Abraham Clark Freeman John Proffatt.

The American decisions: cases of general value and authority ..., Volume 24 online

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either execute a release of his whole debt, or be denied any share in the
proceeds of the property assigned, is void as against creditors. Atkmtam
V. Jordan, 280.

2. Cbeditobs who havb not Assented to suoh an Assignment may sub-

ject the property in the hands of the assignees to the payment of their
debts. Id,

ASSIGNMENTS
Assignees or Bonds take them subject to the obligor's equity against the
obligee, but they do not take them subject to an unknown equity of a
stranger against the obligee. Moore v. Hokombet 683.

ASSUMPSIT.
Assumpsit mat be Maintained for the actual value of labor done Under a
special contract which has been waived by the parties or been aubstan-
tially performed. Newman v. MeOregor, 2d3.

See Intanot, 2; Judgments, 20i 21.

ATTACHMENTS.

1. An Attachment or Pebsonal Profertt is the taking such property

into the legal custody of an officer by virtue of, and in pursuance of the
directioDs contained in, a writ of attachment. Lowry v. Cody, 628.

2. An Attachment mat be Proved as between the officer and the re-

ceiptor, by other evidence than the attachment itself; the receipt, when
once taken, is the appropriate and proper evidence for that purpose. Id.

3. A Receipt Taken on attachment, estops the receiptor from denying the

attachment. Id,

4. Whether Amending a Declaration wiU dissolve an attachment, qumr^

Id,



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iNDin. 787

AUcnoNa

See EzBOunoNB, 29.

AUTREFOIS ACQUIT OR CONVICT.

1. Flea or Aoquittal os CoNVionoN upon a good indictment, although no

judgment was ever rendered thereon, is a good plea in bar to a second
indictment for the same offense. State y. NoweU^ 458.
K CoNvionoN OF A Pebson fob Mavslauohteb, who was indicted for
murder, will be a good plea in bar to a subsequent indictment for the
same offense, notwithstanding the judgment on such oouTiction was erro-
neously arrested on the defendant's motion. Id,

BAILMENTa
See Wabbhousbmxn.

BANKRUPTCY AND INSOLVENCY.
See AssiGNMEira'; Insolvbnot.

BONA FIDE PURCHASERS.
L A Bona Fibb Pubchasbb must aver that he not only paid the purchase
money, but that he obtained the legal title before he had notice of the
prior equity. Orimstone v. Carter^ 230.

2. Possession is Sufficient to Put on Inquibt as to the actual rights of

the possessor, and is good constructive notice of those rights. IcL
S. Between a Pubchaseb in Cood Faith under the recording act, and a
honajide purchaser within the decisions of the courts of equity, there is
no distinction. Id,

4. PuBOHASEB WHO BuTS Land knowing that his vendor is not seised in fee,

but that he only has an equitable tiUe to the land, csn not rely upon the
plea that he is an innocent purchaser for value without notice. Craig
V. LeipeTf 479.

5. Whebe Land is Claimed bt Entbt from the state, every person dealing

therewith is presumed to know the fact, whether it has or has not been
granted by the state, because this is a matter of record, which ordinary
diligence can ascertain, and which all interested are bound to know, if
material, before they contract Id,

6. Whebe Two Pebsons have, in Good Faith, purchased, at different

times, a tract of land from the same person, who holds only the equitable
title thereto, the first purchaser has the best right, and must prevail, the
equities being equal otherwise. Id, *

7* An Innocent Pubchaseb without Notice of a tract of land from a
person holding the legal title thereto, takes it discharged of a trust, cre-
ated by a previous contract to convey to another party, because of the
laches of the latter in taking his deed; but where the vendor only holds
the equitable title to the land, notice thereof is communicated by a con-
tract to convey, as well by deed, and the rights of the parties are gov-
erned by the maxim, qui prior est tempore, potior est jure. Id.

