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2. (Evidence in action by surviving partner against heir of deceased.) In an action by a surviving partner against the heir of his deceased partner, upon a bond given by the deceased to indemnify the plaintiff against the payment of any sum of money due from the firm, the plaintiff offered in evidence a judgment recovered against him as surviving partner, in an action in which the heir took upon himself the defence. It was held, that the judgment was conclusive against the heir, unless he could show that it had been recovered through the fraud or collusion of the plaintiff; and consequently, that evidence was inadmissible to show on what grounds the judgment had been recovered, or to show that the defence of the statute of limitations had been avoided by an acknowledgment of the debt, made by the plaintiff many years after the dissolution of the partnership. Valentine v. Farnsworth, 21 Pick. 176. PARTNERS AND PARTNERSHIP. (Surviving partner administrator of deceased.) A surviving partner, who is also administrator of the deceased partner, cannot submit a matter between the partnership and the estate, because, in such case, he would be acting in the double capacity of a representative and a debtor or creditor of the estate. Boynton, Adm'r. v. Boynton, 10 Vermont, 107. 2. (Agreement to divide gross earnings.) Where one party furnishes a boat, and the other sails it, an agreement to divide the gross earnings does not constitute a partnership. Bowman and another v. Bailey, 10 Vermont, 170. PARTNERSHIP. (Joint charter party.) A charter party entered into between; the owners of the ship of the one part, and A and B of the other part, witnessed, that the owners agreed to send the ship on the voyage, and A and B agreed to go as supercargoes, and charter or freight 540 tons of the said ship at a certain price per ton, “that is,” A agreed to freight 375 tons, and B agreed to freight 165 tons. The defendant contracted with A for the freight of certain goods for him, which freight was paid by A to the owners: Held, that A and B were not joint contractors or partners, in respect to the freight; that the action was properly brought by A alone, and that B was a competent witness for him. Coe v. Cook, 3 Wharton, 569. 2. (Notice of dissolution.) Notice of the dissolution of a partnership, given in a newspaper printed in the city or country where the partnership business is carried on, is of itself notice to all persons who have had no previous dealing with the partnership. Watkinson v. Bank of Pennsylvania, 4 Wharton, 482. 3. (Same.) But as to persons who have had previous dealing with the partnership, general newspaper notice is not sufficient. It must be shown that actual notice of the dissolution was communicated to the party in some way or other. Ib. 4. (Same.) Whether there has been such previous dealing or not, is a matter of fact for the jury; and therefore a judge ought not to reject evidence of newspaper notice, but should direct the jury that if the evidence established a previous dealing, then in point of law there should have been actual notice, and that merely taking in the paper was not proof of such actual notice without something further. Ib. 5. (Note by one of three partners.) One of three partners (the partnership being notorious,) purchases a horse, for which he gives his individual note: The partners are not liable, although the avails of the horse, when sold, go into the partnership fund. Holmes v. Burton and another, 9 Vermont, 252. PATENT-RIGHT. (Recording.) A conveyance of a right to use a patent right in a limited territory is not required to be recorded in the patent office. Stevens v. Head, 9 Vermont, 174. 2. (Evidence.) Where a right to use an invention, secured by patent, is conveyed, and the vendee has not been disturbed in the exercise or use, the vendee must shew that the person conveying has no such right, if he seeks to recover against the vendor, on the ground that no right was conveyed. Ib. POSSESSION. (Of part of a tract of land.) If a person enter upon a tract of land, with visible boundaries, under a deed of the entire tract, his occupation and improvement of a part, is construed as a possession of the whole. Such a possession, is co-extensive with the claim of title. Crowell v. Beebe, 10 Wermont, 33. PRESUMPTION. (As to death of absent person.) The presumption of law is, that the life of an absent person of whom nothing is known, expired at the end of seven years from the time that he was last known to be alive. Bradley v. Bradley, 4 Wharton, 173. PROMISSORY NOTES. (Notice.) A notice sent through the post-office to the maker of a note, is not such a demand as the law requires, where his residence is supposed to be ascertained. Stuckert v. Anderson, 3 Wharton, 116. 2. (Same.) Where the notary was informed, on inquiry, that the maker resided in or near a post-town in an adjoining county, it was held, that a demand sent through the post-office was not sufficient to charge the indorser. Ib. 3. (Same.) Where a note has been discounted by a bank, it seems that it would not be due diligence, if the notary inquired only of the directors and officers of the bank, respecting the residence of the first indorser. lb. . 