6. An assignment which is inoperative under that statute, on account of its gen-
eralty, may be cured by a new assignment, less general, in which a substantial por-
tion of the assignor's estate is omitted and left exposed to attachment. 16.
An assignment which is void or inoperative under that statute will, if assented
to by the creditors, become operative and binding upon them. Ib.
8. The promise of an assignee to keep the assigned property for the benefit and
security of certain sureties of the assignor is an original undertaking, and not
within the statute of frauds. Ib.
9. A person will not be holden to an assignee for a debt due from him to the
assignor, if he was liable, in an equal or greater amount, to another person, as
surety for the assignor, which he has since paid, though he had not at the time of
the assignment. Barney v. Grover, 391.
10. An assignee or other trustee who sells trust property by way of barter, or ex-
change, or on credit, should be charged with the cash value of the property at the
time of the sale, and the interest thereon from that time;-unless in the case of a
barter or exchange those in interest elect to affirm it. Page v. Olcott et als., 465.
11. If he neglects to keep full and fair accounts of such sales, and their amount
cannot be ascertained by him, he should be charged with the value of the property
and interest. Ib.
12. A person not in debt may make a voluntary conveyanee of his property for
purpose of securing his future support, which will be valid against his subsequent
creditors. Buchanan & Co. v. Clark & Tr., 799.
See CHANCERY, 6, 7; CORPORATION, 2; PARTNERSHIP, 2; TRUSTEE PROCESS, 2, 3, 4.
1. Money may be recovered back which is paid in discharge of an alleged claim
which is fictitious and false, and known so to be by the party making the claim, and
who induces the payment by menaces, duress, or taking an undue advantage of the
other party's situation. Sartwell v. Horton, 370.
2. Charges against the defendants, (an incorporated railroad company,) for ser-
vices rendered by the plaintiff in procuring the passage of their act of incorporation,
disallowed; the services appearing to have been voluntarily rendered, and there
having been no subsequent promise to pay them. No previous promise could be
implied, when, at the time the services were rendered, the defendants were incapa-
ble of making an express contract. Hall v. Vt. & Mass. R. Co., 401.
3. Charges for services of the plaintiff, who was one of the corporators named in
the defendants' act of incorporation, in procuring the stock subscriptions necessary
for a full organization of the company, allowed, though there was no express prom-
ise for their payment. The services being necessary, a promise for their payment
would be implied. Ib.
4. Charges allowed also for services rendered by the plaintiff as a member of a
committee of the corporators, and also of the directors, for procuring additional
stock subscriptions, the corporators having voted, at the time the plaintiff was ap-
pointed a member of the committee, "that all reasonable expenses incurred in tak-
ing stock shall be audited and allowed;" and the directors, at the time the plaintiff
was appointed a member of their committee, having voted to allow such compensa-
tion as they should deem proper, not exceeding one per cent if the subscriptions
should be satisfactory. Ib.
5. Charges for similar services rendered after a rescision of the above vote of the
directors, and after the stockholders had voted that no compensation should be
allowed for such services, except under particular circumstances, disallowed. Ib.
6. The plaintiff having, at the request of the defendant, who was one of the select.
men of the town of Windsor, taken the highway tax bill of one of the districts in
said town, and having made expenditures of labor and money in the necessary re-
pairs of the highways in said district, to an amount largely exceeding all that he
was able to collect on said tax-bill, which he had been unable to recover of said
town; it was held that, upon the facts found and reported, the defendant had assumed
and was under no personal liability for the same. Stone v. Huggins, 617.
7. Damages sustained by the plaintiff from the non-performance by the defend-
ant of an executory contract for the purchase of property from him, cannot be re-
covered for under the general money counts. Hemenway v Smith et als., 701.
1. Property attached may be sold upon mesne process in pursuance of the statute,
(Comp. Stat. Ch. 31 § 31,) before the service of the writ is completed, by the delivery
of a copy of it to the defendant. Marshall v. Town, 14.
2. A sale, upon mesne process, of a part only of the property attached, but for an
amount exceeding the plaintiff's claim, and exceeding the amount to which the offi-
cer is commanded to attach, will not dissolve the attachment as to the remainder,
or impair the creditor's lien upon it. Ib.
3. Property sold, which is in the possession of a third person, is subject to attach-
ment, as the property of the vendor, until the vendee gives notice of his owner-
ship. Ib.
