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prisons, and it is stated that "The Governor to suspend the plaintiff, and that the frequent may remove the superintendent for cause at any time," etc.

Has the Governor power to suspend in both cases? This difference of language in the organic Law rather tends to the idea that the framers of these two provisions were not entirely sure that the power to remove included the power to suspend, or that the latter power was always of the same nature and only less in extent than the former.

We think the commissioners had no power

attendance of the plaintiff at the office of the board, and his continuous offers to discharge the duties of the position to which he had been appointed, were sufficient tenders of performance on his part to warrant the conclusion of the learned trial Judge in directing the verdict. We see no errors in the record, and the judgment should be affirmed, with costs.

All concur, except Ruger, Ch. J., not voting.

WISCONSIN SUPREME COURT.

James A. HAIGHT et al., Appts.,

C.

Sophia L. HALL et al., Respts.

(....Wis.....)

A deed to a married woman "to her sole and separate use, and free from the interference or control of her said husband, or any husband, and her heirs and assigns, to her and their only proper use and benefit forever," must be held to defeat a right to curtesy in the premises on the grantee's death, where, by the statutes of the

State, a married woman could hold real estate as

if unmarried; since the restriction in the grant can have no force whatever given to it unless

the intention was to exclude the estate by the

curtesy.

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The facts are fully stated in the opinion. Mr. Charles W. Felker, for appellants: Under the Married Woman's Act of 1850 and subsequent statutes enacted prior to the deed to Selina B. Haight, the only "control" the husband had of his wife's separate realty was his tenancy by the curtesy. So that, unless meaning is given the language of the deed, Mrs. Haight took nothing more by the deed than she would take under the statute with the words stricken from the deed.

The grantor intended something by inserting this unusual language in the deed; and the only reasonable construction of this clause is that she intended to convey the premises freed from the burden of the husband's tenancy by the curtesy.

Monroe v. Van Meter, 100 Ill. 347-352; Pool v. Blakie, 53 Ill. 495; Stokes v. McKibbin, 13

NOTE.-Deed to married woman.

In nearly all of the States a conveyance may be made to the wife, over which the husband will have no control; and the conveyance may in some instances be made to her directly, and in others by the aid of a trustee for her sole and separate use. Meyer v. Kinzer, 12 Cal. 251; Bayer v. Cockerill, 3 Kan. 282; Huston v. Curl, 8 Tex. 240; Com. v. Williams, 7 Gray, 837; Ayer v. Ayer, 16 Pick. 331; Fisk

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Pa. 267; Hearle v. Greenbank, 1 Ves. Sr. 298; Bennet v. Davis, 2 P. Wms. 316; Rigler. v. Cloud, 14 Pa. 361; Beecher v. Hicks, 7 Lea (Tenn.), 207-209.

Messrs. Weisbrod, Harshaw & Nevitt, for respondents:

If the language of the grant is definite, and that of the habendum is clearly repugnant to the grant, the habendum yields to the terms of the grant.

3 Washb. Real Prop. *613; Farquharson Gill, 236; Nightingale v. Hidden, 7 R. I. 115. v. Eichelberger, 15 Md. 63; Budd v. Brooke, 3

Curtesy is a legal incident of the wife's estate of inheritance, and is a right favored in the law; and a husband will not be excluded from rights in the property of the wife springing from the marital relation, except by words

that leave no doubt of the intention to do so. Massey v. Parker, 2 Myl. & K. 174-181; Mullany v. Mullany, 4 N. J. Eq. 18; Cushing v. Blake, 30 N. J. Eq. 697; Nightingale v. Hidden, 7 R. I. 120; Steadman v. Palling, 3 Atk. 423; Morgan v. Morgan, 5 Madd. 410; Carter v. Dale, 3 Lea (Tenn.) 710; Ege v. Medlar, 82 Pa. 100.

It is a disputed question, whether a husband can be deprived of the interest which the law gives him in the realty of his wife, even by the express terms of the conveyance to her.

