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persons, an easement in favor of the tenement so orerlooking the other, it
being the one first conveyed, is created in respect to light and air, the swing-
ing of the shutters, and access to and from the firc-cscapes. Havens v. Klein,
6. Such easement is an apparent one. The grantee of the servient tene-
ment, the one later conveyed, is deemed to have actual notice of such ease-
ment, and takes his title subject thereto. ld.
7. In such case it is immaterial whether such severance be by deed or mort.
gage, inasmuch as by foreclosure the mortgage is ripened into a deed. Id.
8. An aqueduct not having become a legal casement, will not pass under
the word appurtenance in a deed. Spuu!ding v. AB'ot, 121.
9. Land which is covered by a party-wall remains the several property of
the owner of each half, but the title of each is qualified by the easement of
the other of support of his building by means of the portion of the wall bc-
longing to his neighbor. Ingals v. Plamondon, 220.
10. The easement of support is the only proper onc attached to a 'party-
wall, and does not include a right to the unobstructed use of a flue by one of
the parties which is on the land of the other. Id.
11. The common-law rule is that where the owner of two heritages, or of
one consisting of several parts, arranged and adapted them so that one derives
a benefit from the other of an obvious and continuous character, and then
conveyed one of them without mentioning such incidental advantage or burden
of the one in respect to the other, there is an implied agreement that such
advantage and burden shall continue as before the separation of the estate.
12. In order to affect a purchaser of property with notice of an casement
in favor of an adjoining owner, the same must be continuous and apparent.
13. The subject of apparent easements discussed. Idl., note, 226.
14. Easements of necessity arc implied in every deed of a part of grantor's
land, but whether a right of 'way in stairs and halls is implied by a convey-
ance of part of a house, quære. If such easement exists it is a mutual onc,
and the permanent exclusion of one party by the other will at the option of
the latter extinguish the easement as to both, 'Dillman v. Iloffman, 186.
15. A party having conveyed a portion of his land over which was the only
mcans of access to the remaining lanıl, a right of way by necessity to the
remaining land was reserved. Pingrec v. DicDuffie, 624.
EMINENT DOMAIN. Scc ConstituTIONAL LAW, III.
EQUITY. See Contract, 6 ; CORPORATION, 1, 7, 11, 12; DEED, 7; Higi-
WAY, 2, 3; VENDOR AND PurchASER, 3, 8, 9.
1. It is the proper exercise of equity jurisdiction to apportion among par-
tics having a coinmon interest in the use of a water power, the burden and
expense of such duty. Sanborn v. Braley, 56.
2. A chancellor will not always order an instrument to be delivered up to
be cancelled when he would refuse specific performance of the contract; he
will leave the parties to their legal remedies. Stewart's Appeal, 312.
3. This power will be exercised whenever an instrument exists which may
be vexatiously or injuriously used against a party after the evidence to im-
peach it has been lost. Id.
4. A creditor who has exhausted his remedy at law by a fruitless execution
on his judgment has the right to ask the aid of a court of cquity to discorer
and reach the cquitable assets of his debtor. Trego et al. v. Skinner, 377.
5. In such a case where property has been fraudulently conveyed, the ser.
eral persons to whom it has thus been conveyed may be joined with the debtor
in the bill. 1.
6. Where the facts stated in a petition are within the solc jurisdiction of a
cour: ofcquity, neither party can of right demand that the issue of fact shall
be tried by a jury. Rocamd v. Entreken, 553.
7. Clear and convincing proof is required to warrant the reformation of a
wrillen instruinent on the ground of mistake. Potter v. Polter's Ex'x, 555.
8. In proceedings in equity, whatever is essential to the rights of the plain-
tiff, and is necessarily within his knowledge, must be alleged positively in
the bill. Such convenient degree of certainty must be adopted as will give
the defendant full information of the case which he is called upon to answer.
Rice v. Hosiery Co., 608.
9. The mere receipt of money by a party not entitled, cannot of itself
create any equity in his favor. The People v. Touonship Board, 443.
10. Where a father made a conveyance of all his lands to his five sons upon
the consideration that he was to have the use and control of the same during
life, for his support, a court of equity will enforce the performance of the
condition, Yoakum y. Yoakum, 442.
