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after eviction,' is the purchase-money and interest ; but where the covenantee
has purchased the paramount title, it is the sum actually and in good faith
paid therefor and the amount expended in defending his possession, provided
such damages shall not exceed the purchase-money and interest. 1870. Me-
Gary v. Sortings (89 Cal. 860), II, 456.

33. -*-— Rule of damage on the taking of land for the construction of a
railroad, tee Railboad.

See Conspiract; BsaNSNT Domain; Insuranob (Marine); Officbb;
Replevin; Trade-mark.

Where a debtor, with the assent of certain of his creditors, placed his per-
sonal property In the hands of one of them, with instructions to sel i it, and
pay himself and such other creditors out of the proceeds, ?ield, that the credi-
tors, for whose benefit the property was to be applied, obtained a lien upon it
and its proceeds superior to any which a general creditor could acquire by the
subsequent levy of an attachment thereon. 1870. ffandlej^ v. I^/lrt&r (89 Oal.

288), II, 449.

8ee Bankruptot ; Insolvent Law.

DECEIT — See Fraud.

DEED— /SmConvbtancb; Jury; Ratification.

DEFAMATION — iS^ Slander and Libel.

I. Bt carriers — See Carrier.
II. Op deed — 5^ Conveyance.
^ III. Op property — See Sale.

. DEPOSIT — See Bank and Banking.

DERELICTION — See Accretion.

DEVISE — See Will.


An occupation of premises for years, by means of a permanent strROtiue
although by mistake as to the true boundary line. Is in legal effect a disseisin.
1870. Prapnetwn v. Nashua, ete., B. B. (104 Mass. 1), VI, 181.

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1. An actioii will not lie for distraining for more rent than is dae. 1878.
HamUUm v.W%ndoff(^ Md. 801), XI, 491.

2. The gooda of a principal in the store of his commission merchant for sale
are not liable to distress for rent due by the latter to the landlord of the prem-
ises. 1872. JTcC^m;^ y. (7^»n (87 Md. 485), XI, 542.


1. A sale of sharea of itook in a railroad company oaxries with it the divi-
dends declared by the company, when they are to be paid at a day subsequent
to the transfer of the stock. Therefore, when the North Carolina Railroad
Company declared a dividend on the stock in said company, on the 16th day
of February, 1870, to be paid on the first days of April and July thereafter, and
the owner of certain shares of such stock sold and transferred the same on the
17th day of February. Held, that the purchaser of said shares of stock
acquired the dividends, as well as the stock. 1872. Bwrrimgh» ▼. North (kur-
dina R R. Oo, (69 N. B. 876), XII, 611.

2. ''Quaranteed divldands " means only a pledge of the funds lawfully appli-
cable to dividends. 1856. Tqft v. Hartford, sU., RROo,(fiK 1.410), V, 576.


DIVORCE — 8eo Mabbiaoe.

DOGS— iS^ AimcAiA
DOWER — 8e$ Mabbiaob.


The owner of property wnich, without his fault or negligenoe, is carried by
high water down a stream and deposited upon the lands of another, will not
be liable for any damage occasioned by k, unless he reclaim it, in which event
he must make good the damages done. 1870. SMdon v. Sherman (42 N. Y.
484), 1, 569 ; Li/otBOtf v. PhOadelphia (64 Penn. St. 106), m, 578.



XL As BXOUBB FOB CKOtR^See Cbdcikal Law.

Of property. Goods requiring special care, and of a perishable nature, were
wrongfully taken and kept from the owner thereof by means of a writ of
attachment fraudulently obtained, and were rapidly going to destruction, and
party in possession refused to surrender the goods on payment of the sum
actually due, demanding more than twice that amount, and, in addition thereto,
a release from all damages for his wrongful act, and the defendant in the
attachment, to obtain possession of his property, paid the sum demanded
and executed the release. In an action on the case for wrongfully suing out

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the attachment, hdd, (1) that the release ooald be avoided on the ground of
doreas ; (2) that the partj injured was not restricted to an action on the attach-
ment bond, but could not maintain the action on the case ; (8) that the declara-
tion need not allege " want of probable cause " in terms, but that it would
suffice if such want was substantiallj alleged. 1870. 8paid» v. Barrett (57
111. 289), XI, 10.



1. On the severance of two tenements. The rule of law which creates an
easement on the severance of two tenements or heritages, by the sale of one of
them, is confined to cases where an apparent sign of servitude exists, on the
part of one of them in favor of the other. 1871. BtUterworth v. Crawford
(16 N. Y. 849), Vn. 352.

