« PreviousContinue »
JUDGMENT. (On demurrer, effect of) A judgment on a
general demurrer to the declaration, in favor of the defendant, not rendered on the merits, is not a bar to a subsequent suit between the same parties for the same cause of action. Wilbur v. Gilmore, 21 Pick. 250. LANDLORD AND TENANT. (Waste by tenant at will.) If a tenant at will commits waste, it is a determination of the will, and trespass quare clausum fregit may be maintained against him by the reversioner. Daniels v. Pond, 21 Pick. 367. 2. (Tenant at will not entitled to manure.) An outgoing tenant at will of a farm, has no right, in the absence of any express stipulation, to remove the manure made on the farm in the ordinary course of husbandry, and consisting of the collections from the stable and barn-yard, or of composts formed by the admixture of these with other substances taken from the farm ; and if he sell such manure to be removed, and the vendee have notice of the title of the landlord, the sale vests no property in the vendee, and trespass will lie against him at the suit of the landlord, for taking the manure. But this rule does not apply to manure made in the livery stable, or in any manner not connected with agriculture or in a course of husbandry. Ib. 3. (Tenant keeping possession after expiration of the term.) Where a tenant remains in possession of the demised premises after the expiration of the term, without any new agreement, the presumption of law is, that he holds the premises subject to all such covenants contained in the original lease, as are applicable to his present situation. Phillips v. Monges, 4 Wharton, 226. LARCENY. (Shop of person accused of, may be broken by officer.) Under a warrant in the usual form, on a complaint for larceny, the officer is authorized to break and enter the shop of the person accused, and seize the chattel alleged to have been stolen. Banks v. Farwell, 21 Pick. 156. LEGACY. (To several.) A bequest of “one thousand dollars to the children of ,” creates an estate or interest, in joint
tenancy, with the jus accrescendi, and where some of the legatees decease, after the death of the testator, before the recovery of the legacy, the interest vests in the survivors. Sparhawk and another v. Admr. of Buell and another, 9 Vermont, 41. LIBEL. (Truth, how shown in justification.) In a suit for libel, if the defendant justify, by showing the truth of the publication, he must plead that specially, particularly specifying those acts of which the plaintiff was guilty, that the court may see whether the defendant was justified in what he published. It is not sufficient in such case, to plead generally, that the words or matters contained in the alleged libel are true. Torrey v. Field, 10 Vermont, 353. 2. (Agreement to do an unlawful act.) A mere agreement between two, or more, to do an unlawful act, without any act done in furtherance of the common design, is not, ordinarily, an indictable offence. Ib. LIEN. (On demands left with an attorney.) If an attorney receive a demand for collection, and the debtor leave demands with the same attorney for collection, the avails to be applied on the first demand when realized, this creates no lien on the demands left by the second creditor, in favor of the first creditor, or of the attorney, for the security of the first debt. Goodrich v. Mott, 9 Vermont, 395. LIMITATIONS, STATUTE OF. (Acknowledgment.) The maker of a promissory note wrote a letter to the holder, saying, “next week I shall be able to send in to C.T. a statement of my affairs. He will show you the whole of my property and ask for a discharge. I should have done this before, but have been sick and been obliged to work for my board. I have large demands &c. but I cannot collect them and think I never shall.” Held, that this letter was not an acknowledgment to take the note out of the statute of limitations. Bailey v. Crane, 21 Pick. 323. - 2. (Note given by testator.) The statute of limitations is a bar to an action on a promissory note, given by a testator in his lifetime, but not due until after his death, if no suit is brought against his executors until more than six years have elapsed
after the debt became due ; and this notwithstanding provisions in the will for the payment of all debts, and for carrying on the testator's business after his death. Man v. Warner, 4 Wharton, 455. 3. (Parol acknowledgment.) To prevent the running of the statute of limitations, a parol acknowledgment of the adverse title by the person in possession, must be such as to show that he intends to hold the possession no longer adversely, but in future under the party making the claim of right to the land against him, and such as to induce the latter to believe that he will so hold it. Declarations made with a view to a compromise or arrangement of the dispute , are not sufficient. Sailor v. Hertzog, 4 Wharton, 259. 4. (Surety paying debt of principal.) If a surety pays the debt of his principal, after the death of the latter, and when no letters of administration have been taken out upon his estate, the statute of limitations does not begin to run, until letters of administration are taken out. Levering v. Rittenhouse, 4 Wharton, 130. 