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construed as a possession of the whole. Such a possession, is co-extensive with the claim of title.

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Crowell v. Beebe, 10 Ver

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 joint note of both, the

plaintiff may recover against one, and the other recover his 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,

Rowe v.

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. 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. lb.

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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

right to present to a public authority, malice must be proved by the plaintiff; and unless it be proved the action is not maintainable, although the allegations are shown to be false. Flitcraft v. Jenks, 3 Wharton, 158. SURETY. (Discharged in equity.) Although a release may have been obtained by a fraud practised upon the obligee by the principal obligor in a bond, yet if the surety were not a party to the fraud, and the obligee suffer several years to elapse without bringing suit, or giving notice to the surety of the fraud practised, during which time the principal becomes insolvent, these circumstances will in equity discharge the surety. Gordon v. M'Carty, 3 Wharton, 407. TAX. (Liability of assessors.) Assessors of a town, conducting themselves with fidelity and integrity in assessing a tax, in pursuance of a vote duly certified to them, are not responsible in any form of action, for accidentally assessing a person not an inhabitant of the town and not liable to be taxed. Baker v. Allen, 21 Pick. 382. TENANT IN COMMON. (Sale of personal property held in common, by one owner.) If personal property held in common, be sold by one of the tenants in common, as if exclusively his own, such sale is a conversion, and the cotenant may maintain trover therefor against him; or he may, in case the purchaser shall also sell and deliver the property as his own, maintain trover against such purchaser for the subsequent conversion. Weld v. Oliver, 21 Pick. 559.

2. (Same-Damages.) If, in such case, the action be brought against the original purchaser, the measure of damages will be the value of the property at the time of the sale made by him.

Ib.

TRESPASS ON THE FREEHOLD. (What acts of ownership give possession.) An entry upon land, under a deed, claiming title to the same, and cutting and selling timber from time to time, and exercising acts of ownership, is a sufficient possession to maintain an act of trespass quare clausum fregit against a stranger. Sawyer v. Newland, 9 Vermont, 383.

TRUSTEE ACTION. (Negotiable note.) A negotiable promissory note is liable to be taken by a trustee process, as the property of the payee, notwithstanding an assignment of it by him, unless the maker has notice of his assignment. But after it has been once assigned, the rule is different, and it cannot be taken as the property of a subsequent holder, after a bona fide assignment by him, although no notice is given to the maker. Britton v. Preston, Trustee, 9 Vermont, 257. TRUSTEE PROCESS. (Plaintiff's right of interrogating trustee.) Under the process of foreign attachment, the plaintiff may put interrogatories to the trustee calculated to elicit facts that may tend to charge him, but he has no right to ask questions for the purpose of discrediting his disclosures. Hence he is not entitled to the privilege of a cross-examination; and what the trustee may have told other persons, or said on former occasions, is immaterial and not a proper subject of inquiry. Crossman v. Crossman and Tr. 21 Pick. 21.

2. (Same.) One summoned under the trustee process is not ex

cused from answering interrogatories, on the ground that they tend to the discovery of fraud on his part, which may render him responsible as trustee out of his own property, provided they do not tend to charge him criminally. Neally v. Ambrose and Trs. 21 Pick. 185. VENDOR AND VENDEE. (Acceptance of deed in extinguishment of an agreement.) Although the acceptance of a deed in pursuance of articles of agreement is prima facie and generally an extinguishment of the agreement, yet if the vendor fraudulently induce the vendee to accept a deed by making him believe that the whole of the land contracted for is included in the deed, the agreement is not merged, and the vendee may maintain an action upon it. Lee v. Dean, 3 Wharton, 316. 2. (Same.) And such action may be maintained, although the vendee has paid the full amount of the consideration money to the vendor.

Ib.

3. (Same.) The vendee in such case may maintain an action of assumpsit for the non-performance of the contract, and is not

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