William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 8) online

. (page 1 of 44)
Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 8) → online text (page 1 of 44)
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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



y r



A

GENERAL INDEX



WAIT'S ACTIONS AND DEFENSES.



Seven Volumes.



PREPARED BY

EDWARD COOKINGHAM,

Stenographer and Law Reporter.



ALBANY:
WILLIAM GOULD, Jr., & CO.,

Law Booksellers and Publishers.
1885.



\



Entered, according to act of Cfuigress, In the year eighteen hundred and eighty-two,

By JAMES A. WILLIAMSON and DANIEL POTTER,

Executors of the Estate of William Wait, deceased.

In the office of the Librarian of Congress, at Washington, D. C.




QJiAff^



INDEX.



A.

ABANDONltlENT : Vol. Page.

Of contract to marry 1 736

Title to abandoned property 3 331-337

Title to vessel abandoned at sea 3 333

Of easements 3 738

Of possession, by person claiming adversely 3 31

Of possession, by defendant in ejectment 3 83

Of possession, by plaintiff in ejectment , 3 116

Of fixtures by tenant ... 3 383

ABATEMENT:

Of nuisauces 1 60

Reasons for allowing abatement of nuisances 1 61

When notice or request to remove a nuisance necessary before. • 1 61

Of nuisances from omission, when allowed 1 61

Of a private nuisance must merely restore former right 1 61

Pulling down an inhabited dwelling 1 61

Removing obstructions from highways 1 63

Pleas or answers in 1 158

Of obstructions to easements 3 751

Right of, how exercised 3 753

Of action of ejectment 3 45

Of nnisance by individuals 4 778

Right to abate public nuisance 4 778

Destruction of building 4 778

Removing obstruction in highways 4 778

Removing bridges 4 779

Removing portions of dams 4 779

Of business as a nuisance ... 4 780

Of occupied houses 4 783

Must not involve a breach of the peace 4 781

What are g-ronsids of abatement 6 303

Definition and nature ... 6 393

Nature of pleas in abatement 6 394

Matters of jurisdiction 6 394

Want of jurisdiction 6 394, 395

Defective return on summons 6 395

Plea to jurisdiction of court 6 395, 396

Citizenship of parties 6 396



2 S INDEX.

ABATEMENT — C(9nfir<w«(Z. Vol. Page.

Married woinan suing alone 6 396

Action i;i wrong county > 6 396

Pendency of another action ^ 6 397, 398

When plea not sustained 6 398,399

Pendency of arbitration 6 399

Suit in equity pending 6 399,400

Death of party to action ., 6 400

Sole plaintiff 6 400

- Sole defendant 6 400, 401

Tort-feasor 6 401

Death of parties before judgment 6 401

Death of one of several plaintiffs 6 401

When cause of action survives 6 401

T\Tien death of wife abates action '. 6 402

When death of husband abates 6 403

Particular instances of abatement ^ „ . . 6 402, 403

Privilege or disability of a party o . . . 6 403

Coverture of plaintiff j 6 400

Coverture of defendant 6 404

Non-joinder of defendant 6 404

Transfer or defect in plaintiff's title 6 405

Termination of powers of trustee or oflScer 6 405

Inequalities in the proceedings 6 406

Sheriff's return of service 6 406, 407

Office judgment 6 407

ABSCONDING DEBTORS:

Who are 1 416

Intent necessaiy to constitute 1 416, 417

Attachments against 1 416

Meaning of the term as used in relation to attachments 1 416, 417

When attachment will lie against partners as 1 417

Presentment of bills or notes where makers or acceptors are. ... 1 635

ABSENT DEBTORS:

Attachments against' 1 415

Who are, within the statutes relating to attachments 1 415, 416

ACCEPTANCE (See Bills and Notes) :

Liability of drawee on acceptance of bill payable in chattels... 1 575

Effect of general acceptance of bills payable in chattels . 1 575, 576

Absolute or conditional 1 576, 625

Order for delivery of goods does not require 1 576

Holder of order may require - 1 576

Distinction between bills and orders for goods as to 1 577

Not necessary where an order is given on a particular fund. ... 1 576, 577

Of a protested bill is valid 1 592

Of bills after indorsement 1 592

Of forged bills 1 600, 001, 643

Of accommodation paper 1 610, 617 •

Presentment of bills for 1 618



INDEX.



