1. A GRANT Of Land Bordering upon a RiVER carries the exclusive
right and title in the river to the center thereof, subject to the right
of passage in the public, unless the terms of the grant specially in
dicate an intention on the part of the grantor to confine the grantee
to the edge or margin. Chicago v. Van Ingen, 285.
2. Ir Town LOTS ARE SOLD AND CONVEYED BY A MAP REPRESENTING
THEM AS FRONTing upon a Stream of water or designating such stream
as one of their boundaries, the purchaser becomes the owner of the
fee to the center of the stream, with the right to maintain docks or
wharves out to the line of navigability. Of this right he cannot be di
vested without compensation first being made. Chicago v. Van Ingen,
285.
WHEN ENTITLED TO COMMISSION - FAILURE OF TITLE-If an agent to
sell land agrees to pay a commission to a broker for procuring a pur
chaser, and one is obtained, he is liable for the commission, though it
is then discovered that the land does not belong to the principal.
Such a mistake is not, in law, a mutual mistake which will avoid the
contract to pay a commission on the sale. Barthell v. Peter, 906.
ARCHITECT, DECISION OF, WHEN FINAL-If the parties to a building con-
tract agree that the architect shall pass upon the work and certify upon
the payments to be made his decision is binding, and can be attacked
only for fraud or evident mistake. If, in such a contract, provision is
made for payment of the price upon presentation of the architect's cer-
tificate, the obtaining of such certificate is a condition precedent to the
right to require payment, and to maintain an action therefor in case
payment is refused on the architect's certificate as to delay in perform.
ing work, and as to the damages recoverable therefor. If a building
contract specifies that the decision of the architect shall be binding in
case of any disagreement between the parties relating to the perform-
ance of any covenant therein, and that damages shall be allowed for
the nonperformance of the contract at the sum of fifty dollars for each
and every day the work remains undone after a date named therein,
which sum should be deducted from the contract price, the architect
is empowered to determine the extent to which delay was due to the
fault of the contractor, and to deduct from the amount of his certifi.
cate the fifty dollars for each day's delay for which he finds the con-
tractor chargeable. Hennessy v. Metzger, 267.
BURDEN OF PROOF.
See BAILMENT, 4.
BY-LAWS.
See CORPORATIONS, 3-5.
1. THE LIABILITY OF A CARRIER AS SUCH IS NOT PREVENTED FROM AT
TACHING by the fact that it is not ready to perform its duty and
retains the property in its possession because not then able to provide
the means of transportation. London etc. Ins. Co. v. Rome etc. R. R.
Co., 752.
2. CARRIERS OF LIVESTOCK-NEGLIGENCE-SUFFICIENCY OF PLEADING AND
PROOF.-In an action by a shipper of livestock against a railroad com-
pany to recover the value of an animal lost a declaration which alleges
bóth delay in the transportation and failure to furnish an opportunity
for feeding and watering the stock justifies a recovery upon proof of
omission on the part of the company to furnish an opportunity to the
shipper to feed and water the stock, although the company is not liable
for the delay. Smith v. Michigan Cent. R. R. Co., 440.
See ELEVATORS; RAILROADS, 5-8.
CERTIORARI AS WRIT OF REVIEW.-The writ of certiorari cannot be used
to serve the purpose of a writ of error or appeal with bill of exceptions.
The granting of the writ is not a matter of right, but in the legal dis-
cretion of the court; and, in order to review and quash the proceedings
of an inferior tribunal upon such writ, the court must have proceeded
in the case without jurisdiction, or its procedure must have been clearly
illegal, or unknown to the law, or essentially irregular.-Hunt v. Jack-
sonville, 214.
1. A DESCRIPTION IN ▲ Chattel Mortgage IS SUFFICIENT if it will enable
third persons, aided by the inquiries which the instrument indicates
and directs, to identify the property.—Andregg v. Brunskill, 388.
2. THE DESCRIPTION IN A CHATTEL MORTGAGE referring to the ownership
or location of the property mortgaged is of great importance, and the
omission of these data may leave imperfect and void a description,
which, were they present, might properly be sustained. Andregg v.
Brunskill, 388.
