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 1) online

. (page 87 of 93)
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 1) → online text (page 87 of 93)
Font size
QR-code for this ebook

son, 9 Barb. 350.

Twenty years' user of an opening in the bank of a canal to
supply it with water from a swamp as a reserve, notwithstanding
an occasional overflow, was held not sufficient to establish such
a prescriptive right in the canal company as to entitle them so to
increase, either intentionally or negligently, such outflow, as to
cause the water to escape from the swamp and submerge the
land of an adjacent proprietor. Savannah, etc.. Canal Co. v.
Bourquin, 51 Ga, 378. And it is held, that a canal company,
having power under their cliarter to enlarge their canal and to
take private property on making compensation, are liable to the
owner of lands which are inundated and injured by such enlarge-
ment, though it is made with all reasonable care and skill. 8el-
den V. Delaware, etc., Canal Co., 24 Barb. 362. See Chase v.
Sutton Manuf. Co., 4 Cush. (Mass.) 152.

§ 3. Keeping in repair. As it regards the repair of a canal, a
canal commissioner has two classes of duties imposed upon him ;
the duties of one class are imperative, while those of the other
depend on his judgment and discretion. In cases where the
duties are imperative and absolute, if he neglects them, he is
responsible to any one who suffers from his neglect. Griffith v.
Follett, 20 Barb. 620. It is incumbent upon him to examine
such portion of the canal as is committed to his care, and to
decide, from such examination, the necessity for any particular
repair, and act accordingly. His duty to repair is imperative
when there is an obstruction to navigation in the canal, or when

Vol. L — 93


there is a breacli in the banks rendering passage upon it difficult
or impossible. lb. See Follett v. People, 17 Barb. 193 ; S. C, 12
N". Y. (2 Kern.) 268 ; French v. Donaldson, 57 N. T. (12 Sick)

If a canal be built across a private road, the owner of the pri-
vate road can compel the canal owners to bridge it. HabershaTn
V. Savannah, etc., Canal Co., 26 Ga. 665. But where a highway
is laid out over a canal after its construction, the owners of the
canal are under no obligation at common law, either to construct
or maintain a bridge over the canal. Morris Canal Co. v. State,
4 Zabr. (N. J.) 62. See King v. Kerrison, 3 M. & S. 526.

§ 4. Tolls. * As- it regards the right of the proprietors of canals
to tolls, the rule is that they are entitled to take them, only as
authorized by statute ; and any ambiguity in the terms of the
statute must operate in favor of the public. Perrine v. Chesa-
pealie, etc., Canal Co., 9 How. 172; Myers v. Foster, 6 Cow.
567; Delaware, etc.. Canal Co. v. Pennsylvania Coal Co., 21
Penn. St. 131 ; Canal Co. v. Wheeley, 2 B. & Aid. 792. Thus, a
canal corporation, not having been empowered by its charter to de-
mand tolls on passengers, or on vessels by reason of their pas-
sengers, cannot lawfully exact such tolls. Perrine v. Chesa-
peake, etc.. Canal Co., 9 How. 172.

The term "toll" does not necessarily import an immediate
payment. As in other cases, the period of payment depends on
the understanding of the parties. Penn. Coal Co. v. Delaware,
etc.. Canal Co., 29 Barb. 589 ; S. C. affirmed, 3 Abb. Ct. App. 470 ;
1 Keyes, 72. In the absence of any thing to indicate a different
intention, tolls are payable at the time the amount is ascer-
tainable, without reference to the times of passage. lb.

§ 5. Negligence. A company maintaining for their own profit a
canal, open to the public for navigation on payment of tolls, are
bound only to take reasonable care tliat it may be navigated with-
out danger, and are not responsible for accidents which do not
arise from the want of this reasonable care. They are not, like
common carriers, subjected to the responsibility of insurers.
Lancaster Canal Co. v. Parndby, 11 Ad. & El. 223 ; Exchange
Fire Ins. Co. v. Delaware, etc.. Canal Co.., 10 Bosw. (N. Y.) 180;
Weitnery. Delaware, etc.. Canal Co., 4 Rob. (N. Y.) 234.

