to the receiver. The right of action is in them, and the receiver cannot collect such moneys for the benefit of stockholders: Butterworth vs. O' Brien.

Nor is it a cause of action that such dividends were paid to persons who were indebted to the bank: Id.

Where, in an action by the receiver, against the former president of a bank, the complaint alleged that the defendant used fictitious notes in lieu of money of the bank, which he fraudulently used and disposed of, and that such notes were among the assets of the bank; held, that these facts, if proven, would be sufficient to put the defendant on his defence; and that the claim was one which belonged to the receiver, and might be collected by him: Id.

Check-Demand of Payment.-A creditor who has received from his debtor a check upon a bank, cannot return the same to the drawer, and sue on the original cause of action, without having first demanded payment: Bradford vs. Fox.

Presenting a check to the bank to be certified, is not equivalent to a demand of payment; and the refusal of the bank to certify it will not excuse the holder from presenting it for payment: Id.

Husband and Wife.-A married woman can charge the whole or a portion of her separate estate as a surety for her husband, the intention to charge such separate estate being declared in the contract: Barneit vs. Lichtenstein.

And although the instrument by which she promises to pay the debt of her husband out of her separate estate declares that the consideration is for the benefit of her separate estate, instead of stating the real consideration, this will not vitiate the instrument, nor exempt the wife's separate estate, provided she expressly charges her separate estate in the instrument: ld.

Action for False Imprisonment-Damages in- Who is liable in-Plea of Justification.—In an action for false imprisonment, the jury has a right to give damages beyond a mere compensation to the plaintiff for his injuries, and inflict a punishment upon the defendant for his conduct; but not to an arbitrary amount. In this case $2000 were held excessive damages Brown vs. Chadrey.

SUPREME COURT OF MASSACHUSETTS.1

Promissory Note-Signing after Delivery.-One who signs as a principal promissor a promissory note which has already been delivered and accepted, is not liable thereon without independent proof of a new consideration: Green vs. Shepherd.

Promissory Note-Consideration-Policy of Insurance.-The issuing of a policy of insurance by an insolvent insurance company is a good consideration for a promissory note given for the premium, if the insolvency of the company was not known by its officers or agents at the time: Lester vs. Webb.

It is no objection to the validity of a note given to a foreign insurance company for the premium on a policy of insurance, to allege and prove that the capital stock, to the amount of one hundred thousand dollars, had not been paid in and invested as required by St. 1854, c. 453, § 31; or that the company have neglected to appoint a general agent, under § 32 of the same act, unless notice to do so has been given to them by the treasurer of the Commonwealth: Id.

Assignment Title of Assignee to Goods in hands of Assignor.-An assignment under the insolvent laws does not vest in the assignees property which has been put into the hands of the debtor for the fraudulent purpose of giving him a false credit, although some of his creditors may have been defrauded thereby: Audenried vs. Betteley.

Award-Uncertainty of Amount.-An award is not valid which provides for the payment, by one of the parties to the submission, of a certain sum, after making deductions therefrom of sums not fixed by or capable of being ascertained from the award: Fletcher vs. Webster.

Indictment-Judgment on one Count.-A judgment rendered on a verdict. of guilty upon one count of an indictment which contained several counts, and a sentence passed thereon, will not be reversed on a writ of error, although there was no finding by the jury as to one of the other counts: Edgerton vs. The Commonwealth.

Equity-Bill to set aside Fraudulent Deed.—A bill in equity lies to set aside a deed procured by fraud, if the estate of the grantee therein is postponed until the death of a person who is yet living: Martin vs. Graves.

Equity-Bill to redeem Mortgage-Practice.-If a bill in equity to

1 From Charles Allen, Esq., Reporter; to appear in volume 5 of his Reports.

redeem land from a mortgage, and requiring an answer under oath, has been dismissed, upon motion of the plaintiff, and without the knowledge of the defendant, after the filing of the answer, and after the expiration of the time when, by the rules of the court, the plaintiff was entitled to file a replication and take testimony, the decree for the defendants is conclusively presumed to be upon the merits, and is a bar to a subsequent bill for the same cause, brought by the same plaintiff, or by one who acquired his title pendente lite: Borrowscale vs. Tuttle.

