into that part of it on the defendant's land, and which the defendant was bound to maintain in repair, thereby increasing his burden. In the present case, the defendant (independently of his liability as assignee) is under no obligation to repair. The conclusive answer to the defendant's proposition is this: The act of 1795 implicitly allows, and the Revised Code expressly provides, that strangers to the original decree may drain into the canal (§ 9), and it would be absurd to hold that what may be done in invitum may not be done by the voluntary agreement of the parties. The possible future enlargement of the use of the easement was contemplated in the grant of it, and was therefore not unlawful. If, however, the defendant is damaged by such a change; if the capacity of the canal at its mouth is insufficient to vent the increased quantity of water flowing down, or if the owners of the canal neglect to repair it, so that the water spreads over the defendant's land, it is clear that he has a remedy.
The acts cited and the common law cast on the owners of the easement the burden of repair. Washburn, 564; Egremont v. Pulman, Moody & M. 404; Bell v. Twentyman, C. B. 766. But a right of the defendant to damages for a breach of this duty would not relieve him from the present liability.
Liability for accidental injury to property.] See ACTION, 872, and note, 884.
Title to, when formed by alluvion — alluvion from artificial causes.] The pro prietor of lands bounded by a stream of water is entitled to all accretions thereto, caused by the deposition of alluvion thereon, without regard to the question of whether such accretions were formed solely by natural causes or by such causes influenced by the artificial works of others, and without regard to the question whether such stream is navigable or not. See Lov ingston v. County of St. Clair (Ill.), 516, and note, 524.
ACTION. accidental injury.]
Defendant's horses, while being driven by him, with due care on a public highway, were frightened by a locomotive, became unmanageable and ran upon plaintiff's land and broke a post there. Held, that the defendant was not liable for the damage. Brown v. Collins (N. H.), 372, and note, 384.
2. Unintentional injury.] An action will not lie for an unintentional injury resulting from the exercise of one's right of self-defense where neither negligence nor folly is proved against him. Paxton v. Boyer (Ill.), 615. 3. For money paid — when indorser of check liable.] Plaintiff loaned Hobson money and received therefor the check of Hobson with defendant as indorser, the indorsement containing the words, "waiving demand and notice." Defendant had no interest in the transaction, but knew what the check was given for. Plaintiff did not present the check at the bank for payment until a year had elapsed and Hobson had become insolvent. Held that an action for money paid to defendant's use would lie; and that defendant was not entitled to any demand on the maker, or notice of nonpayment. Emery v. Hobson (Me.), 513.
Trespass by act of stranger.] See TRESPASS, 561.
By master for enticing away servant.] See MASTER AND SERVANT, 780.
By master for injury to servant.] See MASTER AND SERVANT, 643.
Interruption of — question for jury.] A single instance of attempted inter
ruption of an adverse user, resulting in no actual interruption, and fol
lowed by no attempt to test the right, does not necessarily destroy the
presumption of a grant founded upon a user in other respects sufficient.
Such a fact is to be submitted to the jury, with all the circumstances
attending it, to have its natural and proper weight according to those cir
cumstances, upon the question whether the user fairly indicates a grant.
Connor v. Bullivan (Conn.), 10.
Payment by bank of checks drawn by agent after expiration of agency.] Bes
BANK, 576.
866 ACCRETION, 516, and note, 524.
ALTERATION OF INSTRUMENTS.
Killing blanks in note.] See NEGOTIABLE INSTRUMENTS, 427.
Bight to kill when trespassing or damage feasant.] See DEFENSE OF PROPERTY,
889.
1. When justifiable.] Defendant and plaintiff's brother were in conflict when
defendant struck plaintiff with a knife, supposing him to be the brother.
Plaintiff had in fact given no provocation for the blow. The jury found
for plaintiff and assessed his damages; but also found a special verdict
"that the blow complained of was struck by defendant without malice, and
under circumstances which would have led a reasonable man to believe it
was necessary to his proper self-defense." Held, that the judgment should
have been for defendant on the special verdict. Paxton v. Boyer (III.).
8. Unintentional injury.] A person is not liable for an unintentional injury
resulting from the exercise of his right of self-defense, where neither neg.
ligence or folly is proved against him. Ib.
Exemplary damages in action for.] See DAMAGES, 270.
Warranty on sale by assignee.] See WARRANTY, 690.
Payment of checks drawn by agent after expiration of the agency.] Plaintiff,
being about to leave home for a short time, gave his clerk a power of
attorney to draw checks on a bank for fifteen days, and deposited the
power of attorney with the bank. Plaintiff returned, but the clerk con-
tinued to draw checks on the bank for several months. Meanwhile the
bank-book of plaintiff had been several times written up, but as the clerk
was plaintiff's cashier, the fact that he had been drawing checks after the
power of attorney expired, had not been discovered by plaintiff. Certain
amounts, so drawn, were used by the clerk for his own purposes.
that the bank was liable for such amounts. The bank was guilty of negli-
gence in paying checks of the clerk drawn after the expiration of the power
of attorney, and could not be excused because plaintiff had failed to ex-
amine the returned checks and bank-book. Manufacturers' National
Bank v. Barnes (Ill.) 576.