Vol



1 619



ACCEPTANCE — Continued.

Duty of payee of bill as to presentment for

Bills must be presented for, within a reasonable time

Time of presenting bill for . . . ^

Place of presentment of bill for

By destroying or refusing to return bill

Contract created by

Who may accept bills

By partners

Agreements for

By parol^ valid at common law

What constitutes, in New York

On separate paper, ^vhen biiuling

Promise to accept, when equivalent to

Writing name across the bill, amounts to

Of check, not necessary . .

General and conditional

Defenses in action against acceptor

Proceedings on non-acceptance

Notice of non-accL'ptance

Accnmmodation drawer entitled to notice of non-acceptance

Of note of tliird party, liow far payment

Of individual note for partnership debt ,.

Of goods for transportati(m by carriers 2

Of goods by carrier, when complete 2

Of goods directed to a place beyond carrier's route 2

Of passengers by carrier {..... 2

Of deeds 2

Of dedication 2

How proved . 2

Of gift by donee necessary to render it irrevocable 3

Of gift, how proved ... 3

Of gift, when presumed 3

Of gifts, causa mortis 3

Refusal of vendee to accept goods bargained and sold 3

Damages for non-acceptance of goods ... .... 3

Of goods necessary to the maintenance of action for goods sold

and delivered 3

Of dedication of highway , 6

To constitute accord and satisfaction 6

Of negotiable instruments, effect of 6

Of check or draft for debt, effect of 6

How far an estoppel 6

Of goods, what is sufficient 7

Distinction between receipt and acceptance 7

What is a sufficient acceptance 7

Effect of refusal to accept services 7

Of check or draft for debt, effect of , , . . . 7

ACCEPTOR (See Acceptance ; Bills and Notes) :

Defined ..» 1



G20,



621,
621,

622,



Page.

619

619

632

620

621

622

622

622

. 623

622

623

628

623

623

624

625

626

626

626-629

629

568, 569

570

18-23

19

86

65

494

700

706

488

496

497

503

519,520

522

526

309, 310

420

556

561

711

50

50

51

365

572

536



50.



INDEX.



ACCEPTOR— Continued. Vol.

Who m;iy become an acceptor 1

What form of acceptance will bihd 1

Defense by 1

Liable on acceptance of forged bill 1 508, 600,

Complaint in action against 1

Presentment of bill to, for payment 1

Should ascertain right of holder to receive payment of bill 1

ACCESSION:

Title of mortgagee of chattels by 2

Defined 2

Title to chattel by .. 2

Increase of live stock 2

By labor on materials of another 2

ACCIDENT:
Actions at law, founded upon

Injmies resulting from unavoidable accident not actionable ....

Arising from negligence, actionable

In shooting at butts

Accidental injuries caused by glancing ball shot at a mark ....

Accidental discharge of gun

Accidental injury in prosecution of lawful act

Injuries in burning over fallow ground

Accidental injuries from lawful use of fire

In driving along highway

Deposit of property on lands of others by flood

Explosion of steam-boiler

Breaking away of dams

Promise to make reparation for damages resulting from

Actions in equity, founded upon

Meaning of the term, as used in equity

Equitable jurisdiction, founded on

When equitable interposition against, may be invoked

Jurisdiction once acquired will be retained

Lost instruments under seal

Foundation of equitable jurisdiction in case of lost instruments

Remedies in case of lost instrument at law and equity

When equity will relieve against loss of deed

When new deed of land will be ordered executed

Remedy on lost negotiable notes

Statutory remedies of the several States upon lost notes

Actions upon lost notes

Relief against penalties and forfeitures

Executors and administrators, errors in payment

Recovering back moneys paid under mistake

Defective execution of powers resulting from

In transfer of bills and notes

When no action lies

Preventing fulfillment of contract



Page.

