7. (Action of debt on.) An action of debt will not lie upon a mortgage, which contains no express covenant to pay, and therefore creates no personal responsibility. Scott v. Fields, 7 Watts, 360.

8. (Clause to become absolute.) That which was a mortgage at its execution continues to be so, although it contains a clause that it shall be an absolute deed of conveyance if the money which it secures be not paid at the day. Rankin v. Mortimere,

7 Watts, 372.

9. (Absolute deed and agreement.) An absolute deed of convey. ance, and separate agreement by the grantee to reconvey upon the payment of a certain sum of money at a certain time, is but one transaction, and the whole constitute a mortgage. But if the agreement by the vendee be subsequent and independent, that he will reconvey upon the repayment of the purchase money, it does not convert the first deed into a mortgage, nor in any way affect its validity. Kelly v. Thompson, 7 Watts, 401.

10. (Assignment.) Where a mortgage is assigned to one having an interest in the premises mortgaged; the mortgage is not extinguished, if it be for the interest of the assignee to uphold it. Hatch v. Kimball, 2 Shepley, 9.

11. (Undivided portion.) The lien created by a mortgage of an undivided portion of a township of land attaches to the share set off in severalty to the mortgagor on a partition among the proprietors. Randall v. Mallett, 2 Shepley, 51. 12. (Same.) And if the mortgagor have a greater share in the township, than was covered by the mortgage, and the whole be set off together in severalty, the lien of the mortgagee will attach, as tenant in common, to the whole land thus set off, in the proportion that the quantity mortgaged will bear to the whole land thus set off. Ib.

NEW TRIAL. (On one point.) Where evidence has been erroneously admitted as to a particular point, which is entirely unconnected with the other questions raised at the trial, and could have had no influence upon the finding of the jury as to those

questions, a new trial may be granted as to that particular point, without opening the whole case.

Pick. 345.

Robbins v. Townsend, 20

NOTE. (Payable in specific articles.) In an action upon a note for the payment of a certain sum in specific articles and at a certain place, it is not necessary to the maintenance of plaintiff's action that he should have made a demand of the articles at the time and place; but to defeat the plaintiff's action the defendant must prove that he was ready at the time and place and continued ready. On failure to make this proof the plaintiff may recover the amount in money. Fleming v. Potter, 7 Watts, 380.

NOTICE. (Possession of land.) The possession of land is notice of the possessor's title; but the registry by him of a particular title would restrict the generality of notice from possession.

Woods v. Farmere, 7 Watts, 382.

lb.

2. (Same.) A purchaser of land is not affected with constructive notice of any thing which does not lie within the course of his title or is not connected with it: he is not, therefore, presumed to know of the registry of a will containing a devise of the land which he claims by title paramount. 3. The principle, that where one stands by and sees another laying out money upon property to which he himself has some claim or title, and does not give notice of it, he cannot afterward in equity and good conscience set up such claim or title, does not apply to an act of encroachment on land, the title to which is equally well known or equally open to the notice of both parties, but it applies only against one who claims under some trust, lien, or other right not equally open and apparent to the parties, and in favor of one who would be misled or deceived by such want of notice. Gray v. Bartlett, 20 Pick. 186. OFFICER. (Loss of title by neglect of.) If the purchaser at a sale on execution loses his title to the property in consequence of a neglect of the officer to comply with the requisitions of the law, he has a remedy by an action of the case against the officer. Sexton v. Nevers, 20 Pick. 451.

PARENT AND CHILD. (Support of child.) Where a minor son had left the house of his father against his will, and had refused to return at his request, but on being taken sick had returned home, and had been received by him; the father was held liable to the physician for medical attendance upon the son at the house of the father and with his knowledge and assent, on an implied promise, without proof of any express one. Deane v. Annis, 2 Shepley, 26.

2. (Custody of children. The father is entitled to the custody of his infant children, and where differences exist between the parents, the right of the father is preferred to that of the mother; but he may forfeit it by misconduct, may be controlled in the exercise of his parental power, and under certain circumstances the care and custody of the children may be committed to the mother. The People v. Chegaray, 18 Wend. 637. 3. (Same.) Where a habeas corpus is sued out on the application

of a mother in respect to the care and custody of her minor children, on the coming in of the return, denials of material facts set forth in the return, and new allegations in support of the application will be received, provided the same be made under oath; but in such case the father will be allowed to give further evidence on his part. Ib.