1 Washb. Real Prop. *133; Mildmay's Case, 6 Coke, Rep. 41; Mullany v. Mullany, supra.

The estate of the husband as tenant by the curtesy still exists, unless the wife conveys or devises her real estate.

Kingsley v. Smith, 14 Wis. 360; Westcott v. Miller, 42 Wis. 455, 460; McKesson v. Stanton, 50 Wis. 297.

The husband's estate by the curtesy will arise in him at the time of the death of his wife, though the limitation to her is for her sole and separate use, exclusive of any interest, inter| ference or control of her husband.

v. Stubbs, 30 Ala. 335; Pooley v. Webb, 3 Coldw. 599; Nightingale v. Hidden, 7 R. I. 128; Gamber v. Gamber, 18 Pa. 363; McVey v. Green Bay & M. R. Co. 42 Wis. 532; Whitehead v. Arline, 43 Ga. 221; Burnley v. Thomas, 63 Mo. 390; Lippincott v. Mitchell, 94 U. S. 767 (24 L. ed. 315); Vance v. Nogle, 70 Pa. 176; Smalley v. Lawrence, 9 Rob. (La.) 211; Richmond v. Tibbles, 26 Iowa, 474; Uhrig v. Horstman, 8 Bush, 172; Prout v. Roby, 82 U. S. 15 Wall. 471 (21 L. ed. 58); 1 Devlin, Deeds, 107.

Mullany v. Mullany, 4 N. J. Eq. 16; Cushing v. Blake, 29 N. J. Eq. 399, and cases cited in note; Cushing v. Blake, 30 N. J. Eq. 689; Jones v. Brown, 1 Md. Ch. 191; Frazer v. Hightower, 12 Heisk. (Tenn.) 94; Nightingale v. Hidden, 7 R. I. 115; Ege v. Medlar, 82 Pa. 86; Lowry v. Steele, 4 Ohio, 170; Dubs v. Dubs, 31 Pa. 149; Carter v. Dale, 3 Lea (Tenn.) 710. See 1 Bouvier, Institutes, sub. 1721-1735, and cases cited; Girard, Real Prop. 2d ed. p. 175.

Cole, Ch. J., delivered the opinion of the court:

In 1865 Mrs. Ann M. Paige conveyed to her daughter, Selina B. Haight, by a warranty deed, the premises in controversy. The grantee was then the wife of Augustus Haight. The deed was in the usual form, except the habendum clause contains this language:

"To have and to hold the said granted premises, with all the privileges and appurtenances to the same belonging, to her, the said Selina B. Haight, to her sole and separate use, free from the interference or control of her said husband, or any husband, and her heirs and assigns, to her and their only proper use and benefit forever."

The sole question for consideration is, Did Augustus Haight become tenant by the curtesy in the premises on the death of his wife, the grantee in the deed? On the part of the appellants, it is insisted that, upon the death of their mother, they took the premises by descent, discharged from any estate by the curtesy; and that this is the only reasonable construction which can be given the clause, of the deed, above quoted.

We are inclined to adopt this view of the case as correct. It is a cardinal rule in the construction of instruments, that such a construction, if possible, should be adopted which will give some effect to all the words of the instrument, and render all parts operative.

Now, if the tenancy by the curtesy was not cut off by the clause in the conveyance, then it is obvious that on the death of Mrs. Haight, intestate, her husband took that estate; and the language in the deed, that the grantee shall hold the premises to her sole and separate use, free from the interference or control of her husband, her heirs and assigns, to her and their only proper use and benefit forever has no force whatever given to it; for under the statute as it then and now exists, real estate conveyed to the wife during coverture became her sole and separate property, which she could hold to her sole and separate use in the same manner and with the like effect as if she were unmarried. Chapter 95, Rev. Stat. 1858.

better than to quote the language of the court in Pool v. Blakie, 53 III. 495:

"It seems to us the intention of the grantor is so plainly expressed in the deed as to place it beyond question or controversy. The intention is most clearly manifested to exclude the husband from any participation or interest in the estate granted. The expression is clear and distinct, that neither her present husband nor any future husband should have any estate in the land. It is true, the words that the hushand, present or future, shall not be tenant by the curtesy are not used, but equivalent words are, manifesting most clearly the design and purpose of the gift-that it should be placed in such a position that the creditors of her husband could not disturb her in the enjoyment of the estate. This intent must be carried

out by the courts if in so doing no rule of law is violated or some public policy disturbed."

