INDEX.

ACCOUNT RENDER. See ASSUMPSIT, 9.

ACKNOWLEDGMENT. See LANDLORD AND TENANT, 3.

1. Taking an acknowledgment of a deed is a quasi judicial act, and cannot
be performed by a party interested. Hampton v. Stevens, 107.

2. A trustee in a mortgage or deed of trust to hold in pledge, with power
of sale, &c., is so far a party in interest that he is not competent to take the
acknowledgment of the deed. Id.

3. The want of proper acknowledgment does not affect the validity of the
deed, but prevents it from being legally recorded. Id.

4. If a deed shows upon its face that it was not legally acknowledged (as
where the acknowledgment was taken by a party), it is not entitled to be
recorded, and though it is in fact entered on the records, it is not constructive
notice to subsequent purchasers; but if the acknowledgment is regular on its
face, then it is properly recorded, and its record operates as notice, notwith-
standing there may be some hidden defect. Id.

5. But even with a patent defect in the acknowledgment, and therefore
without legal record, a subsequent purchaser with notice in fact will take
subject to the deed. Id.

6. A deed acknowledged by the husband is entitled to record notwith-
standing defective acknowledgment by the wife. Rayner v. Lee, 601.
ACTION. See BETTING; DAMAGES, 6; HIGHWAY, 4; INFANT, 4; RAILROAD,
16; REAL ESTATE.

1. An action of tort will lie for property wrongfully converted by a mort-
gagor in a chattel mortgage. Matter of Hicks, 476.

2. Where an injury is the combined result of a defect in a highway and
an accident which occurred without the fault of the plaintiff though it deprived
him at the time of the injury of the power of exercising the usual care and
prudence of a traveller, the plaintiff is not in pari delicto and may recover
from the town.

Manderschied v. Dubuque, 526.

3. Plaintiff averred that he was driving a sleigh and his horse becoming
frightened and unmanageable without his fault, ran away, threw plaintiff out
of the sleigh, and stepping into a hole in the highway, broke his leg. Held,
that a good cause of action was set forth. Id.

4. An action will lie by a party holding property as security, to recover
damages for fire from a locomotive, under R. S. c. 51, 31 of Maine. Bean
v. Atlantic and St. L. R. R., 531.

5. And insurers of the property may recover the whole amount of injury
in the name of the plaintiff, who assigned to them. Id.

6. The licensee of land is liable in an action to the licensor for injuries
resulting to cattle from his negligence. Eaton v. Winnie, 540.

7. An action of deceit will not lie for breach of a promise to execute a
bond to reconvey real estate, where the promissor induced the plaintiff to
convey to him, in consideration of a loan and such promise.
Woodman, 601.

Long v.

1. A service of a libel in a proceeding in personam on a maritime contract,
against a citizen of another district by attachment of his property, is a good
service and the court obtains jurisdiction. Manchester v. Hotchkiss, 379.

2. A defendant does not waive his right to object to the jurisdiction of the
court in an admiralty proceeding by filing a stipulation for costs and to abide
the decree of the court, &c., under Rule 4 in Admiralty. Id.

3. Service of a libel in personam in a maritime cause, in the admiralty
court of one district, upon a citizen of another district by attachment of his
property, is not a good service and confers no jurisdiction. Insurance Co. v.
D. and C. Steam Navigation Co., 383.

4. In a proceeding in personam on a maritime contract, in a court of admi-
ralty of one district against a citizen of another district, service by attach-
ment of his property is not sufficient, and confers no jurisdiction. Atkins v.
Fibre Co., 389.

5. For the purposes of such a question a corporation is to be held a citizen
of the state in which it is incorporated. Id.

6. An entry on the record that "Mr. B. appears for respondent and has a
week to perfect an appearance and answer, "does not show such an appear-
ance as amounts to a voluntary submission to the jurisdiction. Id.

AGENT. See ASSUMPSIT, 3; BANKRUPTCY, 16.

