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INDEX.

ACCOUNT.

1. If promissory notes go into the hands of a bailiff or receiver under a con-
tract, he may be called to an account respecting them in the common law action of
account, and in some cases since the law of 1852, (Laws of 1852, p. 9,) in the action
on book. Woodward v. Harlow, 338.

2. A recovery may be had for notes which were received by the defendant to be
held as security, until the debt of the plaintiff should be settled, if it appear that
there is, in fact, nothing due from the plaintiff to the defendant. lb.

3. If the defendant received them to account for after the payment of costs in a
· pending suit, the payment of the costs would not be a condition precedent to the
plaintiff's right of action. 16.

See AMENDMENT 2.

ACTION.

1. An act legal in itself, and which violates no right, cannot be made actionable
on account of the motive which induces it. Chatfield v. Wilson, 49.

2. No action on account of a public nuisance can be sustained by a person who
has not sustained special damage from it. Hatch v. Vt. Central R. Company, 142.

3. A bailee of property, who has an interest in it, may maintain an action in his
own name for any injury done to it, either tortwise, or by the breach of any obliga-
tion or duty which another may be under, in reference to it. White et al. v. Bascom
et al., 268.

4. By a contract between the plaintiffs, one of them was to furnish a boat, and
the other take charge of running it for the purpose of transporting merchandise,
the profits of which business were to be shared by them equally. Held, that, for an
injury or breach of duty by a third person in reference to the boat, by which it was
lost, an action might be maintained and the value of the boat recovered in the name
of the plaintiffs jointly. 10.

5. The plaintiffs engaged the defendants to tow for them a boat containing mer.
chandise which the plaintiffs were transporting as common carriers, and which was
afterwards lost by the neglect and want of ordinary care of the defendants. Held,
that the plaintiffs might recover the value of the merchandise lost, though they had
not paid the owners, or received any pay for the transportation of it. lb.

6. A recovery may be had for notes which were received by the defendant to be
held as security, until the debt of the plaintiff should be settled, if it appear that
there is, in fact, nothing due from the plaintiff to the defendant. Woodward v. Har-
low, 338.

7. If the defendant received them to account for after the payment of costs in a
pending suit, the payment of the costs would not be a condition precedent to the
plaintiff's right of action. Ib.

8. An action pending, and on trial by a jury, on the 30th day of November,
before a justice of the peace whose term of office expired on that day, was proceeded
with, by the agreement of the parties, until 6 o'clock on the morning of the 1st of
December, when the jury failed to agree; and the ex-justice took no further cogni-
zance of the cause, and neither party caused a new justice to be substituted in his
place. Held, that the defendant therein could not maintain an action against the
plaintiff for the taxable costs to which he had been subjected in his defense of the
suit. Johnson y. Kingsbury et al, 486.

9. If the purchaser of property, which is conveyed to him, promises but neglects
to furnish security for the payment, at a future day, of that part of the purchase
money which is unpaid, an action may immediately be commenced and maintained
against him for its recovery. Ascutney Bank et als. y. Mc K Ormsby, 721.

10. In such an action the declaration should be special and count upon the prom-
ise to furnish security; and the rule of damages would be the sum to have been
secured. lb.

11. If the seller declines to make a transfer of the property until the security is
furnished but the purchaser fraudulently obtains the possession of it, (or of the deed
of it, if real estate, as in the present case,) the seller may waive the tort, and main-
tain an action on the promise to furnish security. 15.

12. The defendant gave the plaintiff a written lease of certain premises, and
before the expiration of it he deeded the same premises to a third person without
making any reservation of the plaintiff's rights. Held, that the fact that the grantee
had such notice of the plaintiff's rights as would enable the plaintiff to maintain
them in a court of equity, constituted no defense and would not prevent the plain-
tiff' from pursuing the defendant on his contract in an action at law. Staples v.
Flint, 794.

See FRAUD 1; PRINCIPAL AND SURETY 1.

ADMINISTRATOR, See EXECUTORS AND ADMINISTRATORS.

ADVERSE POSSESSION, See POSSESSION.

AGENT.

1. If, in a simple contract made by an agent, the agent does not disclose his
agency and name his principal, or, if he exceed his authority, he will render him-
self personally responsible. Royce v. Allen, 234.