4. If property is attached and removed to the building of a third person by his
permission, but with an understanding that he is to assume no responsibility as to
its custody or safe keeping, the attaching officer is to be regarded as the person
having the possession of the property, and any notice, in reference to a change
in the ownership of it, should be given to him, and not to the owner of the build-
ing. Ib.
5. A mere understanding, or parol agreement, that a person making advance-
ments, or incurring a liability, shall be secured therefor upon certain real estate, will
be in operative against a bona fide purchaser, or an attaching creditor without notice.
Bailey v. Warners, 87.
6. The expense of keeping animals attached may be deducted from the amount
received upon their sale, and a subsequent satisfaction of the attachment liens by a
payment of them by the debtor, will not deprive the officer of his right of retaining
the expense of keeping. Gleason v. Briggs, 135.
7. The degree of diligence required of attaching officers and other bailees for
hire, is that which prudent men exercise in the conduct of their own affieirs. Briggs
v. Taylor, 180.
8. This definition, which is now almost uniformly used by the English judges,
seems more definite and just, and less liable to be misunderstood by juries, than the
terms common or ordinary care or diligence. REDFIELD, Cн. J. Ib.
9. An attachment of real estate is effected by the officer's leaving in the town
clerk's office a copy of the writ, with his return of such an attachment thereon. The
making of the record or entries respecting it, which it is the duty of the town clerk
to make, does not constitute any part of the attachment itself. Braley v. French
et al., 546.
10. By such an attachment the officer acquires no special property in the real es-
tate, and has therefore no control over the lien thereby created. This lien can only
be released or discharged by the creditor himself. Ib.
11. It will be presumed, until the contrary is shown, that an attachment of real
estate was made under the direction and with the assent of the creditor; and declar-
tions of the officer, made after the attachment, are not admissible for the purpose of
showing that the attachment was not so made. Ib.
See LANDLORD AND TENANT, 8; NEGLIGENCE, 2; PLEADING, 7.
1. A conversation with a lawyer in reference to matters about which it was prob-
able there would be litigation, but in which there was no retainer of the lawyer, nor
anything showing that his advice was sought to regulate the future conduct of the
other party in relation thereto, is not privileged from disclosure as a confidential
communication between client and counsel. Thompson v. Kilborne, 750.
2. The prevailing practice of the legal profession in this state, in giving opinions
and advice upon legal subjects, without particular study and examination in refer-
ence thereto and corresponding pay or a distinct retainer, commented on and con-
demned. Ib.
1. The judgment of a justice cannot be set aside by audita querela on account of
his having refused to continue a cause when the defendant was sick and unable to
attend a trial. Amidon v Aiken, 440.
2. Audita querela may be maintained to set aside the judgment of a justice taken
by default, after an agreement to discontinue the suit, or after negotiations from
which the defendant understood that it was so agreed, the plaintiff knowing that
the defendant so understood it. Perkins v. Cooper, 729.
3. An averment in a writ of audita querela, that the complainant, believing that
the suit would not be entered in court, did not attend to defend the same, and that
thereupon the defendant fraudulently procured judgment by default, held, after
verdict, as equivalent to an allegation that the complainant absented himself from
the trial under the expectation and confidence that the suit was to be discontinued,
and that the defendant, knowing that he acted upon that confidence, procured judg-
ment by default.
1. The degree of diligence required of bailees for hire is that which prudent men
exercise in the conduct of their affairs. Briggs v Taylor, 180.
2. This definition, which is now almost uniformly used by the English judges,
seems more definite and just, and less liable to be misunderstood by juries, than the
terms common and ordinary care or diligence. REDFIELD CH. J. Ib.
3. A bailee of property, who has an interest in it, may maintain an action in his
own name for an injury done to it, either tortwise, or by breach of any obligation
or duty which another may be under, in reference to it. White et al, v. Bascom
et al., 268.
4. The plaintiffs engaged the defendants to tow for them a boat containing
merchandise, 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 merchandize lost, though
they had not paid the owners, or received any pay for the transportation of it. Ib.
5. The plaintiff delivered to the defendant a quantity of palm-leaf, for which the
defendant gave a written receipt and agreement to get it worked into hats, or return
it when called for, and specified the price at which it was to be accounted for, if
used. Held,
That the contract was one of bailment merely, and not of sale, the leaf not having
been used; and that the defendant was bound to use ordinary care in looking to and
preserving it. Brown v. Hitchcock, 452.
