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defendant for carelessly and negligently setting a fire on his own land whereby the plaintiffs' property on adjoining land was consumed, it is not material whether the proof shows gross negligence or only want of ordinary care, for in either case the plaintiffs would be entitled to recover damages to the amount of the actual loss sustained by them, and no more, in the form of vindictive damages or otherwise. Barnard v. Poor, 21 Pick. 378. ADWERSE POSSESSION. Where P. claimed a life estate in land, and S. claimed the fee adversely to P., and both claimed under the same devise, and P. by deed leased the land to H. while S. was in possession, and afterwards S. conveyed the land by deed to W. subject to P.'s life estate;—Held, that the deed from P. to H. was not void, by reason of S. being in possession, claiming adversely to P. at the time of the execution of P.'s deed to H. and that the assignee of W. could not avoid it. Hibbard v. Hurlburt, 10 Vermont, 170. 2. (Landlord and tenant.) An assignment of a mortgage, when a third person is in possession of the mortgaged premises, claiming adversely, is not within the statute of 1807, “to prevent fraudulent speculations,” &c. Converse v. Searls, 10 Vermont, 578. AGENT. (Usury.) Where an agent, authorized to settle a debt due the estate, takes a note to the administrator for the principal sum due, and one to himself for usurious interest, the first note is not void, unless the administrator knew of the usury and assented to it. Barter, Adm’a. v. Buck, 10 Vermont, 548. ARBITRATION. (How sum awarded may be recovered.) If a matter in dispute is submitted by parol to arbitration, and the arbitrators award merely that a sum of money is due from one party to the other, the sum so awarded may be recovered under a count in indebitatus assumpsit or a count on an insimul computassent, it not being necessary to declare specially on the award. Bates v. Curtis, 21 Pick. 247. ARBITRATION AND AWARD. (Defective award.) An award in favor of the plaintiff of a certain sum of money, “ or that the
defendant carry out and strictly fulfil his part of the contract,” is bad. Henness v. Myer, 4 Wharton, 358. ASSIGNMENT. (Where a period is fived for signing.) In the case of a general assignment by an insolvent debtor in trust for the benefit of his creditors, purporting to be made by and between the debtor, the trustees, and those of the creditors who shall execute the instrument within a fixed period from its date, and containing a release to the debtor, a creditor who executes the instrument after such period has elapsed, is not a party to it, and his claim is not affected by the release. Battles v. Fobes, 21 Pick. 239. 2. (Of notes secured by mortgage.) When all the notes, secured by a mortgage, are assigned, the mortgage passes with them, but when a part only are assigned, whether the whole mortgage, or a proportionate part, or any interest therein, is assigned, depends on the real contract and actual agreement of the parties. Langdon and another v. Keith, 9 Vermont, 299. ATTACHMENT. (Lien of factor.) A manufacturer of goods put them into the hands of a common carrier, at Providence, to be carried to Boston and left at the tavern where the carrier's wagon usually stopped, and then went to Boston and presented an invoice of the goods to his factor, stating that they were on the way, and obtained an advance upon them. The manufacturer had previously consigned divers goods to the same factor for sale, and had received advances upon them, and his practice was to deliver the goods at the warehouse of the carrier in Providence, and the expenses of transportation were usually paid by the factor. Afterward, and while the goods in question were on the way, they were attached at the suit of a creditor of the manufacturer. It was held, that the factor had no lien, and that the attachment was valid. Baker v. Fuller, 21 Pick. 3.18. ATTORNEY. (Responsible personally for money borrowed.) Where an attorney procures money to be advanced, by a third person, in the prosecution of an action, without attempting to pledge the credit of his client therefor, the attorney alone is responsible to such third person. Bell v. Mason, 10 Vermont, 509. AVERAGE. A vessel bound to Philadelphia, and having a large sum of specie on board belonging to the defendants, arrived in the bay of the Delaware in the month of December, and after encountering various difficulties, was stranded and ice bound, near Reedy Island, in a situation of imminent peril. The specie was carried over the ice to the shore, and by land to Philadelphia, where it was delivered to the defendants. Some weeks afterwards the vessel reached Philadelphia in safety, with the remainder of the cargo, which had been in whole or in part discharged into lighters, and afterwards reshipped. Held, that the defendants were liable to contribute to the charges and expenses incurred after the landing of the specie, as general average. Bevan v. Bank of the United States, 4 Wharton, 301. 