§ 6. Liability of officers iu charge. The rule of law is well
settled, that a contractor employed by the State to put a canal
in repair is liable to an individual who sustains special damages
by reason of the contractor's neglect to perform his duty. Fiol-


ton Ins. Co. v. Baldwin, 37 K Y. (10 Tiff.) 648 ; Conroy v. Oale,
5 Lans. (N. Y.) 344 ; RoUnson v. Chamberlin, 34 N. Y. (7 Tiff.)
389. And it is held that in order to render a canal contractor
liable for damages resulting from defects in a canal bridge, It is
not necessary to establish either that the bridge was so defective
as to be apparently so to every body, or that notice of its defect-
ive and unsafe condition had been brought to the contractor or
his agents. It is sufficient if it appears that the defects were such
as the contractor might, by reasonable examination and tests,
have discovered. Stack v. Banks, 6 Lans. (N. Y.) 262 ; Frencli
V. Donaldson, 57 N. Y. (12 Sick.) 496.

The superintendent of repairs on a canal, negligently allowing
an obstacle to remain in the canal until he receives orders for its
removal from the canal commissioners, is liable to parties whose
boats are damaged by the obstacle. Shepherd v. Lincoln, 17
Wend. 250 ; Adsit v. Brady, 4 Hill (N. Y.), 630. And the fact
that a boat owner was attempting to pass his boat through a
canal on Sunday in violation of law will not prevent his recov-
ery of damages occasioned by a break in the embankment result-
ing from the negligence of the servants of the canal company.
Mc Arthur v. Green Bay^ etc., Canal Co., 34 Wis. 139.


Of nuisances 60

Reasons for allowing abatement of nuisances 61

When notice or request to remove a nuisance necessary before 61

Of nuisances from omission, when allowed 61

Of a private nuisance must merely restore former right 61

Pulling down an inhabited dwelling , 61

Removing obstructions from highways 62

Pleas or answers in 158


Of contract to marry 726


Who are 416

Intent necessary to constitute 416, 417

Attachments against 416

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

When attachment will lie against partners as 417

Presentment of bills or notes where makers or acceptors are 635


Attachments against 415

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

ACCEPTANCE (See Bills and Notes) :

Liability of drawee on acceptance of bill payable in chattels 575

ESect of general acceptance of bills payable in chattels 575, 576

Absolute or conditional 576, 625

Order for delivery of goods does not require 576

Holder of order may require 576

Distinction between bills and orders for goods as to 577

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

Of a protested bill is valid 592

Of bills after indorsement 592

Of forged bills 600, 601, 643

Of accommodation paper 610, 617

Presentment of bills for 618

Duty of payee of bill as to presentment for 619

Bills must be presented for, within a reasonable time 619

Time of presenting bill for 619, 620, 632

Place of presentment of bill for 620

By destroying or refusing to return bill 621


ACCEPTANCE — Continued. page

Contract created by 621, 622

Who may accept bills 621, 622

By partners 622

Agreements for 622, 623

By parol, valid at common law 622

What constitutes, in New York 623

On separate paper, when binding 623

Promise to accept, when equivalent to . . . .■ 623

Writing name across the bill, amounts to 623

Of check, not necessary 624

General and conditional , 625

Defenses in action against acceptor 626

Proceedings on non-acceptance 626

Notice of non-acceptance 626-629

Accommodation drawer entitled to notice of non-acceptance : 629

Of note of third party, how far payment 568, 569

Of individual note for partnership debt 570

ACCEPTOR (See Acceptance ; BilU and Notes) :

Defined 536

Who may become an acceptor 621

What form of acceptance will bind 622, 623

Defense by . . 626

Liable on acceptance of forged bill 508, 600, 626, 643

Complaint in action against 635, 638

Presentment of bill to, for payment 635

Should ascertain right of holder to receive payment of bill 642


Actions at law? founded upon 160

Injuries resulting from unavoidable accident, not actionable 160

arising from negligence, actionable 160

In shooting at butts 160

Accidental injuries caused by glancing ball shot at a mark 160

Accidental discharge of gun 160

Accidental injury in prosecution of lawful act 161

Injuries in burning over fallow ground 161

Accidental injuries from lawful use of fire 161

In driving along highway 161

Deposit of property on lands of others by flood 161

Explosion of steam-boiler •■ 161

Breaking away of dams 161

Promise to make reparation for damages resulting from 162

Actions in equity, founded upon 162

Meaning of the term, as used in equity 162

Equitable jurisdiction, founded on 162

When equitable interposition against, may be invoked 162

Jurisdiction once acquired will be retained 163

Lost instruments under seal 163

Foundation of equitable jurisdition in case of lost instruments 163

^ INDEX. ■ 743

ACCIDENT — Continued. page.