1. When factors have made large advances or incurred expense on account
of the consignment, the consignor cannot by subsequent orders control their
right to sell at such a time, as in the exercise of a sound discretion they may
deem best to secure indemnity to themselves and promote the interests of the
consignor. Field v. Farrington, 61.

2. The managing agent of a steamboat employed to secure freights, cannot
speculate on such freights for his own advantage. Rea et al. v. Copelin, 61.
3. The statements of an agent are admissible to charge the principal, only
when they are part of the res gesta. Whiteside v. Margarel, 122.

4. Agency cannot be proved by the statement of the agent alone.

Id.

5. It is a well settled rule of equity, that all gifts, contracts, or benefits
from a principal to an agent are constructively fraudulent and void. Com-
stock v. Comstock, 123.

6. Agents are not permitted to deal with their principal except upon show-
ing the most entire good faith.

Id.

7. Where an agent receives certain shares of stock, "to do the best he
can with it, and have one-half the proceeds," he has no interest in the stock
until it is sold, and must account with his principal for the whole amount
and the dividends received on it. Wight v. Wood, 124.

8. Ordinarily, an agent contracting in behalf of the government, or of the
public, is not personally bound by the contract. Perrin v. Lyman's Admʼrz,

188.

9. A quartermaster in the army of the United States during the late rebel-
lion employed a person as a clerk, put his name on the government pay-rolls,
with the names of the other clerks of his department, and paid him $75
monthly out of the funds of the United States, said clerk signing the usual
vouchers. He worked for the government, and performed no service what-
ever for the quartermaster individually. Held, that the quartermaster was
not personally liable to such clerk. Id.

AGENT.

10. The declarations of an agent not made in the course of his agency are
not binding on his principal. Bennett v. Holmes, 193.

11. An agent attending a sale for his principal has no right to buy for
himself or any one else at a less price than would secure his principal's
claim. Walker v. Hill, 276.

12. A del credere agent is primarily liable to satisfy his principal the price
of goods sold. Lewis v. Brehme, 469.

13. An agent will not be personally liable on a written contract signed as
agent. McClernan v. Hall, 531.

14. Where the defendant's agent wrote to plaintiffs (a bank), that he had
deposited certain moneys to plaintiffs' credit, who thereupon credited the
defendants, they will not be bound, if it appears the agent only deposited his
check which turned out worthless. Savings Inst. v. Allentown Bank, 532.
15. A check.is not money.

id.

16. The defendants were responsible for the acts of their agent, as if they
had deposited a worthless check. Id.

17. Refusal by an agent to perform a contract, is the refusal of his
employer, and occasions a breach of contract on the part of the principal.
Keeney v. Grand Trunk R. Co., 662.

AGREEMENT.

1. An agreement to send plaintiffs all the iron lying at a certain place, is
not a warranty, and if the iron is not there an omission to send is no breach.
Robinson v. Flint, 342.

2. The term "secures the payment of the purchase-money" in an agree-
ment for the sale of real estate, does not signify payment in money, but
implies a term of credit. Foot v. Webb, 470.

3. An agreement to sell real estate, that fails to fix the term of credit or
the security for the purchase-money is void for uncertainty. Foot v. Webb, 471.
AMENDMENT. See PLEADING, 5; PRACTICE, 14.

1. A court which has jurisdiction of the parties, may amend the ad damnum
so as to bring it within the jurisdiction as to amount. Merrill v. Curtis, 124.
2. The court will amend or conform a complaint to the facts duly proved,
after judgment. Fullerton v. Dalton, 343.

3. Correcting a mistake in the name of a party by amending, is no ground
for reversal. Dewy v. McLain, 471.

ARBITRATION.

1. A court of equity has jurisdiction over awards, but will not exercise it
in case of awards which by agreement are made rules of court. West Jersey
R. Co. v. Thomas, 343.

2. No court will review and correct an award. Id.

3. If the arbitrators proceed without the knowledge of either party, or
decide without any evidence, it is such misconduct as will set aside the award.
Id.

