but one contract, and the delivery of some of the parcels is sufficient to take the case, as to the residue, out of the operation of the statute of frauds. Mills v. Hunt, 20 Wend. 431. 2. (Fraudulent conveyance.) A decree in chancery, adjudging an absolute sale of personal property by a debtor to his creditor fraudulent and void under the statute as against creditors, on appeal was affirmed in the court for the correction of errors; the property transferred being deemed to be of a value more than sufficient to satisfy the debt of the vendee; the transfer having been made during the pendency of a suit by other creditors, and the vendor having continued in possession, disposing of the property as the agent of the vendee, and receiving a compensation for his services as such agent. Senators Dickinson and Verplanck dissented. Stoddard and others, appellants, and Butler, respondent, 20 Wend. 507.

FRAUDS, STATUTE OF. (Agreement to convey lands.) An agreement for the conveyance of land, not reduced to writing, although performed in part by each party, cannot be enforced by an action at law for the recovery of damages. Norton v. Preston, 3 Shepley, 14.

2. (Same.) Where a contract for the sale of land, which when made was within the statute of frauds and might have been avoided thereby, has been fully executed, and nothing remains but to pay over the money received, the statute furnishes no defence. Linscott v. McIntire, 3 Shepley, 201.

HIGHWAY. (Rights of public in soil adjoining navigable waters.) The public has not the right to use and occupy the soil of an individual adjoining navigable waters, as a public landing and place of deposit of property in its transit, against the will of the owner, although such user has been continued for more than twenty years. The user cannot be urged by the public, either as the foundation of a legal presumption of a grant and thus justify a claim by prescription, or as evidence of dedication of the premises to public use. Pearsall v. Post, 20 Wend. 111.

HUSBAND AND WIFE. (Separate estate of wife.) The

separate estate of a feme covert, in the hands of trustees, is in equity chargeable with debts contracted for the benefit of the estate. So such estate is chargeable where a portion of it has been converted into other property in conformity to the provisions of the trust deed, and a debt is contracted for the benefit of such substituted property. Dyett v. N. A. Coal Co. 20 Wend. 570.

State v.

INDICTMENT. (Conspiracy.) A conspiracy to commit a misdemeanor is not merged in the commission of it. Murray, 3 Shepley, 100. INFANCY. (Trover.) Infancy is no bar to an action of trover, where the goods converted by the minor came into his hands under a prior illegal contract. Lewis v. Littlefield, 3 Shepley,

233. INSURANCE. (Sea-worthiness.) In the insurance of a vessel on time, the warranty of sea-worthiness is complied with, if the vessel be in an unexceptionable condition at the commencement of the risk; and the fact that she subsequently sustained damage, and was not properly re-fitted at an intermediate port, does not discharge the insurer from subsequent risk or loss, provided such loss be not the consequence of the omission. American Ins. Co. v. Ogden, 20 Wend. 287.

2. (Same.) A defect of sea-worthiness, arising after the commencent of the risk, and permitted to continue from bad faith or want of ordinary prudence or diligence on the part of the owner or his agents, discharges the underwriter from liability for any loss, the consequence of such want of faith, prudence or diligence; but does not affect the contract of insurance as to any other risk or loss covered by the policy, and not caused or increased by such particular defect. 3. (Total loss. Abandonment.) The insurer is not liable either in the case of a technical total loss or actual loss, where it appears that the necessity, the prima facie ground of abandonment, though real, was yet the result of culpable negligence, or want of due diligence on the part of the owner or his agents. Ib.

Ib.

4. (Same.) Under ordinary circumstances, a vessel cannot be abandoned as for a constructive or technical total loss, on the ground of the inability of the master to obtain funds to make necessary repairs, where the owner is chargeable with want of ordinary prudence in furnishing funds or credit, and especially where he has deprived the master of the means ordinarily possessed by him to obtain funds or credit. Ib.

5. (Total loss. Cost of repairs.) In determining the right to abandon as for a technical total loss in reference to the cost of repairs, the parties, it seems, are concluded by the sum inserted in the policy as the value of the vessel, and are not allowed to give proof of its real value. Ib.

LANDLORD AND TENANT. (Covenant to renew.) A covenant to renew a lease, under the same covenants contained in the original lease, is satisfied by a renewal of the lease omitting the covenant to renew. Carr v. Ellison, 20 Wend. 178. LIEN. (Tender.) A tender of the charges must be made before

suit, where a lien exists, unless the goods have been parted with; in which latter case all that can be claimed by the defendant is a mitigation of damages by way of recoupment. Saltus v. Everett, 20 Wend. 267.

