ACCORD AND SATISFACTION. See CONTRACT, 13.
1. Where the holder of a note surrenders it to the maker, and takes one
of less amount in satisfaction, it is a full discharge. Draper v. Fill, 49.
2. The payment of a less sum is not a sufficient consideration for an
agreement to discharge a greater, but the Code of Tennessee alters the
common law rule, and enforces such contracts when fully performed in
good faith according to the intention of the parties. City of Memphis v
Brown, 629.
3. Where an agreement is made by a debtor to deliver in full satisfaction
of a larger sum due, his notes or money for a less sum, even though there
is a consideration for the agreement, it must, in order to operate as a dis-
charge, be fully and fairly performed in all its parts, both in time and
amount. Id.
4. In order to sustain a contract of settlement without other sufficient
consideration, upon the ground that it was the compromise of doubtful
claims, the doubt must be such as would arise in the mind of an ordinarily
intelligent person familiar with the class of things which is the subject of
the settlement. Id.
ACKNOWLEDGMENT. See CONTRACT, 7.
ACTION. See ATTORNEY, 5; CITIZEN, 1; MUNICIPAL CORPORATION, 10: NUISANCE
2; TENANT IN COMMON, 4.
1. The breaking of plaintiff's axle from an insufficient highway, where-
by his horse was startled, ran away and was killed, is but one ground of
action. Hodge v. Town of Bennington, 50.
2. No action lies for simply conspiring to do an unlawful act.
Harman, 54.
3. An action, which if done by one, constitutes no ground of an action on
the case, cannot he made the ground of such action by alleging it to have
been done by a conspiracy of several. Id.
4. No action will lie to recover back money, voluntarily paid. Awalt
v. Eutaw Building Ass., 63.
5. A promise upon a valuable consideration, to pay money to a third
person, will sustain an action by the latter against the promisor. Hall ▾
Robbins, 261.
ACTS OF CONGRESS.
1802, April 14. See COURT, 4.
1841, September 4. See VENDOR AND PURCHASER, 10.
1862, February 25. See LEGAL TENDER, 4.
1863, March 3. See CONFEDERATE STATES, 3.
1865, March 3. See DESERTER.
ADMINISTRATOR. See EXECUTOR.
ADMIRALTY,
1. Where a collision occurs in consequence of a vessel being cut loose
from her moorings, in order to save her from sinking, it is not such an in-
evitable accident or vis major, as will exempt her from liability for damage
resulting from the collision. Sherman v. Mott, 716.
2. In voluntarily cutting herself loose, she takes the risk of colliding.
and having collided must bear the consequence. Id.
ADVANCEMENT. See DEcedent Estate, 6; EVIDENCE, 18.
1. Where a father conveys land to his soa, and receives a writing ao
knowledging the receipt of the full value of the land in dollars, in fuil of
the son's share, and relinquishing his right the son's children will be
barred from claiming any of the grandfather's estate. Smith v. Smith, 589.
AFFIDAVIT OF DEFENSE. See BILLS AND NOTES 14
AGENT. See EVIDENCE, 22; INSURANCE, 13, 14; MUNICIPAL CORPORATION, 12.
1. Where the keeper of a boarding-house of a railroad company, bad
from time to time purchased provisions for the use of the house, and the
bill had been paid by the company, the vendor was entitled to regard him
as agent pro tanto of the company. P. W. and B. R. Co. v. Weaver, 50.
2. A debtor is authorized to pay an agent entrusted with a security any
sum which is due upon it. Doubleday v. Kress, 123.
3. The ostensible authority attributed to a party entrusted with a
security is to receive payment according to its terms.
4. Where a party by simple contract deals with an agent who does not
disclose his agency, he may be made liable in a suit in the name of the
principal. Culve v. Bigelow, 135.
5. When an agent purchases a note and mortgage of his principals, tak
ing an assignment to himseif instead of a discharge, and paying the credi-
tor who is not aware of the agency, more than annual interest,the liability
of the creditor is the same as if the agent purchased in his own behalf.
Id.
6. When there is testimony tending to show notice of the agency, it
should be submitted to the jury. Id.
7. An insurance agent to receive and transmit applications, is an agent
to receive and transmit notice. Lycoming Mut. Ins. Co. v. Sailer, 191.
8. Payment of the debts of a principal by the agent, is presumed to
be from principal's money. Woods v. Gummert, 191.
9. Where an agent secures a personal debt by a mortgage in his own
name, on his principal's property, there is no presumption that the prin-
cipal authorized it. Walfley v. Rising, 262.