BONDS.
1. Blank Piece of Papeb Signed and sealed by a party, and subsequently
filled up, punnant to his direction given at the time of signing and seal*







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788 Index.

ing, 18 not his bond, there being no mbsequent deliveiy or aoknowledg*
ment. OUbert v. Anthony, 439.
S. Papbb Siokxd and Sealed while blank, and afterwards filled np as an
official bond, without redelivery, is not binding upon the parties "ignti^T
Wynne v. Oovemor^ 448.
See Assignments; Patkent, 3, 4; Pleading and Praotiob, 11» 19^ 9(k

CASK
See Intanct, 3; Pews, 2.

CHARTTABLE BEQUESTS.
Sea Ij»acte8 and Legatees, 9, 10, II, 12i 13.

CHURCHES.
See Religious Societiss.

CITIZENSHIP. '

Ax AcQXTIBED CBABAOTE& DEPENDING ON ACTUAL RSBIDENOB, and not CO

the existence of commercial relations, is abandoned for every puipose d
legal effect the instant a step is taken to abandon the country. MiOer^s
Estate, Z^.

See Aliens; Successions.

COMMON CARRIERS.

L Common Cabribb is Bound to Inqdibe as to the value of parcels re-
ceived for carriage, where there is no agreement or notice limiting his
liability, and if without doing so he takes such a parcel and chaiiges for
its transportation according to its external appearance, he is liable for its
full value in case of loss. Orange Co, Bank v Brown, 129.

S. Cabbieb haying GnrftN General Notice that he will not be liable be-
yond a certain amount, unless informed of the value of parcels, and
unless an additional premium is paid, is liable only to that amount, if at
all, for the loss of a package whose value was not disclosed to him,
whether he made inquiry or not, where such notice is brought home to
the owner. Id,

5. If ant Means have been Used to Conceal the value of a package the

carrier is not liable, whether he has given notice or not. Id,
4. Monet Carbied in a Passengeb's Tbunk for transportation merely,
and not for traveling expenses, is not baggage, and if the carrier is not
informed of its presence, he is not liable for its loss. Id,

6. Notifting the Cabbieb that it is ''a Tbunk or Impobtance,** is not

sufficient, in such a case, to charge him with knowledge of its value.
Id,

6. Reasonable Amount of Baggage is included in the fare for the passen-

ger owning it, and the carrier is liable for its loss. Id,

7. Pabt Owners, When Considebed Pabtnebs. — Fart owners of a vessel

nsing the same in trade, and participating in the profits springing there-
from, will be considered partners, and as such, liable for responsihilitiss
incurred in that trade. Jo-nes v. Pitcher, 716.
%, The Holdebs of the Legal Title to a vessel are not considered liable
as owners, if they have parted with both possession and control of the



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Ikdex. 789

reuei, and only retain the title fer the pnf^MMe of aeonring fotore pay-
ments of the porohase money. Id,

t. The Defendaitts abb Ohabobd as Common Oabbiebs by allegations
to the effect that "defendants are the owners and proprietors of the
boat, and copartners in freighting on the same, and that this boat has
been usually employed by them in carrying and transporting cotton and

other merchandise from the port of to the port of , and other

places in this state, for hire." Id.

IOl Thb LiABiLmr or a Common Carbieb extends to all losses, other than
those occasioned by the ''act of God, or public enemies." Id.

11. "Dakoebs of the Sea" and '* perils of the riyer" are analogous terms,
and will be considered as of the same meaning. Id,

12. "Pebils of the Sea** denote actual accidents peculiar to that element,
that may not be avoided by the exercise of human prudence, but are
also sometimes held to include captures by pirates, and collisions ooour-
ring without blame imputable to either, or, at all events, to the injured
Teasel. Id,

IS. Tub Owneb of a Vessel is Liable for the non-observance, by the mas-
ter, of an established custom, by which a vessel deaoending a river is ra*
quired to give way to one ascending. Id.
See Innkeefeb.

CONDITIONAL SALES.
See MoBTOAOES, 8» 4.

CONTLICr OF LAWS.