2. The owner of two adjoining lots of land, Nos. 83 and 85, dug a vault

extending partly into each lot, from which he constructed a drain through lot
No. 85 to the street sewer. He conveyed lot No. 85 to defendant by deed, con-
taining a covenant against incumbrances, and afterward conveyed lot No. 88
to plaintiff. Defendant purchased without knowledge of the drain ; nor was
there any apparent mark or sign of its existence. Held, that defendant's lot
was not servient ; and that he had a right to close up the drain. Ih.

3. Of Ught. The easement and servitude of light may be implied from
grant. 1870. Janes v. Jenkins (34 Md. 1), VI, 300, and note, 306.

4i By the grant of a lot and all the rights, " privileges, appurtenances and

advantages to the same belonging or in anywise appertaining/' is passed the
easement of light and air as to windows previously opened toward another
lot of the grantor ; and the existence of the easement and the enjoyment thereof
by the grantee is no breach of a special warranty contained in a subsequent
deed of the other lot to another grantee. Ih,

6. Light and air. The owner of two adjacent lots, having dwelling-houses
thereon, conveyed one to the plaintiff and the other to the defendant, by deeds
containing covenants of warranty and against incumbrance. The house pur-
chased by plaintiff received light and air through windows opening upon an
area on the lot purchased by defendant. The defendant being about to
obstruct these windows by building upon and filling up the area, the plaintiff
broaght suit for an injunction. Held, that there was no grant of an easement
for light and air implied from the fact that the windows were in use at the
time of the conveyance, and were necessary to the convenient enjoyment of
the property, and that an injunction could not be granted. 1869. MuUen v.
8triek(yr (19 Ohio, 185), U, 879.

6. The owner of one part of a building has no action against the owner of
the other part for willfully permitting his part to get out of repair, wherebor
the plainUff's part is injured. 1872. Pierce v. Dyw (109 Mass. 874), XII,

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7. Nor oan the owner of the upper story of a boilding recover of the

owner of the lower story oontribntioD for neceesftrj repairs of roof. 1871.
OUumwa Lodge ▼. Lewis (84 Iowa, 67), XI, 185.

8. Butdaoent support While one person owns the surface and another the
anderlying minerals, the former has an action against the latter for remoying
the necessary supports of the surface. 1871. Jonee ▼. Werner (66 Penn. St.
429). V, 386.

9. Over land desoxfbed in a deed as a street J., owning lands, on which
was a strip called a street, but which was not laid out or dedicated as a public
highway, conveyed the same to S., by a conveyance, in which the said strip
was mentioned as a boundary and described as " St. Charles street." Subse-
quently S. conveyed a portion of such lands to the plaintiff, "with all the
privileges and appurtenances thereunto belonging," referring to the so-called
street, in the deed. The land so sold did not abut or front upon such street,
nor was there a right of way by necessity over the land intermediate. HM,
that the plaintiff did not acquire any right of way over the so-called street

1870. Dawmm v. The 8i, Paul Fire Ineuranee Co, (15 Minn. 186), II, 109.

1(X Agreement to abandon. An agreement made by a lessee for years to
abandon an easement belonging to the estate does not bind the reversioner
unless he is a party to it, or it is made with his knowledge and aoquiescenoe.

1871. Glenn v. Datne (85 Md. 308), VI. 889.

See Covenant; Hiohwats; PabttWai^l; Watbranb WATsn-ooimBBS.


1. The title to the ohoroh property of a divided congregation is in that part,
though a minority, which adheres to the eodesiastioal laws, usages and prin-
ciples of the denomination under which the church was constituted. 1871.
Sehnorr'e Appeal (67 Penn. St 188), V, 415.

2. The title and use of the property of a divided congregation, and

the offices pertaining thereto belong to that portion which adheres to the nomi-
nation and conforms to its rules. 1871. Boehi^e Appeal (69 Penn. St 462), Yin,

3. A dassis of the German Reform Church of the United States, sitting

as an ecclesiastical court, declared certain offices held by defendant vacant
Held, that this decision was binding on the dvil courts, lb.

4i Boolestastloal oonrt In a suit to enjoin the plaintiffs in error, as an
ecclesiastical court, from proceeding with the trial of the defendant for alleged
offenses and misconduct as a presbyter, held, (1) that the fact that the com-
mission issued by the bishop, appointing persons to investigate the charge and
make presentment, was irregularly issued would not affect the jurisdiction of
the eodesiistieal court; (2) the ecclesiastical court is the exclusive judge of
the suffidenpy of the presentment ; (8) such court is not bound by the rules
of law as to challenge of jurors ; (4) where there is no right of property involved
except derical office or salary, the spiritual court is the exdudve judge of its
own jurisdiction. 1871. Ohaee v. Cheney (58 111. 609), XI, 95.