PARTNERSHIP. (Binding of by seal.) One cannot bind his co-partners by a sealed instrument unless it be executed in the presence of the others, and by their direction. But if a bond with a warrant to confess judgment be executed by one, and subsequently all the partners by their attorney revive that judgment, and their lands be sold upon it by the sheriff, the purchaser's title will be good. Overton v. Tozer, 7 Watts, 331. 2. (Endorsement by one partner.) Where a general partnership exists, and a note is indorsed in the name of the firm, by one partner, and is sold in the market, and the money received by him, all the partners are liable as indorsers to a bona fide holder. Emerson v. Harmon, 2 Shepley, 271.

3. (Same.) And if such partner, without the knowledge of the

holder of the note, convert the money to his individual use, still all the partners are liable. Ib.

4. (Assignment by one.) Where a partner, without the knowledge of his copartner, assigned partnership property in trust to pay the debts of the firm, it was held, that the copartner could not maintain a several action for money had and received against the assignee to recover his proportion of the proceeds of the property assigned. Hewes v. Bayley, 20 Pick. 96. 5. (Running stages.) Where three persons ran a line of stage coaches from Utica to Rochester, the route being divided between them into three sections, the occupant of each section furnishing his own carriages and horses, hiring drivers and paying the expenses of his own section, but the money received as fare of passengers, deducting therefrom only the tolls paid at turnpike gates, was divided among the parties in proportion to the number of miles of the route run by each, it was held, that they were jointly liable as co-partners to a third person, not a passenger, in an action on the case, for an injury received through the negligence of the driver of the coach of one of them. Champion v. Bostwick, 18 Wend. 175.

PAYMENT. (Appropriation of.) The surety on a promissory

note gave money to the principal and directed him to pay the note with it, and the principal took it to the holder and told him it was the surety's money, sent to pay the note; the holder however declined receiving it upon the note, but took it in payment of another demand against the principal, to which appropriation the principal ultimately assented. Held, that the holder must be deemed to have received the money of the surety, in payment of the note. Reed v. Boardman, 20 Pick. 441. POWER OF ATTORNEY. (To sell land.) A power of attorney to sell land is a good authority to the attorney to redeem it when sold as unseated for the payment of taxes. Bergautz, 7 Watts, 487. PRACTICE. (Reporting evidence.) The party, against whom a verdict has been rendered, cannot as matter of right, require the judge before whom the cause was tried, to report the evidence,

M'Cord v.

in order to enable such party to make his motion to the whole court for a new trial, on the ground of the verdict's being against the evidence or the weight of the evidence, but it is a question of judicial discretion with the judge, whether the evidence shall be reported. Miller v. Baker, 20 Pick. 285. PRINCIPAL AND AGENT. (Liability of agent not disclosing his capacity.) A vendor, who, in the sale of chattels, does not disclose the name of his principal, cannot exempt himself from liability to the purchaser, by proof that in the sale he acted as the agent of another, and that his general business is that of a commission merchant. Waring v. Mason, 18 Wend. 425. PRINCIPAL AND SURETY. (Contribution.) Where the plain

tiff, one of four sureties on a promissory note, paid half of the amount due upon it with funds of the principal, and the other half as administrator on the estate of a co-surety, and this last sum was finally allowed him in the settlement of his administration accounts, it was held that he had no claim upon the other co-sureties for contribution. Mason v. Lord, 20 Pick. 447. REVOCATION. (Submission.) A submission, whether by deed, parol or rule of court, like any other naked authority, is countermandable before execution of it, though expressed to be irrevocable. Power v. Power, 7 Watts, 205.

2. (Same.) The death of a party to a submission is a revocation of it, so that the arbitrators can legally act only by force of a fresh delegation of authority. Ib.

SALE. (Transfer of property.) Where some act remains to be done in relation to the articles which are the subject of a sale, as that of weighing or measuring, and there is no evidence tending to show the intention of the parties to make an absolute and complete sale, the property in such articles does not pass to the vendee, until such act is performed. But it is otherwise, if the payment of the purchase money is not a condition precedent to the transfer, and it appears that the parties intended that the sale should be complete before the articles were weighed or measured. Riddle v. Varnum, 20 Pick. 280.

2. (Same.) R. who was the owner of a quantity of timber, lying