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tain land, and at the same time and as part of the same transaction, an indenture tripartite was made between the grantee, the debtor, and three creditors, whose demands were equal to the value of the land, declaring the conveyance to be in trust for the the security of those demands. It was the intention of the parties that the debtor should afterwards make a general assignment of all his property for the benefit of all his creditors, (by which, however, the debts of the three creditors were to be secured in full,) and that this land should constitute a part of the funds to be distributed among them, and the conveyance was made to prevent the land from being attached in the meantime, but if a general assignment should not be made, the conveyance was to have its legal effect for the benefit of the three creditors. Held, that the conveyance was fraudulent as against an attaching creditor. Johnson v. Whitwell, 7 Pick.
71. 2. Where a general assignment of property, for the benefit of all
the creditors of an insolvent debtor, was made May 25, and a further instrument was executed June 2, giving priority to a large amount of debts due to the United States; it was held that the assignment still took effect from the first date, unaffected by any events intervening between that and the second
agreement. Fox. V. Adams, 5 Greenl. 245. 3. An assignment in trust for the benefit of creditors is not vitiat
ed by a condition that the creditors shall accept the provision
made for them in full of their respective demands. Ib. 4. Such an assignment, by an insolvent debtor in one state, will
not be permitted to operate upon property in another state, so as to defeat the attachment of a creditor residing in the latter
state. 16. 5. The time limited in such assignment for creditors to become
parties to it, may be so short or so long as to justify a presump
tion of fraud, and thus defeat its operation. Ib. 6. It seems, that if the time limited be only seventy days, when
the assignors are merchants in extensive business, and have creditors out of the state in which they reside, the shortness of the time will render the assignment fraudulent and void in
regard to all dissenting creditors. Ib. ASSUMPSIT. 1. Where a note, payable in twelve months, was given as the
consideration for a written engagement of the payee to convey certain goods to the maker at a future day, and the payee forthwith endorsed and sold the note for its amount in money, after which the original contract was rescinded ;-it was held that the maker of the note might recover the amount of the payee, though the twelve months had not elapsed Chapman v. Shaw, 5 Greenl. 59.
2. Where N. contracted for the purchase of an estate from A.
and paid him 1200 dollars in part, and D. advanced the residue for him, being 500 dollars, and took a conveyance directly to himself, upon a verbal agreement that he should release the land to N. on payment of the 500 dollars; and then D. died, and bis heirs refused to convey;-it was held that to carry into effect the original understanding of the parties, N. might be considered as having advanced the 1200 dollars to enable D. to purchase the estate, for which the estate of the latter was liable, as for money lent to the testator. Perkins v. Dunlap,
5 Greenl. 268. 3. The party committing a tort, cannot be charged as on an
implied contract, the tort being waived, unless some benefit has actually accrued to him. Webster v. Drinkwater, 5 Greenl.
319. 4. Where one, appointed on the part of the United States to
superintend the execution of a contract for the building of certain public vessels, through misconstruction of its terms, required the performance of more than was in fact required by the contract;—it was held that he was not personally liable for such excess.
16. 5. One tenant in common may have assumpsit against his co-ten
ant, who has sold the common property, and received all the
money. Gardner Man. Co. v. Heald, 5 Greenl. 381. 6. A farm being purchased, and sureties given for part of the
purchase-money, the deed was made, by consent, to the sureties only, for their indemnity against the note they had signed. Afterwards they refused to give up the deed to the real purchaser, on being discharged of their suretyship, without the payment of fifty dollars to each of them; which the purchaser paid, the farm being of considerable value, without making any objection to the amount. It was held that he could not recover back the money thus paid. Gilpatrick v. Sayward, 5
Greenl. 465. 7. Where one was employed as the agent of certain others, to
purchase for them a piece of land, and take the conveyance to himself, concealing his principals; and a third person, at the request of the principals, became surety for the agent in a promissory note for the purchase money; which note the surety paid ;-it was held that the surety alone might have assumpsit against the principals, for the money thus paid. Smith v. Say
ward, 5 Greenl. 504. 8. Held, also, that this was an original undertaking, and not
within the statute of frauds. Ib. 9. Held, also, that the benefit aceruing to the principals was a
sufficient consideration to support the promise. Ib. See MONEY HAD AND RECEIVED ; CONTRACT.
necessary to constitute a valid attachment. Crosby v. Allyn,
5 Greenl. 453. 2. An attachment of all the debtor's right, title, and interest in
any real estate in the town of B.' is a good attachment of his
tenancy in common in a particular tract in that town. Ib. 3. The lien created by attachment of a tenancy in common follows
the estate, if it be changed from common to several property
pending the attachment. Ib. 4. A chattel mortgaged, is not liable to be attached or seized in
execution for the debt of the mortgager, the money due to the mortgagee not having been paid, nor legally tendered. Hol
brook v. Baker, 5 Greenl. 309. 5. Property lawfully in the possession of a deputy sheriff by at
tachment, cannot be taken out of his possession by another deputy of the same sheriff, under another writ. Strout v. Bradbury, 5 Greenl. 313. AVERAGE, GENERAL. See Jettison. BILL OF EXCHANGE AND PROMISSORY NOTE. 1. The agent of the holder of a bill drawn at sight, presented the
same for acceptance and payment, but the drawee said he had not funds, and upon being urged to pay the bill, refused to pay then, but said he would answer it in about sixty days; whereupon the agent said he should return it to the holder, who would send it back to the drawer; the bill however was not sent back, and in about four months the agent again presented it for payment, which the drawee refused. Held, that there was no
acceptance. Peck v. Cochran, 7 Pick. 34. 2. Held, also, that evidence to show that the drawee had funds
at the time of the first presentment, was irrelevant and inad
missible. Ib. 3. Where a negotiable promissory note signed by one person as
principal and others as sureties, is paid by the principal after it is due, no action can be maintained on it by any person against
the sureties. Merrimack Bank v. Parker, 7 Pick. 88. 4. Where such a note was paid to the promisee after it was due,
and the evidence left it doubtful whether it was paid by the principal or by A, another person, not a party to the note, and the note was given up, but not endorsed by the promisee at the time, it was held, that an action brought against the makers of the note in the name of the promisee for the benefit of A, could not be maintained, although A, after the commencement of the action, had procured an authority from the promisee to
carry on the suit for his own benefit. Ib. 5. Where a promissory note given by a third person to the plainVOL. IV.--.NO. VII.
