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19. (Numerical figures and initial letters.) An indictment is not defective merely by its being written with the usual initials and numerical figures for dates, as A. D. 1830, when the same are plainly legible. State v. Hodgeden, 3 Vermont, 481.
20. (Invasion of private property.) A mere invasion of private property, without a disturbance of the peace, is not an indictable offence; but is a private injury only, for which an action of trespass lies. State v. Wheeler, 3 Vermont, 344. 21. (Killing a beast.) An indictment will not be sustained for 'feloniously, maliciously, mischievously and wickedly killing a beast,' the property of another; and after conviction on such an indictment, the judgment will be arrested. 16.
See EVIDENCE, 28.
1. (Affirming contract when of age.) Where A, an infant, a short time before he became of age, purchased land, and executed his notes and a mortgage to secure the purchase money, and, two days afterwards, in consideration of these notes being given up to him, executed a quit-claim deed of the premises to the person of whom he had purchased, who went immediately into possession, and he and his grantees remained in possession several years, before A intimated any intention to disaffirm the contract, it was held, in an action of ejectment brought by A, after having arrived at full age, against the person in possession, that A could not affirm the deed which conveyed the land to him and avoid the mortgage executed by him to secure the consideration money. Bigelow v. Kinney, 3 Vermont, 353. 2. (Must avoid contract within reasonable time on coming of age.) That, as the quit-claim deed was voidable only by the infant, on his coming of age, he ought, if he meant to avoid it, to have given notice of disaffirmance, or otherwise have rejected the contract, within a reasonable time after he became of age; and, not having done so, he was presumed to have affirmed the quitclaim deed, and, therefore, was not entitled to recover. lb. INSURANCE.
1. (Policy in blank.) Where a policy of insurance is executed in blank thus, 'By the Niagara Insurance Company, Silas E. Burrows, on account of do make insurance, and cause to be insured, lost or not lost, upon the body, tackle, &c. of the good American brig, called,' &c. it seems that the policy may be filled up by the holders with the names of the persons intended to be insured, or with the words 'whom it may concern,'
and that extrinsic evidence may be given of the person so intended to be insured. Turner v. Burrows, 8 Wend. 144. 2. (Policy in blank.) Evidence that a policy thus executed in blank is deemed by insurance companies and the commercial community equivalent to a policy for account of whom it may concern, is inadmissible. Ib.
3. It is not the duty of a ship's husband, as such, to insure a vessel; and neither he nor part owners who insure the interest of their co-owners in a vessel without express authority, can recover the premium paid by them. lb.
4. (Ratification of policy.) It seems, that an insurance effected by a joint owner upon the interest of his co-owner in a vessel, although done without authority, if subsequently ratified by the party to be benefited, may be enforced against the insurer; but if such insurance of the vessel was coupled with an insurance on the freight and cargo also, and the party effecting the insurance intended the whole as a joint adventure, he is not liable to his co-owner for his proportion of the moneys obtained from the insurer on the loss of the vessel, unless the co-owner consents to participate with him in the whole transaction. Ib. 5. (On cargo and proceeds.) Where goods are shipped for a voyage, and a policy is effected upon the goods out and upon the proceeds thereof home, the identical goods composing the outward cargo, brought home in the return voyage, will not be considered as included in the words proceeds home, nor covered by the policy. Dow v. Whetten, 8 Wend. 160.
6. (On cargo and proceeds, usage.) It is competent, however, for the assured to show by parol proof that by the known usage of trade, or by use and practice, as between assurers and assured, the word proceeds, thus inserted in a policy is understood to include the identical goods, if brought back in the return voyage. lb.
7. (On cargo and proceeds, usage.) Where such proof was offered and rejected, and a judgment reversed and a venire de novo awarded to enable the party to give his proof, the costs of reversing the judgment were ordered to abide the event of the cause, the court doubting whether such usage could be proved. lb. 8. (Slip not admissible to control policy.) The slip or application for insurance is inadmissible in evidence to show the intention of the parties. In a court of law it is proper evidence only to show a misrepresentation; in equity it may be used to correct the policy. Ib.
1. (Advance.) A merchant or manufacturer whose uniform custom it is, after a limited period of credit, to charge interest upon articles sold or manufactured by him, may charge interest accordingly to those who are in the habit of dealing with him with a knowledge of such custom. Read v. Mc Alister, 8 Wend.
2. The law does not allow interest upon interest, even where a promissory note is made, payable with interest annually. Doe v. Warren, 7 Greenleaf, 48.
1. (Marriage articles.) Where marriage articles were entered into with a female, an infant, not conveying an estate of freehold to secure the settlement, but making provision for the payment of an annuity, after the decease of the husband to the wife during widowhood; which articles, after the decease of the husband, were considered as invalid, by reason of the infancy of the wife at the time of the entering into of the same as well by the widow as by the executor to whom the estate of the husband was devised in trust, and the latter, upon the assumption of the invalidity of the marriage articles for several years paid the one third of the rents, issues, and profits of the estate to the widow as and for her dower, and by other acts acknowledged her right of dower; it was held, upon his subsequently refusing, after the remarriage of the widow, to pay over the one third of the rents, &c., that he was concluded by his acts, and an account of the moneys received by him was directed to be taken and stated by a master. Mc Carter v. Teller, 8 Wend. 267.
