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the property to a third person. Pickard v. Low, 3 Shepley, 48. 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 2 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
sole owner of the property levied on. Aldrich v. Wallace, &c. 8 Dana, 287. PLEADING. (Material fact omitted in declaration.). Where a material fact is omitted in a declaration, the defect is cured by a verdict, if the pleadings directly put in issue the fact omitted. Elliot v. Stuart, 3 Shepley, 160. PRINCIPAL AND AGENT. (Sale by factor.) A contract of sale by a factor or agent, entrusted with goods for the purpose of sale, is valid, and will protect a purchaser against the principal, although no money is advanced, or negotiable instrument or other obligation given at the time of the contract; it is enough if an obligation be subsequently entered into on the faith of the contract, at any time whilst it remains unrescinded : it was accordingly held in this case, that the subsequent endorsements of promissory notes, and in anticipation of which the property was transferred, gave effect to the contract. Jennings v. Merrill, 20 Wend. 9. 2. (Release in attorney’s own name.) A release executed by an attorney in his own name, and not in the name of his principal by himself as attorney, is not obligatory upon the principal ; and parol proof is inadmissible to show an adoption of the act, by the principal receiving the consideration of the release. Wells v. Evans, 20 Wend. 251. PRINCIPAL AND SURETY. (Contribution from co-sureties.) One of several sureties may maintain a bill against his co-sureties and the principal, before the debt is paid, for indemnity from the latter, if it may be obtained from him ; if not, for contribution. Morrison v. Poyntz, 7 Dana, 307. 2. (Insolvency.) Where there are more than two sureties, and one of them is insolvent, equity distributes the burthen equally among those who are solvent. Ib. REPLEVIN. (How abated.) It is good cause for the abatement of a writ of replevin, that at the time of the taking by the defendant, the chattels were the joint property of the plaintiff, and of another person. McArthur v. Lane, 3 Shepley, 245. 2. (Immediate possession.) The action of replevin cannot be WOL. XXIII. —NO. XLVI. 29
maintained, unless the plaintiff have the right to immediate possession of the property. Ingraham v. Martin, 3 Shepley, 373. 8. (Same.) Thus where there is an agreement in a mortgage of personal chattels, that the mortgagor shall retain the possession for a stipulated time, the mortgagee cannot maintain replevin therefor until the time has expired. Ib. SALE OF CHATTELS. (Liability of auctioneer.) An auctioneer who sells stolen goods is liable to the owner in an action of trover, notwithstanding that the goods were sold, and the proceeds paid over to the thief without notice of the felony. Hoff. man v. Carow, 20 Wend. 21. 2. (Market overt.) The exception of sales in market overt which prevails in England, is not recognized here. Ib. 3. (Statute of frauds.) Where a contract is made for the sale of an article of merchandize at a stipulated price, although the contract be void under the statute of frauds, the price agreed upon may be recovered, if the article be subsequently delivered and accepted. Sprague v. Blake, 20 Wend. 61. 4. (Goods of “merchantable quality.” Acceptance.) Although by the terms of a contract an article agreed to be delivered is to be of a merchantable quality, still if an inferior article be delivered and accepted, the purchaser when called upon for payment is not entitled to a reduction from the contract price, on the ground of the inferior quality of the article; he must refuse to accept it, or if its inferiority be subsequently discovered, he must return it, or require the purchaser to take it back. Ib. 5. (False representation.) Where goods are obtained by a purchaser by false representations as to his ability to pay, and by suppressing the truth, the vendor may rescind the sale, and after demand and refusal bring an action of trover against a sheriff who has levied upon the goods by virtue of an execution against the purchaser. Hitchcock v. Covill, 20 Wend. 167. 6. (Possession and property.) The doctrine that possession carries with it the evidence of property, so as to protect a person acquiring property in the usual course of trade, is limited to cash, bank bills, and bills payable to bearer. Saltus v. Everett, 20 Wend. 267.
SHIPPING. (Construction of bill of sale of) A bill of sale of the hull of a vessel with all and singular her tackle, apparel and furniture, does not include a chronometer on board at the time, where no agreement of the parties, or custom of merchants, in relation to it, is made to appear. Richardson v. Clark, 3 Shepley, 421.
SLANDER. (Admission by justification.) Where a publication treats of the manner in which a particular business is conducted by two individuals carrying on business under the name of a firm, and one of the members of the firm brings a suit alleging the publication to be a libel of and concerning him in his trade and business, and that its object is to impoverish and ruin him, a plea of justification is an admission that the plaintiff is one of the firm mentioned in the publication. Fidler v. Delavan, 20 Wend. 57.
2. (Actionable words.) In slander, a plaintiff may in the same count charge words not actionable per se, with words actionable in themselves, in aggravation of damages; and in such case the defendant is not at liberty to demur to some of the words and take issue upon the others. Dioyt v. Tanner, 20 Wend. 190.
TENANT IN COMMON. (Of mill and mill privilege.) One tenant in common of a saw-mill and mill privilege may maintain an action of trespass quare clausum, against a co-tenant for the destruction of the mill. Maddow v. Goddard, 3 Shepley, 218.
2. (When previous demand necessary.) Where an officer attaches goods, owned by the debtor and creditor as tenants in common, and sells them on the writ by consent, an action cannot be maintained by the creditor to recover against the officer the proceeds of the sale of his share of the goods without a previous demand. Steele v. Putney, 3 Shepley, 327.
TENDER. (Must be unqualified.) A tender of money in payment of a debt, to be available, must be without qualification, that is, there must not be any thing raising the implication that the debtor intended to cut off or bar a claim for any amount beyond the sum tendered ; and it was accordingly held, in this case, that the tender of a sum of money in full discharge of all