1. Penal Laws can have no extraterritorial force. Didtaon v. Dkkaon, 444

2, No Pbinciflb of Comht among neighboring oommunities can be ex-

tended to give force and effect to the penal laws of one society in tha
territory of another, nor of one of the states of the American Union in
another. Id,
^ BfTOBOE Obanted BY A CouBT OF A SisxEB STATE having jurisdiction ol
the subject-matter and of the parties, is conclusive in all the world, and
the parties divorced may afterwards marry in the state, notwithstanding
the laws of such aster state provided that persons divorced should not
be released from the marriage contract^ but if they again married they
should be pnn&hed for bigamy. Id,

See Estates of Dbcedentsl

CONSTITUTIONAL LAW.

h ''Law of the Land," as used in the Constitution, means a general public
law equally binding upon everv member of the community, under simi-
lar circumstances, and every ptk^tial or private law which directly pro-
poses to destroy or affect individual rights, or does the same thing, by
affording remedies leading to similar consequences, is not the "law ol
the land." WaUy'a ffeira v. Kennedy, 611.

t. Act of 1827» o. d9, which directed the dismissal of certain class of suits,
growing out of the reservations of lands to the heads of Indian families,
under the treaties of 1817 and 1819, with the Cherokees, upon certain
fsots being made to appear, is partial, and therefore unconstitutionaL
id.



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790 Index.

8. LB0i8LiTa&B HAS THX Po^HEB to croste as many dififerent ooorts as the

wants of the country may require, each to be as distbot and independ-
ent as the other. Per Oreen, «t. Bank qf tine State v. Cooper^ 617.

4. JuooBS CAN NOT BiOBTTULLT ExKBOTSK ATTTHOBnT onless they reoeive
their appointment in one of the modes pointed oat by the oonstitatiim.
PerOreen,J. Id.

ff. Lboislativb Power of the People is vested in the general assembly,
and it may do anything within the legitimate scope of legislation which
is not forbidden by the constitation, either in express terms or by impli-
oation. It does not follow, however, because there is no restriction in
the constitation prohibiting a particalar act of the legislature, that such
act is therefore oonstitutionaL Some acts may be against the plain and
obvious dictates of reason, and therefore void. Per Oreen, J. Id,

9, ** Law of the Land," as used in the constitution, means a general and

public law operating equally on evezy individual in the community.
Per Green, J. Id,

7. Leqtslatube has no Powee to deprive a person of the right of trial by

jury, in cases in which such rig^t is secured to him by the constitution,
either directly or by conferring jurisdiction on a court of equity to tiy
cases, the trial of which, by jury, is a matter of right in a common law
court Per Green and Kennedy, JJ. Jd.
8b ** Law of the Land,** as used in the constitution, means a general and
public law, equally binding upon every member of the community. Per
Kennedy, J. Id,

9. JuBY IN A Chancebt Couat Can not be constitutionally demanded by

either party. Per Kennedy, J. Id,

10. Act of 1829^, a 95, constituting a spadal tribunal, composed of existing
judges, for the disposition of suits commenced by the Bank of Tennesses
against its officers* their sureties and customers of the bank, who had
overcheoked, and from whose decision there was no appeal, is unconsti-
tntional and void. LL

11. The Act of 1890, extending relief to imprisoned debtors, is constitu-
tional, and applies to persons in prison when the act was psised. Som^
mere v. JoAiisoii, 604.

12. The Leoiblatube mat Enact Laws Vabtino the Remedy for the
collection of debts, snd if the laws are general, and contain such pro-
visions as the public good requires, th^ are constitutional, and all pro>
^f^ing^ M well for old as new debts, should conform to them. Id,

CONTRACTS.
L Pabol A^F»»Mgw p fOR THE AssiONMENT of the cqpy*right of a book, ia

consideration of a promise to deliver a number of copies of the book to

the assignor, is valid. Oould v. Banks, 01.
2. Mtttual Concubrent Pbomibes are sufficient consideration for each

other. Jd,

8. Tbansfeb of an L<rTEBE8T in the copy-right of a book must be in writing.

Id,
A, Whebe Pebvormance of an Agreement is to be concurrent on both
sides, neither party can recover without showing p erf or ma nce^ or an
offer to perform on his part Id,



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Im>EL, 791

6. PLAnmFF HAViNO Agbked to Assign his intereBt in a oopy-right in con-

sideration of a promise to deliver a number of copies of the book, can not
recover for a breach of such agreement without showing that he has
made or tendered an assignment in writing. Id.
e. Where Pbomisbs in a Ck>NTRACT are Indefendent, and performance is
not to be concurrent, either party may recover for a breach thereof with-
out showing performance on his part. id.

