A.

Achilli v. Newman, 229, 688.
Action, 39, 94, 102, 168, 169, 173, 221,
224, 277, 282, 395, 407, 513, 517,
520, 641, 642.

Action against a public officer, 280.
Action, surviving of, 39, 395.
Admissions. (See EVIDENCE.)
Adultery, 169.

Adverse possession, 396, 682.
Affidavit without date, 102.
Agency, 109.

Agent, 98, 109, 169, 281, 407.

bail bond, or discharge the bail on his
own motion. Washburn v. Phelps,
504.

When the exoneratur is entered on
the bail bond, or the bail is discharg-
ed, it is conclusive upon the parties
and all interested. Ib.

Giving bail is not a waiver of the
privilege from arrest. Ib.

Art Union Association, (American,)
160, 400.

Assignment, 42, 280, 327, 332, 334.
Assignment, voluntary by debtor, 95,
400

220, 519, 520.

Agreement, parol, 328.

Agreement, voluntary, 219.

Atheists, ought they to be received as
competent witnesses, 301.
Atheists as witnesses in Virginia,

416.
Attachment, 103.

in our courts, 292.

Amendments, 110, 166.

American law books in England, 295.
Answers, irrelevant, 111, 638.
Appeal, 17, 21, 166, 283, 326, 399.
Apprentice, 334.

The refusal of the chancellor in
the court below to allow a party to
file a supplemental bill before the
original one comes to a hearing, is
not a final decree, from which, in the
first instance, an appeal lies; nor is
it strictly revisable in the superior
court, being a matter of discretion.
Smith v. Wainwright, 306.

But where such refusal proceeds
upon special grounds, which are
shown to have been misapprehended,
the party, after correcting this misap-
prehension, will be permitted to re-
new his application. Ib.
Arbitration and award, 107, 168, 170.
Arrest, 101, 400, 504.

When a party privileged from
arrest, is arrested, he may, within
the discretion of the court where the
suit is pending either against the
principal or the bail, plead his priv-
ilege, and enter an exoneratur on the

VOL. V. NO. XII. NEW SERIES.

in things sold, 401.

Auditors, powers and duties of, 368.

Where a case was referred to an
auditor under the statute to state the
account between the parties, and at
the hearing before the auditor it ap-
peared that the articles charged in
account by plaintiff against the de-
fendant were procured of the plaintiff
by one R, and it was made a ques-
tion whether the said R. was the
authorized agent of the defendant to
procure the articles on his account,
and the auditor passed upon the ques-
tion of R.'s authority; it was held,
that the auditor had power to settle
the question of R.'s authority; his du-
ty being to state the account between
the parties, and there being no ac-
count to state unless R.
was the
agent of the defendant to make
purchases on his account.
Locke v.
Bennett, 368.

Bail, 41, 504.
Bail bond, 282.
Bailments, 98.

B.

60

Bank redemptions in Michigan, 213.
Bankruptcy, 171, 277.
Bastardy act, 168.

Biddings at sheriff's sale, 166, 401.
Bill in equity, 306.
Bill of lading, 402.

Bills of exchange and promissory
notes, 44, 95, 97, 104, 159,
220, 221, 281, 283. 334, 402,
409, 501, 515, 517, 633, 642.
Bond, 39, 171, 306.
Book accounts, 172, 282.

Indorsers, rights of, 220, 409, 515,
518, 633.

Joint and several maker, 90, 213.
Protest, notice of, 104, 402, 409,
633.

Due diligence, 402, 633.

The decease of a party an obligor
in a bond, and also the holder of
notes given by the obligees in the
same bond for the same consideration
upon which the bond was given, and
the mere representation of his insol-
vency, his estate being confessedly
solvent, is no reason why a court of
equity should interfere in favor of
the obligees, and decide that the
amount of the notes should be set off
against the sum due on the bond,
and render a decree in favor of the
obligees for the balance, if any. But
if the obligees in the bond, being
the makers of the notes, are insol-
vent, a court of equity will interfere
in favor of sureties who signed the
notes upon the security of the bond,
and will decree a set-off of the
amount due on the notes against
what was due on the bond. The
consideration that the nominal par-
ties to the contracts are not strictly
mutual, is not a valid objection to
decreeing a set-off in equity, if the
real parties upon whom the burden is
ultimately to fall are
the same.
Smith v. Wainwright, 306.