11. Where complainants have fixed by their own estimate the extent of
injury they would suffer from a non-observance of the condition in a contract,
they are precluded from resorting to a court of equity for relief by way of
injunction. Ilahn v. Concordia Society, 442.
12, A bill of review is never sustained on strict law against equity.
Jarr's Appeal, 312.
13. To a bill in Rhode Island charging the collection of money by defend-
ant he answered that he was administrator in Massachusetts, and collected as
such. Held, that in the absence of explicit denial it would be presumed he
collected also as administrator in Rhode Island. Rayv, Simmons, 701.
14. Where there are joint debtors and one is beyond the reach of the pro-
cess of the court, and equity has jurisdiction, a decrce may be taken against
the other for the whole amount due. Lewis v. Unitel Slates, 678.
15. It is a settled principle of equity that a creditor holding collaterals is
not bound to apply them before enforcing his direct remedies against the
16. In general, one who will be directly affected by a decree in equity, is
a necessary party to the suit ; and this rule is departed from only when the
parties are too numerous. Where the grounds of action averred against sev-
eral defendants arise out of a series of transactions forming one course of
dealing, the bill is not multifarious. Supervisors of Douglas Co. v. Wa'bridge
et al., 250.
17. The objection that a case is one of legal instead of cquitable cogni-
sance must be taken in the court of original jurisdiction. Wallace v. Ilarris,
18. Where plaintiff invested his funds in United States notes temporarily
and for the purpose of avoiding taxation, equity will not aid him by enjoin-
ing the state authorities from collecting the tax.
Mitchell v. Commissioners,
19. To enable a court of equity to entertain a bill filed to restrain a de-
fendant from violating a contract, the terms of the contract should be certain.
Caswell v. Gibbs, 44+.
ERROR AND APPEAL. See TRIAL, 1.
1. A party excepting to the admission of testimony is bound to state his
objection specifically. Columbia Bridge Co. v. Geisse, 122.
2. On a judgment of nonsuit the court below being better able to judge of
the force of evidence, a court of error will not reverse unless it should plainly
appear that the plaintiff had a case that should have gone to the jury. Have
erly v. Mercur, 443.
3. The power of a judge to seal or allow a bill of exceptions ends with the
term at which the trial is had, unless there is an express order of the court
extending the time or the opposite party consents. Mulller v. Ehlers, 554.
4. An order of the Circuit Court reversing a judgment of the District Court
and awarding a new trial for misdirection on the law, is not a tinal judgment
on which a writ of error will lie. Baker v. White, 554,
5. A reviewing court on error has no control of the records of the court
below, and cannot therefore correct or change them. Smith 5. Board of Edu-
6. A reviewing court may, however, disregard any matter which is not
leitimately matter of record. Id.
ERROR AND APPEAL.
7. What shall constitute the record of a case is regulated by statute.
Smith v. Board of Education, 554.
8. When a motion for a new trial is granted by the court in which it is
made, the judgment rendered on the new trial will not be reversed for error
in allowing such new trial. Id.
9. The court will only notice such assignments of error as seem to it mate-
rial. Phillips Construction Co. v. Seymour, 558.
ESTATE. Sce Trust, 3.
ESTATE TAIL. See Constitutional Law, 9.
ESTOPPEL. See LIMITATIONS, STATUTE OF, 6.
1. Where the owner of property holds out another as its owner, and inno-
cent parties are thus led into dealing with such apparent owner, they will be
protected. Anderson v. Armistead, 250.
2. One who has repudiated a contract is estopped from afterward claiming
the benefit of it. McQueen v. Gamble, 378.
EVIDENCE. See AGENT, 11-13; COMMON CARRIER, 6; Criminal Law, 2,
8-11; HUSBAND AND WIFE, 13; INSURANCE, 3 ; LIMITATIONS, 4; TRIAL, 5.
1. Parol evidence is admissible to prove an independent collateral fact
about which a written contract is silent. Fusting v. Sullivan, 56.
2. A deed described the land thereby conveyed as being in “Lington," in
the county of Addison. Held, that the name “ Lington” was so like the
name Lincoln, that the deed was properly admitted in evidence. Armstrong
v. Colby, 56.
