1. A marriage annulled on the ground of fraud, where it appeared that the peti-
tioner was imposed upon, and the marriage brought about by the authorities of the
town, to which she was chargeable as a pauper, by their hiring the petitionee, whose
settlement was in a different town, to consent to the form of a marriage without
afterwards fulfilling or intending to fulfill its obligations, and with no other object
except to impose upon the town of his settlement the expense of the petitioner's
maintenance. Barnes v. Wyethe, 41.
MARRIED WOMAN, See HUSBAND AND WIFE.
1. A master is bound to exercise proper care and diligence in the selection of the
agencies and instruments with or upon which he employs his servant; and, if he
fail to do so, he will be liable to the servant for any injuries he may sustain there-
from. Noyes v. Smith & Lee, 59.
2. The declaration averred that the plaintiff was hired by the defendants to have
the charge of, and conduct and run an engine, and that, by virtue of said employ-
ment, it became the duty of the defendants to furnish an engine that was well con-
structed and safe, &c., but that they carelessly and wrongfully furnished an insuffi-
cient engine; that the insufficiency was unknown to the plaintiff, and "but for want
of all proper care and diligence would have been known to the defendants;" and
that, while the plaintiff was in the careful and prudent use of said engine, it exploded
on account of said insufficiency, and injured the plaintiff, &c. Held, on demurrer,
that the declaration disclosed a sufficient cause of action. Ib.
3. A person is not liable for injuries occasioned by the acts or neglect of the ser-
vants of one who has contracted to do a piece of work for him by the job. Clark
v. Vt. & Canada R. Co., 103.
4. The liability of a master for the acts of his servants grows out of, and is meas-
ured by the control of the former over the latter; and for the want of such control
the principal will not ordinarily be liable for the acts or neglects of the employees
of a sub-contractor under a contractor employed by him to do a specified work.
Pawlet v. R. & W. R. Company, 297.
5. The defendants contracted with P. & E. to construct certain sections of their
railroad; and they sub-contracted with C. to erect certain abutments thereon. A
servant of C., in drawing stone for such abutments, left one in the highway, by rea-
son of which one P. was injured, and recovered of the plaintiffs for the damage
sustained by him. In an action to recover of the defendants the damages to which
the plaintiffs were so subjected, it was held, that the defendants had no control over
the servant of C., and that no privity existed between them; and that the defendants
were therefore not liable. Ib.
6. Quare, as to the present authority of Bush v. Steinman, 1 B. & P. 404, and the
cases founded upon it. 16.
MINOR, See INFANT.
MORTGAGE.
1. It is no defense to an action on a promissory note that its consideration, in
part, was a piece of land conveyed to the maker, by the payee, by a warranty deed;
and that the land was incumbered by a mortgage which the grantee has since paid.
Hassams v. Dompier, 32.
2. A person who is substituted in place of a mortgagee may, if equity requires it,
be limited, and have allowed to him a less extensive right than that to which the
mortgagee himself would have been entitled. Bailey v. Warners, 87.
3. A mortgagee cannot be compelled to rely upon a part only of the mortgaged
premises, though that part may be adequate security for his claim, but one substitu-
ted in his place may be, if equity requires it. 1b.
4. Distinctions between a mortgage and a pledge of personal property. Applica-
tion of these distinctions, &c. Conner v. Carpenter, 237.
5. Equity will not allow a grantor of real estate to recover the whole purchase
money, while there are incumbrances on the land, which he is bound to discharge:
the purchaser will be permitted to retain of the purchase money sufficient to indem-
nify him against the incumbrances, particularly if the grantor is insolvent, and
there is no adequate remedy on his covenants. Bowen v. Thrall el als., 382.
6. The orator purchased of the defendant J., an undivided half of a certain saw-
mill, &c., which J. agreed to convey to him by a warranty deed, containing the
usual covenants of seizin and against incumbrances. The deed given conveyed only
J.'s right, title and interest in " the premises, and contained no covenant except
one to warrant and defend the "aforesaid premises." The premises were incum-
bered by a mortgage previously given by J., by virtue of which the mortgagee sub-
sequently took and held possession, and the defendants were endeavoring, by an
action at law, to collect a note given by the orator towards the purchase money.
Held, that the deed executed was not conformable to the contract, and that the ora-
tor was entitled to an injunction against the collection of the note, until the mort-
gage incumbrance was removed, and a deed given agreeable to the contract. Ib.