LIMITATIONS.

(Declarations by executor or administrator.) Declarations or acknowledgments from which a new promise might be inferred, if made by the debtor himself, will not be sufficient for that purpose when made by the executor or administrator. If the executor or administrator can charge the estate by any promise made by him to pay a demand barred by the statute of limitations, it must be an express promise or agreement to pay, and not a mere acknowledgment of the existence of the debt. Oakes v. Mitchell, 3 Shepley, 360.

MORTGAGE. (Of personal property.) The mortgagee of personal property, where there is no agreement that the mortgagor shall retain the possession, may maintain replevin therefor, before the expiration of the time of credit; although the mortgagor had been suffered to retain the possession, and had sold

the property to a third person.

48.

Pickard v. Low, 3 Shepley,

NUISANCE. (Public and private.) Public nuisances are of two classes, namely, physical, tangible objects; for example, a house or fence in a public highway; and those which, being merely moral, are intangible, for example, the assembling and misconduct of persons at a disorderly house, the keeping of a tippling house, &c. It is the former that private persons may abate upon their own authority. The latter can only be suppressed by legal proceedings. Gray v. Ayres and another, 7 Dana, 375. OBLIGATIONS. (Consideration.) The inducement to a surety to sign the principal's note (after it had become due) was an agreement, made with him, and indorsed on the note, to extend the time of payment: held, that this agreement was a valuable and sufficient consideration to uphold the obligation on his part, and defeat his plea of want of consideration. Pulliam and Payne v. Withers, 8 Dana, 100. OFFICER. (Measure of damages.)

Where an officer has made

a false return, he is responsible for the ordinary results of his own acts; but not for the illegal or oppressive conduct of the creditor, or another officer. The injury and loss which the plaintiff actually sustained by the false return are the only proper subjects of examination in estimating the damages. Norton v. Valentine, 3 Shepley, 36.

2. (Cannot settle action.) An officer, having in his hands a writ

for service, has no authority in his official capacity to settle the demand, and to receive the money of the debtor.

Waite v.

Delesdernier, 3 Shepley, 144. PARTNERSHIP. (Admission by pleading general issue.) Where an action is brought by two, alleging themselves to be copartners under a particular name, pleading the general issue does not admit that the plaintiffs were the persons composing that partnership when the contract declared on was made; although it is an admission of the existence of some copartnership of that name. Norcross v. Clark, 3 Shepley, 80.

2. (Admissions by one partner.) Where the partnership is first

established by other proof, the admissions of one partner may be received to charge the partnership in relation to transactions during its existence. Phillips v. Purington, 3 Shepley, 425. 3. (General reputation.) General reputation of a partnership, existing between two or more individuals, standing alone and not offered in corroboration of facts and circumstances, is inadmissible in evidence to prove a partnership. Whether it be admissible, even as auxiliary evidence, quere? Halliday v. McDougall, 20 Wend. 81.

4. (Sealed instrument.) Although one partner cannot bind his copartner by seal, where the effect of the instrument thus executed is to charge the firm, yet it is competent to him, by an instrument under seal, to authorize a third person to discharge a debt due to the firm. Wells v. Evans, 20 Wend. 251. 5. (Interest.) Where, upon the dissolution of a partnership, there is a balance due to one of the firm from the other, which he fails or refuses to pay over; or where one had put in more capital than the other, which, upon the dissolution, and the debts being paid, he has an immediate right to withdraw, but the other retains it, the partner who is thus indebted is liable for interest from the time of the dissolution till he pays over the money. Honore v. Colmesnil, 7 Dana, 201.

6. (Costs.) A partner, whose unjust conduct has made it necessary for his co-partners to resort to a suit in chancery to obtain a fair settlement, is liable to them for their costs, including what they have been taxed with as their share of compensation allowed to the auditor for investigating and adjusting the accounts. Moon and Taylor v. Story, 8 Dana, 233.

7. (Property of individual partner.) An execution against one of several partners may be levied upon his interest in the partnership property; and, if the property consists of divers articles, the debtor's interest in the whole should not be sold in gross, but the articles should be taken separately, and his undivided interest in each one should be sold by itself, unless the peculiar character of the articles would make it improper to separate them: the sale should be conducted just as it would be, if the debtor was