10. A subsequent purchaser of the property cannot avoid a sale, made
in good faith upon sufficient consideration, simply on the ground he was
ignorant of it. Id.
11. A principal employing an agent to do an illegal act is responsible
whether the agent acts ignorantly or maliciously. Haynes v. Jangrem,
12. A person may make a demand as well through an agent as by him.
self. Ferguson v. Tut 270.
13. The knowledge of an agent, of the adverse possession of land, is the
Anowledge of his principal, and will prevent the purchase being bona fide.
Russell v. Sweezey, 458.
14. A merchant authorized to sell all his principal's goods within a cer
tain circuit on a commission of ten per cent., is to be regarded as a general
agent, with power to fix the price and time of payment, unless a different
usage in such trade is shown. Day Light Burner Co. v. Odlín, 658.
15. Third persons will not be affected by a limitation on his authority
unless brought to their notice, and what will be sufficient to put a person
on inquiring, is a question of fact for a jury. Id.
16. Where it is sought to make the principal liable for the acts of a
special agent, the authority of the agent must be proved. Fish v. Davis,
719.
17. The principal is not estopped by the declarations of the agent as to his
authority. Id.
18. Ratification in order to bind must be with full knowledge of facts.
Id.
19. The fact of a principal becoming a rebel and being within the Con
federate lines does not necessarily terminate an agency. Fisher v. Krata
773.
1. Where after a settlement and giving a note, there is an agreement to
pay more on a certain contingency, the agreement is not merged. Smith
v. Holland, 589.
2. An oral agreement connected with a written contract may be proved
if subsequent. Id.
An alley fenced in and owned by the contiguous lot owners is extin-
guished. Robinson v. Myers, 196.
AMENDMENT. See REAL ESTATE.
1. Amendments to be passed on by the courts, which could not affect the
verdict, may be made after verdict, and then judgment entered. Janvrin
v. Fogg, 334.
2. If amendments may be made in the cause after verdict, they may also
be in the testimony. Id.
3. A variance between complaint and proof is immaterial after judg-
ment, and may be amended. Smith v. Holland, 590.
1. A submission to arbitration is a contract implying an agreement of
the parties to abide the result. Whitcher v. Whitcher, 50.
2. Assumpsit is the proper action to recover damages for non-perfor-
mance of award. ld.
3. Non assumpsit puts in issue every material averment.
4. An award may be good in part and bad in part; but if that which is
void is so connected with the rest as to affect the justice of the case, the
whole is void.
5. The claim need not be annexed to the submission. Dodge v. Hull et
al.. 590.
6. A common count is not vitiated by allegation of a lien claim. Id.
7. The delivery by the arbitrators of a statement of their conclusions
does not terminate their powers. They may still make a final award.
Id.
8. A submission, partly in writing and partly by parol, and an award
made in pursuance of all said terms, will be good. Steere v. Tenney, 659.
9. Arbitrators, unless restricted, can decide questions of law as well as
of fact. Sanborn v. Murphy, 659.
10. If the reference provides that the award shall be made in accordance
with legal principles, and the referees mistake the law, the award will be
set aside. Id.
11. An award will be set aside when there has been such an error as re-
gards facts or law, as prevented a free and fair exercise of judgment. Id.
12. It is a settled rule of law and equity, that every reasonable intend-
ment shall be made to uphold an award. Id.
13. The plaintiffs were selected as arbitrators between them by T and
8 and in discharging the duties of their appointment incurred certain ex-
penses for the hire of a clerk. In their award the arbitrators awarded that
T. should pay them a certain sum for their fees and expenses. In as-
sumpsit against T. to recover the sum so awarded, brought by the
arbitrators jointly, in which the declaration contained a special count
on the award and the common counts for money paid and work and labor
done, it was held that the plaintiffs were entitled to recover on the com-
mon counts, and that the fact that another was jointly liable with the
defendant was no defense under the general issue, but could be taken ad-
vantage of only by plea in abatement. Whether a recovery could be had
on the special count, quære. Holcomb v. Tiffany, 748.
An officer ordered to arrest a debtor and take him forthwith before a
Justice is not justified in confining him in jail. Haynes v. Jungrem, 262.
ASSUMPSIT. See ARBITRATION, 2, 13: CONFEDERATE STATES, 3; CONSTITUTIONAL
LAW, 4; CONTRACT, 15; PAYMENT, 1, 2.
1. Where the defendant refuses to compensate the plaintiff for work
done, in a particular way agreed upon, he can recover in assumpsit the
value of the labor. Stone v. