Page images

ACTION ON THE CASE. (Injury to well on adjoining land.)

In the absence of all rights acquired by grant or adverse user for twenty years, the owner of land may dig a well on any part thereof, notwithstanding he thereby diminishes the water in his neighbor's well, unless in so doing he is actuated by a mere malicious intent to deprive his neighbor of water. Greenleaf v. Francis, 18 Pickering, 117. ADMIRALTY. (Rule requiring two witnesses.) Courts of admiralty do not recognise the rule in Equity, requiring two witnesses, or one witness and strong corroborative circumstances, in order to overcome the denial in the answer. Sherwood v. Hill and another, 3 Sumner, 127. 2. (Jurisdiction over contracts.) The admiralty has no jurisdiction over preliminary contracts leading to maritime contracts. The Schooner Tribune, 3 Sumner, 144. 3. (Same.) The jurisdiction of the admiralty does not depend upon the particular name or character of the instrument, but whether it imports to be a maritime contract. Ib. 4. (Appeal in.) No appeal lies from a decree of the district court in an admiralty cause, except to the next term of the circuit court. Steamboat New England, 3 Sumner, 495. 5. (Same.) The appeal, to be effectual, must be entered before the adjournment sine die, of the district court, unless a different time is specially allowed by the district court in the peculiar case, or is prescribed by the general rules of the court. Ib. 6. (Same.) If in either case an appeal is entered within the prescribed term, it relates back to the time of the decree, although actually entered in vacation. Ib. 7. (Same.) A party may appeal from an interlocutory decree, having the effect of a final decree ; or he may, at his election, wait until the final decree is positively entered, and then may enter an appeal. Ib. 8. (Decree.) A decree awarding a certain rate of salvage of the proceeds, after deducting charges and expenses, and fees of court, is not a final decree; but at most is only an interlocutory decree, in the nature of a final decree. Ib.

9. (Same.) To make a decree in a salvage case positively final, all the charges and expenses should be ascertained, and the salvage apportioned, and the rights of each salvor definitely fixed, so that he may appeal therefrom, if he chooses. Ib.

10. (Review.) Quarre, whether a libel of review, in the nature

of a bill of review in equity, will lie in a court of admiralty. Ib. 11. (Rehearing.) A rehearing in admiralty cannot be had after the term of the court has passed, at which the decree was made. Ib. 12. (Enrollment.) All decress in admiralty are deemed to be enrolled as of the term, in which they are made. Ib. AGENT. (Officer.) An officer who receives a writ of attachment, for service, is not thereby constituted the agent of the plaintiff, for receiving payment on the demand. Wainwright v. Webster, 11 Vermont, 576. 2. (Power to warrant.) A power given to an agent to sell a slave, implies a power to warrant the soundness of the slave. Skinner v. W. and R. Gunn, 9 Porter, 305. 3. (To sell and receive the money.) An authority to an agent, to sell and receive the money, does not authorize him to sell, without receiving the money. Caldwell v. Gaither, 9 Porter, 605. ALIEN. (Residence in Canada.) Quare, Whether an alien can take land by levy of an execution, even so as to divest the former owner P But the mere fact that a man resides in Canada and has for many years, is not, alone, sufficient to find him an alien. Gilman v. Thompson, 11 Vermont, 643. ARBITRAMENT AND AWARD. (“Good and authentic” deed.) An award, directing that W. “shall make and well execute a good and authentic deed of conveyance” of certain lands to P. by a given day, refers merely to the validity and sufficiency of the deed, in point of law, and not to the title to be thereby conveyed, and is satisfied by the execution of such a deed, as is effectual to convey all the right and title which W. had in the premises at the date of the award. Preston v. Whitcomb, 11 Vermont, 47.

2. (Same.) P. cannot give in evidence, in an action against W. for the non-performance of the award, that W. had no title and no seisin; or that there was an adverse possession in another. Ib.

3. (Marriage of party.) If a feme sole administratrix refer any matter concerning the estate to arbitration, and appoint an attorney to attend before the arbitrator, and then intermarry before the award, the power of the arbitrator is thereby determined. Abbott v. Keith's Admr., 11 Vermont, 525.

ASSIGNMENT. (Effect of upon land in another State.) Where an insolvent debtor in Connecticut assigned all his property, including certain land in Massachusetts, in trust for the benefit of his creditors, pro ratá, under the provisions of a statute of that state, none of the creditors being parties to the assignment, and at the same time conveyed such land to the trustee by a deed which referred to the assignment as to the purposes of the conveyance, and which was duly executed and recorded according to the laws of Massachusetts, it was held, that the statutory assignment in Connecticut was void, in regard to land in Massachusetts, the title to real estate being exclusively subject to the laws of the state where it lies; and that the second deed, being ancillary to the statutory assignment, was without consideration and void as against creditors in Massachusetts, who attached the land after such deed had been recorded. Osborn v. Adams, 18 Pickering, 245.

