go to equity to enjoin un- lawful removal of said school-house. Graves v. Jasper School Township, 50 N. W. Rep. 904 (S. Dak.). Evidence — Competency of Witnesses — Pardoned Criminal. — The granting of a full and unconditional pardon by the President of the United States to a person convicted of a felony restores his competency as a witness, and this result is not affected by a recital in the pardon that it was granted for the reason, among others, that his testimony was desired by the government in a cause then pending in a court of the United States. Boyd v. United States, 12 Sup. Ct. Rep. 292. Extradition — Trial for Different Offence. — A person surrendered on extradition proceedings by the authorities of another State cannot, while held in custody thereunder, be tried for a different crime from the one upon which his extradition was obtained, unless he voluntarily waives his privilege. Ex parte McKnight, 28 N. E. Rep. 1034 (Ohio). Husband and Wife — Divorce — Voluntary Separation — Adultery. — A husband may obtain a divorce for his wife's adultery, notwithstanding that, in pursuance of an agreement under which they were married, they have never lived together as husband and wife. Franklin v. Franklin, 28 N. E. Rep. 680 (Mass.). Insurance — Conditions of Policy. — The policy sued on forbade the use of open lights on the premises insured, but permitted necessary repairs. Certain repairs could be made only by using open lights. At the time of applying for the policy, this fact was stated to the defendants' agent, who replied that by the policy permission was given to repair at all times. Held, the proviso in the policy must be construed as referring to the ordinary use of lights on the premises, and not to the special use in making repairs. Therefore, defendant was liable. Au Sable Lumber Co. v. Detroit Manufacturers' Mut. Fire Ins. Co., 50 N. W. Rep. 870. (Mich.). Insurance — In Favor of Wife — Death of Insured through Crime of Wife — Resulting Trust in Favor of Insured's Estate. — Held, the execu- tors of a person who has effected an insurance on his life for benefit of his wife can maintain an action on the policy, notwithstanding the fact that the death of the insured was caused by the felonious act of the wife. The trust created by the policy in favor of the wife under the Married Women's Property Act, 1882, having become incapable of being performed by reason of her crime, the insurance money forms part of the estate of the insured, and as between his legal representatives and