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8. (Damages.) Where a party draws a bill on himself, payable at the same place, he is liable for damages, if the bill be dishonored. Ib. 9. (Protest.) A protest is necessary upon the non-acceptance of a foreign bill of exchange, and is the only evidence that can be received of the fact. Cullum v. Casey & Company, 9 Porter, 131. 10. (Liability in when worthless.) Where one sells property for paper which is represented to be good, but which is worthless, and known to be so by the holder; the injured party may treat the contract as a nullity, and bring trover for the property, or an action of deceit—when the measure of damages will be the injury sustained in consequence of the fraud. Alexander v. Dennis, 9 Porter, 174. 11. (Want of funds.) In an action against the maker of a bill of exchange, an averment of notice of the demand of payment, and its refusal and protest, may be supported by evidence shewing a want of funds in the hands of the acceptors. Shirley v. Fellows, Wadsworth & Company, 9 Porter, 300. 12. (Failure of consideration.) Where several notes are given to a plaintiff, for a consideration which, with the assent of the defendant, fails in part, the failure cannot be set up against all the notes; plaintiff may recover on the first note sued on, the amount due him for past performance. Hansford and another v. Mills, 9 Porter, 509. BOND. (Discharge of surety.) Where the surety to a bond gave a verbal notice to the payee, after maturity, to sue the principal, who declined doing so, until the principal became insolvent; it was held, that the surety was discharged from his liability. Strader v. Houghton, 9 Porter, 334. BOOK ACCOUNT. (When charge proper.) P. agreed to make an organ-case for L., and delivered it to him before it was finished, and charged it to him on book. L. sold it to S., who agreed to pay P. the sum of $45, and S. informed P. of the agreement, upon which P. erased his charge against L., and made a charge directly to S. Held, that P. might maintain an action on book against S. Pangborn v. Sarton, 11 Vermont, 79. 2. (Same.) If property is sold and paid for at the time, so that no right to charge it then existed, no subsequent contingency, arising from the breach of any promise or warranty in relation to such payment, will sustain an action on book. Nason v. Crocker, 11 Vermont, 463. 3. (Money) An action on book can be maintained for money paid. Chillis v. Woods, 11 Vermont, 466. 4. (Same.) It is no objection to a recovery, in an action on book for money received to be accounted for, that the party took a receipt for the money. Boutwell v. Tyler, 11 Vermont, 487. 5. (Use and occupation.) Use and occupation of a house, although perhaps not strictly a proper subject of charge on book, may, nevertheless, be adjusted in that form of action, when the other party claims to recover for articles delivered, to be applied towards the rent. Gannison v. Bancroft, 11 Vermont, 490. BOTTOMRY. (Authority of master.) The master of a ship has authority in a foreign port to procure all supplies and repairs necessary for the safety of the ship, and the due performance of the voyage. The Ship Fortitude, 3 Sumner, 228. 2. (Same.) This authority is not confined to such supplies and repairs, as are absolutely necessary, or indispensably necessary; but includes all such, as are reasonably fit and proper for the ship and the voyage. Ib. 3. (Same.) Where such supplies and repairs are reasonably fit and proper, the master, if he has not suitable funds, or cannot obtain money on the personal credit of the owner, may take it upon bottomry. Ib. 4. (Same.) A master, acting with reasonable diligence, discretion, and skill, upon the advice of competent persons, at a foreign port, in making repairs, will be protected, even though a more judicious course might possibly have been adopted in the judgment of other more skilful persons. Ib. 5. (Duty of lender.) The lender on bottomry is bound to exercise reasonable diligence, in order to ascertain, whether such supplies and repairs are necessary and proper. He is not bound, however, to show, that there was a positive necessity. It is sufficient, if there is an apparent necessity, so far as the lender is able upon due inquiry and due diligence to ascertain the facts. The Ship Fortitude, 3 Sumner, 228. 6. (Same.) The lender upon bottomry will be protected in such a case of apparent necessity for his advances, even though, upon a fuller examination and a more thorough investigation of the facts, at a subsequent period, it should be doubtful, whether the supples and repairs were really necessary. Ib. 7. (Same.) Where there is an apparent necessity for repairs, the lender on bottomry is under no obligation to inquire, as to the best mode of making the repairs, or whether they are made in the most judicious manner, or to ascertain the cause of the injury. As, for example, where an acknowledged leak exists, how it is caused. It is sufficient, if he acts with good faith; and does not coöperate wilfully in any unnecessary expenditure. Ib. 8. (Testimony of master.) In a suit on a bottomry bond, in rem, ..where the defence is, that the repairs were not necessary, it seems, that the master is not a competent witness for the libellant to establish the necessity of the repairs; as the decree would be evidence of this necessity in a suit brought against him by the owner for improper conduct in directing the repairs. But, under such circumstances, the court will presume favorably for the master, until the presumption is overcome by clear proofs. Ib. 9. (Lien of material-men, &c.) Material-men, and shipwrights and repairers, have alien-for repairs made on a ship in a foreign port, whenever these repairs are apparently reasonable and proper, although not absolutely necessary. All that is required on their part is good faith, and reasonable ground for action. Ib. 10. (Survey.) A regular survey, by competent and skilful persons, and repairs made in pursuance of their recommendation, is primá facie evidence of the propriety of making the repairs, to justify the master and lender on bottomry. Ib.