621
622, 623

626
626, 643
635, 638

635

643

176, 238
237
237
237

238-239

160
160
160
160
160
160
161
161
161
161
161
161
161
162
162
163
162
163
163
163
163
163
164
164
165
165
166
167
168
168, 169
169
171
171
171



INDEX. 5

ACCIDENT— Cb/iimwi.

Vol. Page.

Covenants to repair where building destroyed 1 171



Law rendering performance of contract more burdensome, does



not excuse default



1 171



Covenants to pay rent where building destroyed 1 173

Arising from negligence, no ground for relief. 1 I73

Where the equities are equal 1 jr-o

Eelief as between honajide purchaser of legal title and owner of

equitable title j j^o

Wlien an excuse for failure to give notice of dishonor of bill or

°°t^ • 1 631

Private carrier not liable for unavoidable 2 5

Inevitable accidents deemed the act of God , 3 25

Liability of carrier for unnecessarily exposing property to injury

^^°"^ 2 25

Equitable relief in cases of 3 jgo

Distinguislied from mistake 3 jgg

Liability of hirer of things for loss by 3 gjg

When equity will grant relief against ' ' 3 753

Relief denied where the accident arose from gross negligence. . 3 756

Specific performance of contracts affected by 3 774

Insurance against a ■( aq

Death by, defined 4

(See Insurance; Accident.)

Unavoidable, excuses trespass g

Accidental destruction of property not a conversion 6 ISl

ACCOM]\IODATION PAPER (See Bilh and Notes) :

Liability of maker or indorser of 1 ejo, 611 612 617

Drawer of, entitled to notice of non-acceptance [ , 1 '629

ACCORD:

Defined ^ -, „.

_ .. „ ' 1 06

Requisites of ^ „»

Effect of accord and satisfaction 1 gg

ACCORD AND SATISFACTION:

Of accord and satisfiiction in g-eneral g

Definition and nature

Sr?-'^^^-: '•■'^•^•'•^•'^.y^^ZZ]:... 6 408,409

What IS sufficient p ^nr.

bmaller sum in satisfaction of larger g

Note of third person * p

Agreement by insolvent debtor G 409

Giving further security g '

Receipt and discharge

Judgment confessed by a partner " g

What is not suflScient " n A^n a-,-,

•D . ^ , ^ . " 410, 411

Keceipt, when not sufficient g . ^ ^

Wlien payment and acceptance of a less sum insufficient 6 412

Payment by means of duress * ] ' g ^p.

Accord without satisfaction " g . . ^



108

45



408
6 408



409
409
410
410
6 410



410



INDEX.



ACCORD AND SATISFACTION— Continued. Vol.

Accord must be executed 6

Tender and refusal insufficient G

New or substituted agreement G

Intention of the parties governs 6

By receipt of negotiable securities 6

Bond or note of debtor G

Note of third person G

Note of one partner 6

Note of an infant 6

By allowing cross demands 6

For personal injuries G

By co-contractors or covenanters 6

By co-trespassers G

By strangers 6

By part payment 6

Acceptance G

What is sufficient acceptance 6

By delivery of projjerty 6

When set aside 6

Pleading the defense G

General rule G

Proof of 6

Receipt as evidence of 7

ACCOUNT:

Jurisdiction in equity of matters of 3

Eelief against mistakes in 3

Between principal and agent 3

Duty of broker to render an account to his principal 3

Duty of factor to remit and account to his principal 3

Long acquiescence in, as evidence of correctness G

ACCOUNTING :
Actions relating to, or founded upon

Action of account obsolete at law

When the common-law action would lie

When the action does not lie

Actions of account in equity

Jurisdiction of courts of equity over

No remedy at law

Mutual accounts

Equity will entertain jurisdiction where accounts are compli-
cated, though assumpsit would lie

Where items are all on one side

Appropriation of i:)ayments

Party paying has tiie right of appropriation

Creditor may make appropriation if debtor does not.