4. (Question of diligence.) It is settled, that whether or not due diligence was used in making inquiry for the indorser, is a mixed question of law and fact: The court are to give their opinion on the law to the jury according to the circumstances as they appear; but the jury must decide the fact whether there was due diligence or not. Ib. 5. (Name written on back of) Where a person, not a party to a note, signs his name on the back, without any words to express the nature of his undertaking, he is considered as a joint promisor with the other signers, and if any of the other signers are merely sureties, he is considered as a co-surety with them. Flint v. Day, 9 Vermont, 345. 6. (Alteration of note made by two.) If a promissory note be altered in a material point, by consent of one signer, without the consent of the other signer, it is the note of the first, but not of the other, and, if declared upon as the ioint note of both, the

plaintiff may recover against one, and the other recover his costs. Broughton v. Fullers, 9 Vermont, 373. 7. (Judgment on, payable to bearer.) G. gave a note to W. payable to bearer, and, before he was notified of any transfer thereof, a judgment was rendered against him therefor, as trustee of W. This is a legal defence to an action, afterwards commenced against him by E. as the bearer of said note. Evarts v. Gove, 10 Vermont, 161. 8. (Void as without consideration.) A being administrator of B, and guardian of C, presented claims in their favor and procured the same to be allowed by the commissioners on the estate of D. A died, and these debts being unpaid, his administrator claimed pay of the executor of D, who, thereupon, gave him his note therefor: Held, that this note was without consideration, and uncollectable. Sowles v. Sowles, 10 Vermont, 181. REAL ACTION. (How far judgment in former action, evidence.) In an action for land, a judgment in a former action in which the parties were reversed, that the then plaintiff was entitled to the land up to a certain line, is not evidence that the present plaintiff was entitled to the land on the other side of the line ; as the plaintiff, in each case, must recover upon the strength of his own title and not upon the weakness of his adversary’s. Williams v. Ingell, 21 Pick. 288. REPLEVIN. In replevin the plea of non cepit admits the property to be in the plaintiff, and puts in issue only the taking and detention. Although the taking were rightful, or excusable, the plaintiff will recover if the detention by the defendant were wrongful; and, generally speaking, the property being admitted by the plea to be in the plaintiff, any detention will be wrongful. As to goods delivered to the plaintiff in replevin, and remaining with him, he can only recover damages for the caption and detention. But as to goods eloigned he may, in addition thereto, recover their value in damages. Mackinley v. M. Gregor, 3 Wharton, 369. 2. (Evidence as to premises being untenantable, not admitted.) In replevin, evidence that the premises were untenantable, for want of proper and necessary repairs, and that the landlord had promised to have the premises put in proper order, but failed to do so, is not admissible by way of set-off, unless such promise to repair formed part of the consideration for the rent in the lease or original contract. Phillips v. Monges, 4 Wharton, 226. RIVER (Meaning of “navigable.”). A creek in a salt marsh, in order to be deemed navigable, must not merely be sufficient to float a small boat at high water, but must be navigable generally and commonly, and not at extraordinary high tides only, to some purpose useful to trade or agriculture. Rowe v. Granite Bridge Corporation, 21 Pick. 344. SLANDER. (Evidence in action for.) In an action for words uttered without any allusion to facts, the mention of which would have prevented them from amounting to slander, it is not competent to the defendant to give such facts in evidence in explanation of the words. Stone v. Clark, 21 Pick. 51. 2. (Same.) Thus, where the defendant accused the plaintiff of taking a false oath on a judicial trial, without any explanatory words, it was held, that it was not competent for him to prove that he meant to impute falsehood only as to immaterial facts, nor to go into evidence of what was testified at the trial in order to show that they were immaterial. 1b. 3. (Same.) It is not actionable to say of a physician that he is “a two-penny bleeder.” Foster v. Small, 3 Wharton, 138. 4. (Proof in support of declaration.) A declaration in slander charged the defendant with asserting of the plaintiff, “He is not a physician, but a two-penny bleeder.”—The words sworn to by one witness were, “If doctor F. is a two-penny physician I am none ; I am a regular graduate and no quack.”—Another witness swore to the following words, “doctor F. is no regular bred physician; he has no diploma; he kills his patients and bleeds them to death.” Held, that the proof did not support the declaration. Ib. 5. (Proof of malice.) Where words which might otherwise be libellous are contained in a remonstrance which a citizen has a

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