5. (Set-off.) A plaintiff may avail himself of the statute of limitations against a set-off given in evidence by the defendant, without pleading the statute in any way. Ib. 6. (Action on the case for deceit.) In an action on the case for deceit, it is not a sufficient answer to the statute of limitations, that the plaintiff was ignorant of his cause of action, until within six years, although that ignorance was occasioned by the nature of the deceit, or the manner, in which the fraud was perpetrated. Smith v. Bishop, 9 Vermont, 110. MILITIA. (Defective notice.) A witness testified that he warned a soldier in the militia to appear at a company muster, by laying down before him, at his dwelling-house, a printed notification, but which was not signed by any person, making at the same time some remark about training, which the witness did not recollect. Held, that the evidence did not prove either a printed or a verbal notice. Pray v. Curtis, 21 Pick. 332. 2. (Same.) A notification to a soldier in the militia to appear at WOL. XXIII.-NO. XLV. 14
a company muster, is insufficient, if it do not express the hour, as well as the day, on which he is required to appear. Whitmarsh v. Curtis, 21 Pick. 333. MORTGAGE. (Entry for breaking condition to pay several sums.) Where the condition of a mortgage was, that the mortgager should pay several sums of money at several times, and upon the non-payment of one of the sums first becoming payable, the mortgagee entered for condition broken, and after all the sums had become payable, the mortgager brought his bill to redeem, it was held, that the mortgager was not entitled to a decree, except upon paying the whole sum due on the mortgage, and not merely the sum for the non-payment of which the entry had been made. Mann v. Richardson, 21 Pick. 355. 2. (Sale with a right to repurchase.) The sale and conveyance of real estate, in payment of a prečxisting debt, with a simple right of repurchase on the part of the debtor, is valid, and is not a mortgage, even in equity. Bacter v. Willey, 9 Wermont, 276. 3. (Same.) But, in such contract, it is essential that the debt be extinguished absolutely, in presenti. Ib. 4. (Same.) If the object of the contract be to secure the payment of the debt, and not to extinguish it, except upon the happening of some subsequent event, or the default of the debtor to pay by a given day, the transaction is a mortgage, and no form of words will enable the parties to foreclose the debtor's equity of redemption. Ib. 5. (Void against creditors.) Where W. sold personal property to J., and took notes, and a mortgage, to secure the payment of the sums, but the property was immediately put into the possession of J., who continued the use and possession thereof: Held, that the mortgage was void as against the creditors of J. Woodward v. Gates, and another, 9 Vermont, 358. 6. (Merger.) Where an estate is mortgaged, and the mortgagee assigns the mortgage to a third person, and subsequently takes a quit-claim deed from the mortgagor, the mortgage title does not merge in the fee. Pratt and another v. Bank of Bennington, and another, 10 Vermont, 293.
7. (Same.) In such case the mortgagee becomes mortgagor, and the assignee mortgagee. Ib. 8. (Same.) There can be no such merger, unless the two estates unite in one and the same person. Ib. NEW TRIAL. (Irrelevant evidence.) The admission of irrelevant evidence is not a sufficient ground for setting aside a verdict, where there is no reason to apprehend that it could have had any improper influence upon the jury ; but if it had a tendency to prejudice their minds, it may induce the court, in the exercise of their discretion, to grant a new trial. Ellis v. Short, 21 Pick. 142. 2. (Waiver of exception to incompetent juror.) Where, at the trial of an action against an insurance company, it appeared that the sheriff, who had returned a talesman to serve on the jury, was a stockholder in such company, and this circumstance was known to the junior counsel for the plaintiff soon after the trial began, but no objection was made till after the trial had proceeded for some time, it was held that this was a waiver of any exception to the competency of such juror. Orrok v. Commonwealth Ins. Co. 21 Pick. 457. PARISH. (Parish records, how recoverable.) An action of trover or replevin may be maintained in the name of a parish, for the recovery of the parish records. First Parish in Sudbury v. Stearns, 21 Pick. 148. PARTIES. (Principal and agent.) In contracts, made by agents, without disclosing the principal, the suit, to enforce them, may be in the name of the principal or agent. Lapham v. Green, 9 Vermont, 407. PARTNER. (Proof of dormant partnership.) In assumpsit against T. and B. as copartners in trade in 1836, the plaintiff, in order to prove that T. was a dormant partner of B., produced witnesses to testify that T. made offers to them in 1835, to go into copartnership in their names, and that he stated that he had done business before in the names of other persons, because he owed old debts, for the purpose of keeping his property secure from attachment. Held, that this evidence was relevant and admissible. Butts v. Tiffany, 21 Pick. 95.