4. The giving of a note for the amount of an award is a waiver of irregu-
larities in the proceedings. Miller v. Brumbaugh, 403.

5. An award of arbitrators as soon as filed has the form and substance of

a judgment and continues so until reversed. Wilkinson's Appeal, 538.
ASSIGNMENT. See CHAMPERTY; MORTGAGE, 24.

1. An absolute transfer of stock, and a written memorandum of the trans-
action of the same date, are to be construed together. Parks v. Comstock,

471.

2. One seal will suffice for both. Id.

ASSUMPSIT. See INFANT, 5; JOINT LIABILITY, 1; OFFICE AND Officer, 3.

1. The relation between a son-in-law and his father-in-law, rebuts the
presumption of an implied promise of the father-in-law to pay for board.
Daubenspeck, Executor v. Powers, 62.

2. An action for money paid, will lie to recover money paid for an object
never accomplished, and which has become impossible to accomplish. Church-
hill v. Stone, 342.

ASSUMPSIT.

3. An action to recover money paid for the sale of an agency, will lie,
where there was fraud in the party selling, he having no right to make
such sale. Baker v. Spencer, 347.

4. Where the defendant has received goods wrongfully, the owner may
waive the tort and recover for goods sold and delivered. Deysher v. Triebel,

402.

5. Assumpsit for money had and received lies where one tortiously in pos-
session of another's goods converts them into money.
Id.

6. The count for money had and received is governed by equitable princi-
ples and only lies where the defendant ex æquo et bono ought to refund. Id.
7. Where there has been no fraud or deceit and the defendant may with a
good conscience retain the money he cannot be compelled to repay on a count
for money had and received. Id.

8. Will lie for a balance struck between partners. Knerr v. Hoffman, 541.
9. Account render is the remedy if no balance is struck. Id.

10. If the parties to an illegal contract are not in pari delicto, the one taken
advantage of, may recover money paid, in an action for money had and re-
ceived. Inhabitants of Concord v. Delaney, 664.

ATTACHMENT. See ADMIRALTY, 1, 3; DEBTOR AND CREDITOR, 18, 19;
JUDGMENT, 1; LANDLORD AND TENANT, 4.

1. Proceedings in attachment partake of the character, both of suits is
rem and in personam. Cooper v. Reynolds, 62.

2. The law regards the attachment of a mortgage debt, as an assignment
of the mortgage, so as to enable the attaching party to maintain a scire facias
in his own name. Rushton v. Rowe, 344.

3. Interest will not cease after the service of the attachment, where the
delay is occasioned by the unreasonable conduct of the garnishee. Id.

4. Garnishee may avoid liability for interest by paying money into court.
Id.

5. The defendant in foreign attachment in account render is not a party
in a scire facias against the garnishee, nor non-resident partner in attachment
execution. Knerr v. Hoffman, 541.

6. A balance struck between partners may be attached. Id.

ATTORNEY. See LIMITATIONS, 15; Partnership, 13.

1. An attorney, employed or consulted as such, to draw a deed or an ap-
plication for an original title to laud, is in the line of his profession, and is
precluded from buying in, for his own use, any outstanding title. Smith v.
Brotherline, 50.

2. The relation between him and his client is confidential, and whether he
acts upon information derived from him, or from any other source, he is
affected with a trust. Id.

3. But where an attorney was consulted and drew an application for certain
land on which the client's improvements were supposed to be, and it appeared
afterwards by a more accurate survey that the improvements were on a dif-
ferent tract, the subsequent purchase of the latter tract by the attorney in
ignorance of the fact that his client's improvements were on it, will not be
held to be in trust. Id.

4. The Act of 1868, c. 2. s. 5, requiring the courts to administer the abjura-
tion of the Ku-Klux to "all officers," did not apply to attorneys. Ingersoll
v. Howard, 193.