7. Offer to Deliver Goods after a Breach of the contract to deliver

them, by which a right of action has accrued to the other party, will not
defeat the action, whether already commenced or not. Id,

8. Party uat Waive his Right of Action and accept performance after a

breach of the contract. Id,

9. Law Implies that Books are to be Printed in a skillful and wOTkman-

like maimer where an agreement is made to print and deliver a specified
number of copies. Id,

10. Parol Enlargement of the Tdcb of performance of a written con*
tract is valid if the contract itself would be valid if made by paroL
Blood V. Ooodridi^ 121.

11. Time of Performance of a contract to convey land can not be ex-
tended by paroL Id,

12. Where Covenants or Agreements are Mutual and independent, one
party may sue the. other without averring or showing performance on his
part, and his non-performance can not be pleaded in bar of the action.
Dey V. Dox^ 137.

13. Party Positively Refusing to Perform his contract can not sue the
other for non-performance, whether the promises are independent or not,
if one is the consideration for the other, and the contract is wholly ex-
ecutory. Id,

14. Where Performance of One Promise is a condition precedent, and
is to be done or excused before a right of action accrues on the other
promise, the one is independent and the other dependent. Id,

16. Where Promises are Concurrent, neither party can sue without
averring and proving performance or its equivalent on his part Id,

16. Where Wheat is to be Delivered befo^ Payment of the consider-
ation, the promise to deliver is independent, and the promise to pay ia
dependent, so that the vendor can not sue without averring and proving
performance on his part. Id,

17. Vendor can not Sue, after a Recovery against him for non-delivery
of the wheat in such a case, to recover for a breach of the vendee's prom-
ise to pay, even though the recovery against him was for the full value
of the wheat; for the damages should have been properly adjusted in the
former suit. Id,

18. Separate Deeds or Instruments Executed at the Same Time and
in relation to the same sabject-matter, may be taken together and con-
strued as one instrument. HilU v. MUter, 218.

19. Agreement to Pay in Specific Articles becomes, on failure to make
such payment at the time and in the manner stipulated, an agreement to
pay in money. Newman v. McGregor, 293.

SQL Promise for the Benefit of a Third Person may be sued on by that
party. Principle applied to a promise by one of two payees to keep the
drawer clear if he would pay a certain sum to such payee; the oth«r



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792 Index.

payee was deemed beneficially interested 'in BQch^promiae. KfXtff t.
Evan9^ 325.
SI. A Pabol Exscutobt Contract, not mercantile, is a wiidwn paeUm
when nnsupported by a consideration. WhiUhiU v. Wilson^ 820.

22. Contracts aae Specialties or parol contracts; there is no snch middle
class as contracts in writing. Contracts in writing, but not nnder seal, '
are parol contracts. Id,

23. Contracts against the Policy of a public statute will be set aside in
equity, at the instance of a partieepa erimifM, The court does not inter-
fere for the sake of the party, but for the public good. JohMon v.
Cooper, 502.

24. A Written Covtbact mat bb Vacated by tk subsequent oral oontiaot
in reference to the same subject Deshazo y. Lewis, 769.

25. A Subsequent Verbal Altebation of a written contract, such as the
verbal extension of the time of redemption beyond that expressed in the
morl^gage deed, is yalid and binding, if supported by a ooDsidemtion.
Id.

SeeSuNBAT.

COPYRIGHT.
SeeCoHTBAOis, 1, 3, 5, 7; PABiXirBBSBiP, «.

