24. Where the term of the court at which defendant was convicted was adjourned without day, no judgment having been rendered, and defendant not having applied for or assented to any delay except to the Tuesday following the day on which the verdict was rendered, and at the next term of the same court, the same judge presiding, the defendant was sentenced, held, that defendant, not object ing to the delay, but moving for a new trial for errors committed on the trial, waived the delay, and was not prejudiced thereby. People v. Everhardt (N. Y.) 53 Accused as witness. (Pa.) for the purpose of identification. (Pa.) 617 617 617 618 618 (N. Y.) 53, 54 by de 54 Delay in entering judgment; waiver fendant. (N. Y.) Arrest of judgment; ground for. (N. Y.) 54 618 618 Appeal; matters of discretion. (N. Y.) 56 Error; questions open. (Pa.) Admission of evidence. (Pa.) County not liable for costs of criminal proceedings where it is not so expressed in 870 statutes. (Pa.) 724 Mining custom; judicial notice. (Pa.) 552 Evidence of trade custom. (N. Y.) DAMAGES. I. BREACH OF CONTRACT. II. INJURIES TO PROPERTY. III. INJURIES TO PERSON. BRIEFS AND NOTES. See BILLS AND NOTES, 3; LIBEL AND SLANDER, 3, 4; MASTER AND SERVANT; MUNICIPAL CORPORATIONS, VI.; PHYSICIAN AND SURGEON; RAILROAD COMPANIES, 13; SPECIFIC PERFORMANCE, 4-6; SEDUCTION; TRESPASS, 2, 5; TURNPIKE COMPANIES; WATERS AND WATERCOURSES; WAYS; WHARVES. I. BREACH OF CONTRACT. 1. An action against a builder for the breach of a contract to erect a house within the stipulated time, is an action for unliquidated damages, in which the court cannot order a reference against objection. Untermeyer v. Bernhauer (N. Y.) 709 2. If the counterclaim requires the examination of a long account, this will not make the action referable. Id. 3. Should the counterclaim ever require examination, a reference can be ordered as 616-618 to it, after trial of the issues. Id. Alibi; burden of proof. (Pa.) Identity of prisoner; evidence. 50, 53 618 (Pa.) rule, give a cause of action to one injured thereby. 709 Sowers v. Lowe (Pa.) 4. A bill of particulars, specifying items of damage, does not constitute an account. Untermeyer v. Bernhauer (N. Y.) 145 16. Plaintiff and defendant owned adjacent lots. Plaintiff's house was close to the line: defendant's thirty-two feet from it. The intervening space was sandy, and sloped from defendant's house to plaintiff's. Plaintiff's cellar was always dry until defendant changed the spouting which had formerly discharged 5. Where the former receiver of a railroad company made a contract that complainant should for a year keep the ash pit clean where the engines of the company emptied their ashes, and for his compensation should have the cinders and coal from such pit, held, that complainant is entitled to damages for breach of the contract by the re-into the street the water from his house, and ceiver. 8. Where plaintiff's lands were used for a railroad track for some time, the proper measure of damages is the fair rental value of such lands, for the time they were so used, in absence of special damage. Baltimore & O. R. R. Co. v. Boyd (Md.) 435 9. Declarations made by counsel on a former occasion in the course of a trial, while urging the question of the damages before a jury of condemnation of the property in question, are not admissible to prove malice on the part of defendant in order to enhance the damages. Id. turned the spouts upon the space between the houses. The water then percolated through the sand, and plaintiff's cellar became damp and the house was damaged. Held, plaintiff had no right of action against defendant for the damage thus caused. III. INJURIES TO PERSON. Id. is the measure of damages in action of 17. In the absence of malice, compensation slander. If words were uttered with special malice, punitive damages may be awarded, and defendant's means may be taken into ac count. Healy v. Dettra (Pa.) BRIEFS AND NOTES. 168 Nominal; breach of warranty. (N. Y.) 786 436 Exemplary. (Md.) 378 Measure for breach of contract. (Pa.) 490 For breach of parol agreement. (Pa.) 153 Injuries to property. (Pa.) 551 From flowage of land by water. (Pa.) 146 Measure of damages for appropriation of land for opening way. (Pa.) Measure in slander. (Pa.) 833 178 Measure for breach of promise of mar- See ASSIGNMENT FOR BENEFIT OF CREDITORS; DECEDENTS' ESTATES. See CURTESY; DESCENT AND DISTRIBUTION; DECEIT-DEED, IV. DECEIT. See FRAUD AND FRAUDULENT | but retained the deed in his possession CONVEYANCE. until his death. The son had no knowledge of the deed, which had not been recorded, until it was found among his father's papers. Notwithstanding evidence that the father had said to a stranger that he had given the land to his son, that he would keep the title during his life, but that the son would get the land after his death, held, no title passed. 899 Authorities cited. Id. 9. Where a deed is sealed and delivered, and there is nothing to qualify the delivery except the keeping of the deed in the hands of the executing party, and nothing to show that he did not intend it to operate immediateId. ly, it is a valid deed. Authorities cited. 10. Acts of grantor, such as recording, may give rise to the legal presumption of delivery. Authorities cited. Id. III. RECORD; NOTICE. 