CONTAINED IN THIS VOLUME.
See PLEAS AND PLEADINGS, 7,8,9.
See CONSIDERATION, 4. INSURANCE, 6. TRUSTS, 1.
See FJECTMENT, 12, 13, 14, 15.
See COURT OF COMMON PLEAS, 1.
3. A plaintiff, on producing the written contract, may recover under a general indebitalus assumpsit, if the agreement has been fully performed by him, and there was nothing special in the contract in relation to the time or manner of payment; or the credit, if any has expired. So the plaintiff may recover on an indebitatus assumpsit for work done, though there was a special contract where the work was actually done, but not within the time or in the manner specified in the contract, if such work was done with the approbation of the defendid
id 4. Where, however, the plaintiff is allowed to sustnin his action in the latter case on a quantum meruit, the inquiry is not what under other circumstances he would be en
titled to recover, but what he is entitled to in reference to the contract price, and the damages sustained by the defendant in consequence of the want of a strict performance on the part of the plaintiff.
title to the goods has vested in the consignee, although there be no express agreement to that effect. Holbrook v. Wight, 169
id. 2. A factor del credere who has made advances upon goods consigned to him for sale, and which have been delivered to a third person to forward, has a lien upon the goods, and may maintain an action against the bailee for nondelivery.
5. Where a female is debauched in the house of a stranger, and he by writing under seal authorizes a party standing in loco parentis to sue in his name for the recovery of damages, and a suit is accordingly commenced and judgment recovered, after which the 3. nominal plaintiff acknowledges of record satisfaction of judgment, an action may be maintained by the party thus authorized to sue, against the nominal plaintiff for the recovery of the amount of the judgment, and the suit may be brought in assumpsit, notwithstanding that the writing giving authority to sue is under seal. Stanton v. Thomas,
6. An action for money had and received, will not lie by a creditor against a third per- 4. son, in whose hands funds have been deposited by a debtor, with directions to pay them over to the creditor in extinguishment of a debt, unless there be an agreement either express or to be implied from the circumstances of the case, by which the funds become the property of the creditor, so that
Where the partner of a bailee refuses to deliver goods to the owner, saying that he does not feel authorized to deliver them up in the absence of his partner, the bailee in an action against him cannot object that the demandant did not exhibit the evidence of his title; if that was the true reason for the non-delivery, the partner should have said so, and if the refusal had been made in good faith, the defendant would have been protected. id
A bailee acknowledging by receipt to hold the goods for a third person, is in itself a conversion, and after having done so, and the agent having placed his refusal upon the absence of his principal, the bailee cannot claim to hold on the ground of lien for storage and charges paid. id
the debtor loses all control over them, and 5. In an action of replevin in the detinet, the proof of refusal need not be as strong as in
is disabled from giving them another direction; or unless the money be deposited with the concurrence of the creditor, expressed previous to its receipt by the agent. Seaman v. Whitney,
1. A suit against an association formed un der the general banking law, may be brought either in the name of the associa tion or in that name, with the addition of the name of the president thereof; but the contract must be stated as having been made by, or with the bank using the name by which it acquires rights of action and contracts liabilities, or the declaration will be bad. Delafield v. Kinney,
2. It is not necessary to allege in the declaration, that the notes or bills issued by such association, were signed by the president or vice-president and cashier thereof; it is enough to allege in general terms, that the association made the contract, id
1. Where a party consigns goods to another 4. So also quere, whether these associations and sends him a letter of advice, and immediately after draws upon the consignee for funds, who accepts the drafis, a jury are warranted in finding a contract and that the
have authority to make post-notes, or any negotiable notes, save such as are issued under the sanction of the comptroller of
gence is not required; but some inquiry
must be made.
5. Where, by the act of incorporation of a
banking company, the legislature reserve
the power of annually apponting one of
the directors of the institution, and an in- 7. An alteration of a promissory note by the
payee thereof, so as to make it purport to
be payable at a particular place, vitiates it
in the hands of an endorsee, so that he
cannot recover upon it in action against
the maker. Nazro v. Fuller,
374
formation in the nature of a quo warranto
is filed against the company for a misuser,
an appointment of a director by the gov-
ernor and senate subsequent to the filing
of the information is not a waiver of the
forfeiture. The legislature alone can
waive such forfeiture. The People v. The 8. If it be doubtful whether it be an altera-
Phoenix Bank,
BILLS OF EXCHANGE AND PROM-
ISSORY NOTES.
tion of the note or a mere memorandum
by the payee indicating where the demand
of payment should be made to charge him
as endorser, the question, it seems, should
be submitted to a jury.
1. Where a bank discounts a note to extin-
guish a debt due to it from the holder or the 9. On a guaranty endorsed upon a note,
proceeds are applied towards discharge of
his liability, such acts are equivalent to
paying value at the time, and constitute
the bank, holders for valuable considera-
tion Bank of Sandusky v. Scoville, 115.
whereby the payment and collection of the
note is guaranteed to a third person or
bearer, an action lies by any subsequent
holder in his own name. Ketchell v.
Burns,
See CONSIDERATION, 1. USURY.
4. Where the holder of a note payable at six CHAMPERTY AND MAINTENANCE.
months, agreed at the time of the taking
thereof, to surrender the note, provided the
maker before its maturity gave him a satis-
factory acceptance at six months, and such
acceptance was tendered and refused to be
received by the agent of the holder, and
was thereupon destroyed by the acceptor,
who had personally made the tender, it
was held, that by such destruction the
holder of the note became entitled to elect
whether to sue upon the note, or upon the
acceptance, and that an action upon the
note brought previous to the expiration of
the second period of six months was main-
tainable. Gayle v. Suydam,
6. Where, in such case, the bill at maturity 1. A vote of a school district meeting post
is in the hands of an endorsee, great dili-
poning the collection of a tax for the re-
3. A warrant also may be renewed as often
as the circumstances of the case require. id 6.
4. Whether an apportionment of the tax may
legally be made by two of the trustees in
the absence of the third, quere; the act of
two, however, in making the apportion-
ment will be held valid, unless it affirma-
tively appear that the third was not notifi-
ed and did not attend.
id
If the vendor fraudulently represents him-
self to be the owner, when he knows to
the contrary, such fact may be set up in
bar of a recovery; or it seems an action
on the case may be brought against the
vendor.
Where a party enters into an obligation
under seal for the debt of another, it is not
necessary to allege any consideration.
Bush v. Stevens,
Where a party by a written instrument
recited that he had taken a lease of a lot of
ground in a certain street, and agreed on
the opening of another street into the street
in which the lot was situated, that he
would pay his landlord $100 as soon as
such new street should be opened; and it
was proved that such writing was execu-
ted cotemporaneously with the lease reci-
ted in it, IT WAS HELD, that the execution
of the lease was a sufficient consideration
for the agreement, and that in an action
on the agreement the landlord was entitled
Andrews v. Pontue, 285
1. An act of the legislature imposing a tax
upon a local district of the state, in refer-
ence to a public improvement, such as a
canal, is valid and constitutional, notwith-
standing that previous to the passage of
such act, a number of individuals of such
district had entered into a bond to the
state, by which they bound themselves to
pay the whole expense of the improve-
ment. Thomas v. Leland,
1. The transferring to another a bargain for
the purchase of land is not a good consid-
eration of a note for the payment of money,
where there is no valid agreement on the
part of the owner of the land to convey,
and where the negotiation with him for
the sale of the farm was made without any
request from the maker of the note. Ehle 2.
v. Judson,
The common council of a city, incorpora-
ted as such subsequent to 1st January,
1830, have no power under the general act
to determine and limit the number of com-
missioners of deeds to be appointed in such
city; the power is confined to the common
councils of cities created previous to that
date and accordingly it was held that the
appointment of a commissioner of deeds by
the governor, with the advice of the sen-
ate, for a city incorporated since 1st Jan-
uary, 1830, was not a valid appointment.
The People v. Salisbury,
1. Where a contract is made for work to be
done at a stipulated price, and it is discov-
ered before the work is commenced, that a
misrepresentation has been made in respect
to its value, the party engaging to do the
work may repudiate the contract; if he
does not do so, but goes on and performs
it, he can demand no more than the con-
tract price. The Saratoga and S. Rail
Road Co. v. Row,
13. An attorney, however, is not entitled to
charge his client for swelling an original
writ by special counts spread out in the writ
when the common money counts would
have sufficed.
id
See EXECUTORS AND ADMINISTRATORS.
74 1. A county clerk is not entitled to compen-
sation for continuing general indexes of the
names of grantors and grantees, mortga-
gors and mortgagees contained in the
books of records in his office of deeds and
mortgages. The People, ex rel. Traver,
v. The Supervisors of Dutchess,
2. Where a party, in consideration of anoth-
er having conveyed to him 14 city lots for
only $21,000, covenanted that he would
by a certain day erect two brick houses
of specified dimensions, on the proper-
ty purchased. or, in default thereof, pay
to the grantor on demand, after the spe- 2. The authority of a deputy clerk, who dis-
cified day, the sum of $4000: it was
held, that the sum specified was not a pen-
alty, that it should be deemed part of the
contract price of the lots, and that on fail-
ure to erect the houses, the covenantee was
entitled to recover the specified sum, and
should not be limited merely to damages
for the non-erection of the buildings.
Pearson v. Williams' administrators, 244 3.
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charges the duties of the office of county
clerk in consequence of the death of his
principal, ceases on the appointment by the
governor of another person, to execute the
duties of the office until the vacancy in the
office of clerk be supplied by an election.
The People, ex rel. Smith v. Fisher, 215.
Where a road was laid out through the
lands of an inhabitant of a town, and the
supervisors of the county made out a tax
list and warrant so as to collect the sum
allowed as damages to the owner, and to
have the same paid over to him, and sub-
sequently altered the warrant, directing
the collector to pay over the amount al-
lowed to the supervisor of the town in-
stead of to the commissioners of highways,
and the money was paid over to the super-
visor; and at the next annual meeting of
the supervisors they directed the supervi-
sor to whom the money was paid to pay
over a portion of it to the owner of the
land, and the residue to the county treas-
urer to the credit of the town in which the
money was collected, and instead of com-
plying with such order, the supervisor paid
over the whole sum to the owner of the
land, it was held, that an action for mo-
ney had and received did not lie against
the supervisor, at the suit of the supervis-
ors of the county. Supervisors of Dutch-
ess v. Sisson,
court of common pleas in an appeal case,
are bound to pronounce on all questions of
law raised and passed upon in the court
below. Where such court refused to hear
and decide upon a question of the sufficien-
cy of an affidavit, presented upon the ap
plication for an attachment in the court be-
low, and such affidavit was in fact insuffi-
cient, the judgment of the common pleas
was reversed. Bennett v. Ingersoll, 113
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