14. WHERE MUNICIPAL CORPORATION WAS TRUSTEE FOR ALL PERSONS RESID-
ING WITHIN ITS TERRITORY, of certain lands, their rents and profits,
and was by the legislature divided into two separate municipalities, the
trust survives to such inhabitants, residing within such territorial limits,
and the original town having been destroyed, and no trustee being in
existence, a court of equity will appoint one whose duty it will be to
take charge of the trust property, and hold the same subject to the
direction of the inhabitants of the original town. Id.
15. CITY CANNOT AUTHORIZE LAYING RAILROAD IN STREET, to be operated for
private gain, without express statutory power. Davis v. Mayor etc. of
New York, 186.
16. CITY COUNCIL CANNOT, BY ORDINANCE, MODIFY OR REPEAL an act whereby
a borough is laid out, and enacting that the "streets, lanes, and alleys
thereof" shall forever be and remain public highways. Commonwealth v.
Erie etc. R. R. Co., 471.
See AGENCY, 4-6; BANKS AND Banking, 2; RAILROADS.
IF ONE JOINT OWNER OUSTS HIS CO-TENANT, LATTER MAY REGARD FORMER'S
possession as his own and maintain partition, but if the ouster amounts
to an effectual disseisin, they no longer hold the estate together, and par-
tition cannot be maintained. Brock v. Eastman, 733.
See PLEADING AND PRACTICE, 14, 15.
1. IN INDICTMENT FOR BIGAMY, UNDER SECTION OF STATUTE WHICH RECITES
that certain acts shall amount to that offense "except in the cases men-
tioned in the following section," the exceptions contained in such section
need not be negatived. State v. Abbey, 754.
2. IN INDICTMENT FOR VIOLATION OF STATUTE TO WHICH THERE IS EXCEPTION
IN ENACTING CLAUSE, the state must negative the exception, and state
in the indictment that the defendant is not within it; but if there be an
exception in a subsequent clause or subsequent section of the statute, it
is a matter of defense, and is to be shown by the defendant as a defense.
Id.
3. IF EXCEPTION IS SO INCORPORATED WITH AND BECOMES PART OF PENAL
ENACTMENT as to constitute a part of the definition or description of the
offense, an indictment for the violation of such statute must negative the
exception. It is the nature of the exception, and not its location, which
determines the question. Id.
4. MARRIAGE CERTIFICATE IS ADMISSIBLE IN EVIDENCE against a defendant
charged with bigamy, not as proof of his marriage, but in connection with
his previous declarations, in which he had stated that he was married,
and supported his assertion by exhibiting this certificate. Id.
5. FELONIOUS INTENT AT TIME OF TAKING IS ESSENTIAL TO LARCENY; but
where one obtains possession of an article merely to look at it, but with-
out intending to steal, and then embezzles it, he is guilty of larceny.
Dignowitty v. State, 670.
6. OBLIGOR IN BOND IS GUILTY OF LARCENY IN DESTROYING IT with intent
to benefit himself, after having obtained possession of it on pretense of
examining it, even though he did not then intend to destroy it, but con-
ceived the design at the moment of the act of destruction. Id.
7. FELONIOUS INTENT IN LARCENY NEED NOT BE INTENT TO BENEFIT the of-
fender pecuniarily; an intent to serve either himself or another, though
not pecuniarily, would be sufficient.
8. PARTICULAR DESCRIPTION OF THING STOLEN, IN INDICTMENT for larceny, is
not necessary, but it is sufficient to describe it specifically by the name
usually applied to it. Id.
9. INDICTMENT FOR LARCENY OF "CERTAIN INSTRUMENT OF WRITING con-
taining evidence of an existing contract for the conveyance of real estate,
to wit, a town lot in the city of A.," etc., of a specified value, the prop-
erty of M. F., sufficiently describes the thing stolen. Id.