In the Illinois Case the question presented was somewhat different from the one under consideration. The question there was whether the grantee took an estate for life merely or an estate of inheritance in fee with power of disposal by will. But still the court had to construe a clause in a deed quite similar to the one before us. The language used, therefore, is entirely applicable to the question here. See also Monroe v. Van Meter, 100 Ill. 348, where a similar question was considered.

The counsel for the respondents has referred to many cases which hold that the husband's estate by the curtesy will arise in him at the time of the death of his wife though the limitation to her is for her sole and separate use exclusive of any interest, interference or control of her husband.

We have examined these cases, but do not deem it necessary to comment on them further than to add the remark that as we understand them it is generally a question whether the deed or will intended to exclude the husband from the curtesy. If the evident intent of the will or deed is to exclude him from such estate in the lands devised or granted, such intention will prevail. There is often doubt, from the words used in the instrument, what the inten tion was; but if it is clear and manifest it is carried into effect.

The question in Kingsley v. Smith, 14 Wis. 360, was whether the surviving husband was entitled to an estate, as tenant by the curtesy, in so much of his wife's real estate as descended to her children by him, or whether it all went to the children of a former marriage freed from such tenancy. The court held that the tenancy by the curtesy in cases where the wife died It is difficult for us to conceive of any other intestate was not abolished by chapter 95, Reobject or purpose the grantor had in restrict-vised Statutes 1858, but that the husband took ing the grant to the grantee and her heirs and assigns to her and their only proper use and benefit forever, free from all interference or control of the husband, unless the intention was to exclude the estate by the curtesy. For how could the husband take that estate if the use and enjoyment of the property were to belong to the grantee and heirs? He certainly could not acquire such an estate without depriving the heirs of the exclusive use which it is plainly manifest it was intended they should enjoy. We cannot express our views on this point

an estate by the curtesy in such lands as descended to the children of the second marriage. The case is very different from the one before us.

As already indicated, we hold that the only reasonable construction of the clause in the deed is that the grantor intended to convey the premises to her daughter discharged from the estate of tenancy by the curtesy.

The judgment of the Circuit Court is there fore reversed, and the cause is remanded to the Circuit Court for a new trial.

NEW YORK COURT OF APPEALS (2d Div.)

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APPEAL by defendants, from a judgment of the General Term of the Superior Court of the City and County of New York, affirming a judgment entered upon the report of a referee in favor of plaintiff in an action to recover upon a contract for obtaining subscriptions to certain publications. Reversed.

The case sufficiently appears in the opinion. Mr. Edward Winslow Paige, for appellants:

It was error to reject the evidence offered by the defendants to show the meaning, in the subscription book business, of the words "four dollars an order," and "four dollars a name." 1 Greenl. Ev. §§ 288, 292; Hinton v. Locke, 5 Hill, 437.

Mr. William W. Badger, for respondent: The defendants having pleaded express contract only, and not alleging any custom or trade meaning to affect it in any way, were not allowed to ask their own witnesses if the term, "so much an order" has a settled meaning in the business in connection with the payment of

NOTE.-Contract; interpretation of words in. The grammatical and ordinary sense of the words

is to be adhered to, unless that would lead to some absurdity or some repugnance or some inconsistency, but no further. Grey v. Pearson, 6 H. L. Cas. 106; Caledonian R. Co. v. North British R. Co. L. R. 6 App. Cas. 131.

This has been called the golden rule of construction. Woodward v. Watts, 2 El. & Bl. 454; Metcalf, Cont. 359.