Recovery of stake-demand.] Plaintiff and another deposited money with
defendant as stakeholder upon an unlawful wager. Plaintiff, claiming to
have won, demanded the entire deposit of defendant; but defendant re-
fused to comply with the demand, and paid the money to the other party.
In an action by plaintiff to recover the amount deposited by him, held
(PARK, J., dissenting), that plaintiff's right was not defeated by the fact
that his demand covered the whole amount of the stake, and was made
in affirmance of the wager. Hale v. Sherwood (Conn.), 37.
Construction of a grant bounded on a stream.] See note, 524.
Proposal to receive bribe.] A proposal by a public officer to receive a bribe ‘a
an indictable offense at common law. Walsh v. People (Ill.), 569.
As to consideration of promissory note.] See NEGOTIABLE INSTRUMENTS, 410.
Breaking out-variance.] Defendant was charged in an indictment with
“ breaking and entering " a house. The jury were charged that “if they
believed the defendant (however he got into the house) broke out of it, he
was guilty." Held, error. State v. McPherson (N. C.), 769.
1. Liability of, for assaults of servants on passengers — exemplary damages.] Pas-
senger carriers are responsible for assaults and batteries committed by
their employees upon passengers. Hanson v. European and North Ameri
can Railway Company (Me.), 404, and note, 409.
-.] Plaintiff entered defendant's car as a passenger, his dog accompa
nying him. While the train was in motion, a brakeman attempted to
eject the dog but was forcibly prevented by the plaintiff. Afterward, the
brakeman suddenly attacked plaintiff, inflicting upon him serious injuries
On the trial of an action of trespass therefor against the company,
the
court charged that if the brakeman "was acting in the performance of
his duty as brakeman, he would be justified in using a reasonable degree
of force, necessary and proper to accomplish the removal of the dog from
the car, but if he used more violence than was necessary, and inflicted
on plaintiff blows that were unnecessary to perform his duty, the company
would be liable, and the jury may, in that case, award punitive or exem.
plary damages." Held, correct. Ib.
8. Excessive damages.] The jury returned a verdict for plaintiff of $4,000.
Held, that the damages were not so clearly excessive as to justify the
court in setting aside the verdict on that ground. Ib.
4 Ejecting passenger — stopping over.] Plaintiff was a passenger on the cars
of defendants, a railroad company, under a contract to carry him from
Charlotte, N. C., to Augusta, Ga., with the privilege of stopping at
Columbia. His ticket was a through ticket from New York to Savan-
nah, with coupons for the different roads - for defendants' road there
being two, one from Charlotte to Columbia, and one from Columbia to
Augusta. On the passage from Charlotte to Columbia, W., the conduc
tor on the train, detached both coupons, and gave plaintiff a conductor's
check, which, by the rules of the company and the general usage of
railroads, was good only for that trip. Plaintiff stopped at Columbia,
and the next day took the train for Augusta, in charge of J., another con-
ductor. On this train, his ticket was again demanded, and on his exhibit-
ing the conductor's check, and his ticket, without the coupon, to Augusta,
was informed by J. that they did not answer, and that he must either
pay the fare to Augusta or leave the train. He failed to pay, and was
ejected from the train. Held, that the act of J., in ejecting plaintiff from
the train, was wrongful, and that defendants were liable in damages there-
for. Plaintiff's rights grew out of the terms of his contract, giving
him the privilege of stopping at Columbia. He did not owe defendants
the duty of giving notice of his intention to stop, or of making inquiries
as to the force and effect of the conductor's check; and if he failed to give
such notice or make such inquiries, he was guilty of no negligence of
which defendants had the right to complain. On the contrary, the duty
of taking notice of and regarding his right to stop, was owed by defend-
ants to him, and when conductor W. detached the coupon from Columbia
to Augusta, he should have delivered in its place some token having the
same force and effect. Palmer v. Railroad (S. C.), 750.
5. Exemplary damages.] A railroad company may be made to respond in
exemplary damages, for the misconduct of its agent in ejecting a pas
senger. Ib.
8. Limiting time for commencing action against an express company.] An ex-
press company gave a receipt for goods containing a clause exempting it
from "any loss or damage whatever, unless claim should be made there
for within ninety days from the delivery to it." Held, that an action
against the company for non-delivery of the goods was not barred by the
lapse of ninety days. Porter v. Southern Express Co. (S. C.), 762.
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