CORPORATIONS.
1. DiBBOiOBS J^ Pebsokallt Liable, as trustees, for lots oooasioiied by

wiUfol abuse of their trust, or by the misapplication of the funds of a

moneyed or other joint-stock corporation. Iiobi$uon y. JSnUth, 212.
S. Idem. — Directors are equally liable, if they suffer the oorporate funds or

property to be lost or wasted by gross negligence and inattention to the

duties of their trust. IcL
ft. JoiBTdiocK CoBPOBATioira are mere partnerships, except in form. Id,
See Equitt, 1; Ebtoppbl, 5^ 7; ByiDXNci, I, 2| Mvkioipal CoBPcnAiiDiBi;

RlUOIOXTS SOGDBIIBa.

COSTS.
DovBLB Cosn MUST BE ALLOWED to A sohool district ooDflotor who obtiUiM
judgment in an aotioa against him for an official act B^fnotd$ y.
MOore, 116.

See ExBOUTOBS abd ADMnnsiRATOBS^ 11; Quo Wabbabto^ 2.

CO-TENANCY.

1. License bt one Tenant in Common to a third person to cut timber on

the common land is good, and giyes such person title to the trees onti
especially where the license is given in satisfaction of a demand against
all the co-tenants. Baker y. Wheeler, 66.

2. Tenant in Common can not CoNyET or dispose of lands of his co-tan-

ants without authority under seal, or in any other manner than a stranger

might do. Blood v. Ooodrieli, 121.
8. Tenant in Common can not Madvtain TitoyEB for a dispossewion cl

the common chattel by his co-tenant. Farr y. Smith, 162.
4.. Sale or Destruction op the Common Chattel by a co-tenant is a con*

yemcn for which troyer lies. Id,



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5. Whxrb a TBHAKT.nr Common claiming to own the whole premises, oon-

▼eys the whole to a third person, who enters under snoh oonveyance,
claiming title to the whole, it is such an ouster of the other tenants in
common as to har their right of entry after twenty years. Toion y. Need'
ham, 246.

6. Whekb a Tenant in Common Agbxes with his co-tenant to release to

him his interest in the estate in exchange for the other's stand and med-
icines as a physician, and the other relinquishes the practice of medicine
and the drags and enters into possession of the land porqnant to the
agreement, making improvements thereon, the case will be taken out of
the statute of frauds, and the execution of a release will be decreed.
1(L

7. Whxrb a Co-tenant Makes Impbotxmxrtb In the belief that he is sole

owner, chancery will, on a partition suit, so divide the premises as to
give him the benefit of the improvements. Id.

8. TRBPA88 OB Tbovxb WILL LiB foT ouo co-tenant of a chattel against the

other, only upon the destruction of the joint property or upon such a
disposition of it as is tantamount thereta Lucas v. WcMon, 260.

9. Deed bt One Tenant in common, conveying a specific portion of the

common estate by metes and bounds, is void as against his oo-tenant, to
whom the portion so conveyed is subsequently set apart by partitioD.
JeweUY. Stockton, S9L

See Pastnxbship, 1, 2, 8, 4, 6.

COVENANTS IN DEEDS.
Wbsihxb Cotenantb or Wab&antt in a deed are merged in the mortgage
given for the purchase money and in the forsdosure thereof, or pass to
the purchaser under the mortgage sale, ^tMsre. Taum v. Ncedkam, 240.

CBDONAL LAW.

L Judomint ov CoNYionoN of a felony will be revened, unless the reooid
shows a plea or issue, notwithstanding the defendant was personally
present at the triaL HiU v. StaU, 441.

2: YxBDicrHAyiNQ BEEN Found AGAINST the Dxixviunt in a criminal case,
and the Judgment thereon having been erroneously arrested on the de-
fendant's motion, the judgment of arrest may be reversed on error, and
a judgment of conviction rendered. State v. NorveU, 458.

S. Pabtioefs Criminis is not confined toa transaction, which in the ^^«»^"^m»
acceptation of the term means an act that may be visited by an indict-
ment or other criminal prosecution, but applies to other transactious
contrary to good morals, whether they be immoral per m or prohibited
by statute, under a penalty, or by a simple prohibition, or as nfilitating
against the policy of a statute, or fraud, or other contract Johnmm v.
Cooper, 602.
See AuTBEiois AoQurr; Cohvliot or Laws; Jeopahdt; Jubt: Laboent;

Mubdee.

cBOPa

See Qbowinq Cbops.



