MILL. (Presumption of grant.) If the owner of the land on one side of a river, erects a mill dam across the river, without obtaining permission from the proprietor of the opposite shore, this is an adverse and injurious invasion of the rights of this riparian proprietor, although he may then have no occasion to make use of the water, and if the dam be continued a sufficient length of time, will authorize the jury to presume a grant of the right to abut the dam on such opposite shore. Bliss v. Rice, 17 Pick. 23.

2. (Grantor of water power.) The grantor of the water power

created by a dam, has no right to divert or use the water which runs over the dam, for this water increases the head, and of course makes a part of the water power created by the dam. Ib.

3. (Ownership of water easement.) Where the land on one side and to the thread of a mill stream, with the water privilege, are owned by tenants in common, one of whom also owns the land on the opposite side, to the thread of the stream, this is not such a unity of possession as will extinguish, in the whole or pro tanto, the water easement belonging to the tenants in common. Ib.

4. (Damages.) The owner of land, a part of which is flowed by means of a mill-dam, may, by reason of the situation of the part flowed in relation to the other part, sustain damages beyond the value of the land actually flowed, and on a complaint for flowing, he may produce evidence to prove the full extent of the damage. Palmer Company v. Ferrill, 17 Pick. 58.

5. (Same.) On such a complaint the respondent cannot give in evidence, by way of set-off to the damage done to the land flowed, the consequential benefits resulting to the complainant from the erection of the dam, by reason of an increase of population, markets, schools, stores, and other improvements in the vicinity. Ib.

6. (Former owner of.) The former owner of a mill is liable, under the statutes passed for the regulation of mills, for damage occasioned by flowing land while he was the owner of the mill,

although at the time when the complaint was filed, he had ceased to be the owner or occupant thereof. Charles v. Monson and Brimfield Manuf. Co., 17 Pick. 70.

MORTGAGE. (Demand on mortgagee.) A demand made by a mortgagor upon the mortgagee, to state an account of the sum due on the mortgage, is not vitiated by superadding other demands and proposals which the mortgagee is not bound to notice. Allen v. Clark, 17 Pick. 47.

2. (Mortgagee's account.) An account rendered by a mortgagee, should state not merely the sum due on the mortgage, but the items. Ib.

3. (Judgment in suit to recover possession.) When a suit upon a mortgage to recover possession for condition broken, is rightfully brought against the tenant in possession, especially if he be the mortgagor, it may rightfully proceed to judgment, and it cannot be defeated by the act of the mortgagor, by alienating the mortgaged premises, either in whole or in part, and all persons coming in under the mortgagor, after suit thus commenced, will be bound by the judgment, and by the possession taken under it. Hunt v. Hunt, 17 Pick. 118.

4. (Note-statute of limitations.) After a mortgage was given in the usual form to secure the payment of a sum of money, the mortgagor, having received an additional sum of the mortgagee, gave him an unattested note therefor, and at the same time signed an indorsement on the mortgage deed, whereby he acknowledged the receipt of such sum, and promised to pay it "on the same conditions as the within, as per note of hand of this date." The indorsement was attested by a witness. It was held, that the indorsement was a duplicate note, and that the mortgagee might maintain an action on it, although the unattested note was barred by the statute of limitations. Grinnel v. Bax

ter, 17 Pick. 386.

5. (Sale by tenant in common.) A sale by one tenant in common to his cotenant, of his undivided share of the property, in consideration of the discharge of previous debts, with an agreement that the vendee shall convey to the vendor the whole property

held in common, upon his paying a specified sum at the end of one year, together with the value of the improvements made in the mean time; held, a valid agreement of sale and repurchase, and not a mere mortgage. Robinson v. Cropsey, 6 Paige, 480. 6. (Infant.) Where a purchaser from the grantee of an infant subsequently takes a quit-claim deed from the infant, after he becomes of age, the latter deed only operates as a confirmation of the first, and does not overreach a mortgage given by the original grantee of the infant, subject to which the grantee in the last deed purchased the property. Eagle F. Ins. Company v. Lent, 6 Paige, 635.

7. (Warranty.) Where a party who has previously conveyed his title to land, again conveys the same land to another with warranty, who afterwards mortgages the premises, the mortgagee is entitled to the benefit of the covenants of warranty in the deed, so far as is necessary to secure the payment of the mortgage debt; the mortgage to that extent being an assignment of the covenants, which run with the land. Varick v. Briggs,

6 Paige, 323.

8. (Bond.) Where a debt is secured by a bond and mortgage, the mortgagee has a lien upon the land for the whole amount of the principal and interest due, according to the condition of the mortgage, although such amount exceeds the penalty of the bond. Mower v. Kip, 6 Paige, 88.