3. In an action against a telegraph company for damages for failure to
transmit a dispatch, the original dispatch delivered to the operator must be
given in evidence, or if not, its absence must be properly accounted for before
secondary evidence thereof can be admitted. Western Union Telegraph Co.
v. Hopkins, 56.
4. The legislature may make that which, according to the ordinary rules
of experience, reasonably tends to prove å fact, conclusive evidence of it.
State v. Woodford, 311.
5. Before parties were made competent witnesses, books of original entry
were the evidence, the onth of the party was supplementary. Since, the party
is a competent witness and may prove his claim as a stranger would have
done before. Nichols et al. v. Haynes, 378.
6. Lumping charges in a book would not stand as evidence, but the testi-
mony of the party that the entry was composed of items known to him to
have been furnished would be competent to go to the jury. Id.
7. The party's knowledge that the sum was correct would make it evi.
dence ; the credibility as to it would be for the jury. Id.
8. In a suit by an executor or administrator, the letters testamentary are
admissible in evidence and are conclusive of his right to sue.
Ins. Co. v. Tisdale, 412.
9. But in an action between strangers, such letters are not admissible as
evidence of the death of the decedent. Id.
10. In an action by a wife upon a policy of insurance on the husband's
life in her favor, letters of administration are not evidence of the husband's
11. Where in an action for libel it appeared that the original writing on
which the suit was founded was among the records of the navy department at
Washington, it was held, that secondary evidence of its existence and con-
tents was properly admitted. Carpenter v. Bailey, 621.
12. In replevin brought against a wife upon a liability incurred by her
husband, who had absconded, testimony of what the husband had said and
done was inadmissible, unless the acts or statements had been in her presence
or with her knowledge. Campbell v. Quackenbush, 384.
il. Déclarations and Admissions.
13. In trover, the defendants claimed title to the property through B., who
turned it over to them to secure a then existing debt. Ile!d, that the declara-
tions of B. were admissible against the defendants. Alger v. Andrews, 56.
14. The opinion of persons not experts, upon the question of insanity, is
admissible in Vermont, when based upon facts within their knowledge and
observation. Hathaway v. National Life Ins. Co., 682.
A warranty of title is implied in a contract of exchange as in a contract
of sale. Patee v. Pelton, 742.
EXECUTION. See CoxFLICT OF Laws, 3, 6, 8; PARTNERSHIP, 6.
EXECUTORS AND ADMINISTRATORS. See CONFEDERATE STATES, 1;
E vIDENCE, 8.
1. The appointment as administrator de bonis non, with the will annexed,
of one who was surety on the bond of the previous executor, does not make a
debt due the estate from such executor assets in the hands of such adminis-
trator by reason of his suretyship. Shields r. (lell, 742.
2. An executor or administrator cannot bring suit against himself for a
debt due him by his decedent. Perkins v. Perkins, 493.
A commission merchant who sells for his consignors, eren though he
guaranty the payment of the price, receives the proceeds of the sales in a
fiduciary capacity, and is liable to arrest in an action therefor, unless he has
been authorized by his consignor to use such proceeds in his own business.
Williams Mower Co. v. Raynor, 251.
FALSE PRETENCE. Sec CRIMINAL LAW, 17.
A railroad company, though required to maintain side-fencing, is not
liable for the destruction of cattle suddenly let loose upon the track through
a breach in the fencing caused by a storm, and not existing long enough to
establish negligence of the company. Robinson v. Grand Trunk Railway, 187.
1. The legislative grant of a ferry-franchise is valid, although the grantec
has not title to the landing-places which are named as the termini of the
ferry. Columbia Bridge Co. v. Geisse, 122.
2. The grant by one state of a ferry-franchise over a river which is the
boundary between it and another state is valid ; and it is not necessary that
there be concurrent action by both states. The franchise for that reason may
be less valuable, but it is good so far as his own property-rights are con-
cerned, or ihe jurisdiction of the state making the grant extends. Id.
3. In an action to recover damages for the injury suffered in the destruc-
tion of a ferry by the erection of a bridge, the income derived by the plaintiff
from tolls received in preceding years, is competent evidence to show the
value of the ferry. Id.