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6. The rights of pew-owners in church discussed, o/rQuendo, 1871.

KincM^u Appeal (66 Penn. St. 411), V, 877.

EIGHT HOURS' LAW— iSw Oontbact.


1. Crops. One who recovers land in an action of ejectment is entitled to
the crops planted after the commencement of that action. 1969. McLean t.
Baf>6e (24 Wis. 295), 1, 185.

2. The owner of lands, who has recovered a judgment of ejectment

against persons occupying under a claim of title, is not entitled to the crops
grown and harvested by such persons before the judgment. 1870. Page v.
Fo%Dl&r (89 Cal. 412), II. 462.

3. Damages. When, in such a case, the owner obtained possession of the
crops by replevin, JiM, in an action to recover their value, that the measure
of damages was the highest market value within a rectmnabU time after the
property was taken, with interest computed from the time such value was
estimated. Ih.

4. Defonse. A defendant in ejectment cannot set up a mortgage, with which
he is not connected, as an outstanding title. 1870. Woods v. Eilderbrand (46
Mo. 284), II, 518.


1. Raiidenoe. Residence, under the provisions of the State constitution
giving to certain persons, who have " resided " in the State and in the election
district for specified periods, the right to vote, means that place where the
elector makbs his permanent or true home, his principal place of business, and
his family residence ; where he intends to remain indefinitely, and without
any present intention to depart, and to which, when he leaves it, he intends
to return. 1872. Fry^e Bleetion Case (71 Penn. Sti 802), X, 698.

2. Students at a oollege, coming to it from other places, for no

other purpose than to receive education, and intending to leave after grad-
uating, do not lose their original domicile, nor acquire a new one, so as to
become legal voters in the district where the college is situated. lb,

3. A person bom in Canada of parents of African blood, who were born in
Virginia and held there as slaves until they emigrated to Canada, held, not
entitled to vote as a citizen of the United States without being naturalized.
1872. People v. Board of BegUtraUon (26 Mich. 51), XH. 297.

4. Right of residents on lands ceded to the United States to vote. Under
and in pursuance of an act of congress, ^ The National Asylum for Volunteer
Soldiers " was established in Ohio, upon land acquired by the United States,
and jurisdiction over which had been ceded by the State to the United States,
and contained inmates, some of whom were, and others were not, residents of
Ohio at the time of entering. At an election held in the county wherein the
asylum was situated, certain of the inmates were allowed to vote. Heid, that,
as the asylum was a "needful building" within the provision allowing the
United States to acquire land, and the United States had exclusive jurisdiction

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over it, the inmates were not residents of the State, and therefore not entitled
to vote. 1869. Sinks y. Beese (19 Ohio St, 306), U,Z97,

6. Ballot An act required the inspectors of election to place on the back
of the ballot of each voter the number opposite his name in the poll-list. SM,
that the act was nnconstitutional and void on the groand that the intent of the
constitution is to secure to each voter absolute secrecy. 1871. WilHama v.
atein (88 Ind. 89). X, 97.

6. Registry laws or laws prohibiting any person from voting, whose name
does not appear on the register, are constitutional. 1869. Edmandi v. Banbiirjf
(88 Iowa, 267), IV, 177.

7. Oertifioato of prima fiioie evidenoe — mandamus. The relator received
fr6m the proper officer a certificate of his election to the office of district clerk
of M. county ; he subsequently took the oath, gave and filed the bond required
by law, and then demanded of the respondent — the former derk, whose term
of office had expired, and who was in possession — the seal, records, books,
papers, etc., belonging to said office. The respondent answered that the re-
lator, being a non-resident of the State, was ineligible to the office, and there-
fore not legally elected. HM, that the relator was entitled to a mandamus.
1870. State v. Shertoood (16 Minn. 221), II, 116.

8. A certificate of election is prima fade evidence of title, and the court

will not go behind it in proceedings for a mandamus. lb.

9. Where person reoeiTing minority of votes is ineligible. At an election
F. and C. were candidates for an office, for which F. was duly qualified, but for
which C. was ineligible by holding an office made incompatible with the former
by statute. C. had the majority of votes. Held, (1) that d was not elected ;
(2) that F. was not elected, in the absence of proof that those who voted for C.
did so with notice of his disqualification ; (8) that there was no presumption of
such notice from the fact that the disqualification was created by a pnblic stat-
ute. 1872. People v. Olute (50 N. Y. 451X X, 508.