Remedies in case of lost instrument at law and equity 163

When equity will relieve against loss of deed 164

When new deed of land will be ordered executed 164

Remedy on lost negotiable notes 165

Statutory remedies of the several States upon lost notes 165

Actions upon lost notes 166

Relief against penalties and forfeitures 167

Executors and administrators, errors in payment 168

Recovering back moneys paid under mistake 168, 169

Defective execution of powers resulting from 169

In transfer of bills and notes 171

When no action lies 171

Preventing fulfillment of contract 171

Covenants to repair where building destroyed 171

Law rendering performance of contract more burdensome, does not excuse

default 171

Covenants to pay rent where building destroyed 172

Arising from negligence, no ground for relief 172

Where the equities are equal 172

Relief as between bona fide purchaser of legal title and owner of equitable

title 172

When an excuse for failure to give notice of dishonor of bill or note 631

ACCOMMODATION PAPER (See Bills and Notes) :

Liability of maker or indorser of 610, 611, 612, 617

Drawer of, entitled to notice of non-acceptance , 629


Defined 66

Requisites of 66

Eflfect of accord and satisfaction 66


Actions relating' to, or founded upon 173

Action of account obsolete at law 173

When the common-law action would lie 173

When the action does not lie 173

Actions of account in equity 174

Jurisdiction of courts of equity over 174 175

No remedy at law 174

Mutual accounts 175

Equity will entertain jurisdiction where accounts are complicated, though

assumpsit would lie 176

Where items are all on one side 175, 176

Appropriation of payments 176

Party paying has the right of appropriation 177

Creditor may make appropriation if debtor does not 177

Law makes appropriation where parties do not 177

Application of payments according to priority of time 177

Effect given to the intention of parties in making appropriation of pay-
ments 177

744 INDEX.

ACCOUNTING — Continued. page.

Application of payment to unsecured demand , . , 177

General payment not applicable to illegal demand , . . . 177

Application to debt within the statute of frauds ... 177

Application to debt barred by statute of limitations 177

Application after discharge in bankruptcy 178

Payment by partner, when applied to individual debt , , . . 178

Presumption where there are a variety of transactions in one general ac-
count 178

Between principal and agent 178, 252'

When agent may be compelled to siibmit to 179

Apportionment 180

Apportionment of entire contracts 180, 181

Apportionment of apprentice fee 181

Apportionment of rent 181, 182

Contribution 182

(See Contribution.)

Foundation of the doctrine of contribution 182

No right of contribution between wrong-doers 183

Contribution between purchasers of mortgaged pi'emises 183

Doctrine of general average 183

Contribution between sureties 184

Liens 186

Accounts pertaining to rents and profits 186

In cases of waste 187

When no action can be maintained 187

Defenses to action of 188


What is a matter of account - . 189

What is not a ndatter of account 189

Books of account, how kept 190

Form of charge immaterial 190

Books, how proved 190

Proof of book account in New York 191


Actions upon, or relating to, an account stated 191

Open account defined 191

Stated account defined 191

Requisites of a stated account 191

Account rendered as an admission 192

Conversion of open account into an' account stated 192

Proof of account stated 192

Infant not bound by account stated 192

Need not be signed 192

Need not be mutual or cross demands 193

When an acknowledgment of indebtedness will amount to 193

Effect of admisioiis of correctness of an account 193

Effect of retaining a statement of an account without objection 193, 194

Conclusiveness of 195

INDEX. 745

.4.CC0TJNTS STATED — Continued. page.

