« PreviousContinue »
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 promis
sory 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 excused 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 obliged to bring an action for deceit ; nor would an action of covenant be proper. Ib. WARRANTY. (Remedy for breach of) Upon the sale of a horse with a warranty or representation of soundness, the plaintiff may declare upon a warrantizando vendidit, alleging a scienter of the falsity of the warranty, and, in such case, he may recover, either upon the express contract, if proved, or, if the scienter be proved, he may recover for the deceit. Vail v. Strong, 10 Vermont, 457. WAY. (Burden of proof in action for injury by defect of) In an action against a town for an injury sustained by the overturning of the plaintiff's carriage, on a highway in such town, the burden of proof is on the plaintiff to show, that he was driving with ordinary skill and diligence at the time when the accident happened. Adams v. Carlisle, 21 Pick. 146. WILL. (Contested from imbecility.) Where the validity of an alleged will is contested on the grounds of imbecility of mind and undue influence on the testator, it is not error to charge the jury, that “facts and circumstances were the primary evidence on which they must rely, and not the opinion of witnesses as to the soundness or capacity to make a will ; ” nor is it error to charge in such case that “the influence exercised in procuring a will which is sufficient to set it aside, must be such as destroys free agency. There must be imprisonment of the body or mind; and that unless the jury were satisfied that there was such physical force exerted, arising from actual duress, or imprisonment of the body, or such mental force, arising from threats, as prevented free agency, they were not to consider the influence exerted by the testator's daughter as improper, or sufficient to invalidate the will.” Brown v. Molliston, 3 Wharton, 129. 2. (Containing two repugnant clauses.) It is a general rule, that when a will contains two clauses, totally inconsistent and incapable of being reconciled, the latter shall have a preference. Lewis’s Estate, 3 Wharton, 162. WITNESS. (Where interest is balanced.) The plaintiff sold goods to A on a credit; A immediately sold them again to the defendant; and the plaintiff brought replevin for them, on the ground that they had been obtained of him through the fraud of A and the defendant. Held, that A's interest in the suit was precisely balanced, and consequently that he was a competent witness for the defendant. Bucknam v. Goddard, 21 Pick. 70. 2. (Competency of judge of probate.) On an appeal from a decree of a judge of probate respecting the estate of a deceased person, on the ground of his being interested in the estate and therefore ousted of jurisdiction over it, the judge is a competent witness to prove that he is not interested. Sigourney v. Sibley, 21 Pick. 101. 3. (Competency.) If, by the terms of a contract to pay the debt of a third person, the original debtor is discharged, he is not a competent witness for the plaintiff to prove such contract. Anderson v. Davis, 9 Vermont, 136. 4. (Same.) Testimony may be given to show that a violent quarrel existed between the party and a witness, introduced against him, without inquiring of the witness, as to the quarrel. Pierce v. Gilson, 9 Vermont, 216. 5. (Attending several days.) When a witness attends, if he is wanted for a further day, his fees must be tendered each day, for the succeeding day, but it is not necessary that he be each time served with a subpoena. Mattocks v. Wheaton, 10 Wermont, 493. 6. (Release by administrator to heir.) In an action brought by an administrator to recover a debt due the estate, the heir is not a witness on his releasing his interest in the debt. The administrator, also, should release him from cost. Barter, Adm'rz. v. Buck, 10 Vermont, 548.
In the Court of King's Bench, for the District of Quebec, in va. cation, October 24, 1839.
ROBERT GILLESPIE AND OTHERS AGAINST J. B. Forsyth AND OTHERs.
Where the first mate of a vessel was unable to read and write, and was not a navigator, but was a good seaman, it was held, that the vessel was not thereby rendered unseaworthy.
In this case, which was tried before Mr. Justice Bowen and a special jury, the following facts appeared in evidence. On the 11th of June, 1837, the schooner Industry, Cook, master, of the burthen of one hundred and fifty-six tons, sailed from Quebec with a cargo bound to Montego Bay, in the island of Jamaica, having besides the master, a crew of ten men including the mate, and also a supercargo. On the arrival of the schooner at Montego Bay, the supercargo discharged the master for some cause which does not appear, and had his own name indorsed upon the certificate of registry as master; but previous to the sailing of the vessel upon her return voyage to Quebec, the mate, John Dixon, was appointed master by the supercargo, and his name indorsed upon the certificate of registry as master. To supply the place of Dixon, one of the seamen was appointed mate by him. The individual so appointed was fully competent to discharge all the duties of mate depending upon seamanship, but he could not write, and was not what is called a navigator, nor was there any other person on board capable of navigating the vessel excepting the master. The master and supercargo had previously made diligent search and inquiry for a person possessing such qualification, and without success. Several masters of ships testified that although it is desirable that mates of vessels should possess the knowledge of navigation as well as the skill of seamen, yet that it not unfrequently happens that they are without this knowledge, and that it is not essential to the discharge of their duties as mates, which they consider as requiring rather skill