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to the owner as for a conversion. deed from C, and before conveying
Anderson v. Nicholas, .. 121 to the defendant, had a mortgage

assigned to him which was a lien on
2. How far a qualified refusal to de- the premises when C conveyed to
liver on demand is to be taken as W, and remained partly unpaid; that
evidence of conversion considered. such mortgage was extinguished by
Thomson Sixpenny Savings the conveyance with warranty to

.293 the defendant, as between the latter

and his immediate

4. The Referee having treated the de-

fendant as a mortgagee in possession

under said mortgage, and having de-
C, an owner of land, conveyed it by a cided that the plaintiff pay to the

deed, absolute on its face, to W, and defendant the amount found due
W at the same time executed and

thereon, as a condition of recovering
delivered to C a written defeasance

possession : Held, on an appeal taken
which made the deed, as between

by the defendant, that there was no
the parties to it, a mortgage; the error to the prejudice of the latter,
deed was recorded as a deed, and and that the judgment be affirmed. id
the defeasance was not recorded.
W subsequently conveyed in fee to

5. In an action on the covenant of
the plaintiff, who paid the agreed
price, and recorded his deed, without

seizin, if the defendant allege seizin
having any notice of the defeasance.

in his answer, he has the affirmative

of the issue and the burden of
1. Held, that the plaintiff, having

proof. Potter v. Kitchen, .....566
bought in actual good faith, acquired
a title perfect as against C, and as
against the defendant, C's remote
grantee under deeds subsequent to

the plaintiff's deed, notwithstanding
the defendant took his deed and paid 1. Can the maker of a note avoid
the consideration without actual no- its payment or impeach the title of
tice of the deed from W to the plain- a holder, by proof that such holder
tiff, or of the defeasance. Stoddard received it from a corporation upon
v. Rotton,

..378 a usurious contract ? Quære. Scotte
al. v. Johnson,

2. That 1 Revised Statutes, (p. 756,

$ 3,) which is to the effect that a 2. Where a manufacturing Company
grantee in a deed intended as a was incorporated “for the purpose
mortgage, unless he records it as of carrying on the business of cut-
a mortgage, and also records there- ting, sawing and dressing stone of
with and at the same time the writ- all kinds, and the business of stone
ing operating as a defeasance of the cutting in all its branches," and its
same, shall not derive any advantage by-laws provide that the Secretary,
from the recording thereof, cannot "in the prosecution of the business,
be construed as operating to defeat may make, draw, indorse and accept
the title which the plaintiff thus ac- notes and bills of exchange," such
quired from W,..

.id Secretary has no authority to accept

a bill for the accommodation of the
3. Held, also, that the defendant could drawer, drawn and used to raise
not be treated as a mortgagee in money for the use of the latter. The
possession, by force of the deed from Farmers' and Mechanics' Bank v.
his immediate grantor, although such The Empire Stone Dressing Compa-
grantor, subsequent to receiving a ny,


3. Nor has the President or Trustee
or Manager of its affairs, any such
authority by mere virtue of his office
or agency.

4. The Company is not liable, upon
such an accommodation bill, so drawn
and accepted by the Secretary, by
direction of such President or Mana-
ger, to a holder who discounted the
same for the drawer before it was
accepted, notwithstanding he recei-
ved the bill in good faith, and paid
value therefor in the expectation that
it would be accepted, and in igno-
rance of the fact that it was drawn
for the accommodation of the drawer
and that the Company had no funds
of the drawer..

removal of certain tools and ma-
chinery therefrom by the purchaser
thereof under a sale by virtue of a
mortgage upon such tools and ma-
chinery, alleging that, as to any of
the articles which were fixtures,
they were the property of the cor-
poration, and declining to specify
which he claimed to be fixtures,
until consultation could be had for
the purpose of ascertaining which
were in law fixtures passing to the
corporation under the first named
foreclosure sale.