2. Whether a provision made by a marriage settlement, to continue' only during widowhood, allowing the non-age of the wife to be no objection, is such a provision as to entitle the party representing the heir to set it up as an equitable bar to a demand of dower, quere. lb.
3. In this case marriage articles, or an antenuptial contract, was entered into between Philip Jacobs of the one part, and Elizabeth Brown, an infant, acting with the approbation and assent of her guardian, of the other part. By the articles, the husband covenanted, that after his death, out of his estate, his heirs, &c. should pay to the wife $1200 annually, for so long a time as she should remain his widow, and in case of her re-marriage, that $1000 should be paid to her; which sums were declared to be settled on her in lieu of dower, and were agreed to be
paid upon the condition that the wife should remain chaste, and that she should not contract a debt above $20, without the knowledge and consent of her husband. Nineteen months after the marriage, the husband made his will, bequeathing to his wife $6000, to be received by her at her election in lieu of dower and also in lieu of all other claims under the marriage articles, she to signify her election in 30 days. The husband died in October, 1818. Two of the executors and trustees, one of whom was a counsellor at law, were of opinion that the marriage articles were invalid, by reason of the infancy of the wife at the time of the execution of the same, and that she therefore was entitled to dower in the real estate of her husband, which opinion was communicated to the wife, and she, by agreement with the acting executor, cancelled the marriage articles in her possession, and gave notice within the thirty days specified in the will, that she elected to take her dower. The acting executor then commenced to pay to her, and continued to pay to her and to her second husband, she having married again in February, 1821, the one third of the rents, issues and profits of the real estate, as and for her dower in such estate, until the 1st November, 1821, when having been advised that the marriage articles were binding, notwithstanding the nonage of the wife at the time they were entered into, he refused to make any further payments, alleging that the articles were a bar to the right of dower, and that by the second marriage the widow had forfeited the provisions made for her by the same. The widow and her husband thereupon filed a bill in chancery, praying that the executor might account for, and pay over to them the one third of the rents, &c., received by him, and that a receiver might be appointed to receive the one third of such rents as should thereafter become due. In addition to the above facts, it appeared by the pleadings and proofs that after the death of Jacobs, and previous to the 1st November, 1821, the acting executor had united with the widow in various applications to the chancellor respecting the management of the estate in which the right to dower was asserted, and that such executor had paid to the widow a sum in gross, in lieu of dower, in certain property taken by the corporation of New York for a street, the value of which had been paid to him. The cause was heard before the vice chancellor of the first circuit, who decreed an account, and ordered a reference to a master to take and state the same; the decree thus made was affirmed by the chancellor on appeal to him, and by the court for the correction of errors on appeal from the decisions of the chancellor. 16.
JUDGMENTS AND EXECUTIONS.
1. (Reversal of judgment after levy of execution.) Where lands are sold under an execution, on a judgment subsequently reversed, the fact of the owner receiving the surplus of the avails of the sale after satisfying the execution will not, it seems, be considered such an acquiesence in the sale as to prevent his setting up his title, if the owner did not, by any act of his, encourage the purchaser to bid at the sale. Wood v. Jackson, 8 Wend. 9.
2. (Seizure on execution of mortgagor's interest in a chattel.) The mortgagor of a chattel having the right of possession for a definite period, has an interest which may be sold by execution; the purchaser acquires the right of possession and the absolute ownership, subject to the incumbrance. Bailey v. Burton, 8 Wend. 339.
3. (Purchaser at sheriff's sale.) A purchaser of lands at a sheriff's sale, under a judgment and execution, since the statute requiring deeds to be recorded, will hold the same, although the defendant in the execution had, previous to the judgment, sold and conveyed the lands by deed, provided that the deed from the sheriff is recorded previous to the recording of the deed from the debtor in the execution to his grantee, unless the purchaser at the sheriff's sale, at the time of his purchase, had notice of the previous deed. The case of Jackson v. Post, 9 Cowen, 120, commented on and explained. Jackson v. Chamberlain, 8 Wend. 620.
4. (Execution on judgment that has been satisfied, is void.) It
seems, that an execution issued upon a judgment which has been paid and satisfied is absolutely void, and not merely voidable, and that a purchaser under such execution acquires no title. Swan v. Saddlemire, 8 Wend. 676.
5. (A deputy sheriff cannot act as such, and as a magistrate in levying an execution.) A depoty sheriff, holding a commission of the peace, and extending an execution on real estate, cannot lawfully administer the oath to the appraisers. Bamford v.
Melvin, 7 Greenleaf, 14.
6. (Return on an execution.) Where the officer, in his return of the extent of an execution, states that the appraisement was made under oath, but does not refer to the certificate of the magistate; the court, in an action between other persons touching the title acquired by the extent, will not look beyond the officer's return to take judicial notice of any defect in the ad