Words are to be construed according to their strict and primary acceptation, unless from the context of the instrument and the intention of the parties to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect, and their meaning may be shown by parol evidence to be different,in some particular, from their proper and ordinary acceptation. Mallan v. May, 13 Mees. & W. 517, 518; Metcalf, Cont. 318.

However terms may be understood in their ordinary sense, if the parties have attached other or unusual or arbitrary meanings to them, to be derived from their fair interpretation, they have the right so to employ them. But to accomplish such purpose and to vary the common understanding, the meaning ought to be plain and free from reasonable doubt. McCoy v. Erie & W. Transp. Co. 42 Md. 498; Dunham v. Haggerty, 1 Cent. Rep. 600, 110 Pa. 560.

a canvasser for serials, and if so, "What meaning has it?"

Newhall v. Appleton, 2 Cent. Rep. 900, 102 N. Y. 133, 134; Bigelow v. Legg, 2 Cent. Rep. 877, 102 N. Y. 653, 654; Holmes v. Pettengill, 1 Hun, 316, affirmed 60 N. Y. 646; Silberman v. Clark, 96 N. Y. 524; Security Bank v. Nat. Bank of Republic, 67 N. Y. 460-463; Hermann v. Niag ara F. Ins. Co. 1 Cent. Rep. 707, 100 N. Y. 416; Hinton v. Locke, 5 Hill, 437; Hill v. Hibernia Ins. Co. 10 Hun, 29; Mutual Safety Ins. Co. v. Hone, 2 N. Y. 244; Main v. Eagle, 1E. D. Smith, 619; Vail v. Rice, 5 N. Y. 157–159.

Usage, to be admissible or competent to af fect a contract, must be reasonable and not inconsistent with the terms of the contract, oral or written.

Collender v. Dinsmore, 55 N. Y. 200; Lawrence v. Maxwell, 53 N. Y. 21; Hinton v. Locke, 5 Hill, 437; Lawson, Usages & Customs, pp. 369-435; Westcott v. Thompson, 18 N. Y. 367; 2 Parsons, Cont. p. 542; Bradley v. Wheeler, 44 N. Y. 503; Higgins v. Moore, 34 N. Y. 422; Silberman v. Clark, 96 N. Y. 524; Simmons v. Law, 3 Keyes, 219.

If it be left in doubt whether given words of a contract were used in an enlarged or a restricted sense, that construction should be adopted which is most beneficial to the promisee.

Hoffman v. Etna F. Ins. Co. 32 N. Y. 413; Johnson v. Hathorn, 2 Abb. App. Dec. 465; Mowatt v. Londesborough, 3 El. & Bl. 307; Gifford v. First Presby. Society, 56 Barb. 114; Marvin v. Stone, 2 Cow. 806.

If the words be plain and unambiguous the ordinary sense must govern, unless the technical sense be plainly proven to be the one understood and intended by the promisee.

Hinton v. Locke, 5 Hill, 437: Goodyear v. Og

culiar meaning with reference to the subject matter of a contract, that meaning shall prevail in that

particular case. Bridge v. Wain, 1 Stark. 504; Scott v. Bourdillion, 2 Bos. & P. N. R. 213; Metcalf, Cont. 319.

Words peculiar to an art, science or vocation, appearing to have been used in their technical sense, to be ascertained by the testimony of experts (2 Minor, Inst. 957; 2 Parsons, Cont. 493, 535, 555; 1 Story, Cont. 5th ed. 803), and words which had acquired a special sense by usage of a trade or business, probably within the view of the parties when contracting, will be read in that sense, which may be ascertained by the testimony of persons conversant with the usage. Doane v. Dunham, 79 Ill. 131; Rindskoff v. Barrett, 14 Iowa, 101; Robinson v. Fiske, 25 Maine, 401; Knower v. Emerson, 9 Pick. 422; Eaton v. Smith, 20 Pick. 150; Hinton v. Locke, 5 Hill (N. Y.) 437; Astor v. Union Ins. Co. 7 Cow. 202; Coit v. Commercial Ins. Co. 7 Johns. 385; Dana v. Fiedler, 12 N. Y. 40; Lawrence v. Gallagher, 10 Jones & S. 309; Wayne v. The General Pike, 16 Ohio, 421; Lacy v. Green, 84 Pa. 514; Dunham v. Haggerty, 1 Cent. Rep. 600, 110 Pa. 560.