3. A DESCRIPTION OF PROPERTY MORTGAGED as "fourteen steers one year
old, crop off left ear, and slit in the same ear; four heifers one year old,
marked on ear as above steers," without any reference or statement
respecting the location or ownership of the property, is insufficient and
void. Andregg v. Brunskill, 388.
See EVIDENCE, 12; Fraudulent ConveyancES,
1. BANKING.—A CHECK PAYABLE TO ORDER is a bill of exchange payable to
order on demand. First Nat. Bank v. Northwestern Nat. Bank, 247.
2. DILIGENCE AS TO PRESENTMENT. The rule of diligence as between
indorsee and indorser is the same as between payee and drawer. Hence
the indorser of a check is not liable thereon if it is not presented for
payment within a reasonable time after its indorsement and delivery.
Gifford v. Hardell, 925.
3. COMMENCEMENT OF REASONABLE TIME FOR PRESENTATION.-As between
the indorsee and indorser of a check the period of reasonable time for
presentation begins when the check is delivered to the indorsee œ
to his agent. Gifford v. Hardell, 925.
DILIGENCE AS TO PRESENTMENT IN DISTANT PLACE.—The general rule
of diligence as to the presentation of a check received in a place
distant from that of the bank upon which it is drawn is, that the check
must be forwarded to the latter place on the next secular day after its
receipt, and be presented for payment on the day after it has reached
such place by due course of mail. Gifford v. Hardell, 925.
4. PERIODS FOR PRESENTATION.-Each indorsee of a check is allowed
the same period of time for presentation for payment, as between
himself and his immediate indorser, that the payee had as between
himself and the drawer. Gifford v. Hardell, 925.
See BANKS, 4-6; NEGOTIABLE Instruments, ♣
CHOSES IN ACTION.
See EXECUTORS AND ADMINIStrators, 1.
ACTIONS-PARTIES-Dower.-A widow claiming a dower interest in lands
conveyed by her husband in his lifetime by deed in which she did not
join, and subsequently sold for taxes, is a necessary party to an action
to quiet title to the land. Thompson v. McCorkle, 334.
Bee EXECUTORS AND ADMINISTRATORS, 3, 5; JUDGMENTS, 2, 11; MAB-
RIAGE AND DIVORCE, 3-5; MORTGAGE, 13; PATENTS, 5-7; PUBLI
LANDS, 1.
COLLATERAL SECURITY.
See DURESS, 2
See JUDGMENTS, 9, 11–13; MARRIAGE and Divorce, &.
COMMISSIONERS.
See STATES, 3, 4.
COMMON CARRIERS.
See CARRIERS.
COMPENSATION.
See OFFICERS, 5.
DEFENSES.—The maker of a promissory note cannot avoid payment thereof
on the ground that it was given to compound a felony. City Nat. Bank
v. Kusworm, 880.
COMPROMISE.
See CONTRACTS, 13; WILLS, 1–5,
CONCEALMENT.
See FRAUDULENT CONVEYANCES.
See EXECUTION, 1; EXECUTORS AND ADMINISTRATORS, 9-11; MARRIAGE
AND DIVORCE, 3.
CONSIDERATION.
See CONTRACTS, 5.
1. "DUE PROCESS OF LAW" requires an orderly proceeding adapted to the
nature of the case, in which the citizen has an opportunity to be heard,
and to defend, enforce, and protect his rights. A hearing, or an opportu.
nity to be heard, prior to judgment, is absolutely essential. State v.
Billings, 525.
2 DUE PROCESS OF LAW-REStricting Power to Contract.—The right
to contract necessarily includes the right to fix the price at which labor
will be performed and the mode and time of payment; and a statute
which restricts a person as to either of these essential elements of the
right to contract to a mode different from that enjoyed by the commu.
nity at large deprives him of liberty and property without "due process
of law." Low v. Rees Printing Co., 670.
See INSANE PERSONS; LEGISLATure; Statutes, 1-4; WITNESSES, 4–7.
CONSTRUCTION.
See CONTRACTS, 7; Statutes.
REFUSAL TO ANSWER QUESTIONS-HABEAS CORPUS.-A witness who refuses
to answer questions propounded to him concerning violations of the
Purity of Election Law by other persons with whom he has co-operated
may be lawfully committed for contempt until he shall answer, and
is not entitled to discharge upon habeas, corpus, if so committed. E
parte Cohen, 127.