10. PROOF, IN LARCENY, OF GENERAL OR SPECIAL PROPERTY OF OWNER, alleged
in the indictment, in the thing stolen, is sufficient to sustain a conviction;
as in case of an indictment for stealing a bond, "the property of M. F.,"
where the proof is that the bond was made to M. F. and her husband,
since deceased, leaving a child living.
11. IT IS EXCUSABLE HOMICIDE TO TAKE LIFE OF ADVERSARY when "sorely
pressed" and in danger of death or great bodily harm. State v. Ingold,
283.
12. COURT MUST SPECIFICALLY CHARGE JURY AS TO DEGREE OF CRIME COM-
MITTED. It is error to charge that the offense is, "at least," man.
slaughter. Id.
See ARREST; COMMON LAW; CONTEMPT, 1-4; DAMAGES, 1, 2.
ACTUAL SEISIN BY WIFE DURING COVERTURE IS NOT NECESSARY to entitle
husband to curtesy, in Ohio. Lessee of Merritt v. Horne, 298.
1. EXEMPLARY DAMAGES MAY BE AWARDED IN ACTIONS FOR ASSAULT AND
BATTERY. Rowe v. Moses, 560.
2. PECUNIARY CIRCUMSTANCES OF DEFENDANT MAY BE CONSIDERED IN FIX-
ING DAMAGES in an action for assault and battery. Id.
3. MEASURE OF DAMAGES IS CONTRACT PRICE, WITH INTEREST, IN ACTION BY
VENDOR AGAINST VENDEE for failure to complete his contract for the
purchase of land, the vendor having made and tendered a deed to the
vendee. Gerrard v. Dollar, 271.
See EASEMENTS, 2; JUDGMENTS, 1; SLANDER.
1. DEBTOR WILL NOT BE ALLOWED TO SECURE ADVANTAGE AT EXPENSE OF
CREDITORS as price of preferring one of them. Pringle v. Rhame, 569.
2. SALE OF CHATTEL IN PAYMENT OF ANTECEDENT DEBT, WHERE DEBTOR
RETAINS POSSESSION and use of property, is not fraudulent as to credi
tors, if the debtor makes a bona fide contract to pay hire. Id.
3. ALLOWING CHATTEL PURCHASED AT SHERIFF'S SALE TO REMAIN IN Pos-
SESSION OF DEBTOR is not fraudulent as to creditors, when the purchaser
was not a creditor, and purchased bona fide. Garrett v. Rhame, 557.
See FRAUDULENT CONVEYANCES; PARTNERSHIP; TRUSTS AND Trustees, 22.
1. DEDICATION BY OWNER OF PARTICULAR ESTATE WILL NOT BIND THOSE
IN REMAINDER OR REVERSION. Rives v. Dudley, 231.
2. OWNER IS ESTOPPED FROM Resuming Private Rights of PROPERTY OVER
HIS LAND WHEN BY HIS ACT HE SIGNIFIES HIS INTENTION to appropriate
land to the use of the public, and persons in consequence of this act pur-
chase property or build houses with reference to its being used by the
public. Such dedication takes effect immediately; but this rule does
not apply where there has been no appropriation by the owner to the
public use.
3. DEDICATION TO PUBLIC USE DOES NOT OPERATE AS GRANT, BUT AS ESTOP-
PEL IN PAIS.
1. POLICY OF THIS COUNTRY FAVORS FREE ALIENATION of property. Crit.
bins v. Markwood, 775.
2. DEED IS TO BE CONSTRUED MOST FAVORABLY TOWARD GRANTEE. Com-
monwealth v. Erie etc. R. R. Co., 471.
3. DELIVERY OF DEED IS FINAL ACT OF ITS EXECUTION. Newlin v. Osborne,
269.
4. DATE OF DEED PROVED TO HAVE BEEN DELIVERED AT SAME TIME IS PRIMA
FACIE PROOF THAT IT WAS EXECUTED ON THAT DAY; but when rebutted,
its execution must be referred to the time when it is proved that the
grantor parted with the possession for the purpose of giving effect to it.
