Aldrich v. Wallace, &c.

sole owner of the property levied on. 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

maintained, unless the plaintiff have the right to immediate possession of the property. Ingraham v. Martin, 3 Shepley, 373. 3. (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. Hoffman 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. Maddox 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

demands of the creditor, was not good. Wood v. Hitchcock, 20 Wend. 47.

TRESPASS FOR MESNE PROFITS. (Evidence in.) In trespass for mesne profits, evidence to show that the defendant had made lasting and valuable improvements, is not admissible under a plea of not guilty. Nor is there any appropriate plea, that will admit such proof. If, in consequence of improvements made by the tenant, the profits have increased, the jury in making up the verdict, may pretermit the increase, and find what the rents would have amounted to without them. Myers and another v. Sanders's heirs, 8 Dana, 65.

TROVER. (By landlord.) Though a landlord cannot maintain trespass for cutting timber upon land in possession of his tenant, for a conversion of it after it is cut, he may maintain trover; for the tenant's interest in the timber ceases upon its severance from the freehold, and the right of property in the landlord draws after it a constructive possession. Railroad Co. v. Kidd, 7 Dana, 250. VENDORS AND PURCHASERS. (False representations.) To render a sale void by reason of false representations, there must be proof not only that they were untrue, but that they were made by the vendor with the design to deceive, and that the other party was thereby deceived and injured; and such design must be proved by other evidence than the mere fact, that the representations were not true. McDonald v. Trafton, 3 Shepley, 225,

2. (Stoppage in transitu.) Where goods are sold, and delivered on board a ship of the vendee, and are stopped in their transit by the vendor, the vendee is entitled to receive payment of the freight and charges on the goods reclaimed, and has a lien upon them therefor. Newhall v. Vargus, 3 Shepley, 314.

3. (Stoppage in transitu.) Where goods are stopped in their transit by the vendor, the vendee cannot recover back a partial payment made therefor. Ib.

4. (Same. Lien.) This lien on the goods stopped is not divested, because the possession of them has been obtained by process of law. Ib.

5. (Bill overdrawn.) If the vendor of goods sold draw a bill for the amount on the vendee, and by mistake extend the time of payment therein beyond the time agreed by the parties, and the vendee fraudulently seize upon the mistake, and accept the bill, to entrap the other party for his own advantage and to the other's injury; the vendor may treat the bill as void, and maintain an action for the goods sold. Hervey v. Harvey, 3 Shepley, 357.

III.-MISCELLANEOUS CASES.

In the District Court of the United States, for the district of Maine, March 20, 1840.

THE HULL OF A NEW BRIG.

By the general maritime law, material men, who perform labor or furnish materials for building or repairing a vessel, have in addition to the liability of the owner, a lien on the vessel for their security; but this principle of the maritime law has never been adopted by the common law.

By the maritime law of the United States, material men have a lien on the vessel for supplies furnished a foreign vessel, but not for supplies for a domestic vessel; and for the purposes of the lien every vessel is considered foreign when in a port of a state to which she does not belong.

The statute of Maine, of February 19, 1836, ch. 626, giving to “all shipcarpenters, caulkers, blacksmiths and joiners, and other persons who perform labor, or furnish materials for or on account of any vessel building or standing on the stocks by virtue of a written or parol agreement," a lien on the vessel, does not include the case of a laborer, hired generally, and employed in various work, so as to give him a lien on the vessel for his wages for such part of the time as he may have been employed in work for the vessel.

THIS was a libel against the hull of a new brig built during the last season by David Spear. It was alleged in the libel, that Spear commenced building the vessel in April last, and that the hull was finished and launched on the 6th of February; that the libellant was employed by Spear in building her; and that there remains due to him for his services the balance stated in the schedule annexed to the libel, amounting to $116,64, which he has demanded, and which remains now unpaid, for which he claimed a lien on