1. WHEN PERFECT THOUGH THE PARTIES CONTEMPLATE ITS BEING RE
DUCED TO A MORE FORMAL WRITING.-If the correspondence and tel.
egrams between the parties contain all the details of a contract it is
enforceable though they intended that their agreement should be for
mally expressed in a single paper, which, when signed, should be the
evidence of what already had been agreed upon. Neither party has the
right to insist that such agreement should contain terms not stated in
the correspondence and telegrams, and if he does so insist, and refuses
to sign the agreement or perform the contract without such additional
terms, he is answerable for the damages sustained by his withdrawal
from his contract. Sanders v. Pottlitzer Bros. Fruit Co., 757.
2 A CONTRACT TO MAKE AND EXECUTE A CERTAIN WRItten AgreemeNT,
the terms of which are mutually understood and agreed upon, is in all
AM. ST. REP., VOL. XLIII.-61
respects as valid and obligatory, where no statutory objection inter-
poses, as the written contract itself would be if executed. Neither
party is at liberty to refuse to perform or to enter into the agreement
as stipulated. Sanders v. Pottlitzer Bros. Fruit Co., 757.
3. TIME AS ESSENCE OF.-In equity time is not regarded as of the essence of
a contract unless expressly stated to be so. Chabot v. Winter Park
Co., 192.
4. TIME, WHEN ESSENCE OF.-If a party to a contract for the sale of
lands is guilty of laches and negligence in performing, and the time
for performance has passed, the other party may, by giving notice, fix
a reasonable time for the performance of the contract, and has a right
to treat it as abandoned if performance is not completed in such rea-
sonable time. Chabot v. Winter Park Co., 192.
5. CONSIDERATION OF LEASE-DETRIMENT TO LESSOR.-The consideration for
a lease may as well consist in detriment due the lessor as in profit due
the lessee. Hence, if the possession of a company's electric light and
gas plant, and the use thereof, are transferred by a lease for two years,
under which the lessee is to take possession, manage, control, and oper
ate the property, and to pay the company every three months during
the term all the receipts of the business, less all necessary charges and
expenses, the contract is supported by a sufficient consideration, though
the lessee is not benefited by the contract. Visalia Gas etc. Co. v.
Sims, 105.
6. AMBIGUITY. -If a written order for the purchase of a chattel contains
the words "note for one hundred and ten dollars; three fall payments
at eight per cent," the time of payment is uncertain and ambiguous,
and the order is incomplete on its face. Aultman v. Clifford, 478.
7. WRITTEN INSTRUMENTS-RULE OF CONSTRUCTION-ABSURDITY OR RE-
PUGNANCE. If the ordinary meaning of the words employed in a writ
ten instrument leads to a manifest absurdity or repugnance they may,
if the instrument as a whole will permit it, be varied or modified so as
to avoid such inconvenience, but no further. Kentzler v. American etc.
Accident Assn., 934.
8. STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER.—An agree-
ment by a creditor to forbear the enforcement of his debt is not a suffi-
cient consideration to support an oral promise of a third person to pay
that debt, although such third person makes the promise for the purpose
of subserving and promoting his own pecuniary interests. McKenzie v.
Puget Sound Nat. Bank, 844.
9. STATUTE OF FRAUDS-PROMISE TO PAY Debt of AnothER.-A considera-
tion to support an oral promise to pay the debt of another to be valid
must be of a peculiar character, and must operate to the advantage of
the promisor, and place him under a pecuniary obligation to the prom-
isee independent of the original debt, which obligation is to be dis-
charged by the payment of that debt. McKenzie v. Puget Sound Nat.
Bank, 844.
10. TORT, BREACH OF CONTRACT WHEN MAY AMOUNT TO.—If one person
owes another a duty the breach of which is a tort, the fact that the
former has expressly contracted with the latter for the performance of
such duty does not render its breach any the less a tort, but, if the duty
is imposed or created by the contract and otherwise did not exist, its
breach is not a tort. Russell v. Polk County Abstract Co., 381.
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