Subscription contracts, see First Presb. Church v. Cooper, ante, 468.

Rules of construction; effect of usage. The language used by one party is to be construed in the sense in which it would be reasonably understood by the other. If there is any ambiguWhere, in any case, language has acquired a pe- ous phrase, another rule of construction, which

den, 4 Hill, 105; Dawson v. Kittle, 4 Hill, 107-| was as set forth in the answer. That the words 109; White v. Hoyt, 73 N. Y. 511; Hoffman v. Etna F. Ins. Co. 32 N. Y. 413.

If appellants used the words good order evasively, meaning "proved orders," while Newhall understood them differently, they are bound by the words used.

Johnson v. Hathorn, 2 Abb. App. Dec. 468. Custom can only be available to sustain or explain a contract, and never to destroy it or to make it mean the opposite of what its express words imply.

Dickinson v. Poughkeepsie, 75 N. Y. 67, 77; Simmons v. Law, 3 Keyes, 219; Clark v. Bøker, 11 Met. 186.

"fifteen dollars an order for each and every order obtained for the encyclopedia" meant, and were well understood in the subscription book business to mean, $15 an order for each and every order obtained for the encyclopedia, under which five volumes have been taken and paid for by the subscriber, and not otherwise. While "four dollars an order" for the other publications meant, $4 for an order under which ten parts each, respectively, had been taken and paid for by the subscriber, and not otherwise.

The learned referee refused to receive the evidence, and thus rendered it impossible for the defendants to successfully present the only Parker, J., delivered the opinion of the issue tendered by their answer. We think this

court:

was error.

This action was brought to recover upon a "Every legal contract is to be interpreted in contract for obtaining subscriptions to certain accordance with the intention of the parties publications known as the "American Ency-making it. And usage, when it is reasonable, clopedia," "Picturesque Europe" and "Turner's Gallery."

The complaint contained averment of a contract by defendants to pay the plaintiff $15 for each and every order he obtained for said encyclopedia, and $4 for each and every order he obtained for said other publications. The answer admitted a contract to pay the plaintiff those sums upon the orders, under which five volumes of the encyclopedia, and ten parts of each of the other publications, respectively, had been taken and paid for by the subscriber, and not otherwise; and further alleged payment of the amount due under the contract.

Upon the trial the plaintiff gave evidence that an oral contract, as averred in the complaint, had been made between him and defendants.

The defendants thereupon offered evidence to show that in the subscription book business the words used in the contract had a definite and well established meaning and that meaning

was also known to the civil law, applies: Verba chartarum fortius accipiuntur contra proferentem. Fowkes v. Manchester & L. L. Assur. & Loan Asso. 3 Best & S. 929; Cocheco Mfg. Co. v. Whittier, 10 N. H. 305; Metcalf, Cont. 359.

Hence, mercantile contracts are construed according to the sense attached by mercantile usage to the terms employed by the parties. Brown v. Byrne, 3 El. & Bl. 703; Metcalf, Cont. 319.

Where the terms of a contract are plain, usage cannot be allowed to affect materially the construction to be placed upon the instrument; but when the terms are ambiguous, usage may influence the judgment of the court in ascertaining what the parties meant when they employed such terms. Moran v. Prather, 90 U. S. 23 Wall. 492 (23 L. ed. 121). See also Brown v. Foster, 113 Mass. 136; Dunham v. Haggerty, 1 Cent. Rep. 600, 110 Pa. 560.

If words have a known legal meaning, usage can-
not control that meaning. To give effect to a usage,
in such case, it must be specially included or re-
ferred to in the contract, or the words must be ex-
plained in the contract itself, so as to conform to
the usage.
Doe v. Lea, 11 East, 312; 2 Stark. Ev. 4th

Am. ed. 455; 3 Stark. Ev. 4th Am. ed. 1038; Sleght v.
Rhinelander, 1 Johns. 192; Metcalf, Cont. 321.