5. Held: That if the act of the Vice-
President was such as to amount to
a tortious conversion of the tools,
the corporation was not liable for
his acts. Thomson v. The Sixpenny
Savings Bank,


6. Proof that he acted by the autho-
rity and sanction of the President
would not be sufficient to subject
the corporation to such liability. .id

7. A subsequent demand of the pro-
perty being made of the Vice-Presi-
dent at the place of his private
business, he replied that he would
lay the matter before the Trustees
of the corporation: Held, that this
did not render the corporation liable
as for a refusal to permit the plain-
tiff to take his property.


A corporation was created for the

purpose of receiving on deposit
sums offered therefor by mariners,
tradesmen, clerks, mechanics, labor-
ers, minors, servants and others, and
investing the same in State or city
stocks or bonds, or loaning the same
on such securities, or on bond and
mortgage on real estate, for the use
and advantage of the depositors ;
the business of the corporation to
be managed by a Board of Trustees,
who were authorized to appoint a
President and two Vice-Presidents;
and power was given to hold only
such real estate as was necessary
for the transaction of its business,
and such as should be purchased at
sales upon judgments or decrees ob-
tained for money so loaned, and the
corporation was prohibited dealing
in or buying or selling any goods,
wares or merchandise. The by-laws
provided for monthly meetings of
the Trustees, and conferred the su-
perintendence and management
upon seven Trustees during the
interval. Upon the foreclosure of
a mortgage, held by such corpora-
tion, upon a manufactory, and a sale
of the mortgaged premises, the cor-
poration became the purchaser.
Thereafter, and after the corporation
had taken possession, one of the
Vice-Presidents, without the autho-
rity of the Trustees, forbade the
Bosw.– Vol. V.


8. Whether, if the action had been
against such Vice-President as an
individual, his statement at the time
he prohibited the removal, that he
only claimed to detain such tools as
were fixtures, and as such belonged
to the corporation, would have
justified him in forbidding the re-
moval of any tools until the ques-
tion which were fixtures was de-
termined, or would have been a
defense ?' Qucere....


9. And whether the subsequent con-
sent of the plaintiff to refer the
question, which were fixtures, to
the counsel for the respective parties,
and to abide by their decision, was

not a waiver of any such previous
wrong, if any? Quære.

10. It is not necessary to aver that

defendants are a corporation, in de-
claring against a corporation. Lighte
V. The Everett Insurance Com-
pany, ..

Vide Agent, 1.

Bills OF EXCHANGE, 4, 6.
By-Laws, 1.
PLEADINGS, 1, 2, 3, 4.
PLEDGE, 2, 3.

renewed the vendor will refund
half the loss on the fixtures, the
maker of the note may counter-
claim such loss and it appearing that
the fixtures have not been sold,
the amount to be allowed as a de-
duction from the note will be one-
half the difference between the
value of such fixtures for use under
a renewed lease and their value for
the purpose of removal. Wiltsie v.



PLEADINGS, 13, 14.


CORPORATION OF CITY OF 1. In an action for a breach of the

covenant of seizin in a conveyance

of land, where the breach was as-

signed in the complaint by negati-
ving the words of the covenant, and

the answer averred the contrary,

(viz., that the defendant was, at,
&c., the true and lawful owner, &c.,)

in the exact words of the covenant:
1. In an action by an assignee of

Held, that the defendant held the
one of three co-partners against the

affirmative of the issue and the bur-
other two for an accounting, the

den of proof, and must prove his
defendants cannot set up as a coun-

title. Accordingly, where, upon the
terclaim that in a transaction be-

trial of such an issue, neither party
tween them, and the retiring partner
disconnected from the partnership

offers any evidence, the plaintiff is
business, they sold him goods and

entitled to judgment. Potter v.

took therefor the notes of a third
person, which on a compromise and

2. One who violates his covenant to
settlement with the latter, after dis-
covering his insolvency, they sur-

build a party wall, one-half on his
rendered to him; and that they

own and one-half on another's land,

by not extending it so far as the
were induced by the fraudulent
representations of the plaintiff's

covenant requires is not entitled to

an injunction to restrain such other
assignor as to the solvency and
credit of such third person to take

from making the extension which

he ought himself to have made.
the notes, whereby they were

The Rector, &c., of the Holy Inno-
damaged. Such a cause of action

cents v. Keech,.

is not one against the plaintiff, and
for that reason is not a counterclaim
as defined by the Code. Boyd v.
Foot & Cole,..


