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decide whether, upon any given state of facts, the tenant in a real action has a right to the appraised value of his improvements. Blanchard v. Chapman, 7 Greenleaf, 122.
2. (Possession.) In a writ of entry for wild land, it was held that proof that the tenant had been once on the land three or four years before, claiming it as his own, looking for the lines, and offering to sell it to a stranger; and that at another time he had spoken of the land as his own; did not amount to such evidence of possession and ouster as is required by Maine stat. 1826, ch. 344. Thompson v. Knight, 7 Greenleaf, 439.
AGENT. See EVIDENCE, 39.
ANSWER IN CHANCERY.
1. (One witness.) In chancery the testimony of one witness, against the direct and positive averment of the answer, is not sufficient ground for a decree. Pierson v. Catlin, 3 Vermont,
2. (One witness.) But when the testimony of the witness is corroborated by circumstances, it will be sufficient; and the answer containing the denial, may also, in itself, contain the circumstances required. lb.
1. (Money had and received.) Assumpsit for money had and received was held to lie where, on a settlement and delivering up of a bond and mortgage, the obligor by mistake was credited with a year's interest, which in fact had not been paid. Tinslar v. May, 8 Wend. 561.
2. (Money had and received.) Where A and B, members of a firm, took in deposit a mortgage as security for an advance made by them, with the understanding that it should be subsequently assigned to them, and it was subsequently assigned to A alone, but in consummation of the original agreement, and A as assignee foreclosed the mortgage and bought in the mortgaged property in his own name, it was held that an action might be maintained against both partners for the avails of such sale as for money had and received, and that the party depositing the mortgage was entitled to recover the amount of the purchase money, deducting the advance made to him. Gilchrist v. Cunningham, 8 Wend. 641.
See ACTION, 2; EXECUTION, 4; MORTGAGE, 5, 7, 9; CONTRACT, 5. ASSIGNMENT.
1. (By an insolvent debtor.) It is not against the policy or rules
of the law, that an insolvent debtor should assign all his property
to secure a part of his creditors. Brinley v. Spring, 7 Greenleaf, 241.
2. Nor that the assignment should be by way of mortgage, with a stipulation that the mortgagor shall retain possession of the property, changing that which is personal by manufacturing and selling; and that such possession shall continue for a length of time beyond the day when the money becomes due ;-provided such possession is not inconsistent with the security of the mortgagee; and there be not mingled in the contract any intention, to delay or defraud other creditors, or to withhold the property from them beyond what may be necessary for the mortgagee's protection. Ib.
ATTACHMENT. See EXEMPTION FROM ATTACHMENT; LIEN, 1.
1. (As to reporting evidence.) Auditors ought to report directly such facts as they find proved in relation to the items of account charged, and not detail the evidence in support of those facts. Fry v. Slyfield, 3 Vermont, 246.
2. (Evidence of each item.) An auditor's report will be set aside unless he reports the facts he finds proved as the ground of his decision, upon each litigated item. He should not report the evidence of those facts, but the facts themselves. Munro v. Hine, 3 Vermont, 389. 3. (Introduction of witness.) Where, on a trial before auditors, one of the parties introduced a witness who was objected to by the adverse party because he suspected the witness was bail for the party offering him, but the objector could not show it, and the witness testified; it was held, that the court ought to have rejected the report. McConnell v. Pike, 3 Vermont, 595. 4. (Should report grounds of action.) Auditors should report the grounds of their decision upon every question of law raised before them, provided they are requested to do so. lb. 5. (Their refusal to report grounds.) If they refuse when so requested, that fact may be sworn by affidavit, when the report will be rejected, and the cause sent back for a full report. Ib. BAILMENT.
1. (To innkeeper.) An innkeeper is not liable in trover for property entrusted to him in the line of his business, unless an actual conversion be shown; a demand and refusal in such case is not sufficient evidence of a conversion, unless at the time of the demand the goods were in the possession or under the con trol of the defendant. Hallenbake v. Fish, 8 Wend. 547.
2. (Trespass by bailee.) One who has a special property in a chattel may maintain trespass against the person who deprives him of the possession, and recover according to his interest. Burdick v. Murray, 3 Vermont, 302.
3. Where a parcel of undressed skins were delivered to a morocco manufacturer to be manufactured into morocco, and, while the skins were in an unfinished state, the owners turned them out to their creditor, who caused them to be attached and carried away, it was held, that the bailee might have legally detained them until the price stipulated for finishing them was paid, and that he might maintain trespass against the persons taking them. 1b.
4. But it would have been otherwise, if a particular time or mode of payment for dressing the skins had been agreed on, or if at the time of taking them, the bailors had offered and agreed to allow the bailee the full price for dressing them out of moneys actually in the bailee's hands. Ib. BAIL. See SHERIFF, 1.