Custom and usage are binding.

A custom of the trade is binding whether it was in the minds of both parties to the contract or not. Ocean Steamship Co. v. McAlpin, 69 Ga. 437; Dunham v. Haggerty, 1 Cent. Rep. 600, 110 Pa. 560.

uniform, well settled, not in opposition to fixed rules of law, not in contradiction of the express terms of the contract, is deemed to form a part of the contract and to enter into the intention of the parties, when it is so far established, and so far known to the parties, that it must be supposed that their contract was made in reference to it." Walls v. Bailey, 49 N. Y. 464–469, citing Starkie, Ev. 637, 710; 1 Greenl. Ev. SS 292-294; Broome, Legal Maxims, 682, 889, 890; 2 Parsons, Cont. 541.

And evidence is always admissible to explain the meaning which usage has given to words or terms as used in any particular trade or business, as a means of enabling the court to declare what the language of the contract did actually express to the parties. Wharton, Ev. 862; Dana v. Fiedler, 12 N. Y. 40; Hinton v. Locke, 5 Hill, 437.

The principle stated in the authorities cited authorized the introduction of evidence, on the

A usage is ineffectual unless established, known and applicable to the matter in controversy. Janney v. Boyd, 30 Minn. 319; Taylor v. Mueller, 30 Minn. 343.

A knowledge, express or implied, of the usage, must be brought home to the party who is to be affected by it. See Jones v. Fales, 4 Mass. 245; Lincoln & K. Bank v. Page, 9 Mass. 155; Whitwell v. Johnson, 17 Mass. 449; City Bank v. Cutter, 3 Pick. 414; Renner v. Bank of Columbia, 22 U. S. 9 Wheat. 581 (6 L. ed. 166); Mills v. Bank of U. S. 24 U. S. 11 Wheat. 431 (6 L. ed. 512); Bank of Washington v. Triplett, 26 U. S. 1 Pet. 25 (7 L. ed. 37); Brent v. Bank of Metropolis, 26 U. S. 1 Pet. 897 L. ed. 65); Warren Bank v. Parker, 8 Gray, 221; Metcalf, Cont. 21.

General usage can be proved by the multiplication of particular usages. Mackenzie v. Dunlop, 3 Macqueen, H. L. Cas. 27, 2 Jur. N. S. 957.

lished, when it existed a sufficient length of time to A commercial usage will be considered as estabhave become generally known, and to warrant a presumption that contracts are made with reference to it. No specific time can be prescribed. Noble v. Kennoway, 2 Doug. (Eng.) 513: Barber v. Brace, 3 Conn. 9; Smith v. Wright, 1 Caines, 43; Rapp v. Palmer, 3 Watts, 178; Collings v. Pope, 3 Wash. C. Ct. 150; Davis v. A New Brig, Gilp. 486; Trott v. Wood, 1 Gallison, 443. See 1 Oldright (Nova Scotia), 259; Seccomb v. Provincial Ins. Co. 10 Allen, 305; Attorney-General v. Tarr, 2 L. R. A. 87; East Birmingham Land Co. v. Dennis, 2 L. R. A. 838.

part of the defendants, tending to show that, by the usage or custom of the subscription book business, the words used in the contract had a well defined meaning, which was understood by both parties to the contract, and what such meaning was. The evidence of custom was admissible not to change or vary the contract made, but to ascertain with greater certainty what was the intention of the parties at the time of its making.

The question now decided was not directly passed upon by this court on the former appeal. The evidence erroneously rejected on the trial

now under review was admitted on the first trial and the defendants succeeded upon the issue.

The plaintiff appealed and a reversal was had, not upon the issue as presented and passed upon, but because the trial court improperly admitted the books of the defendants for the purpose of showing their transactions with other agents.

The judgment must be reversed, and a new trial granted, costs to abide event. All concur.