Where S. and others bought of W.
his interest in, and the good will of,
the manufacturing and sale of cer-
tain articles, within a certain district,
and gave notes to the amount of
$8000 therefor, and W. at the same
time executed to S and the others a
bond in the penal sum of ten
thousand dollars," conditioned to be
void if the said W. shall hereafter
wholly refrain from manufacturing
and vending," &c, and a breach of

said condition by W. was proved;
held, that under the circumstances of
the case, the sum so named in the
bond was
a penalty, and not liqui-
dated damages. Ib.

Where a bond is executed to three
persons jointly, their assigns, ad-
ministrators, &c. not being named in
the bond, their interest being also
joint as purchasers of the business of
the obligor of the bond, and the na-
ture of the covenants showed that
they were not founded upon any per-
sonal confidence in the three persons
to whom the bond was executed,
and where both parties expected the
bond to enure for the benefit of the
business sold out, and where the ob-
ligor had repeatedly assented to his
liability after a change in the parties
to whom the bond was executed, a
court of equity will hold the obligor
liable on his bond, not only for dam-
ages accruing from breaches thereof
while the original parties to the bond
remained unchanged, but for those
from breaches after the change of
parties. Ib.

Boundaries, 327, 398, 520.
Bribery case in New Hampshire leg
islature, 591.
Broadway railroad, the, 643.
Burden of proof, 44.

C.

Canal law of New York, constitu-
tionality of, 99.
Carriers. (See COMMON CARRIERS.)
Casuistry in taking an oath, 174.
Certiorari, 238

Charter party, 335, 402.
Clay, Henry, as a lawyer, 241.
Code, the civil and its authors, 120.
Codicil, 45.
Collision, 390.

Common carriers, law of notices of,
241.

Common carriers, 279, 335, 506, 529.
Common law, civil law, and codi-
fication, 176.
Condition, 169, 321, 403.
Confessions, 107, 361.
Congress, legislation of 1st session
of 32d, 337.
Consideration, 94, 97.
Constitutional law, 39, 42, 44, 281,
328.

Consignor and consignee, 281.
Contempt of court, 643.

.

396. 403, 409, 641, 642.

alienation.

Ib.
Delivery, 108.

See SUNDAY ACTS)

when void, 501.

Contribution, 254.

Conversion, 170, 332.

Conveyance, 94.

-

41

Deposition, 168, 222.

Devise, 329, 399, 403.
Distribution of estates, 283.

321, 518, 520, 641.

Authority of officers, 221.
Liabilities of Members of, 71, 218,

2-1.

Corporations, municipal - may be
restrained by injunction, 164, 643.
Costs, 106, 164, 403.
County commissioners, report of,
when evidence, 222.
Court and jury, province of, 94.
Covenant, 168, 171.
Custom, 279, 378.

D.

Damages, 40, 41, 172, 220, 222, 224,
281, 284, 306, 332, 396, 398, 402,

506.

Damages, measure of, 40, 101.
Deceit, 110.

Decision, form of, 96.

Decisions under the new practice act
of Massachusetts, 111, 112, 226, 636.
Decree, 403.

Dedication to public use, 94.
Deed, 171, 282, 321, 329, 641.
Deed, construction of, 171, 282.
Deed of trust, 98.