Marriage-Good consideration for grant of Land.-A legal contract and promise of marriage made in good faith by a woman to one who has executed to her a deed of land, for the purpose of inducing her to marry him, furnishes a good consideration for the deed; and she will be entitled to hold the land against his creditors, although the marriage is prevented by his death: Smith vs. Allen.

Married Woman-May belong to trading Partnership.-A married woman may belong to a trading partnership, so as to be bound by a promissory note given in the partnership name, if her husband is not a member thereof: Plumer vs. Lord.

If a married woman is not authorized by law to become a member of a firm, or to bind herself by its contracts, she is not estopped from availing herself of the defence of coverture to an action upon a promissory note of the firm, by representations made to the plaintiff before the note was given that she was a member thereof: Id.

Married Woman-Separate Estate of Insane-Equitable Application of her Income to her own Support.—If a bill in equity is brought by the husband and guardian of an insane woman, against the trustee under a marriage settlement, to obtain an order for a contribution from the income of the trust property which is secured to her sole and separate use, to aid in her support, the court will appoint a guardian ad litem for her, before hearing the case: Davenport vs. Davenport.

This court has jurisdiction in equity to require the trustee of the property of a married woman who has become insane, the income of which is secured to her sole and separate use by a marriage settlement, to pay over to her husband and guardian such portion of the income as may be reasonable, to aid in her support: Id.

Sale of Personal Property-Constructive Delivery.-Plucking a handful of half-grown grass and delivering it to a purchaser in the field, upon

a sale of the grass with an agreement that the vendor shall cut it at the proper time, is not a constructive delivery of the hay as a chattel, which will pass a title to it, as against third persons: Lamson vs. Patch.

Mortgage of Personal Property of a Hotel-Sail-boat may be included— Act of Congress of July 29, 1850.-A mortgage of personal property, conveying a list of articles used in and about a hotel," together with all other goods, effects, furniture, chattels, property, things of every name and nature now used, attached, situate and being in or about the hotel," will embrace a schooner rigged sail-boat, which is upon the water near the hotel, and used in connection with it, although four other schooner rigged sail-boats are specially mentioned in the mortgage: Veazie vs. Somerby.

The St. of U. S. of 1850, c. 27, requiring conveyances of ships and vessels of the United States to be recorded by the collector of customs, applies only to ships and vessels which have been enrolled, registered, or licensed under the laws of the United States: Id.

Courts of another State-Presumption in favor of Jurisdiction.-The legal presumption, in the absence of evidence to the contrary, is in favor of the jurisdiction of a Court of record of another State, which has assumed to exercise jurisdiction over a subject-matter in controversy between parties residing there: Buffum vs. Stimpson.

Under an order of a Court of record of another State that certain property shall be discharged from a mortgage thereon, upon the filing in Court within a specified time of a bond, with sureties to be approved by the clerk, and with condition to pay the sum, if any, which should be found due upon the mortgage debt, a duly certified record of the Court which shows that within the specified time a bond was received and placed on file by the clerk, and that subsequent proceedings were had which necessarily implied an approval and acceptance of the bond, is sufficient to prove the discharge of the property from the mortgage: Id.

Mechanic's Lien-Entire Contract for Labor and Materials.—If labor and materials have been furnished and used in the erection of a building, under an entire contract, with no stipulation for any separate price for either, and it is impossible to determine what part of the contract price is to be applied to either, and there is no mechanic's lien for the whole, there can be none for any part: Morrison et al. vs. Minot.

THE

AMERICAN LAW REGISTER.

DECEMBER, 1863.

ACCORD AND SATISFACTION.

It is proposed to consider, in a very brief way, the objection which is raised to the introduction of the doctrine of Novation into the Common Law. If that objection rests upon any wellsettled principle, it should by all means be sustained; but if, on the other hand, it has no rational foundation, it should not be permitted to obstruct the operation of so useful a doctrine.

Novation is a term of the Civil Law, and it was employed to denote the substitution of one contract in the place of another. A transaction of this kind was equally valid whether the original contract had been already executed as to one of the parties, or whether it still remained executory as to both. It is only in the latter event that the new is substituted for the old contract at the Common Law. The maxim of the Common Law is, that an accord without satisfaction is no bar to a suit upon the original obligation; and it is accordingly laid down, that an agreement to accept anything other than the original debt is not binding unless founded upon some new consideration. This, it will be observed, is not simply an application of the well-known principle of law which requires that each contract shall have a consideration, but it is an VOL. XII.-5 (65)