10. At an election the person receiving the highest number of votes was

disqualified. The person who had received the next highest number, and who
was qnalified, claimed the office. Held, that the electors had fkiled to make a
choice, and that he was not entitled to the office. 1872. SubleU ▼. BedwU (47
Miss. 266), XU, 888, and note, 841.

See BIandamus.

A warranty made in 1856, on the sale of slaves, " that the title of said slaves
was warranted for the life of said negro slaves," is not broken by the emanci-
pation of the slaves by the government of the United States during the dvil
war. 1870. Fiti^^rick v. Heame (44 Ala. 171), IV, 128.

1. In ^Jeotment One who recovers land in an action of ejectment is entitled

to the crops planted after the commencement of the action. 1869. McLean x
Bovee (24 Wis. 295), 1, 185.

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2. One who reoovera ft jadgmeiit of ejectment against persons oocopjing

under a claim of title is not entitled to the crops 0^ this case haj) grown and
hanrested by such person hefore the judgment. 1870. Page y. Fhteler (39 Cal.
412), n, 402,

3. What pass by deed. Com, ripe but standing uncut in the field, passes
bj deed of the freehold. 1870. Tripp ▼. Hoiceig (20 Mich. 254), IV, 388.

4i Under parol contract to ocnnray. Plaintiff entered upon defendant's
land under a verbal contract of purchase, and sowed crops with consent of
defendant. Afterward defendant refused to carry out the contract of sale and
ejected plaintiff. Held, that plaintiff was entitled to the crops. 1872. Barrit
V. Fnnk (49 N. Y. 24). X, 818.

6. One who is let into possession under a parol contract to purchase is

a tenant at will so far as relates to the emblements. lb,

L Among the reserved State rights is that of eminent domain. Under this
power railroads have been built, and the right to exact tolls and charges for
their use is a necessary consequence of the power to construct them. This
power may be exercised at the discretion of the State. 1869. CommanweaUh
▼. 3rie By, Co. (62 Penn. St. 286), 1, 899.

2. In behalf of railroads. The right to exercise the power of eminent domain
m behalf of railroads and other improvements of public utility is recognized
by all the courts and denied by no one. The right to take private property
under this power for public use is conditioned upon making compensation.
1889. Stewart ▼. Supervisors (30 Iowa, 9), 1, 238 ; but see Hanson v. Vernon
(27 Iowa, 28), 1, 215.

3. A railroad company entered without right upon land and erected build-
ings thereon. Two years afterward it acquired title to the land by eminent
domain. Held, that the owner of the land was entitled to compensation for its
value with the improvements thereon at the time the proceedings were com-
menced. 1871. Graham v. GonnersviOe R. R Co, (86 Ind. 463), X, 56.

4. Private roads. The legislature cannot authorize the taking of private
property for a private road without the consent of the owner, even if compen-
sation is made therefor. 1869. O^tom v. Hart (24 Wis. 89), 1, 161.

6. An act authorizing a telegraph company to erect its line upon the right
of way of a railroad company, without providing for enforcing payment of
damages, is unconstitutional. 1872. Southwestern E. R, Co, v. Southern^ etc,,
Telegraph Co. (46 Ga. 48). XII, 586.

See CoNSTmmoKAL Law.


A court of equity may, in cases where the party is not entitled to specific
performance, grant relief by decreeing the repayment of the money expended
on the faith of ^he contract. 1869. Green v. 2>rummond (31 Md. 71). 1, 14

See Title.

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1. Whar* a Jaitor aOowad a prifoner to go outiicto of tho roomi used
as the jail and to take his meals in another part of the same boilding with the
jailer's family, and also to go outside of the building, this was hM a volun-
tary escape, and sufficient to preclude the jailer from recovering on a bond
given to him by the town to pay the prison charges of the prisoner. 1869.
BUey ▼. WhiUiker (49 N. H. 146). VI, 474.

a. The escape of a prisoner during his trial in an indictment Is evi-
dence of guilt, though not conclusive. 1871. MwreU v. State (46 Ala. 89),
VII, 692.


Where the title of A., an alien, to lands In Bfichigan territory was confirmed
by act of congress of 1807, and he died, leaving a child, bom in England but
not naturalised, the lands escheated to the territory, and finally to the State of
Michigan, and the State had the power to reconvey them without inquest of
office-found. 1870. Orane v. Reeder (21 Mich. 24), IV, 480.