Not an estoppel 195

May be impeached for mistakes or errors 195

Is binding on guarantor if binding on original parties 195

Balance struck on hearing before referee 196

Opening an account stated not favored 196

When equity will or will not open 196, 197, 198

Opening settled accounts 197

Effect of delay in detecting errors 197

Mistake in law no ground for opening settled account 197

Not opened after books of one party destroyed 197

Account not opened after sale on execution 197

Opening account examined by both parties 197

Stale accounts not examined 198

Proof of fraud sufficient ground to open 198


In boundary lines, effect of 717

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

Nature and definition of 9

Classification of civil actions 10

Definition of a civil action 10

Eequisites to the maintenance of 10

■ Who may bring » 10

Distinctions between actions and suits 10, 12

Real, personal and mixed 11

Ex contractu and ex delicto ■ 11

Local and transitory 11

In personam and in rem 11

Legal 12

Defects in legal rules and principles, how supplied 12

Nature of common-law remedies 12

At law relate to some act done 13

Wrongful act must be committed to sustain 13

Remedies obtainable in 13, 14

Compensation in damages given in 14

Violation of a right not prevented in 14, 15

Relief in, remedial, not preventative 14

Afford no relief outside of general rules . . . .' 14

Judgments in, uniform, simple and invariaWe 14

Specific performance not compelled in 15

Legal rules not adapted to equitable cases 16

Termination of powers of court in 16

Extension of remedies by common law 16

Exceptions to general legal rules 17

Tries questions of fact by a jury 18

Legal remedies may exist, and yet be insufficient 19

Legal and equitable remedies in specific cases contrasted 19

Equitable actions or suits 20

Courts of equity act on the person independently of damage, as a remedy, 20

Vol. I. —94

746 INDEX.

ACTIONS — Continued. page.

May be maintained to prevent a violation of a right 20

Advantages of equitable over legal remedies 21, 22, 23

Compelling person to convey lands situate in another State 21

To compel performance of acts specifically 21

To restrain commission of wrongful acts 23

Character of relief obtained in . . . 24, 25, 26

No absolute right to trial by jury in 24

Governed by well-settled rules and principles 26

Mode of rehef in 28

General rules and maxims of equity 28

The uniou of legal and equitable remedies 29

Mode of uniting the two systems .' 29

Principles of law and equity unchanged ■ 30

Powers of the court not enlarged by union of the two systems of practice, 31

Efifect of the union on proceedings in Federal courts 31

Joinder of actions, whether legal or equitable 32

The right of action 35

General considerations as to the right to maintain 35

Malice in the doing of a legal act does not give right of action 35

Injuries sustained from acts done by consent 36

Existence of facts sufficient to sustain • 36

For injuries to the person, or personal rights 37

Relating to property, real or personal 37

Founded upon contracts 38

What torts are actionable 2, 38

Injuries for which no action hes 38, 39

Damages too remote to give right of 39

Contributory negligence of the plaintiff 40

Continuing tortious acts 40

Existence of the right of 40

Matters to be considered before bringing 41

Cumulative or exclusive remedies 42

When statutory remedy only can be followed 42

Illegality of ground of 43

Leave to bring or defend , 43

Parties to 43

Pleadings in 44

Evidence in '. 44

Jurisdiction of 44

(See Jurisdiction.')

Remedies without action 52

(See Remedies.)

Foanded upon torts 38, 131

(See Torts.)

For violation of a legal right 132

For violation of a public duty 133

For breach of private compact or duty 134

For torts flowinpf from contract 135

INDEX. 747

ACTIONS— Conimwed page.

Privity as an ingredient in actions for tort 136

On false warranties 137

Por fraud and deceit 138

Novelty of 140

Fictitious 141

For damages arising from illegal or wrongful acts 142

Rightful act no ground of 143

Legislative authority for acts done 145

Consent of injured party a bar to .' 146

Demand or notice before 146

Splitting causes of 146

Damages not caused by wrongs give no right of 146

Wi-ongs without damage, actionable 147

Damages, when too remote to maintain 148

General principles relating to the defense of 157

Defenses generally 157

Pleas or answers in .' 158, 159

Founded upon accident 160

(See Accident.)

On lost bills and notes 165, 166, 602, 603

On lost instruments under seal 163

Belatiug to or founded upon an accounting 173

(See Accounting.)

Relating to accounts, or accounts stated 189

(See Account.)

For adultery 199

(See Adultery.)

Upon bonds 695

(See Bonds.)

For breach of promise to marry 722

(See Breach of Marriage Promise.)
ADMINISTRATION. (See Assets, Administration of.)

Contracts by 78

Equitable relief against errors in payment by 168

Attachments against 421

May indorse note of intestate 587

Transfer of note by one of several, a transfer by all 587

When liable on their indorsement 588

Bound by bond of their intestate 670

ADMISSION (See Attorneys) :

Of attorneys .^ 431

By attorneys 440


Actions for 199

Proof of marriage 198

748 INDEX.

ADULTERY — Continued. page.