tiff, was subsequently, before it became due, endorsed in blank by the defendant, and it was testified that the defendant said, that after he had endorsed the note, the maker had secured him by putting real estate into his hands, which he was willing to transfer to the plaintiff, and that either the plaintiff or the defendant said that the plaintiff, in consequence of the endorsement, had forborne to sue the maker, it was held, that there was not sufficient evidence of a consideration for the endorse
ment. Tenney v. Prince, 7 Pick. 243. 6. E. being indebted to B., S., who was E’s. agent, agreed to
give E's. notes to B. to be endorsed by S., in consideration of time being given for payment; four notes were accordingly made payable to S., one on demand, the others on time. These notes were signed by another person acting as attorney for E., for which he had sufficient authority. They were endorsed by S. and passed to B. E. had died before the agreement to give the notes was made, but his death was not known to any of the parties until after the notes were made. E's. estate was insolvent, and B., with the consent of S., received a dividend from it on the notes, and gave a discharge in full of all demands to the administrator. The notes on time were duly presented for payment to the administrator of E., and S. duly notified of their non-payment. In an action brought by B. against S. as endorser of the notes, it was held—1. That S. was liable as endorser, and could not in this suit set up as a defence, that the notes were void as to E. on account of his death before they were signed :-2. That the discharge of the estate of E. was only personal, and did not discharge the defendant, who could still resort to E's. estate:43. That a demand on the note payable on demand was needless, as there was no person on whom to make the demand:-4. That the defendant was liable for the balance due on the notes after deducting the amount received of the estate of E.
Burrill v. Smith, 7 Pick. 291. 7. A bill of exchange payable to the order of the drawer, and not
endorsed, may be assigned, for a valuable consideration, by delivery only; and for the benefit of the assignee an action lies against the acceptor, in the name of the drawer as on a bill
payable to himself. Titcomb v. Thomas, 5 Greenl. 282. 8. The interest of one of several joint assignees of such bill may
be transferred to others by delivery of the bill, and payment by
them of his share of the money due upon it. 16. 9. The damages on a protested bill of exchange are not given as
a liquidated arbitrary mulct; but as a compensation to the holder, for the expense of remitting the money to the place where the bill ought to bave been paid. And therefore if the holder receive part of the money of the acceptor, this diminishes the damages, pro rata. Bangor Banky. Hook, 5 Greenl. 174.
10. The endorser of a bill of exchange is not liable for the costs
of a suit commenced by the holder against the acceptor; nor for any commissions paid on the collection of part of the
money of him. Ib. 11. The rule that a party to a negotiable note shall not be
admitted as a witness to prove it usurious, extends to the maker of an accommodation note; and is applied even where the note had been delivered up to the real debtor, on his giving a recognizance to the creditor for the amount. And in Maine its application is not restricted to the case of an innocent endorsee; but is admitted where the usurer himself is a party.
Chandler v. Morton, 5 Greenl. 374. See ASSUMPSIT, 1; CONTRACT, 5; SURETY; EXECUTOR AND
ADMINISTRATOR, 4, 5; SET-OFF. BOND. 1. Where a bond is signed and sealed, but not delivered to the
obligee, and it is afterwards put into the possession of the obligee by a person who has no authority to deliver it, the obligee cannot maintain any action on the instrument. Barrows
v. Richardson, 7 Pick. 91. 2. R. was appointed guardian of a minor, and a letter of guardi
anship was made out for him at the probate office, on which was minuted, “To be delivered when bond is filed.' R. acted as guardian for more than two years, until his death. He and two other persons as his sureties executed a guardianship bond to the judge of probate in the presence of witnesses, and R. took it and kept it among his papers, where it was found at his death. His administrator filed the bond in the probate office, with a written declaration on it, that he did not intend to affect the legal rights of the parties by thus filing it. It was held, that no action could be maintained on the bond by the Judge
of Probate, as it had never been delivered. Ib. 3. Where one gave bond to a town, conditioned to support its
paupers for five years, and to save the town harmless from all damages, costs, and expenses which might happen or accrue for or on account of the liability of the town to be called upon to support or provide for poor persons; and after the expiration of the five years, a suit was commenced against the town for supplies furnished to a pauper by another town, accruing partly before, and partly after the expiration of the term ; in which suit the defendants prevailed ;-it was held that the obligor was liable for his proportional part of the expenses of defending this suit, within the condition of the bond. Saco v. Os
good, 5 Greenl. 237. 4. Bonds for ease and favor being those only which are given to
purchase an indulgence not authorized by law; a bond given for the debtor's liberties, under Maine Stat. 1824, ch. 281, is