Conditions in a deed can only be
reserved for the grantor and his heirs.
A conveyance made by the grantor
to a third person, either before or af-
ter breach of the condition, will not
carry with it a right to re-enter for
condition broken. But this rule in
the state of New York does not ex-
tend to leases in fee reserving rents,
nor to leases for life or years Nic-
oll. The New York & Erie R.
R. Co., 321

A grant to a corporation, purport-
ing on its face to convey a fee, will
not, because the corporation was cre-
ated only for a term of years, be
construed to convey only an estate
for years. Ib.

Corporations, though created for a
term of years, are authorized to pur-
chase and hold lands in fee. Though
they have only a determinable fee
for the purposes of enjoyment, they

Error, 396, 404.
Estoppel, 106.

Evidence, 40, 41, 97, 103, 105, 107,
110, 168, 169, 172, 222, 224, 282,
329, 331, 396, 397, 398, 407, 516,
517, 641, 642.

Evidence, confessions, 39, 395.
Evidence, declarations, 397.
Evidence, parol, 17, 109, 280, 335.

Parol evidence is admissible to
prove a subseqnent oral agreement
enlarging the time of performance of
a simple contract, or varying its
terms, or to show a waiver or dis-
charge, although the original con-
tract was required by the statute of
frauds to be in writing. Stearns v.
Hall, 17.

Exceptions, 110, 174, 330.
Execution, 39, 45, 164, 335, 629.
Execution, levy of, 520.
Executor and administrator, 41, 43,
103, 171, 281, 330.
Expert, 110.

F.

Factor's lien, 404, 408.
False pretences, 41.
Fees in United States Courts, 693.
Ferry companies, liability of, 203

The plaintiff drove his horse and

loaded wagon upon the ferry-boat of
the defendants, paying the usual toll
therefor. He did not take the place
assigned him by the agent of the de-
fendants, but selected his own posi-
tion on the boat, which he occupied
without further objection from the
agent of the defendants. He did not
give up the custody of the horse and
wagon to the defendants, nor ex-
press any desire so to do. He left
his horse, who was not accustomed
to pass on ferry-boats, alone, and
while thus unattended the horse be-
came frightened, sprang against a
chain across the head of the boat,
which was fastened to a hook, that
was insufficient in strength for the
purposes it was designed to answer;

broke the hook, and went over-
board with the wagon. The horse
was drowned, and the loading of the
wagon injured. In an action against
the defendants to recover the said
losses, it was held,

1st, That the defect in the hook was
one for which the defendants
were answerable, and which under
other circumstances might have
charged them with the losses; but,

2d, That the plaintiff not having
exercised ordinary and reasonable
care and diligence in the oversight
and care of his horse, and the loss
being in all probability owing there-
to, could not recover. White v.
Winnisimmet Co., 203.
Flowage, complaint for, 107,

283,

fect, the latter is to prevail. Han-
cock v McKinney, 68.

Where conditions are annexed to a
grant, if they be precedent, the party
who sets up the title must show per.
formance; if subsequent, the onus
rests upon the party alleging the
forfeiture; or, if the title become
absolutely null upon the non-per-
formance, the party claiming under it
must prove performance of the con-
ditions. Ib.
Guaranty, 280.

Guaranty, the, of promissory notes,
541,661.

Guardian and ward, 330.

H.

Habeas corpus, 486.
Highways, 172, 250.
Liability of commissioners of,
408.
Homicide, 115.

Husband and wife, 34, 96, 99, 171,
514, 517, 682.

Authority of wife in absence of
husband, 96.

I.

Imprisonment of colored seamen in
southern ports, 294.
Indian lands, intruders on, 404.
Indictment, 35, 41, 42, 104, 107, 164,
169, 172, 331, 404.

Indorser,

(See BILLS OF EXCHANGE.)
Infant, 39, 43, 225, 336.

Infants, criminal liability of, 361.
Infants, civil liability of for torts,
510.

Injunction, 17, 164, 165.

Parties to, when against a munici-
pal corporation, 164.
Innkeepers, common, 378, 521.