At common law a mere civil injury 199

Action of, may be maintained after dissolution of marriage 199

Husband must be without fault to maintain action for 199

Consent or connivance of husband defeats action 200

How far separation by agreement affects right of action 200

111 treatment of wife goes to the question of damages, but not to the right

of action ; 200

On the part of the husband affects the question of damages only 201

Condonation of offense does not bar action 201

Proof of 201

Proof of adultery generally presumptive 201

From what acts and circumstances adultery may be presumed 201

Confessions of wife not evidence against defendant 202

Letters of wife, how far evidence 202

Damages in action for 203

Damages measured by injury sustained 203

What are circumstances of aggravation 203

What may be shown in mitigation of damages 204

Death of wife pending action for 204


General rules relating to 205

Defined 205

Voluntary transfer of property whether a gift or 205

When conveyance of land by parent to child constitutes 205, 206

What is not 206

Creates no debts to the person making it 206

Trifling gifts not charged as 206

A gift for the purpose of pleasure is not 207

Moneys expended for education of child 207

In what made 207

To whom made 207

Grifts to grandchildren 207

By whom made 207

Value of, how estimated 208

Presumptions as to • 208

Parol evidence to show 209

Presumption of, how rebutted 210

No particular form of words necessary to constitute 210

Hotchpot defined and considered 210

Failure of 212

Interest on, not allowed 212


General principles relating to principal and agent 213

Nature of an agency 213

Who may be a principal 214

Cannot be created by persons under disabilities 214

When married woman may create 214

Who may be an agent 214

INDEX. 749

AQ-ENCT — Continued. page.

Persons under disabilities may be agents 214

Wife may be agent of husband 214

Husband may be agent of wife 215

Effect of war on 215

To do an illegal act 215

Cannot be created by partner for performance of partnership duties 215

Agent cannot delegate his authority 215

General and special agencies 216

Special agent may have general authority in respect to a particular thing. . 216

Different kinds of agents 217

Authority conferred on two or more agents, how exercised 218

Appointment of agents 218

When the appointment of the agent must be by deed or under seal 218

When appointment may be by parol 219

Appointment by corporations 219

Express or implied authority of agents 219

Katification of unauthorized acts 219

Nature and extent of agent's authority 220

Acts of agent within the scope of his authority 220

Implied authority of agents 221, 222

Authority of a cashier of a bank 221

Authority of agent employed to collect a debt 221, 224, 225

Authority of agent employed to make purchases 222

Authority of agent employed to sell lands 222

Authority to sell implies authority to warrant 222

Authority to sell upon credit 223

Authority of merchants' clerk 223

Limitation of powers of agents acting under special authority 223

Authority to draw checks, not authority to overdraw 223

Authority of agent, when limited 224

Construction of general terms granting authority 224

Power of attorney to sell eflfects does not authorize sale of lands 225

Verbal authority to sell lands does not give power to contract 225

Construction of powers of attorney 225, 226

General agent cannot employ counsel for servant of his principal 226

Power of agent to bind principal for medical aid. 226

Notice of extent of agent's authority 226

Where authority of agent is a matter of record 227

Effect of private instructions to agent 227

Principal bound by acts within apparent authority conferred 228

Ambiguous authority construed against principal 228

Usage or custom as a means of interpreting the authority of agents. . 228, 229

Parol evidence to enlarge authority 229

Written authority not enlarged by evidence of usage 230

Acts to be done in a foreign country or State 230

Extent of authority, how far implied 230

Authority must be implied from facts which have occurred 231

Silence may be construed as an authority 231

Knowledge of agent, knowledge of principal 231

750 INDEX.

AGrENCT — Continued. page.

Exercise of extraordinary powers in emergencies 232

Ratification of assumed authority 232

Ratification by principal after full knowledge equivalent to express authority, 232

Ratification must be entire 233

Ratification of part of unauthorized transaction is a confirmation of the whole, 233

Ratification of unauthorized act under mistake 233

No ratification possible where there is no assumption of agency 233

Retaining fruits of unauthorized act, a ratification 234

Ratification once made cannot be re-called 234

Notice of dissent must be given within a reasonable time 234

Ratification relates back to original transaction 234

When ratification must be under seal 234-

Agent's declarations do not prove authority 234

Duties of agents 235

Agent must act in person 235

I Agent cannot delegate power requiring the exercise of judgment and dis-
cretion 236

How an agent should exercise his authority , 236

Business of the agency should be transacted in name of the principal .... 236

Sealed instrument must be executed in name of principal 237

Execution of instruments not under seal 237

Execution of commercial contracts and paper 238

Personal liability of agent how avoided 238

Parol evidence to charge principal 238, 239

Coupled with an interest 239

Agent must act within the scope of his authority 240

"What diligence and skill required of an agent 240

Agent contracts for reasonable skill and ordinary^diligence 240

What is reasonable skill 241

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 1) → online text (page 87 of 93)