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not thereby disabled from commencing an action upon the note before the expiration of three months. Central Bank v. Willard, 17 Pick. 150. 3. (Lender insufficient without costs.) The holder of a promissory note commenced actions thereon against the maker, and against the indorser, and the maker brought into court the full amount of the note with interest. It was held, that the holder was not bound to accept it, unless the costs of both actions should be paid. Whipple v. Newton, 17 Pick. 168. 4. (Indorsement how construed.) The defendant put his name on the back of a negotiable note, to enable the payee to get the note discounted, and subsequently the payee negotiated the note, at the same time indorsing his own name above the defendant's name. It was held, that the defendant was to be regarded as an indorser, and that he was not liable as a promisor or a guarantor. Pierce v. Mann, 17 Pick. 244. 5. (Demand and notice.) An assignment of property by the maker of a promissory note not due, to a trustee in trust to indemnify the indorser against his liabilities for the maker, does not dispense with the necessity of a demand upon the maker and notice to the indorser. Creamer v. Perry and Tr., 17 Pick. 332. 6. (Same.) The indorser of a note, who had received no notice of its non-payment, upon being asked what would be done about the note, replied, that “the note will be paid.” It was held, that this was not equivalent to a waiver of notice, and did not render the indorser liable, as upon a renewed promise. Ib. 7. (Note by several payable to one of their own number.) Where a note is made by several persons payable to one of their own number, though payment cannot be enforced at law, as between the original parties, yet if it be indorsed to a third person, he may maintain an action upon it. Pitcher v. Barrows, 17 Pick. 361. 8. (Note and mortgage given to indemnify promisee.) Where a promissory note secured by mortgage was given in order to indemnify the promisee against any loss which he might suffer by reason of his subsequently indorsing for the accommodation of the promisor, and the promisee did accordingly indorse for the promisor, it was held, that such note was not void as against creditors of the promisor, whose claims accrued after such indorsements were made. Gardner v. Webber, 17 Pick. 407. BOOK-ACCOUNT. (What may be proved in.) The defendant, in an action on book, may prove by his own oath, that he has delivered up to the plaintiff, in pursuance of an agreement between them, a note which he held against the plaintiff and another, in payment of the plaintiff’s account. Fassett v. Vincent, 8 Vermont, 73. CHARITABLE USES. (School district.) Where the inhabitants of a village, previous to the act for the organization of school districts, contributed by voluntary donations to a fund for the erection of a school house for the use of the neighborhood, and the school house was subsequently destroyed by the British troops, and congress afterwards passed an act to remunerate those whose property was thus destroyed; and previous to the passage of such act, the village where such school house had been erected was incorporated into a school district: Held, that the fund afterwards received under that act, belonged to such school district and not to the original contributors to the fund. And the school district having been divided into two districts before the receipt of the money from the United States; held, also, that the fund belonged to both districts in proportion to the taxable property in each, at the time of the division. Potter v. Chapin, 6 Paige, 639. COMMISSION. (Custom.) When a commission merchant is directed to sell for cash, he is accountable to his employer, if he delivers the articles sold without receiving pay therefor, and cannot be protected by any custom, existing among commission merchants, to deliver such articles and wait for the pay in a week or ten days. Bliss et al. v. Leggitt et al., 8 Vermont, 252. COMMISSIONERS. (Disqualification by relationship.) The relation of brother subsisting between one of the commissioners on an insolvent debtor's estate, and a creditor of that estate, is a disqualification of the former to act as a commissioner on such estate, and goes to the validity of the entire report, showing it to be illegal and void. Sturges et al. v. Peck et al., 12 Conn. 139. CONDITION PRECEDENT. (How construed.) If A agree with B to pay him the amount of an account due A & B jointly from A & C, the sum to be ascertained by a person named, and to be paid within one year from the date of the bond, the procuring the arbitrator to state the sum due, before the expiration of the year, is not a condition precedent; and if the sum be ascertained before suit brought, but after the term of payment has expired, B may still sustain his action. Taylor v. Gallup, 8 Vermont, 340. CONSTITUTION OF THE UNITED STATES. (Regulation of commerce.) The power of a state to improve the navigation of a navigable river, within its limits, between a port of entry and a port of delivery established by a law of congress on that river, and to provide for the expense of such improvement, by a grant of tolls on a description of vessels passing up and