Where R., the agent and servant
of the plaintiff corporation, came to
B. with a large number of witnesses,
to take charge of a lawsuit in behalf
of the corporation, bringing with him
one thousand dollars to defray the
expenses of the suit, and put up at
defendant's inn as a guest, with sev-
eral of the witnesses, for whose
board he promised to be responsible
to the defendants, but at an agreed
price for board by the week,
price to be greater if they did not
stay a week, and under said agree-

-

the

ment staid at defendant's inn for eighteen days; it was held, that the relation of landlord and guest was established instantly upon his arrival at the inn, and his reception as a guest, and was not affected by his staying for a longer or shorter time, if he retained his character as a trav. eller; and the fact that there was an agreed price for board, would not take away his character as a traveller and guest. Berkshire Woollen Co. v. Proctor, 378.

The agent, while at said inn, having had money of the plaintiffs, which had been delivered to him to be expended in their business, upon which he was then engaged, stolen from his trunk which was in his room in said inn, it was held, that the plaintiffs could maintain an action against the defendants, for the money so lost, and that the defendants were liable to the plaintiff's, as innkeepers. Ib. During the eighteen days the plaintiff's agent was at said inn, he had expended one half of the one thousand dollars. The remaining five hundred dollars was stolen from him. The defendants objected that this was not necessary, appropriate, or designed for the ordinary travelling and inn expenses of the said agent, and therefore they were not respon sible; but it was held, that the defendants were liable therefor, the law holding the innkeepers responsible for the goods, chattels and money of his guest. Ib.

Proof of knowledge, as a matter of fact, is required to give effect to particular usages, which are not of so general a nature, as to furnish a presumption of knowledge. Ib.

There can be no legal presumption of knowledge, that every traveller who alights at an inn has knowledge of the particular usages of that particular inn, of which there is no notice in any way given to him. Ib. Insolvents in Massachusetts, monthly list of, 59, 120, 180, 240, 300, 360, 420, 480, 540, 600, 660, 704. Insolvent law, 21, 28, 40, 111, 222. Insolvent debtors, 513, 517. Insolvency, discharge in, 171, 222. Effect of certificate of discharge, 171, 222, 277. New promise, 171, 222. A person claiming to be a creditor 60*

A

of a supposed insolvent, with prima facie evidence of indebtedness and an attachment duly made upon said demand, upon the property of the insolvent, before the institution of proceedings in insolvency, is, under the insolvent act of 1838, c. 163, § 18, "a party aggrieved by proceedings under that act." In re Penniman, 28. H., the supposed insolvent, an unmarried man, was a resident in Boston, in the county of Suffolk, prior to July, 1850, but in said July left his boarding-house in Boston, so far as to relinquish his room, and remove all his clothing of any value therefrom, and took lodgings with breakfast and tea in Brookline, in the county of Norfolk, at the same time continuing his business regularly in Boston, and taking his dinners at his old boarding-house in Boston. creditor of H. petitioned the commissioner of insolvency for Suffolk county to issue his warrant against the estate of H. as a bankrupt. Notice of the petition was served on H., by leaving a copy thereof at his said boarding-house in Brookline. H. not appearing on the return day, the commissioner issued his warrant, and an assignee was appointed in due time and form. Held, 1st, that the proceedings against H. were void, as there was no proper service of the notice of the said petition upon H. if his residence was in Boston; 2d, that if his residence was in Brookline, where the service was made, then the commissioner of insolvency for Suffolk had no jurisdiction; 3d, held, also, that the said proceedings were voidable by an attaching creditor. Ib.

How far the facts above stated show a change of domicil, quære. Ib.

Under the insolvent law of Massachusetts, a person whose debt has been formally allowed by the commissioner, but from which allowance an appeal has been taken and prosecuted according to law, is not a creditor, entitled to vote as a creditor, after such appeal has been taken and perfected, and before any judgment of the appellate court given upon it. In re Macy, 21.

Insolvent estate of deceased persons,

283.

Insurance, 96, 111, 218, 221, 224, 228, 405, 521, 642, 673.