FOREIGN JUDGMENT. See Conflict of Laws; ConstituTIONAL Law,
1. The jurisdiction of a foreign court over the person or subject matter is
always open to inquiry, and the court of another state is a foreign court.
llall y. Lunning, 682,
2. A member of a partnership firm, residing in one state, cannot be ren-
dered personally liable in a suit brought in another state against him and his
co-partners, although the latter be duly served with process, and although the
law of the state where the suit is brought authorizes judgment to be rendered
against him. Id.
3. Nor can his co-partners, after a dissolution of the partnership, without
his consent and authority, implicate him in suits brought against the firm by
voluntarily entering an appearance for him. Id.
FORFEITURE. Sec CONFISCATION.
The subject of forfeiture and confiscation of enemy's property under the Acts
of Congress discussed. Note to Wallach v. Van Riswick, 337.
FORMER ADJUDICATION. Sec Action, 2.
1. A privy in interest for whose use and with whose knowledge a snit is
brought is concluded by the judgment, not only as to the defendant, but as to
the nominal plaintiff. Cole v. Favorite, 251.
2. One who fails to have a judgment set aside for fraud, is not debarred
from contesting at law a void execution sale by not having put it in issue in
his chancery suit. Bonker v. Charlesworth, 187.
3. A complainant may, if he chooses, make distinct controversies on the
same matter, the subjects of separate suits. Id.
4. To be a bar, must be for the same cause of action, but not necessarily
in the same form of action. Hungerford's Appeal, 79.
FRAUD. See ATTORNEY, 3; Debtor and CREDITOR, II. ; GUARDIAN, 2.
1. Where an account is asked on the ground of fraud, it is not sufficient to
charge fraud in general terms; particular acts should be stated.
2. Fraud without damage is no ground for relief at law or in equity. Id.
3. Fraud used in obtaining a decree, being the principal point in issue,
must be established by proof before the propriety of the decree can be investi-
4. Fisher sold a house to Saylor, agreeing to make good any loss of Saylor
in a resale. Saylor sold for less than he gave. In an action against Fisher
for the difference there was evidence that the sale of Saylor was collusive
and fraudulent. In answer to a point the court charged, if there was any
collusion between Saylor and his vendee in the sale then Saylor “cannot
recover more than the difference between a fair price for the house and the
amount paid to Fisher.” Held to be error, the fraud would prevent Saylor
from maintaining the action. Fisher v. Saylor, 312.
FRAUDS, STATUTE OF. See ACCORD AND SATISFACTION.
1. PARTNERSHIP REALTY IN ITS RELATION TO, 321.
2. ContraCTS RELATING TO THE PRODUCE OF LAND, 323.
3. The general rule is that a parol promise to pay the debt of another is
within the statute where it is collateral to a continued liability of the original
debtor. Townsend v. Long, 57.
4. If a parol promise be to pay absolutely or conditionally the debt of
another, due or to become due on an existing contract, it is generally within
the statute. Id.
5. The consideration for the promise is important only where it is a transfer
of the creditor's claim to the promisor, making the transaction a purchase,
or where it is a transfer of a fund pledged, set apart or held for the payment
of the debt. Id.
6. Where K. & W., by a parol agreement with a certain bank, promise
that if the bank will cash a certain draft to be drawn by and in the name of a
certain agent of theirs upon S. L. & Co., that said K. & W. will be respon-
sible for its payment, and afterwards such agent does draw such draft and the
said bank cashes the same, and afterwards said draft is dishonored by said
S. L. & Co. : Held, that the bank may maintain an action to recover from
said K. & W., on said parol promise, the amount paid out on said draft, with
interest. Kohn v. First National Bank, 313.
7. Evidence to prove a promise to pay the debt of another as an original
undertaking and not a contract of suretyship, must be clear and satisfactory.
Haverly v. Mercur, 413.
1. The delivery of a chattel must be according to the nature of the article.
Bond v. Bunting, 378.
2. The Married Woman's Act, April 11th 1848, of Pennsylvania con-
3. A person does not part with the legal dominion and control over money