7. 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 re-assigned by the treasurer as pro-
vided in the ninth section of the same law. South Royalton Bank v. Downer et
al., 635.
8. The orator in the present case having a mortgage for his support, the condition
of which had not been performed, had retaken possession of the premises, and for
several years supported himself;-held, entitled to a decree quieting in himself the
absolute title in the premises. Frizzle v. Dearth et als., 787.
1. The question of negligence may, in some cases, be withdrawn from the con-
sideration of the jury, as where there is no testimony tending to show it; or where
a given course of conduct is admitted which results in detriment, and no excuse is
given. In the latter case the liability follows, as matter of law, and there is nothing
for the jury but a question of damages. Briggs v. Taylor, 180.
2. Where a carriage, wagons and sleighs, which were not past use, were attached
and were allowed by the officer to remain during a winter in the open fields, wholly
exposed to the weather, for which no excuse was offered except the difficulty of
finding a place for them under cover, the jury should have been instructed that the
officer was liable for the damage done to the property; and it was error to submit to
the jury the question whether or not the officer exercised proper care. Ib.
1. A new trial for the alleged reason that a juror had, previous to the trial, formed and expressed an opinion, refused; there being but the oath of one witness to the fact against that of the juror; the alleged opinion being upon a matter of law; and it appearing that, if the juror had formed or expressed an opinion, he was not conscious of it at the time of the trial. Thrall v. Lincoln, 356.
NON EST INVENTUS RETURN, See JURISDICTION 2.
1. 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.
1. One T. sent to the plaintiff, as deputy sheriff, an execution in his favor against the defendant, which, at the defendant's request, and upon his promise to pay and indemnify him for so doing, the plaintiff levied upon the defendant's real estate. T. sued the plaintiff for not otherwise collecting the execution, and recovered a judgment against him for the amount of the debt, which judgment the defendant paid. T. refused to pay the plaintiff's fees for levying the execution, and the plaintiff then charged them to the defendant. Held, that it was not a contract for the violation by the plaintiff of his official duty, and that the defendant was liable upon his promise for the fees charged. Gleason v. Briggs, 135.
ORDER, (TOWN,) See HIGHWAY 6, 7.
PARTITION, (PETITION FOR.)
1. A petition for partition cannot be maintained by one whose only title, is under a deed by which the grantor, who is still living, reserves to himself the use and occupation of the premises during his life. Nichols et al. v. Nichols et al., 228.
2. A petition for partition is not a civil cause within the meaning of the statute allowing reviews. Comp. Stat. chap. 28, § 17, (but repealed by No. 51 of the laws of 1855.) Ib.
3. To sustain a petition for partition the petitioner must have some greater present interest in the premises than a mere right of entry. If the defendant's possession amounts to a disseizin of the petitioner, and the premises were never held by them together, a petition for partition cannot be sustained. Brock v. Eastman, 658.
4. The petitioner had levied upon an undivided portion of the defendant's interest in a piece of land, which the defendant remained in possession of, denying the petitioner's right to any participation therein under his levy. Held, that the defendant's possession of the premises was not such a seizin of them, as tenant in commen with the petitioner, as would enable the latter to sustain his petition for parti
1. If the creditor of a partnership takes the note or bill of exchange of one member only of the firm in satisfaction of his claim, he thereby discharges the others. Stephens v. Thompson et al., 77.
2. Upon the dissolution of a co-partnership, one of the partners promised to pay
a debt due from the firm, but failed to do so. The other partner, for the purpose of
having it collected from the one who had promised to pay it, induced his brother to
become the purchaser of it, and made an arrangement himself with the creditor by
which it was assigned, without recourse, to his brother upon his paying the full
amount due upon it. Held, that the debt was not thereby extinguished, and that a
recovery might be had upon it for the benefit of the assignee. Etna Ins. Co. v. Wires
& Peck, 93.
3. The one to whom the promise was made became thereby, as between himself
and his copartner, a mere surety, and if he had himself furnished the money with
which the demand was purchased, quære, whether the original debt might not have
been still kept on foot for his benefit. 1b.
4. A provision, in articles of co-partnership, that one of the partners is not to be
liable for any purchase made by the firm on credit, is valid and operative, and will
prevent a recovery against him, on account of such a purchase, if the person of
whom it is made is informed, or has knowledge of the provision. Hastings et als. v.
Hopkinson et al., 108.