Law makes appropriation whore parties do not

Application of payments according to priority of time



Page.
413
413
413
413
414
414

414, 415
415
416
416

416, 417
417
418
418
419
420
421
421
423
423.

423, 423
423
446

169
170

170
280
293
703

173
173
173
173

174

174, 175
174
175

176

175, 176
176
177
177
177
177



INDEX.



ACCOUNTING — Continued. Vol

Effect given to the intention of parties in making appropriation

of payments

Application of payment to unsecured demand

General payment not ajiplicable to illegal demand

Application to debt within the statute of frauds

Application to debt ban-ed by statute of limitations

Application after discharge in bankruptcy

Payment by partner, when applied to individual debt

Presumption where there are a variety of transactions in one

general account

Between principal and agent

When agent may be compelled to submit to

Apportionment

Apportionment of entire contracts

Apportionment of apprentice fee

Apportionment of rent

Contribution

(See Contribution.)

Foundation of the doctrine of contribution

No right of contribution between wrong-doers

Contribution between purchasers of mortgaged premises

Doctrine of general average

Contribution between sureties

Liens

Accounts pertaining to rents and profits

In cases of waste

When no action can be maintained

Defenses to action of

By executors and administrators 3

When executor will be charged interest on 3

Allowance of disbursements on 3

As between guardian and ward 3

Obligation of guardian to account 3

Jurisdiction of accountings by guardians 3

Who may compel guardians to present their accounts 3

Parties to 3

Mode of 3

Charges and credits 3

Interest 3

Pinal settlement, release and offset 3

Opening settlement 3

ACCOUNTS:

What is a matter of account

What is not a matter of account

Books of account, how kept

Form of charge immaterial

Books, how proved

Proof of book account in New York



Page.

177
177
177
177
177
178
178

178

178, 253

179

180

180, 181
181

181, 182
182

183
183
183
183
184
186
186
187
187
188
262
263
263
563
563
563
563
564
564
565
566
567
568

189
189
190
190
190
191



8



INDEX.



ACCOUNTS — Continued. Vol.

When interest allowed upon 4

When interest is not allowed upon 4

ACCOUNT STATED:

Of account stated iu general 6

Definition and nature 6

Essentials in stating account 6

What amounts to 6

Cross-demands not necessary 6

What does not amount to 6

When it may be opened 6

When it cannot be opened 6

To what extent opened 6

Proof required or allowed 6

Pleading defense 6

Errors may be shown under general denial 6

ACCOUNTS STATED:

Actions upon, or relating to, an account stated

Open account defined

Stated account defined

Requisites of a stated account

Account rendered as an admission

Conversion of open account into an account stated

Proof of account stated ....

Infant not bound by account stated

Need not be signed

Need not be mutual or cross-demands

When an acknowledgment of indebtedness will amount to

Effect of admissions of correctness of an account

Effect of retaining a statement of an account without objection

Conclusiveness of

Not an estoppel

May be impeached for mistakes or errors

Is binding on guarantor if binding on original parties

Balance struck on hearing before referee

Opening an account stated not favored

When equity will or will not open 1 196

Opening settled accounts

Effect of delay in detecting errors

Mistake in law no ground for opening settled account

Not opened after books of one -party destroyed

Account not opened after sale on execution

Opening account examined by both parties

Stale accounts not examined

Proof of fraud sufficient ground to open

ACKNOWLEDGMENT :

Of chattel mortgages '..... 2

ACQUIESCENCE:

In boundary hne.s, effect of 1



429,



Page.
139
130

424
424
424
425
425
426
427
427
428
428

4;J0

430



193,



191
191
191
191
192
192
192
192
192
193
193
193
194
195
195
195
195
196
166
197, 198
197
197
197
197
197
197
198
198

174

717



INDEX. 9

k.CqjJIEaC'E'NCE— Continued. Vol. Page.