2. (By an insolvent debtor.) A conveyance, by a debtor known to be insolvent, of all his property to one or more creditors, in discharge of their own debts and liabilities, not exceeding the amount due and payable by them, and not for the benefit of the creditors at large, or of any other creditors than the immediate grantees, is not a “voluntary assignment” to creditors, within the purview of the Act of 1799, ch. 128, § 65, so as to be affected by the priority of the United States, unless it appear, that it was made with the intent to evade the priority given by the Act to the United States. United States v. McLellen, 3 Sumner, 345.

8. (Same.) The construction of the Act of 1799, ch. 128, cannot depend upon the provisions of any particular statute of a State, which does not fall within its very terms. Ib. ATTORNEY, POWER OF. (When evidence in Alabama.) A power of attorney may be acknowledged before a notary public, and when verified under his notarial seal, may be used in evidence. St. John v. Redmond, 9 Porter, 428. AUTHENTICATION. (By act of congress.) The act of congress, of May, 1790, does not exclude other modes of authenticating the acts of the legislature of a sister state. Hanrick v. Andrews, 9 Porter, 10. A UTREFOIS CONVICT. (Same act.) To bar a prosecution for selling liquor without a license, it is not sufficient for the respondent to show he has been indicted and convicted since the date of the offence now proved against him. He must prove that conviction to have been for the same act of selling now complained of State v. Ainsworth, 11 Vermont, 91. BANK NOTES. (Payment in worthless.) If one sell goods and receive pay in counterfeit or worthless bank bills, or bills essentially depreciated, if these facts are not known to the party receiving them, and he is guilty of no negligence, he may treat the payment as a nullity, and resort to his original cause of action. Gilman v. Peck, 11 Vermont, 516. 2. (Same.) A being indebted to B, paid him the amount of such indebtedness in bills of an insolvent bank. The bills were in full credit at the time and place of payment, and both parties were ignorant of such insolvency. Previous to the time of such payment, the bank had ceased to redeem its bills at its counter, and they were not circulating as a currency in the immediate vicinity of the bank, but this was unknown to the parties at the time. B afterwards learning the facts, offered to return the bills, but A refused to receive them; Held, that the payment, under these circumstances, was not a satisfaction of the debt. Wainwright v. Webster, 11 Vermont, 576. BILLS OF EXCHANGE, &c. (Payable at a specified bank.) Where a note is payable on demand at a specified bank, no demand need be made at any other place, and in an action against an indorser, it will be presumed, in the absence of evidence to the contrary, that the note was at the bank, and that some officer of the bank was in attendance to receive payment. Folger v. Chase, 18 Pickering, 63. 2. (Indorsement.) Where a note indorsed by the payee to a bank of which P. H. F. was the cashier, was again indorsed as follows: “P. H. F., Cashier,” it was held, that such second indorsement was sufficient. And it seems, that in an action upon such note, by the second indorsees against the payee, if the second indorsement is not sufficiently certain, the plaintiffs may, at the trial, prefix the name of the bank to such indorsement. Ib. 3. (Same.) An indorsement written on a slip of paper, which was attached to the back of a note by a wafer, for the purpose of writing receipts of partial payments thereon, there not being room on the back of the note, was held to be sufficient; the indorsement having been made after several such receipts had been written on such attached paper. Ib. 4. (Indorsed after due.) In the case of a note indorsed after it has become due, the indorser is not liable unless payment be demanded of the maker, and notice of the non-payment given to the indorser; and as such a note has become payable on demand, the demand on the maker must be made within a reasonable time, and immediate notice of non-payment given to the indorser. Colt v. Barnard, 18 Pickering, 260. 5. (Illegal consideration.) A promissory note given for compounding a public prosecution for a misdemeanor, is founded upon an illegal consideration. Jones v. Rice, 18 Pickering, 440. 6. (When treated as a note.) The holder of a bill of exchange, drawn and accepted by the same person, may treat the bill as a promissory note, and thus bring an action on it. Randolph v. Parish, 9 Porter, 76. 7. (What necessary to.) It is not necessary to constitute a bill, that there be three distinct parties; a party may draw on himself, payable to his own order, and such a paper, when negotiated, will be a bill, in the hands of an indorsee. Ib.

« PreviousContinue »