1. The stock of a bank in this state, which is owned by a person residing out of
it, cannot be voted on at the election of directors, though it stands, upon the books
of the bank, in the names of inhabitants of this state, to whom it had been trans-
ferred for the purpose of enabling them to vote upon it. State ex rel. Danforth
et als. v. Hunton et als. 594.
2. Question of fact as to the character, in this respect, of a majority of the votes
which were cast against the defendants, in the election of directors of the White
River Bank, examined and determined. Ib.
3. An action upon a bond and mortgage taken by a banking institution, organ-
ized under the general banking law of 1851, and assigned by them to the treasurer
of the state, in pursuance of the seventh section of that law, cannot be maintained
in the name of the banking institution, until it is reassigned by the treasurer, as
provided in the ninth section of the same law. South Royalton Bank v. Downer et
al. 635.
1. The fact that, after the accruing of an account in favor of the plaintiff, he went
into bankruptcy, under the late U. S. bankrupt law, and that the account was not
included in the schedule of claims annexed to the petition of the defendant for the
benefit of that law, will constitute no bar, in favor of the debtor, against the prosecu-
tion and collection, by the plaintiff, of such account. Steele v. Town, 771.
BILLS OF EXCHANGE, See PROMISSORY NOTES AND BILLS OF EXCHANGE.
1. Consideration of the law respecting the transmission and endorsement of bills
of lading and shipping receipts. Davis & Aubin v. Bradley & Co., 118.
2. Where the forwarding merchant gives a shipper's receipt or inland bill of lad-
ing for goods shipped on board a boat on Lake Champlain, acknowledging to have
received them to be forwarded to the consignees by name, and this is sent to the
consignees, and they make advances upon the faith of it, the title and possession of
the goods are thereby so far vested in the consignees, that they are not liable for the
consignors' debts, or, if so, only subject to the consignees' lien for advancements. Ib.
BOND, See PROBATE COURT, 4.
1. Executions and notes may, by agreement, be charged and recovered for in the
action on book account. Gleason v. Briggs, 135.
2. But a claim for a horse attached and not sold, or returned after a discharge of
the attachment, or any claim against a person on account of his official neglect, as a
deputy sheriff, cannot, without his consent, be adjusted in the book action. Ib.
3. If promissory notes go into the hands of a bailiff or receiver under a contract,
he may be called to an account respecting them in the common law action of ac-
count, and in some cases, since the law of 1852, (laws of 1852 p. 9,) in the action on
book. Woodward v. Harlow, 338.
4. The plaintiff, a constable, had for collection several taxes against the intestate,
between whom and the plaintiff there were running and mutual accounts, and it
was understood that these taxes should be settled for as a matter of deal and ac-
count between them in the settlement of their other accounts; and the plaintiff paid
over the amount of the taxes without collecting them. Held that he might recover
the amount so paid in an action on book account. Noyes v. Est. of Hall, 645.
5. The bringing of an action on book account is not, per se, a revocation of an
authority previously given by the plaintiff to the defendant, to pay a third person
certain items in the plaintiff's account. If the defendant, at the commencement of
the suit but before the audit, pay such items to a third person in pursuance of an
authority previously given, and not revoked, he should be allowed for such pay-
ment, although he thereby obtains a balance of the account in his favor. Walker v.
Barrington, 781.
See EVIDENCE, 17; JURISDICTION, 5, 6.
1. The recognition, by the proprietors of adjoining lots, of a particular line as
their division line, and their acquiescence in it for a period of fifteen years, will es-
tablish it and make it thereafter binding, if, during that time, either proprietor had
a continued, though it was only a constructive possession of his lot. Clark v. Ta-
bor, 222.
2. If adjoining proprietors recognize a particular line as their division line, but,
by agreement, build their division fence where it is most convenient, without endeav
oring to place it on the line, a part of it being on one side and a part on the other,
and agree that when the land is cleared up the fence shall be put upon the line, a
mere occupation by either proprietor to such fence for a period of fifteen years,
would not establish the irregular line upon which the fence was built;-but would
establish the line indicated by the general direction of the fence which the parties
recognized and had in mind at the time the fence was built. Ib.
3. Lands bounded on Lake Champlain extend to the edge of the water at low
water mark. The same rule applied, in this case, to lands near the lake bounded on
a creek emptying into, and the waters of which ordinarily maintain the same level,
and rise and fall with those of the lake; there being no claim made that the
boundary should extend to the centre of the creek, Fletcher v. Phelps, 257.
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