Id.
5. ACKNOWLEDGMENT OF DEED FOR PURPOSE OF REGISTRATION IS DELIVERY.
6. DECLARATIONS OF GRANTOR ANTERIOR TO DELIVERY OF DEED ARE EVI-
DENCE AGAINST HIM and those claiming under him. Id.
7. DEED IS VALID BETWEEN PARTIES WITHOUT ATTESTATION OR ACKNOWL
EDGMENT. Wood v. Chapin, 62.
8. TO CONSTITUTE GOOD CONVEYANCE BY WAY OF BARGAIN AND SALE, there
must be a valuable consideration expressed in the deed, or proved
independently of it; and where it is expressed, it is conclusive. Per
Denio, C. J. Id.
9. RECITAL IN DEED ACKNOWLEDGING PAYMENT OF CONSIDERATION MONEY
is presumptive evidence that the grantee is a purchaser for a valuable
consideration, under the recording acts. Id.
10. WHERE DEED IS MADE TO CERTAIN PERSONS, DESCRIBED THEREIN AS
"HEIRS AND LEGAL REPRESENTATIVES of John Soye, deceased," it is prima
facie evidence that the consideration moved from said deceased, and that
the conveyance was made to such grantees, not in their own right, but
in their representative capacity; as a consequence, such property is sub-
ject to the payment of the debts of deceased. Soye v. McCallister, 689.
11. UTTERLY VOID AGREEMENT BY ONE PERSON TO CONVEY CERTAIN LAND TO
ANOTHER, or his heirs, may be made use of to ascertain the intention of
the former, who has made a deed of such land to such heirs, and to show
that the land was conveyed to them as such heirs of deceased; that it
was property of his estate, and liable for the payment of his debts. Id.
12. GRANTEE CANNOT SET UP RIGHTS OF MARRIED WOMEN AND MINORS from
whom he purchases in order to maintain rights in himself which his ven-
dors neither asserted nor pretended to convey to him. George v. Thomas,
612.
13. WANT OF SEAL IN SHERIFF'S DEED DULY ACKNOWLEDGED IS FATAL DE-
FECT, where the deed, in order to be valid, is required to be signed,
sealed, and acknowledged; and the addition of a seal many years after-
wards, without another acknowledgment, will not make it available, in
a court of law, to protect the purchaser, in an action of ejectment brought
by an infant or one who has succeeded to her estate. Lessee of Merritt
v. Horne, 298.
14. RECORD OF DEED IS CONSTRUCTIVE Notice TO THOSE ONLY WHO CLAIM
through or under the grantor by whom the deed was executed. Blake v.
Graham, 360.
15. PURCHASER OF REAL ESTATE IS NOT CHARGEABLE WITH CONSTRUCTIVE
NOTICE of prior equities which are disclosed in a deed duly recorded from
the executor of the person from whose heirs he purchases. Id.
See BONA FIDE PURCHASERS, 1, 2; BOUNDARIES; EJECTMENT, 1, 2; EQUITY,
6-8; EXECUTIONS, 5; MARRIED WOMEN, 1, 3-8; TRUSTS AND TRUSTEES,
1. DOWER IS, WHILE INCHOATE, SUBJECT TO SUCH MODIFICATIONS and quali-
fications as the legislature may see proper, for reasons of public policy,
to impose. Weaver v. Gregg, 355.
2 WIFE'S INCHOATE RIGHT OF DOWER IN LANDS HELD BY HER HUSBAND AS
CO-TENANT is divested by a sale thereof, under the Ohio act providing for
the partition of real estate, and the entire estate passes to the purchaser
at such sale. Id.
1. THERE IS INCIDENT TO LAND, IN ITS NATURAL CONDITION, RIGHT TO SUP-
PORT FROM ADJOINING LAND; and if the land sinks or falls away in
consequence of the removal of such support, the owner is entitled to
damages to the extent of the injury sustained. McGuire v. Grant, 49.