2. In an action on a note given for Vide DEBTOR AND CREDITOR:
fixtures in a coal yard, under an ATTACHMENT, (Priority acquired
agreement that if the lease be not by.)

[blocks in formation]

3. Such an agreement implies, though

mise of each of the creditors signing
it, to and with every other of such
creditors, to accept the composition
stipulated for, and to abstain from
all efforts to collect

4. Where such an agreement bears
date December 15, 1857, and pro-
vides that the notes to be accepted
in satisfaction shall be for equal
amounts at six, nine and twelve
months, from January 1, 1858, it is
not indispensable to the continuing
validity of the agreement that such
notes be delivered or tendered on
said 1st day of January. If no de-
mand of them be made, they must
be tendered within a reasonable

5. An attaching creditor may im-
peach a fraudulent transfer, by his
debtor, of his personal property,
Thayer v. Willet, Sheriff,......314


1. Deed recorded as a deed, intended
as a mortgage, but accompanied by
a defeasance which is not recorded,
will protect a purchaser from the
grantee, who buys in good faith
without notice of the defeasance,
against the grantor (or mortgagor)
and those claiming under him. Stod-
dard v. Rotton,...

2. In action in covenant of seizin,
the defendant alleging seizin has
the burden of proof. Potter v.




Common CARRIER, 9.


Vide Sale, 1, 3, 4.




between the shipper and one R. R.
Hunter; and that Hunter was duly
authorized by the owners to make
such contract; an admission at the
trial that an advertisement (which
was produced) was published prior
to making such contract, daily in
two newspapers (named) at the port
where such merchandise was ship-
ped, for a period of six weeks; sta-
ting (inter alia) that persons desiring
freight should apply to R. R. Hun-
ter, 80 Broadway; J. Belknap Smith,
88 Wall street; or to the captain or
agent on board at Pier 4, North
river," imports that such advertise-
ment was published by authority of
the owners of the vessel; and that
each of the persons named in it was
authorized to make contracts for
the carrying of goods in the vessel
on that voyage.

Trask v. Jones et



Vide PLEADINGS, 6, 8, 9 to 14.


Vide Practice, title DISCOVERY.





2. After such evidence of Hunter's
authority to contract had been given,
evidence of a contract between him
and a shipper of goods in such vessel
for the particular voyage, fixing the
rate of freight to be paid, was ad-


3. Entries in the books of a co-part-
nership, made by one partner after
the dissolution, are not evidence
against the other partners. Boyd v.
Foot & Cole, ....


Vide CONVEYENCE, 1, 2, 3.



4. Proof of cotemporaneous pur-
chases not shown to be fraudulent,
are not evidence that a purchase in
question unaccompanied by any
false representations was fraudulent.
Durbrow et al.v. McDonald et al., 130


1. Where, in an action to recover
freight for carrying property in a
certain vessel and on a voyage
named, from New York to San
Francisco, the defense is, in part,
that it was not carried under such
a contract as the bill of lading signed
by the master expressed; but was
carried under a special contract made

5. Where an Insurance Company is-
sued to another an open policy for
an amount stated, reinsuring such
other Company against a certain
class of risks described, at a stipu-
lated premium expressed in the
policy of reinsurance, such stipu-
lation cannot be altered and the re-
covery of the premium be reduced
or defeated by parol evidence of a

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