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794 Index.

DAMAGES.
lixASUBB ow Dakaobs for the non-deliveory of goods on a oontnot of nl%
where the oonsideration has not been paid, is the difference between th«
oontnot prioe and the valne of the goods at the time appointed for de*
Ihrefy. Dey y. JDox^ 137.

See Pleading and P&actiob, 18.

DEEDS.
See DUBB88; Equitt, 12; Bboobdihii^ %

DEPOSmONa
SeeEviDXNOi^ 17.

DETINUE.
See Invanot, I.

DIVORCE.
See Ck>NiLicT of Laws, a.

DOWER.
L Widow m not Entitijbd ToDowxEin lands of which her husband had

onlya transitory seisin. OUliam ▼. Moore, 704
S. SxniN OF THE Husband was merely transitory where the lands were con*

Teyed to him» and he, on the same day, reconyeyed them to tmstees to

■eeore the payment of the porchase money. Id.

DURESS.

A Dbd is not Given undee Dubxss when made asooontsr^eoozity tosnre-
ties upon their threat that otherwise they will compel, by legal pro-
cess, the settlement of the matters for which they are soreties. ffmU y.
Basa,2!4.

EASEMENTS AND SERVITUDES.

L Easements abb Attaobed to the Estate and not to the person of the
owner of the dominant tenement, and they follow the estate into the
hands of the assignee. HUU v. MUUr, 218.

2. SEBvrnTDBS abb a Chabob npon the estate or property of the servienl
tenement, and follow it into the hands of any person to whom snoh tene-
ment or any part thereof is subsequently conveyed. Id.

8. The Division of the Dobonant Estate does not destroy the easement;
and the owner or assignee of any portion of that estate may claim the
right so far as it is applicable to his part, provided the right can be en-
joyed as to the separate parcels, without any additional charge or
burden to the proprietor of the servient tenement. Id.

i Easement RumviNO with the Land.-— Where a vendor of a tract of land
bounded on a street, agrees with the vendee that a certain triangular
piece of land opposite shall not be built upon, and gives a bond to thai
eflEect, the vendee, after a sale of the tract to a third person, can not
make arrangements with the vendor whereby the triangular piece may
be built upon. Id,



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Ikdex. 795

ejectment.
PmoB P068iS8ioir uin>XE A Claim of Title is snfficieiit m against a da-
fendant who seta up no title. Warner v. Page, 607.

See JuDOMXNTS, 6; Pabtition, 2; Pswa, 2.

ELECnONa
Ballots at a Town Mvetino oontaining more names of candidates for con*
stables than the' number which the meeting has decided to elect, are ills*
gal and most be rejected. People v. LoonUs, 33.

EMINENT DOMAIN.

L Pbitatb Pbopbbtt can bb Takkn by the government, only when it is
necessary, and to the extent that ifc is necessary for the public welfiure;
and if the government by its agents attempts to appropriate any more of
soch property than is actually required for such purpose, they may be
restrained by injunction. Cooper v. WiUiame, 299.

2. BiFABiAN Pbopbietor has the same right to the use of water flowing
through his land that he has to the land itself; he can be deprived of that
right only so far as the public welfare requires, and then only upon his
being first compensated therefor. Id,

X Such Pbopbietor has no exclusive property in the water itself, and can
not reclaim any part of that which has been withdrawn from its natural
channel for the necessary use of a public canal; but the agents of the
state may dispose of any part of what has been so taken, provided the
navigation is not therein impeded. Id,

i, Canal Commissionebs can take water from a stream for the use of
the canal only; they are not authorised to take it for the purpose o(
creating hydraulic power to sell or lease for the benefit of the state. Id,

ft. AiFAiBS OF A State can not be administered in the most beneficial manner
if it has not the right, upon particular occasions, of appropriating to its
own use portions of the property subject to its dominion. The nec essa ry



Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 24 → online text (page 88 of 116)