2. MEASURE OF DAMAGES IN ACTION FOR CAUSING LAND TO SINK OR FALL
AWAY in consequence of the removal of its support by adjoining land,
is the diminution in the value of the land or lot, and not what it will
cost to restore the lot to its former condition, or to build a wall to sup-
port it. This applies to land not subject to artificial pressure, as where
no buildings stand thereon. Id.
3. OWNER CANNOT RECOVER FOR INJURY DONE TO BUILDING STANDING ON
BOUNDARY LINE OF LOT, which tumbles down by reason of excavatio.s
made upon adjoining lot, where there has been no improper motive or
carelessness in the execution of the work. The loss is damnum absqe
injuria. Id.
4. DEFENDANT IS PERSONALLY RESPONSIBLE FOR HIS INJURIOUS ACT IN RE-
MOVING NATURAL SUPPORT OF LAND not subjected to artificial pressure, or
not having buildings thereon, if such act were done by himself, or by
his direction, or by persons in his employ. Id.
5. USER OF EASEMENT FOR EIGHT YEARS WILL NOT RAISE PRESUMPTION OF
GRANT. Rives v. Dudley, 231.
1. SHERIFF'S DEED IS COMPETENT EVIDENCE FOR DEFENDANT IN EJECTMENT,
although acknowledged after suit was brought, if the sale was prior to
the commencement of the action. Smith v. Grim, 400.
2. TENANT OF Sheriff's Vendee, Taking PosseSSION OF PREMISES BETWEEN
DATE OF SALE and acknowledgment of deed, cannot be treated as an
intruder, where the true owner comes in and defends his possession. Id.
SUPREME LEGISLATIVE POWER OF STATE MAY AUTHORIZE BUILDING OF
RAILROAD on a street or other public highway, but corporation cannot
appropriate such street or highway for such a purpose unless authorized
to do so by the sovereign power of the state. Commonwealth v. Erie etc.
R. R. Co., 471.
1. EQUITY WILL RESCIND CONTRACT FOR SALE OF LAND FOR MUTUAL MIS-
TAKE AS TO QUANTITY of land which the boundaries given in the contract
contained, where the deficiency is material, upon the application of the
purchaser, if the mistake is clearly proved. Belknap v. Sealey, 120.
2. "MORE OR LESS," used in the contract in connection with the statement
of the quantity, will not prevent granting such relief. Id.
3. PARTY CANNOT DISPUTE VALIDITY OF PURCHASE where, having the title
to land which is offered for sale, and knowing his title, he stands by and
encourages or does not forbid the sale, and thereby induces another to
purchase under the supposition that he is getting a good title. Such
purchaser is entitled to equitable relief in perfecting his title. Saunder-
son v. Ballance, 218.
4. WHERE DONATIONS HAVE BEEN MADE BY CERTAIN CITIZENS OF COUNTY
TO PROCURE COUNTY SEAT TO BE LOCATED IN CERTAIN PLACE, and the
county seat is located there in consideration of such contributions, but
afterwards removed, and the county, notwithstanding such removal,
claims the property and the right to use and dispose of it for other pur-
poses than those for which the property was given, there is a clear moral
obligation on the part of the county to either give up the property, or
make compensation therefor, after the county seat is removed; and the
donors in such a case may possibly invoke the aid of chancery. Com
missioners v. Hunt, 303.
5. WHERE DONATIONS HAVE BEEN MADE BY CITIZENS OF COUNTY TO HAVE
COUNTY SEAT LOCATED AT CERTAIN PLACE, and the county seat is there
located in consideration of such contributions, but afterwards removed,
and the county, notwithstanding such removal, claims the property and
the right to use and dispose of it for other purposes than those for which
the property was given, and the donors agree with the county commis
sioners to release the county from payment of interest on their claims if
it will pay the amount actually contributed, the claims of the donors are
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