11. (Same.) The lender on bottomry is primá facie presumed to have made inquiries as to the apparent necessity of repairs, and to have acted upon the facts and circumstances, as made known by the survey to the master. Ib. 12. (Onus probandi of funds.) The onus probandi, that the master has other funds, or that the owner has a personal credit in that port, is not upon the lender on bottomry, but lies on the owner, who resists the bottomry bond. Ib. CHANCERY. (Watercourse.) A bill in chancery will not be sustained to try and settle the legal right to a watercourse, or to enjoin the use thereof, until after the legal right is first settled. Prentiss v. Larnard and another, 11 Vermont, 135. CHARITY. (Statute of Elizabeth.) The St. 43 Eliz. c. 4, is in force here, at least so far as to determine what are gifts to charitable uses. Sanderson v. White, 18 Pickering, 328. 2. (Resulting trust.) In the case of gifts in trust to charitable uses, no neglect, misapplication of funds or other breach of trust by the trustees, will give a right to the heirs of the donor to call upon a court of equity to declare a resulting trust for themselves. They have, therefore, no beneficial interest accruing from the non-execution of such a trust. Ib. 3. (Incorporation of trustees.) A testator gave certain property to trustees, in trust to be paid to them or their successors, whom they should name, and to be disposed of in the manner following: “the said sum shall be kept out at interest, &c., and the interest or annual income shall be applied to the pay or maintenance of a faithful, competent instructer of said school in Ashfield aforesaid; and I hereby request my said trustees to give to said institution an appropriate name, relying on the integrity and faithfulness of said trustees and their successors, to make from time to time such rules and regulationsas they may believe the best adapted to insure success, always having a regard to virtuous and pious youth of genius in indigent circumstances.” The trustees were subsequently incorporated, the act of incorporation providing, “that all grants and donations, which had been or should be thereafter made for the purpose
aforesaid, should be confirmed to the said trustees and their successors in that trust, forever, for the uses which in such instruments were or should be expressed; provided such uses should not be repugnant to the design of this act.” It was held, that the trustees were authorized to apply for and to accept such act of incorporation, the provisions of the act being calculated to carry into effect and not to defeat the objects of the testator; and that an application to this court to compel the trustees to execute such trust, could not be sustained by the heirs of the testator, either as cestui que trusts or as visiters. Ib. 4. (Control of) It seems, that trustees having themselves a visitatorial power, may, in case of any violation of law, be proceeded against either at law or in equity, as by mandamus, prohibition, information, or an action on the case. And where there are trustees in virtue of an express trust under a will, and where, therefore, they are in the equity jurisdiction of this Court, they are within its superintending power, not as itself possessing a visitatorial power, or a right to control the charity, but as possessing a general jurisdiction of all abuses of trusts. Ib. CHARTER PARTY. (Agreement for.) An agreement for a charter-party to be made at a later period; held, under the circumstances, to amount to a present charter-party, notwithstanding a more formal instrument was contemplated. The Schooner Tribune, 3 Sumner, 144. COMITY OF NATIONS. (Foreign laws.) It is the comity of nations, and not the comity of courts, that authorizes the administration of foreign laws within the limits of a state; and where they are not repugnant to local policy, or prejudicial to local interests, the courts can exercise no discretion on the subject. Hanrick v. Andrews, 9 Porter, 9. COMPOSITION. (Legal defence.) The receiving of a part of a debt, then due, in full satisfaction, is no legal defence to an action to recover the balance. Wheeler v. Wheeler, 11 Vermont, 60. 2. (Same.) The fact, that a similar agreement to receive a part, in full satisfaction, was made with all the creditors, without its