In use of land by a railroad company as a defense to ejectment . 3 117

Waiver of right to relief against fraud by 3 472

Of husband, as to matters relating to wife's separate estate 3 644

As a waiver of right to equitable relief 3 714

(See Estopjjel.)

Operation of, as an estoppel 6 702

As a presumption of ratification 7 139

ACT OF GOD (See Common Carrier):

What is meant by the term 2 25

What agencies, causing loss, will excuse a carrier as being the. 2 25-28

To excuse a carrier, must be unconnected with human agency. 2 25

Must be the immediate and not the remote cause of loss 2 25

Loss of goods by jettison is loss by 2 26

Failure of wind excuses carrier 2 26

Freezing up of canals or rivers 2 27

Snow storms or floods 2 27

Eunning upon unknown snags 2 27

Bursting of pipes of steam-boiler cracked by frost 2 27

Loss by fire and lightning 2 28

Liability for loss of shij) by 2 157

Excuses performance of contract 7 126, 435

Sickness or death 7 3G0

ACT OF GOD OR OF THE LAW:

When a defense 6 432

Li general 6 432

Act of God defined 6 432

Inevitable accident 6 432

What deemed an act of God 6 433

What not deemed an act of God 6 434

Act of the law as a defense 6 434

Common carrier when excused by 6 2, 434, 435

Relieves telegraph company from liability 6 12

Tenant not liable for waste done by 6 242

ACTION (See Courts of Law and Courts of Equity) :

Nature and definition of 1 9

Classification of civil actions 1 10

Definition of a civil action 1 10

Requisites to the maintenance of 1 10

Who may bring 1 10

Distinctions between actions and suits 1 10, 12

Real, personal and mixed 1 11

Ex contractu and ex delicto 1 11

Local and transitory 1 11

In personam and i?i rem 1 11

I^egal 1 12

Defects in legal rules and principles, how supjilied 1 12

Nature of common-law remedies 1 12

At law relate to some act done 1 13

2



10



INDEX.



ACTION— Cmtinued. Vol

Wrongful act must be committed to sustain

Remedies obtainable in

Compensation in damages given in

Violation of a right not prevented in

Relief in, remedial, not preventative

Afford no relief outside of general rules

Judgments in, uniform, simple and invariable

Specific performance not compelled in

Legal rules not adapted to equitable cases

Termination of powers of court in

Extension of remedies by common law

Exceptions to general legal rules

Tries questions of fact by a jury

Legal remedies may exist, and yet be insufficient

Legal and equitable remedies in specific cases contrasted

Equitable actions or suits

Courts of equity act on the person independently of damage, as
a remedy

May be maintained to prevent a violation of a right

Advantages of equitable over legal remedies 1

Compelling person to convey lands situate in another State

To compel performance of acts specifically

To restrain commission of wrongful acts

Character of relief obtained in 1 24,

No absolute right to trial by jury in

Governed by well-settled rules and principles

Mode of relief in

General rules and maxims of equity . .

The union of leg-al and equitable remedies

Mode of uniting the two systems

Principles of law and equity unchanged

Powers of the court not enlarged by union of the two systems
of practice

Effect of the union on proceedings in Federal courts

Joinder of actions, whether legal or equitable

The rijjht of action

General considerations as to the right to maintain

Malice in the doing of a legal act does not give right of action

Injuries sustained from acts done by consent

Existence of facts sufficient to sustain

For injuries to the person, or jiersonal rights

Relating to property, real or personal

Founded upon contracts

What torts are actionable

Injuries for which no action lies

Damages too remote to give right of

Contributory negligence of the plaintiff

Continuing tortious acts

Existence of the right of



Page,

13

13, 14

14

14,





20




20


22,


23




21




21




23


25,


20



31

31
32
35
35
35
30
30
37
37
38
2, 38
38, 39
39



INDEX.



11



ACTION— Continued. Vol.

Matters to be considered before bringing

Cumulative or exclusive remedies

When statutory remedy only can be followed

Illegality of ground of

Leave to bring or defend

Parties to

Pleadings in

Evidence in

Jurisdiction of

(See Jurisdiction.)