5. The liability of a partner, and the power of the other members of the firm to
bind him, by a purchase of goods on credit in the state of New York, is to be deter-
mined by the laws of this state, if the partnership was formed, and its business car-
ried on here. 1b.
6. The provisions and conditions of written articles of co-partnership cannot be
proved by parol by the copartners themselves who have the original articles in their
possession, or under their control. And in this case where the plaintiffs were seek-
ing to charge the defendants as copartners, and had given them notice to produce
the written articles, and upon their neglect to do so had introduced depositions of a
witness tending to prove such a partnership, it was held that a further deposition of
the same witness, taken by the defendants in reference to the contents or provisions
of those articles, was inadmissible, either as a cross-examination upon, or as a con-
tinuation of the testimony contained in the other depositions. Ib.
7. Where a change takes place in a copartnership by the addition of a new mem-
ber to the firm, and the balance of an account against a customer, which accrued
before the change, is carried forward and treated as a part of the account of the new
firm, to whom payments are made, which are applicable to their account generally,
the payments so made, if the rights of third persons or sureties are not involved,
will be applied in satisfaction of the old balance, and not of the account accruing
while the payments are being made. Morgan et als. v. Tarbell, 498.
8. To prove that a person was a member of a firm. testimony showing that he
had a deed of an undivided portion of their property, and that, with his knowledge,
suits at law and in chancery respecting said property were instituted by and in the
name of the firm in which he was joined as plaintiff, and that he took an active part
in advising about, and in making repairs upon said property, is admissible. Carlton
et al. v. Ludlow W. Mill, 504.
9. If a partner, who is the agent of the firm for making disbursements, &c., make
a payment, as such agent, upon a promissory note previously given by the firm, it
will be presumed to have been made out of the partnership funds, and will prevent
the running of the statute of limitations against all the partners. Such a payment
is to be treated as a payment by all of the firm on their joint account, and not as
that of the paying partner only. Ib.
10. Where the persons summoned as trustees are summoned only as partners, the
effects or credits in the hands of one of them individually are not attached and can-
not be holden. Coverly & Co. v. Braynard & Tr., 738.
11. An order upon a firm for the credits which the drawer has in the hands of the
firm or of any of its members, and an acceptance of it by one of the partners who
has the special management and liquidation of the business and debts subsisting be-
tween the drawer and the firm, held to bind such partner individually. Prentiss v.
Foster, 742.
1. A promissory note was allowed against the estate of the payor, in the name of
"Andrew T Hall, President of the Tremont Bank.". Held, that the allowance in
his name was no defense to a proceeding against the endorser, in the name of the
Tremont Bank. Tremont Bank v. Estate of Paine, 24.
2. The witness law of 1852 (Laws of 1852, p. 11,) contemplated the examination of
a party as a witness only in open court, and did not authorize the using of his de-
position. Admr. of Sheldon v. Griswold, 376. (But see Laws of 1855, p. 12.)
3. A party is not obliged, as a witness, to disclose any consultation he may have
had with his counsel in relation to the cause. He is equally protected, with his
counsel, from testifying respecting confidential communications between them.
Hemenway v. Smith et als., 701.
See ACTION 3, 4; DEPOSITION 1.
1. A promissory note, given upon an open account, when, and how far opera-
ting as a payment. Dickinson v. King, 378.
2. A note, given only as collateral, will not operate as a payment, though the
creditor has negotiated and obtained the money, and a judgment in favor of the en-
dorsee against the maker has been rendered upon it, if the judgment remains unsat-
isfied and the claim of the endorsee has been provided for, by the creditor, in some
other way. Ib.
3. Upon a partial settlement, the amount of the intestate's account was ascertained
and a due-bill given for it, which included items which the plaintiff had previously
paid to a third person who was authorized to receive it. Held that the fact of such
a previous payment might be shown, and that its effect was, not to vary the opera-
tion of or contradict the due-bill, but to establish a valid offset to so much of it.
Noyes v. Est. of Hall, 645.
4. Articles delivered strictly in payment or part payment of a note, if they are
not applied, and the whole note is subsequently otherwise paid, cannot be recovered
for in an independent action; but if, at the time of their delivery, it is understood
that there is to be a future adjustment in reference to them before their application,
and the note is subsequently paid before such an adjustment, and without any appli-
cation of them, they may then be independently recovered for. Cushman v. Estate
of Hall, 656.
5. In the present case 125 bushels of potatoes, which, it was understood, were to
be endorsed on the note, were delivered in different parcels and at different times
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