9. (Party to bill.) bill.) A mortgagor who is personally liable to the mortgagee for the payment of the debt secured by the mortgage, but who has parted with all his right and interest in the mortgaged premises, is a proper party but not a necessary party to a bill to foreclose the mortgage. Bigelow v. Bush, 6 Paige, 343.

10. (Purchaser of an estate subject to.) When a purchaser of an estate, incumbered by two mortgages, at the time of the purchase, agrees with the mortgagor to pay the mortgages, and retains a part of the purchase money for that purpose, and goes into possession, he cannot afterwards take a conveyance from the first mortgagee, and set it up against the second mortgagee,

notwithstanding he may have been deceived by the mortgagor as to the amount due. Converse v. Cook et al., 8 Ver. 164. MOTION FOR JUDGMENT. (Non obstante veredicto.) A motion for judgment, notwithstanding a verdict for the other party, is necessarily founded on the record alone, and can never depend on any state of evidence which is not disclosed by the record. Snow v. Conant, 8 Vermont, 301.

NEW TRIAL. (Damages.) Where the damages assessed by a jury are excessive, a new trial may be granted in order to determine the amount of damages, without opening the whole case. Boyd v. Brown, 17 Pick. 453.

NOTICE. (Registry.) The registry of a deed assigning both real and personal estate, is not in itself constructive notice of the assignment of the personal estate. Pitcher v. Barrows, 17

Pick. 361.

2. (Construction.) Constructive notice, by the record of a mortgage deed, is limited, in its effects, to the specific incumbrance recorded, and consequently, cannot affect a party taking security on other lands in another town. Osborn et al. v. Carr et al., 12 Conn. 195.

3. (To persons in another state.)

Where the selectmen gave

notice, by mail, to the owner of land through which they were about to lay out a highway, who resided in the state of New York, to be present at the laying out of such highway; it was held, that this was reasonable notice; and that personal notice, in such case, was not necessary. Crane et al. v. Camp et al.,

12 Conn. 464. OATH. (Evidence of taking of.) Where the report of a com

mittee appointed to lay out a highway stated, that having taken. the oath and given the notice by law required, they met, &c.; and such report was accepted and recorded; it was held, that it sufficiently appeared from the record, that the oath prescribed by law was taken by the committee, before they entered on the duties of their appointment. Huntington v. Birch et al., 12 Conn. 142.

OFFSET. If an action on contract is commenced against A and

B, but, in consequence of a return of non est inventus as to B, is entered and prosecuted against A only, he may plead in offset a demand due to himself alone. Snow v. Conant, 8 Vermont, 301. PARTIES. (Chose in action.) In the court of chancery the assignee of a chose in action is not permitted to sue in the name of the assignor; but the suit must be brought in the name of the real party in interest. Rogers v. Traders' Ins. Co., 6 Paige, 583.

PARTNER. (Change in partnership.) Where one of three partners retires from, or a new partner comes into the firm, or both, and notice thereof is given, but the business continues to be carried on, in other respects, as before, those partners as to whom no notice is given, will be presumed to hold the same relation to the concern afterwards, that they did before. Howe v. Thayer, 17 Pick. 91.

2. (Burden of proof.) In an action against several for a partnership debt, if one of the defendants denies that he was a partner, it is incumbent on the plaintiff, in the first instance, to prove such defendant to have been a partner; and if this is done, he will be liable, unless he proves a dissolution of the partnership as it regarded himself, and notice thereof to the plaintiff, before the debt was incurred. Ib.

3. (Notice of dissolution.) Where notice of the dissolution of a partnership has not been published in a newspaper, or brought home to the knowledge of the party to be affected by it, evidence of the mere notoriety of the dissolution is not admissible to prove such notice. Pitcher v. Barrows, 17 Pick. 361. 4. (Sale-dissolution.) On the death of one of four partners and the consequent dissolution of the partnership, one of the survivors took out letters of administration upon the estate of the deceased partner, and the three survivors formed a new partnership and took to themselves the stock on hand, giving each his own individual note, for one third of the appraised value, payable to the three. It was held, that this supposed sale was ineffectual, and that the three surviving partners were jointly accountable to the funds of the old partnership, for the value of the stock. Washburn v. Goodman, 17 Pick. 519.