BILLS OF EXCHANGE AND PROMISSORY NOTES. 1. (Surety.) Where a suit was brought against the indorser of a note given as collateral security for the payment of a sum of money, directed by an order of the court of chancery to be paid by the maker of the note on pain of an attachment, and the indorser gave notice to the holder of the note that he would require him to exhaust the remedy by attachment previous to proceeding against him, it was held that such notice did not discharge the surety, it appearing that the creditor had offered to permit him to proceed against the principal debtor, upon the attachment, and that at the time of the giving of the note the maker was insolvent. Warner v. Beardsley, 8 Wend. 194. 2. (Surety.) If the indorser in this case could be considered as a surety, as to which quære, the notice given, it seems, was not sufficiently explicit to discharge him from his obligation. Ib. 3. (Demand and notice.) The indorser of a note not negotiable has no right, in an action against him, to insist upon a previous demand of the maker and notice of non-payment; the indorsement is equivalent to a guaranty that the note will be paid, and not a conditional undertaking to pay if the maker does not; an absolute guaranty may be written over the indorsement, upon which a recovery may be had. Seymour v. Van Slyck, 8 Wend. 403.
4. (Neglect of holder.) Where a note is received by an officer of the government as collateral security for the payment of a
debt due the State, the debtor cannot avail himself of the neglect or omission of the officer to perform the duties which the law in ordinary cases imposes upon a party thus receiving a note; and even should the officer expressly assume responsibility in relation to such note, as to prosecute it to judgment, it seems that the State would not be responsible for any laches that might occur. lb.
5. (By partner after dissolution.) Where a partnership note was made after the dissolution of a firm by one of the late partners, accepted by the payee with a knowledge of the fact, and transferred by him in payment of an antecedent debt, under an agreement that if the note could not be collected, he would be liable for part of the original debt, it was held that an action on the note could not be maintained by the assignee against the partners. Bristol v. Sprague, 8 Wend. 423.
6. (By partner after dissolution.) The fact that sufficient time to give public notice had not elapsed between the dissolution of a firm and the subsequent making of a note by one of the late partners in the name of the firm, will not excuse the partners from their liability to pay such note in the hands of a bona fide holder. lb.
7. (Accommodation note.) Where a note was indorsed for the accommodation of the maker, with the view of having it discounted at a bank, and the avails applied to the payment of certain demands, for which a third person stood bound as surety for the maker; and the note was delivered to such surety, who, with a knowledge of all the facts, offered it for discount at the bank, where it was refused to be discounted, but where, at the request of the surety, it was protested when due, it was held, that an action on the note would not lie by the surety against the indorser. Kasson v. Smith, 8 Wend. 437. 8. (Post-dated.) A note post-dated and negotiated before the day of its date, is recoverable by the indorsee; its transfer before the day of its date affords no cause of suspicion so as to put the indorsee on inquiry and subject him to the equities existing between the original parties. Brewster v. McCardel, 8 Wend. 478.
9. (By agent.) Where the drawer of a note affixes his signature as the agent of another, if in an action against him personally, he claims to have had authority to sign as he did, he is bound to show such authority existing at the time of the making of the note, and is not permitted to show a subsequent ratification by his principal. Rossiter v. Rossiter, 8 Wend. 494.
10. (Indorsement presumed to be at time of making.) The indorsement of a note in presumption of law is cotemporaneous with the making of it, or at all events, that it was antecedent to its becoming due; if the defendant, in a suit by the indorsee, wishes to avail himself of payment to the original holder, it is incumbent upon him to show the indorsement to have been made subsequent to the payment. Pinkerton v. Bailey, 8
11. (A pledged note negotiated.) The payee of a negotiable promissory note, having indorsed it in blank and delivered it in pledge to another, as collateral security for his own debt, has still the right to negotiate it to a third person; who may maintain an action upon it in his own name as indorsee, the lien of the pledgee being discharged before judgment. Fisher v. Bradford, 7 Greenleaf, 28.
12. (Notice.) Though there be no funds in the hands of the
See EVIDENCE, 12, 13; CONSIDERATION, 1, 2.
1. (Indemnity.) Where a party has an indemnity not only against actual damage or expense, but also against any liability for damages or expenses, he need not wait to commence his suit until he has actually paid such damages; his right of action is complete when he becomes legally liable for them. Accordingly, where a bond was given to indemnify the obligee, his heirs, &c. against all damages, costs and charges, to which he and they might be subjected or become liable for, by reason of the reversal of a certain judgment in favor of a defendant, who had been sued on a promissory note to which the obligee was a party, and also to indemnify him against the note, and any judgment or proceeding which might be had against him as indorser thereof; and the judgment was reversed, and an action brought against the administrator of the obligee, charging the intestate as indorser, in which suit the administrator gave a