CUMULATIVE SENTT NCES (continued).

the imprisonment is made to commence at the expiration of an
imprisonment under a previous sentence, the number and date of
which is given. Id.

DECREE. See Amendment; Appeal.

DEED, CONDITION IN.

1. A condition introduced in a deed signed only by the grantor that
the grantee shall assume the payment of a certain promissory
note, secured by a prior deed upon the property conveyed, is not
binding upon the grantee unless the conveyance and its condi-
tions are brought to his knowledge and he accepts the property
thereunder. Keller v. Ashford, 445.

2. Payment of interest on the note and the collection of the rents are
not inconsistent with the theory that the grantee took the prop-
erty under the supposition that it had been transferred to him
merely as security for an indebtedness due him, especially when
there is no evidence that he had any knowledge of the deed
and its conditions. Id.

DEMURRER. See Pleading and Practice, 3, 4, 5.

DISMISSAL OF SUIT, EFFECT OF. See Equity.

DISTRICT OF COLUMBIA. See Municipal Corporations, 1, 2, 3, 5, 6.

DUE PROCESS OF LAW. See Insane Persons.

EASEMENTS.

1. One cannot have a right of way over his own land as something
separate from the fee simple ownership; all such rights are con-
sidered merged in the ownership of the soil. Consequently where
the owner of a lot which extended from the street in front to an
alley in the rear, sells, with the appurtenances thereto belong-
ing," a portion of the lot, which portion fronts upon the street
but does not quite extend to the alley, the term "appurtenances
does not carry with it a right of way to the alley over the part not
sold. Such a right can only be conveyed by express grant. May
v. Smith, 55.

2. The owner of an easement in land can abandon or extinguish it if
he chooses, and if he does so, and afterwards sells the land, the
easement is no longer incident to it. Id.

ENCUMBRANCES, PRIORITY OF.

Where different parcels of land, all subject to a common encum-
brance, are conveyed to successive purchasers at different dates,
the proceeds of the land must be applied in the inverse order of
alienation to satisfy the first encumbrance; thus, L., being the
owner of a lot of ground, gave a first deed of trust on the whole
of it to Y. He then gave a second trust on a part of it to Q.

ENCUMBRANCES, PRIORITY OF (continued).

Still later he conveyed the whole lot, except the part covered by
Q.'s deed, to W.

Held, That the part conveyed to W. ought to be applied to satisfying
the first encumbrance covering the whole property before disturb-
ing the part covered by Q.'s trust. Looney v. Quill, 51.

ENDORSEMENT. See Promissory Notes.

EQUITY.

1. At a sale of real estate made by trustees in foreclosure of a trust
given to secure the payment of a debt, the party bidding did not
know the metes and bounds of the property sold; but it was held,
that he was bound by his bid and could not refuse to accept the
property; and therefore if less was conveyed to him than was
sold, he was entitled to a conveyance of the remainder, even
though he had been conveyed all that he supposed he was bidding
for and that this latter conveyance may be by a second deed con-
veying only the part not conveyed by the first. O'Day v. Van-
sant, 196.

2. A judgment creditor filed a creditor's bill for the purpose of sub-
jecting the equitable interest of the debtor in certain real estate
to the satisfaction of the judgment. A decree was made, and the
interests ordered to be sold. After this the judgment creditor
assigned the judgment, and shortly afterwards the assignee, in-
stead of enforcing the sale, entered an order dismissing the suit.
Held, That by dismissing the suit, the property was discharged from
the lien created by the decree, and that the lien of the judgment
was also discharged from such other property of the defendant
as had been conveyed away by him. Shepherd v. Brown, 266.
3. The scrutiny with which courts of equity regard a deed between
parties holding a confidential relationship to each other, proceeds
upon the principle that before and at the time of the conveyance,
the grantor holds such a relation to the grantees as to place him
in contemplation of law mentally under his domination and con-
trol; and it is important in making out this confidential relation,
that it should be shown to have preceded the whole transaction.
Proof that it was contemporaneous with and grew out of the
transaction itself is not sufficient. Henson v. Hill, 315.

4. Plaintiff filed his bill for divorce and alimony, setting forth that the
defendant was the owner of a certain lot in Washington, and
alleging that it was all the property he owned except a small
amount of house furniture and praying that this real estate be
subjected to her claim for alimony. Before the filing of the bill
the defendant owned two shares of stock in a building association,
upon which the association loaned him $215, taking therefor a
bond which stated the amount loaned to be $1,000. This bond
was secured by a deed of trust upon the real estate in question.

EQUITY (continued).

After the filing of the bill the defendant repaid this $215, but
subsequently purchased other shares upon which the association
made a further loan or advance, under the supposition that the
bond and deed of trust first given secured future advances, and
that this last loan would be covered by them. Subsequently to
this the court passed a decree granting $25 a month alimony.
Held, 1st, That the recital in the bond that the loan was for $1,000 was
not binding, and that the court could look into the real fact of
the case to ascertain what amount was really loaned; 2. That the
bond had no reference on its face to any future transaction; 3.
That the second loan was entirely independent of the first; 4.
That the plaintiff's suit was a lis pendens, and charged all persons
with notice that the plaintiff was seeking to subject the property
described to a decree for alimony; that the defendant having paid
the first loan of $214, discharged the property from the lien of the
trust, and that the subsequent loan having been made pendente
lite, was postponed to the lien of the plaintiff for her alimony.
But as between the association and the defendant the bond and
deed of trust were security for the subsequent loan. Ulrich v.
Ulrich, 290.

5. Cases of fraud, trust and account are within the jurisdiction of
courts of equity. Section 723 of the Revised Statutes, which de-
clares that the courts of the United States shall not exercise
jurisdiction where a remedy exists at law, only emphasizes a
doctrine which existed before the passage of the statute. Sunder-
land v. Kilbourn, 506.