900 11. A deed sent to clerk to be recorded, without payment of his fees, and which he "pigeon holed,"is not "lodged" for record within Recording Act. Dickerson v. Bowers (N. J.) 372 12. Notice of an unrecorded deed to an attorney or agent is equivalent to notice to principal. Id. 13. The enrollment of a deed is evidence of all circumstances necessary to give validity, but this evidence may be rebutted. Authorities cited. Dunnington v. Hubbard (Md.) IV. CONSTRUCTION. 888 14. A deed of land, with all rents, issues, and profits, and all grantor's estate, right and interest, to the grantee, his heirs and assigns, vests in the grantee the legal title and equitable estate, including ground rent and life estate. Biddle v. Tomlinson (Pa.) 838 15. A deed stated that "This conveyance is upon the express condition that the company, their successors or assigns, shall at all times maintain an opening into the premises hereby conveyed, opposite to the hotel, adjacent to the premises hereby conveyed, for the convenient access of passengers," etc. Held, a covenant running with the land, providing for access or right of way, so as to continue or enhance the value of the hotel property, in favor of its owner or lessee. Avery v. New York Cent. & H. R. R. R. Co. (N. Y.) 795 16. Courts frequently construe that which is in form a condition, a breach of which forfeits the whole estate, into a covenant on which only the actual damage can be recovered. Authorities cited. Id. 799 17. The owner of two adjoining city lots, Nos. 141, and 143, conveyed lot No. 143 to defendant's grantor, by metes and bounds, as being twenty-two feet wide, "with the buildings and improvements thereon, together with all and singular the tenements, hereditaments, and apThe house purtenances thereto belonging.' on the lot conveyed extended beyond the 745 Grantees must be plainly described. Inadequacy. (Pa.) line called for by the deed five feet, on lot Griffiths v. Morrison (N. Y.) 773 19. The owner of a tract of land, on a plat of which a street was designated, but not then opened, conveyed a portion by deed bounding on west side of such street. Thereafter such street was closed by the public authorities with the acquiescence of the then holder of the abutting lot conveyed by said deed. Held, said deed did not convey fee in road bed of such street, and that grantor was entitled to recover possession of the road bed to the center. Baltimore & O. R. R. Co. v. Gould (Md.) 379 | 20. A deed in pursuance of an antenuptial contract, conveyed land from the husband to a third party for the use and purpose mentioned in the contract, by which the husband in effect agreed to vest in his wife a life estate in the south half of the land, in case she survived him, with the remainder in fee to his heirs, and in the same contingency to vest in her an estate in the other half during two minorities of his children, with remainder in fee to such children, etc. Held, such deed was a mere conveyance to the use of the beneficiaries named. Helck v. Reinheimer (N. Y.) 743 21. Where the contract provided that if the wife died before the husband, without issue, the land was to be conveyed back to the husband, upon her death, the deed ceased to have any operation. V. DEFEASANCE. Id. Parol evidence to show. (Pa.) Execution; proof of. (Pa.) 558 557, 558 650 511 518 Any evidence tending to prove formal exe- (Pa.) 900 142 765 22. A deed absolute on its face may be shown by parol to be a security for money advanced. Pearson v. Sharp (Pa.) 23. It does not follow from the possession of DE a power of sale by the grantee in such a deed that the power is to be exercised otherwise than by foreclosure. VI. WARRANTY. Id. 24. Where grantee in a warranty deed assumes to pay certain mortgages as part of the purchase money, equity will compel him to discharge the obligation. Cubberly v. Yager (N. J.) BRIEFS AND NOTES. FACTO OFFICER. See OFFICE DEFAULT. See JUDGMENT, I. 365 Mental capacity of grantor; undue influ ence. (Pa.) 718 (Pa.) Ratification. (N. Y.) Sale. Satisfaction. (Pa.) Sidewalks. (N. Y.) Terry v. Smith (N. J.) 127 3. Parol testimony is not admissible to show that testator had other property to which the will applied. Baker's Appeal (Pa.) 158 156 4. Where there is no ambiguity in the 910 terms of a will, a doubt suggested by extraneous circumstances cannot be permitted to affect its construction. Authorities cited. Id. 160 190 5. Intent of testator must be gathered 910 from will itself; all mere technical rules must 47 give way to such construction. Authorities cited. 777 See ASSIGNMENT FOR BENEFIT OF CREDITORS, 1, 2; DEED, II.; SALE, 5, 7, 9, 10. Wharfage. (N. Y.) DELIVERY. Rhein's Appeal (Pa.) 491 6. Punctuation must give way whenever it interferes with the proper and reasonable construction of a will. Authorities cited. Id. 491 ever have the 7. It is only where the first sentence is complete and the other imperfect, or vice versa, that the word "also" can meaning of the words "in like manner," given to it. Authorities cited. Id. 492 8. When one undertakes to make a will, it will be presumed that his purpose is to dispose of his entire estate. 347 Snyder v. Baker (D. C.) II. DESCRIPTION of Gift and BENEFICIARY; 9. A bequest to a law library to be established and maintained by fines, etc., to be paid to a committee appointed by the court, is a bequest to a mere inanimate thing, having no capacity to receive a gift and is void. 659 Craig v. Lilly (Pa.) 10. Even if the library were a charity, the gift would be defeated by the Act of April, 1855, because the will was made within thirty days of testator's death. |