Ziands oonr-syod to husband and wtfs. Where lands are conveyed to hus-
band and wife, each takes an entirety, notwithstanding a statute providing that
all conveyances of lands to two or more persons shall create estates in common.
1868. Hemingway v. Soaiee (42 Miss. 1). U, 686.

See CoKVETANOB ; Real Estate.


1. In pals. To constitute estoppel in pais, it must appear that the declara-
tions or acts relied on influenced the party's conduct. 1872. MtUaney v. Horan
(49 N. Y. Ill), X, 886.

2. By oonduot. Where the owner of an iron furnace upon a stream claims
that the owner of a mill above his works had bound himself, by verbal con-
tract, that he would never stop the usual and constant flow of the water in
the channel of the stream, and the owner of the furnace, after the death of
the owner of the mill, stood by and saw the mill, sold by the administrator of
the deceased, to an innocent purchaser, and gave no notice of the verbal agree-
ment between himself and the deceased, he is estopped from setting up the
verbal agreement against the purchaser who invested bis money without
notice of it, and the parties stand upon their respective rights under the gene-
ral law governing riparian proprietors in the use of the water in the stream.
1870. Pool V. LwfU (41 Ga. 162), V, 626.

3. ^— If a grantor shows the purchaser of premises the wrong lines, and
is cognizant of his acting on that information, and is silent while a house is
erected and money ezi)ended, he will be deemed to have directly led the pur-
chaser into a line of conduct prejudicial to his interest. Such acts would con-
stitute an estoppel in pais, 1871. Rutherford v. TYaey (48 Mo. 826), VUI, 104


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4. Defendant, having an equitable interest in one-half of a lot of land,

iras present when the lot was offered for sale at auction, but gave no notice of
his claim and entered the list of bidders. Held, that he was estopped from
afterward asserting his title against the purchaser. 1873. Bice ▼. Bunce (49
Mo. 231), VIII, 129.

6. Defendant caused plaintiff's goods to be attached, reljing on his

representations that they were the property of another. Held, that plaintiff
was estopped to show that his representations were false, though made with-
out notice of the debt due the attaching creditor and without anj intention to
deceive him. 1871. Ham v. Cole (51 N. H. 287), XII, 111.

6. Promlmiory note — forged ligiuitiiro — when alleged aieker not eitopped
from denying. In an action on a promissory note, by an innocent holder
for value, it was conceded that the defendant's signature thereto was a forgery,
but plaintiff claimed that defendant was estopped by his declarations and con-
duct from denying the execution of the note. The note was payable one day
after date. The acts relied on to create an estoppel were as follows ; About
a year after date of the note, plaintiff asked defendant if he was aware he
held C.'s note with his name on it? to which defendant replied that he was,
and that '*he thought the best way was not to press C. ; that if he was let
alone he fhought he would come out all right." C. was the forger of the note,
and the one from whom plaintiff had received it. He was, at the time of the
above conversation, in failing circumstances. Held, that defendant was not
estopped from denying the execution of the note. 1871. H^flier v. Vandolah
(57 m. 520), XI. 89.

7. Forged deed — estoppel by delay in attacking. In an action to recover
possession of land held by an innocent purchaser, who claimed title through a
forged deed which had been of record five years with knowledge of the plain-
tiff, the delay of the plaintiff to attack the forged deed is not material if it be
not relied upon as extinguishing the plaintiff's title by the operation of the
statute of limitations ; and such delay does not estop the plaintiff to say that
the alleged deed is not his deed. 1871. Meley v. CoUins (41 Cal. 663), X. 279.

8. Grantor and grantee. If one having no title to land conveys the same
with warranty to A by a deed duly recorded, and he afterward acquires a title
and conveys to B, the purchaser of B is estopped to aver that the grantor was
not seized at the time of his conveyance to A, the first grantee. The right of
the purchaser of A to insist on the estoppel is not impaired by admitting, in
an action for the possession of the land, that A's grantor had no title when he
conveyed to him. 1870. MeOusker v. MeEoey (9 R. I. 528), XI, 295.

9. M. made a deed purporting to convey land, to which he had no title,

to defendant, with covenants of warranty against all persons claiming under
him. Afterward M. acquired title to the land and mortgaged it to H., under
whom plaintiff claimed. In ejectment, Tield^ that plaintiff was estopped to pay

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 20 of 51)