Remedies without action

(See Remedies.)

Founded upon torts

(See Torts.)

For violation of a legal right

For violation of a public duty

For breach of private compact or duty

For torts flowing from contract

Privity as an ingredient in actions for tort

On false warranties

For fraud and deceit

Novelty of ^

Fictitious

For damages arising from illegal or wrongful acts

Rightful act no ground of

Legislative autliority for acts done

Consent of injured party a bar to

Demand or notice before

SpUtting causes of

Damages not caused by wrongs give no right of

Wrongs without damage, actionable

Damages, when too remote to maintain

General principles relating to the defense of

Defenses generally

Pleas or answers in

Founded upon accident „

(See Accident.)

On lost bills and notes , 1 1G5, 1G6,

On lost instruments under seal

Relating to or foqnded upon an accounting'

(See Accounting.)

Relating to accounts, or accounts stated

(See Account.)

For adultery

(See Adultery.)

Upon bou'.ls

(See Bonds.)

For breach of promise to marry

(Sec Breach of Marriage Promise ; Case, etc.)



Page.
41
42
42
43
43
43
44
44
44



38, 131



158,



C02, 603
163
173



12 INDEX.

A.CTION — Continued. Vol. Page.

Right of action by carrier 3 63

Against carrier for conversion 3 61

Carrier may maintain action against person interfering witli his

possession 2 63

By carrier no bar to action by owner 2 63

Against carrier for refusal to carry goods 2 10

The first action by passenger against a carrier 3 63

Lies against carrier for carrying passenger beyond liis destina-
tion 3 64

On the case 3 99-103

When case will not lie 3 103

Mere forms of actions abolished under new Code 3 100, 101

When case and when trespass is the proper form of 3 115

When damages resulting from sj^read of fire, gives no right of. 3 115
When damages from excavation of adjoining owner, gives no

right of ... 3 116

Injuries from grading public streets not actionable.. , 3 116

Act causing death not actionable at common law 3 117

Wrongful act without damage, gives no right of 3 117

Erroneous decision olc judicial officer, gives no right of 3 117

Action brought or execution issued against wrong party, gives

no right of 3 117

Case will not lie for injuries from perjury of witness on former

suit 3 117

When action will not lie against inspector of election for refusal

to receive a vote 3 117

Does not lie for act the plaintiff has requested done 3 117

Does not lie for act done with the assent of the plaintifi 3 117

Does not lie for injuries from fault or negligence of plaintiff. . . 3 117

Exercise of legal right under legislative autliority , 2 118

Cannot arise from an undertaking prohibited by statute 3 118

Does not lie for the price of fraud 2 118

For damages by property deposited on land of another by flood 3 118

For fire communicated by one burning building to another. ... 2 118

For representations as to the pecuniary standing of another 2 118

Will not lie for distraining more rent than is due 2 118

Will not lie for excessive attachment without alleging malicious

intent 3 118

Special damage in action for injury done to a horse 3 118

Election of actions 3 124

Assumpsit and case 3 134

Debt or case 2 124

Covenant or case 2 124

Trespass and case 2 1 24

Trespass and trespass on the case 2 125

What actions are and what are not local 2 126

For charter money 2 163

On mortgaged debt 2 203

For possession of mortgaged property 3 302



INDEX. 13

ACTION— Continued. Vol. Page.

For injuries to goods loaned 3 272

By and against corporations 2 321-"35

For breach of covenants , 2 408

For injuries causing death 2 471

Of debt 2 481

By depositary 2 528

By owner of deposit 2 528

Interpleader 3 529

Of detinue 2 530

Bill or suit for discovery 2 540

For interference with easements 2 747, 749

Of ejectment 3 1

To recover mesne profits 3 130

Enjoining the commencement of actions in foreign jurisdiction 3 153

When a court of equity will restrain 3 179, 727



Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 8) → online text (page 1 of 44)