down the river, which, without such improvement, could not ordinarily pass, does not conflict with the power of congress to regulate commerce; and such grant of tolls, therefore, is not void, as repugnant to the constitution of the United States. Kellogg et al. v. The Union Company, 12 Conn. 7. CONTRACT. (Waiver of objections.) On a contract for the delivery of manufactured articles of a given description at a given time and place, if the quantity specified in the contract and of the same description, although not of the same quality, be delivered at the time and place, and the defendant proceed to use part of the goods and to pay part of the price, without objection until after a question arises as to payment, he will be considered as having accepted the articles and waived all claim for damages, or a reduction of the price stipulated, on account of any open and apparent defects therein. Wilkins v. Stevens, 8 Vermont, 214. CONTRACT FOR SERVICE. (Condition precedent.) In all
contracts for service, the performance of the entire term is a condition precedent to the right of recovery, and nothing short of an express stipulation to that effect, will enable the party to recover for past performance. St. Albans Steam Boat Co. v. Wilkins, 8 Vermont, 54. CORPORATION. (Toll bridges.) The grant to a corporation of the right to erect a toll bridge across a river, without any restriction as to the right of the legislature to grant a similar privilege to others, does not deprive a future, legislature of the power to authorize the erection of another toll bridge across the same river, so near the first as to divert a part of the travel, which would have crossed the river on the first bridge, if the last had not been erected. Mohawk Br. Co. v. Utica & S. R. R. Co. 6 Paige, 554. 2. (Insolvent.) A creditor of an insolvent corporation, whose debt accrued by reason of a loan to the company to pay a loss which had occurred previous to the calamity which rendered the company insolvent, is not entitled to a preference in payment out of the funds which the company held beyond their capital stock at the time of such calamity. De Peyster v. American F. Ins. Co., 6 Paige, 486. 3. (Same.) A creditor of an insurance company, whose loss accrued previous to the calamity which rendered the corporation insolvent, is not entitled to a preference in payment, out of the funds of the company in the hands of the receivers, over other creditors whose claims arose at the time when the insolvency happened, unless a specific appropriation of some part of the corporate property had been previously made for the satisfaction of such prior loss. Lowene v. American F. Ins. Co., 6 Paige, 482. 4. (Deeds by.) Where the president of an incorporated company affixed the corporate seal to a mortgage, and signed his name to the same as such president, and acknowledged the execution thereof before the proper officer, testifying that the seal thus affixed was the common seal of the corporation, and was affixed thereto by him by authority of the corporation; held, that the
mortgage was duly acknowledged and proved to entitle it to be recorded, or to be read in evidence without further proof of its execution. Lovett v. Steam Saw Mill Asso'n., 6 Paige, 54. COSTS. (When not allowed.) Where securities belonging to a very aged and infirm man were placed by him in the hands of the defendant for safekeeping, and to receive the moneys thereon as they were voluntarily paid for the complainant's use, and the defendant had been guilty of no negligence or default, except a neglect to answer a letter of the complainant's solicitor, requesting a statement of the fund; held, that there was no reason for charging the defendant with the costs of the suit for the recovery of the securities in his hands. Robertson v. Wendell, 6 Paige, 320. COURT. (Acts of presumed to be rightly done.) Every act of a court of competent jurisdiction, in the various stages of its proceedings in a cause, from its commencement to its termination, will be presumed to have been rightly done, until the contrary appears. For v. Hoyt, 12 Conn. 491. DAMAGES. (In trover.) In trover, the value of the property when converted, with interest from that time is in general the measure of damages, and if the property is restored, it goes in mitigation of damages; but if the restoration is obtained by the offer and payment of a reasonable reward, this amount, with interest from the time of payment, is to be deducted from the property restored. Greenfield Bank v. Leavitt, 17 Pick. 1. 2. (Consequential—special, how set forth.) Where an act complained of is admitted to have been done with force, and to constitute a proper ground for an action of trespass vi et armis, all the damage to the plaintiff of which such injurious act was the efficient cause, and for which the plaintiff is entitled to recover in any form, may be recovered in such action, although in point of time such damage did not occur till some time after the act done. If special or peculiar damages are claimed, such as are not the usual or natural consequences of the act done, it is proper to set them forth specifically in the declaration, by way of aggravation, that the defendant may have due notice of the claim. Dickinson v. Boyle, 17 Pick. 78.