rules of the common law. ton v. Dodge et al.,
Hough- 16. The plaintiff shows a sufficient .326 title to the note to maintain an ac- tion on it, although he bought it by giving his own note for it, and, be- fore the second trial of the action, took up his own note by assigning a judgment recovered in the action itself on a former trial of it, (which judgment was reversed and a new trial ordered,) and notwithstanding his vendors of the note and his as- signees of such judgment are the persons to whom the note was ori- ginally given... . . .
12. Where the evidence as to the dili- gence of a Notary to find the makers of a note in order to demand its payment at maturity from them personally, is free from conflict, the question of its sufficiency to estab- lish due diligence in that behalf is one of law. Adams v. Leland et al., .411
13. The evidence given on the trial of this action, to establish due diligence stated, considered and held suffi- cient to make a prima facie case of due diligence.... .id
14. Statements made to the Notary by persons to whom he was referred at the makers' last known place of business, as having knowledge of the makers, in answer to questions as to where the makers resided or could be found, held competent upon the question of the Notary's diligence to find the makers.....id
15. Where by an agreement between L. & A., of the one part, and the defendant N., of the other, the former sell their fixtures, &c., in a coal-yard occupied by them, for a specific sum, and take N.'s negotia- ble note, and also sell to N., for other consideration, a lease of said yard, and guarantee its renewal on certain terms, and agree, if a re- newal be not procured, "to refund the one-half the loss on such fix- tures," and no renewal can be pro- cured, and a suit is brought on such note by one who is an indorsee of it after its maturity, and there is no fraud in procuring the note or in the transaction on which it is founded, the most that the defendant can have deducted from the recovery on the note is one-half of the difference between the value of such fixtures for the purposes of use under a re- newed lease and the value thereof for the purpose of removal. Wiltsie v. Northam,.. .421
17. A Mutual Insurance Company, for the purpose of increasing its availa- ble means, took up a subscription by which its friends agreed to give their notes for premiums in advance of insurances to be effected by them the subscription not to be binding until $300,000 was subscribed. When the subscription was under- stood and believed to be made up, no fraud being practised on the de- fendant, he gave his two notes for $500 each for the amount of his sub- scription, and he effected actual in- surance to an amount for which the premiums were over $900, which was charged to him against his said two notes, and he, in addition thereto, took an open policy upon which the premium considerably exceeded the remaining $100, but no other risks were indorsed thereon except those included in the $900: Held, that the two notes for $500 each were valid binding notes, al- though it afterwards appeared that the whole $300,000 subscription was not made up; the notes having been voluntarily given and there being no fraud on the part of the Company or its Agent. Brookman v. Metcalf,
18. Transfer by such Company to a bona fide holder for value, without notice, valid though no previous resolution of the Board of Direc- tors..... ....id
19. Where it is set up as a defense to a note that the maker had with
1. One who sells and delivers chattels by request of another who has no title nor authority to sell, is liable to the owner for the value, although he acted in good faith and has paid over the proceeds to his employer. Anderson et al. v. Nicholas, ... 121
2. A purchase from a thief or tor- tious taker confers no title. .....id
3. Where a valid contract is made for the sale and delivery of the wheat in a specified boat for cash; and the buyer designates a vessel into which the wheat is to be de- livered and the seller accordingly has it measured as is customary in such cases and placed on board of such vessel, and sends to the buyer a duplicate measurer's return or certificate of the quantity, and a bill for the wheat at the contract price, and the seller thereupon re- quests payment from the buyer, who answers that he will pay on Saturday, (the second day there- after,) and the seller makes no ob- jection thereto; and where there is no fraud in making such contract or obtaining such delivery, a person in good faith advancing money on the same day to such buyer on the se- curity of such wheat and on the faith of his being the owner thereof will obtain a valid title thereto as against the seller to the extent of such advance; although such buyer fails after obtaining such advance and thus becomes unable to pay to the seller any part of the contract price. Durbrow et al. v. McDonald et al... ...130
4. Such a delivery being all the de- livery which the parties contempla- ted or the contract required; it was subject to no condition unless it be an implied one, that payment be made if demanded, when all the wheat was delivered. ..id
5. Where, in such a case, an advance is made to such buyer upon the understanding at the time of both parties to it, that it is made on the security of such wheat; and that the person advancing should thence- forth have the control of it and that a bill of lading should be issued to him as the shipper of it, making the wheat deliverable to his order at the port of destination, and such bill of lading is immediately there- after so issued and delivered; the person so advancing from the time thereof has the right of possession and of control, as against the seller. ....id
security, assigns his account to a third person who brings an action thereon and the defendant therein claims to set off one of such notes which had been paid to the assign- or, after the assignment but before the suit was brought, and after- wards the suit is settled by the payment of ten per cent of the sum sued for and costs, such settlement is no bar to an action by the de- fendant therein to recover from the said assignor the amount of the other note, although it was paid pending the former action and be- fore the settlement. Bates v. Cobb et al.,.. .29
3. A settlement "in full of an ac- count and demand sued upon in this action" does not embrace any matter not embraced in the contro- versy as disclosed by the pleadings therein..
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