ALABAMA SUPREME COURT.

Wade A. McBRYDE et al., Appts.,

v.

C. L. SAYER et al.

(....Ala.....)

A grant of "a right of way as now provided and used, from the street to the hall," on the third floor of a building, will not be protected by injunction after the hall, which at the time of the grant was used for public entertainments, has been cut up into rooms and let to societies-some of them secret-of mixed membership, amounting in all to from 500 to 1,000, and which hold meetings from four to six nights a week, where the complainants can, at relatively small outlay, re-establish on their own premises a stairway which formerly led to the hall. The use, having become oppressive, will not be enforced in equity, but redress must be sought at law.

change, an agreed difference in values. The two stores thus exchanged were part of a block of four stores, three stories high, numbered respectively 21, 23, 25, and 27, the numbers rising in successive order from west to east. Store 23 belonged to Mary Sayre, now Mrs. Randolph, and store 27 belonged to W. D. Sayre.

These owners are brothers and sisters, and the several properties came to them by succession from their father or mother-the record does not inform us which. Before the devolution and division, in 1872, the entire block of buildings belonged to Mrs. Sayre, the mother, or to the estate of P. D. Sayre, Sr., the deceased father.

At the time of the division of the property and the accrual of the several rights of the children, the approach to the second stories of the stores was by flights of steps, having their (April 12, 1889.) entrance on the street-one between 25 and 27, and the other between 21 and 23. The third

APPEAL by complainants, from a decree of the Montgomery City Court, in favor of defendants in a suit for an injunction to restrain defendants from obstructing a certain passageway. Affirmed.

The facts are fully stated by the court. Messrs. Brickell, Semple & Gunter for appellants.

Messrs. Tompkins, London & Troy and S. F. Rice for appellees.

Stone, Ch. J., delivered the opinion of the

court:

story over 25 and 27 was one large ball, ninety by forty-eight feet, and known as "Concert Hall." To this floor there was, at that time, no access from the second floor of either 25 or 27, although there had once been a flight of stairs extending to it from the second floor, and in communication with the entrance from the street, between those two numbers. The entrance to this large hall, at the time of the division, was by the steps going up between 21 and 23, up to the second floor above them; thence by a second flight of stairs up to their third floor; thence across 23 on its third floor, and entering Concert Hall from the west. This had been the route of access for fifteen years or more.

In 1872 Mrs. C. S. McBryde, wife of W. A McBryde, with her husband's consent and cooperation, exchanged with C. L. Sayre and P. D. Sayre lot and store numbered 21 on Dexter Avenue, then Market Street, for lot 25, same street, each in the City of Montgomery, Ala. The latter paid to the former, in the ex-cert Hall. One of the written terms of ex

NOTE.-Easement; equitable jurisdiction, to protect. Equity often interposes to protect easements and enforce their enjoyment where there is no adequate remedy at law, by reason of the want of privity between the owners of the estates alleged to be dominant and servient to each other (Parker v. Nightingale, 6 Allen, 341; Gibert v. Peteler, 38 Barb. 513; Brouwer v. Jones, 23 Barb. 153; Hubbell v. Warren, 8 Allen, 173; Tallmadge v. East River Bank, 26 N. Y. 105; St. Andrew's Lutheran Church's App. 67 Pa. 512, 518; Western v. MacDermot, L. R.

It will be observed that this line of access, until it reached the third floor, was over the common dividing line between 21 and 23, and thence entirely across 23 until it reached Con

1 Eq. 499; L. R. 2 Ch. App. 74; Washb. Easem. 748); as where easements or servitudes are annexed to private estates. 2 Story, Eq. Jur. Redf. ed. §§ 927, 927 a; Bardwell v. Ames, 22 Pick. 333, 353; Stevens v. Stevens, 11 Met. 251.

But whether the court will exercise this power of granting an injunction in any given case or not is within its sound discretion, and it will be withheld if it will operate oppressively or inequitably, or contrary to the real justice of the case. Washb. Easem. 749.

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