2. If a vessel be on a lee shore in a heavy gale, and the captain find it necessary for the preservation of the lives of the crew to run the vessel ashore, and accordingly they slip the anchor and put the vessel before the wind and she strikes the shore and is lost, and it appears that she would have gone ashore at all events, it is not a case of general average. Meech v. Robinson, 4 Wharton, 360. BAILMENT. (Rights of general owner out of possession.) If the general owner of chattels part with the possession for a definite term, he cannot sustain trespass or trover for an injury done to the thing, during the continuance of the term. Swift v. Moseley, 10 Vermont, 208. 2. (Same.) But if the bailee apply the thing to a different use from that for which it was bailed, his interest is determined, and the bailor may sustain trover for the injury, against all concerned in the transaction. For instance, if the hirer of a chattel for a year sell it during the year to one knowing his interest, the owner of the chattel may sustain trover against the purchaser. Ib. BANKS. (How far liable for note.) A bank which receives a note for collection, and when it is overdue places it in the hands of a notary in the usual course, is not liable for the neglect of the notary to give notice to an indorser. Bellemire v. Bank of the United States, 4 Wharton, 105. BANK-CHECK. (Forged.) Where a forged check purporting to be drawn by a customer on a bank, where such customer keeps a deposit, is paid at such bank to an innocent holder who paid a valuable consideration for it, and who had no knowledge of the forgery, such bank cannot recover of such holder the amount so paid. Bank of St. Albans v. Farmers’ and Mechanics' Bank, 10 Vermont, 141. 2. (Same.) If such check is purchased by another bank, in good faith, and is received in the course of business by the drawee, and passed to the credit of the bank that purchased it, and notice of the forgery is not given the bank so purchasing it until two months afterwards—the bank, on which the check purported to have been drawn, thereby makes the loss its own. Ib. 3. (Same.) In such a case, notice of the forgery should be immediately given, to entitle the drawee to a recovery. Ib. BILL OF EXCHANGE AND PROMISSORY NOTE. (Guaranty not negotiable.) Underneath the signature of the payee of a negotiable note indorsed by him in blank, were written the following words signed by the defendant: “Iguarantee the payment of semiannual interest on this note as well as the principal.” It was held, that such guaranty was not negotiable, in itself, nor made so by being written upon a negotiable instrument; and therefore that no action could be maintained on such guaranty by one who subsequently became the holder of the note. True v. Fuller, 21 Pick. 140. 2. (Surety released by parol.) A parol declaration by the holder of a promissory note to the surety, after the note has fallen due, that he will exonerate the surety and look to the principal, is a good defence in an action by the holder against the security; and if the relation of the makers is not apparent on the face of the note, parol evidence is admissible to prove that the defendant signed as surety, and that this was known to the holder at
3. (Reasonable time.) A demand on the maker of a note payable on demand, made on the seventh day from the date, was held to have been made within a reasonable time, to charge the indorser. Seaver v. Lincoln, 21 Pick. 267. 4. (Where drawer has no effects in acceptor's hands.) The drawer of a bill of exchange, having no effects in the hands of the acceptor from the time when the bill was drawn to the time when it became due, was held liable without proof of demand and notice of non-payment. Kinsley v. Robinson, 21 Pick. 327. 5. (Acceptor competent witness.) In an action by the indorsee against the drawer of a bill of exchange, the acceptor is a competent witness to prove that he has not had in his hands any funds of the drawer. Ib. 6. (Bank may sue on note payable to cashier.) Where a promissory note was made payable “to the cashier of the Commercial Bank or his order,” and the consideration proceeded from the bank, it was held, that an action on the note might be maintained in the name of the bank as the promisee. Commercial Bank v. French, 21 Pick. 486. 7. (Check on bank.) A check upon a bank is transferable like a bill of exchange ; and the mere circumstance of its being dated on a day after that on which it was taken by the holder, is not sufficient, in an action against him by the holder, to let the drawer into a defence of want of consideration between him and the payee. Walker v. Geisse, 4 Wharton, 252. 8. (Same.) Nor is it sufficient to let the drawer into such defence that the check was taken by the plaintiff in payment of an antecedent debt. Ib. 9. (Alteration.) A joint and several promissory note was signed by A., B. and C.; and afterwards A. acknowledged his signature to a witness, who subscribed his name in the presence of A. and of the payee, without stating that he witnessed only the signature of A. In an action against the three makers it was held, that this was not such an alteration of the instrument as to discharge B. and C. Beary v. Haines, 4 Wharton, 17.