6. Equity will never interfere between two claimants to a piece of
real estate, for the purpose of quieting title, unless the complain-
ant shows a clear and indisputable title, but will leave him to any
other remedy that he may have. Keefe v. Bramhall, 551.
Sales, 1.

ESTOPPEL. See Evidence, 2, 3, 9, 10;

EVIDENCE. See Bankruptcy, 1; Executors and Administrators, 2, 3;
Malicious Prosecution; Witnesses, 1, 2.

1. A written contract which is free from ambiguity cannot be ex-
plained or varied by parol evidence. Langdon v. Evans, 1.

2. The rulings of the court below as to the order in which evidence
shall be offered during the trial, are within the discretion of the
presiding judge, and are not the subject of appeal. Id.

3. An estoppel need not be specially pleaded; it may be offered under
the general issue. Id.

4. But where the record of a judgment is offered in evidence in es-
toppel, and the identity of the parties, of the subject-matter, and
of the pleadings, is not shown on the face of the record, it must
be established by extrinsic proof before the record is admissible.
Id.

EVIDENCE (continued).

5. And where such intrinsic evidence is offered, it is competent for
the other side to adduce evidence in reply. Id.

6. But where the plea is the general issue, the plaintiff cannot, in his
case in chief, offer evidence in estoppel in anticipation of a sup-
posed defence of the defendant, since, non constat, that the de-
fendant may make such defence. Id.

7. Where parties agree verbally that the terms of a verbal agreement
which they have entered into is to be found as stated in a certain
paper, that paper is the proper evidence of the particular matters
to which they have agreed; not that the paper is the contract
between them, but that it is the best statement of what they have
agreed to verbally, and it should, if the contract be a proper one
to be enforced, be submitted and read to the jury as the best evi-
dence of what the contract was. Williamson v. Hill, 100.

8. Nor is it proper, with the paper thus assented to as the correct
statement of the contract, that witnesses should be allowed to state
from memory what the contract was, even though in doing so
they are allowed to look at the paper to refresh their recollection,
for the parties have agreed that the facts and terms of the agree-
ment are to be found in the paper, and that it was to be resorted
to as the evidence of their agreement. Id.

9. The erroneous exclusion of evidence is not a good ground for a new
trial if the exclusion did not injuriously affect the case of the
party excepting. Id.

10. In an action to recover rent of a wharf, plaintiff, the District of
Columbia, offered, without objection or subsequent contradiction
on the part of the defendants, evidence showing that defendants
had admitted holding the premises in question under a lease from
the District, and had paid the District rent therefor under said
lease.

Held, That the court was warranted in assuming that the defendants
held the property under this lease. The District v. Johnson, 120.
11. Where a party enters into possession under a lease, he is estopped
from questioning the right of his lessor. Id.

12. It is error to leave to the jury the question whether anything of
value was given to or conferred upon defendants by plaintiffs for
which suit is brought, as that leaves to the jury a payment of
question of law, i. e., value in its legal sense. Id.

13. Admissions drawn from the plaintiff when on the witness stand
in his own behalf, if they go to the foundation of his case, are
pertinent to the issue, no matter what the form of the pleadings
may be. Tyler v. Gilmore, 189.

14. In the correction and revision of erroneous special assessments
for street improvements, the District Commissioners had adopted
a general rule whereby a certain class, known as Henry Cooke"
assessments were uniformly reduced two-thirds of the original

...

EVIDENCE (continued).

sum. F., who was the attorney of C. in the prosecution of claims for the reduction of over-assessments upon C.'s property, included in his bill for services a charge of ten per cent. upon the amount saved to C. by the reduction of these "Henry Cooke" assess

ments.

Held, That unless there was some proof of services rendered by F. in effecting this reduction, he would not be entitled to recover this item of his bill. Fugue v. Corcoran, 199.

15. Nor can recovery be had on a like charge for reductions claimed to have been effected on certain assessments, where an act of Congress is required before any credits for such reduction can be realized, and no such act has been passed. Id.

16. Where, also, certain assessments had been cancelled by a general order of the Commissioners, compensation cannot be had on account of the cancellation without showing that the plaintiff's services were directed to securing it. Id.

17. There is no presumption in favor of the validity of a title descended from a deceased ancestor unless the latter died seized of the property. Keefe v. Bramhall, 551.

EXCEPTIONS, BILL OF. See Bill of Exceptions.

EXECUTION. See Landlord and Tenant, 1; Pleading and Practice, 13. EXECUTION SALE.

1. An execution sale will be set aside where the description of the property, both in the advertisement and in the marshal's deed, is so vague and uncertain that it is impossible to ascertain what property was sold and conveyed. Mackall v. Richards, 271.

2. It seems that where the description in the marshal's deed is a departure from the description in the advertisement of sale, the deed is void. Id.

EXECUTORS AND ADMINISTRATORS.

1. If an administrator pays a claim of a creditor of his decedent's estate, and returns it in his account, the Orphans' Court may allow it or reject it; but if the administrator refuses to pay such a claim, the Orphans' Court has no authority to adjudicate it; the creditor must seek its enforcement against the administrator in another tribunal. Keyser v. Breitbarth, 19.

2. A judgment recovered against the administrator is not even prima facie evidence against the heir at law; the plaintiff must commence de novo against him upon his or her original cause of action, as if no suit had been instituted against the administrator, and the heirs at law are at liberty to make any defence that any one else could make to such new suit, including the defence of limitations. Groot v. Hitz, 247.

3. An executor, being a party to a suit, is an incompetent witness to invalidate a contract made by him personally with his decedent,