2. The lessee of a railroad is an agent of the railroad corporation, within the
meaning of the general railroad act, (Comp. Stat. chap. 26, $ 41,) making the corpor-
ation and its agents liable for damages occasioned by want of fences and cattle
guards. Clement v. Canfield, 302.

3. An expressed disapprobation of the acts of one who assumed to act as an
agent will not prevent a subsequent ratification and adoption of them. Woodward
v. Harlow, 338.

4. Held, that the facts and testimony in the present case did not show a case of
agency on the part of the defendant. Hodges & wife v Green, 358.

5. The president of the defendants borrowed fifty dollars of the plaintiff for the
defendants, to be expended on their buildings, with the understanding that it should
be repaid to the plaintiff. The money was paid into the defendants' treasury and
used for the purpose intended. Held that this receipt and expenditure of the money
was a ratification, by the defendants, of the act of their president, and bound them
to a re-payment of the money, even though the president exceeded his authority in
borrowing it. Lyman v. Norwich University, 560.

ALIEN.

1. Au alien born does not have the settlement in this state which his father once
had, if, before his birth, the father removed into the foreign jurisdiction where the
child was born and never afterwards returned from it. Lyndon v. Danville, 809.

AMENDMENT.

1. A declaration upon a promissory note may be amended by adding a count
upon an account stated. No new cause of action is thereby introduced, if a recov-
ery is claimed only upon the original consideration of the note. Stephens y. Thomp-
son et al., 77.

2. The declaration in an action of account cannot be amended, so as to introduce
a new and distinct claim, after the coming in of the report of the auditors, unless
the report is first set aside; and, if then amended, the defendant may plead de novo.
Joy v. Walker, 442.

See SCIRK FACIAS 1.

APPEAL.

1. No appeal lies from the report of the commissioners upon a deceased person's
estate, that a contingent claim was presented. An appeal only lies from its allow-
auce or disallowance. Hobart v. Herrick, 627.

2. A creditor of an estate has the right of appealing from the allowance of a
claim in favor of another creditor when the administrator declines to do so. And
such declinature would probably be in ferred, if no claim of the administrator to
prosecute the appeal in his own behalf should be interposed. Ib.

3. Sufficiency and requirements of the bond to be given by the appealing cred-
itor in such a case. Ib.

4. An appeal lies from the decision of the probate court setting out a homestead
to the widow of a deceased person. True et als. v. Estate of Morrill, 672.

5. A claimant of the effects in the hands of a person summoned as trustee in a
suit before a justice can only appeal, if at all, in such cases as are appealable by the
other parties. If, therefore, the action be upon a note for less than $20, and the in-
debtedness of the trustee be upon a similar note, the claimant cannot appeal from a
decision and judgment adverse to his claim. Cabot v. Burnham's trustee & claim.
ant, 694.

6. The plaintiff in a trustee suit before a justice, the subject matter of which is
appealable, may appeal from the judgment of the justice in reference to the liability

of the trustee, where the principal defendant is defaulted. Van Buskirk v. Martin &
Tr., 726.

See CHANCERY 3; EVIDENCE 19, 21; HIGHWAY 4, 5, 6; RECOGNIZANCE 1.

APPEARANCE, See PROCESS.

ARBITRATION.

1. Neither mistake or irregularity of conduct on the part of arbitrators, which
does not affect the whole award, is a ground of defense to it, in an action at law.
Shepherd v. Briggs, 81.

2. An award, which is operative as a final and conclusive adjustment of all mat-
ters between the parties, is not vitiated by an order requiring them to execute mu-
tual releases. Ib.

3. An award defining a boundary will be defeated by proof that there was no
such monuments as are referred to in the award, for the purpose of locating the
boundary. Giddings v. Hadaway, 342

4. But a want of certainty in the award in this respect alone, will not affect an-
other portion of the same award, determining that one party had trespassed upon
the land of the other, and awarding to the latter party his damages and costs,
though the trespass was upon the same land, to which the disputed boundary had
reference. Ib.

5. Parties agreed to submit certain matters of difference to arbitrators who, after
hearing and consultation, informed the parties they had agreed, but that neither
party was to be bound by their determination, and would be under no obligation to
abide by it, and then announced the conclusion to which they had arrived. Held,
that their conclusion was merely advisory, and of no binding force as an award,
Sartwell v Horton, 370.