5. Attorneys, solicitors, and counsel have a lien upon property recovered
by their services. Hunt v. McClanahan, 193.

6. While the suit is pending, the client cannot dispose of the subject-
matter in suit. Id.

7. An attorney or solictor, who is also counsel in a cause, has a lien on
moneys collected therein for his fees and disbursements in the cause, and in
any suit or proceeding brought to recover other moneys covered by the same
retainer. State of Texas v. White, 232.

8. If the attorney is guilty of no bad faith or improper conduct, and claims
to have a fair set-off against his client, which the latter refuses to allow, &

805

ATTORNEY.
motion to pay into court the moneys collected will not be granted, but the
parties will be left to their action. State of Texas v. White, 232.

9. A party has a general right to change his attorney, and a rule for that
purpose will be granted, leaving to the attorney the advantage of any lien he
may have on papers or moneys in his hands as security for his fees and dis-
bursements. Id.

10. An attorney acknowledging service on the back of a summons is pre-
sumed to have authority. Hendrix v. Fuller, 403.

11. THE LEGAL PROFESSION IN ENGLAND AND AMERICA, 753.

AUCTION.

The highest bidder is one who makes the highest bid in good faith. Gray v.
Viers, 471.

BAILMENT.

A bank is only bound to take ordinary care of bonds deposited as collateral
security for a note discounted. Jenkins v. Bank of Bowdoinham, 598.

BANK AND BANKER.

MENT, 2; TROVER, 3.

See BAILMENT; CONFEDERATE STATES, 25; PAY-

1. Where C. who was cashier of a bank and also town treasurer, embez-
zled the funds of the bank by means of loans, on notes made as such treas-
urer, in a suit by the bank on such notes, it was Held:

(1). That the votes of the town and the reports of the town treasurers were
admissible in evidence upon the question of the authority of C. to borrow
money for the town.

(2). (By a majority of the court). That as C. was engaged in an extensive
fraud upon the bank, and in view of all the facts, it was fairly presumable
that he made the note in the form in which he did as a false representation
and cover by which to perpetrate a fraud on the bank, and with no intention
to bind the town.

(3). But that, if he intended to bind the town, his own fraud as treasurer
was known to him as agent of the bank, and was therefore the knowledge of
the bank, and that the plaintiffs therefore could not recover.
Bank v. New Milford, 572.
First National

2. Deposits made with a private banker are not due until demand is made.
Fort v. McCully, 598.

3. If a banker transfers a depositor's notes before demand made of the
deposit, the latter cannot set off the deposit against the holder. Id.

4. Any language whether verbal or written, used by a bank office repre-
senting a check drawn upon the bank as good, estops the bank from afterwards
denying that there are funds to pay the same. Pope v. Bank of Albion, 599.

5. A bank collecting drafts deposited in another bank, as its agent, cannot
hold the proceeds against the depositor of the drafts, for a debt of the bank,
in the absence of evidence to show that a specific loan was made on the faith
of the drafts. Dod v. Fourth National Bank New York, 599.

6. A transfer of stock in a banking corporation, organized under the Act
of June 3d 1864, to a bond fide holder, is valid though the seller or pledgor
be at the time indebted to the bank, and a by-law of the bank declared that
no transfer of the stock by any shareholder indebted to the bank should be
made without the consent of the board of directors. Such a by-law in effect
attempts to create a lien upon stock for debts of the holder, and the result is
the same as if a loan were made upon the security of the stock-a transaction
forbidden by the 35th section of the Act. Evansville Bank v. Metropolitan
Bank, 774.

7. A certificate of deposit payable to the order of depositor on the return
of the certificate was issued by Bank A. to T. D., who could not write. The
bank took his mark on its signature book, and wrote a description of him
opposite. Shortly afterwards the certificate was stolen from T. D. and
presented to Bank B. by a stranger who gave his name as T. D. and said he
could not write. Thereupon the cashier of Bank B. endorsed the certificate
to his own order with the name of T. D. to which the stranger made his
mark, and an employee of Bank B. added his signature as "witness to mark."