6. A bond of submission provided that the award of the arbitrators should be
made and published in writing under their hands and seals." Held, that the terms
of the submission were complied with, and the submission became irrevocable when
the arbitrators made such an award, which was ready to be delivered, and notified
the recovering party of its contents. Morse et al v. Stoddard et al., 445.

7. Held, that a statement, in the bill of exceptions, that the award was made,"
imported that it was made in conformity with the submission. Ib.

8. A general award is sufficient, where the claims submitted are pecuniary, or
capable of being reduced to a definite sum, and the submission does not require or
contemplate that the arbitrators should award the performance of any other act
than the payment of money. Bowman v. Doroner, 532.

9. In this case the submission required the arbitrators to decide as to the suffi-
ciency of a tender made, and the right of a party to recover in a suit commenced by
him, (to the recovering party in which the taxable costs were to be awarded,) and
also to determine the liabiliiy of the other to account for certain rents, and their
value. The arbitrators awarded generally, that one of the parties should pay a spe-
cified sum to the other, on demand, " in full of and for all matters submitted." The
award held sufficient. Ib.

10. In this state, the costs of the prevailing party in an arbitration may be award-
ed in his favor, though there be no provision for it in the submission. 16.

11. The revocation of a submission is a breach of an agreement or condition in
an arbitration bond to abide by and perform the award. Craftsbury v. Hill et al. 763.

12. An arbitration note, or a note executed and placed in the hands of arbitra-
tors, to be delivered to the other party if he should recover, becomes a valid obliga-
tion upon the making of a valid award in his favor, and the delivery of the note to
him; and when so delivered, a recovery may be had upon it under the money
counts. Woodrow v. O' Conner, 776.

13. It is no objection to an award that neither the arbitrators nor witnesses were
sworn, if the law did not require it, or if the parties agreed that they need not be, -
nor is it any objection that the umpire was appointed before the arbitrators entered
upon the business suamitted to them, or that the arbitrators joined with the umpire
in making the award. Ib.

14. In an action for the recovery of the amount of an award or of an arbitration
note, the award cannot be collaterally impeached by showing that the plaintiff pro-
cured it by means of false testimony, which was known by him to be so. Ib.

ASSETS.

1. The administrator of an insolvent estate is not bound to inventory and ac-
count for lands, the legal title to which was in the intestate at the time of his de-
cease, but the equitable title in another. Sherman, Admr. y. Est. of Dodge, 26.

2. The intestate, for the expressed consideration of $1,000, executed and delivered
to his son, a warranty deed of certain real and personal property, with the condi-
tion that the grantor and his wife should have the use and possession of the prop-
erty during their lives, the grantee to have possession at their decease, and not
until then. Held that the life estate so secured, or intended to be secured to the
widow, should not, after the death of the grantor, be treated as a part of his estate,
except for the payment of debts existing at the time of the conveyance. Ib.

ASSIGNMENT.

1. A person in the actual employment of another, from whom he is receiving
wages at a stipulated rate, may make a valid assignment of his future earnings, al-
though the employment is for no definite period, and may be terminated at any time
by either party. Thayer et al. v. Kelley & Tr., 19.

2. Such an assignment may be made for the purpose of obtaining future advances
as well as to secure a present indebtedness. Ib.

3. An assignment by a firm, for the benefit of their creditors, of all their rights
and title in certain specified real and personal property and a conveyance, at the
same time, by one of the partners, for the same general object, of several parcels
of land previously held by him, accompanied by an immediate suspension of the
business of the firm, which is thereafterwards carried on by the assignees, will
afford, in the absence of any showing to the contrary, a sufficient presumption that
the assignment was of a sufficient amount of the assignor's pr

sufficient amount of the assignor's property as to render
it, in that respect, a general assignment. Bishop et als. v. Trustees of Haris, 71.

4. An assignment which is defective, on account of its containing a resulting
trust before providing for all of the assignor's creditors, may be remedied by a new
assignment, and probably, without resort to a new assignment, by a mere declara-
tion of trust in favor of all of the creditors. Merrill et als. v. Englesby, Tr., 160.

5. The word "void” in the act of 1843, declaring certain general assignments
void, &c., construed as only implying inoperative or voidable. Ib.

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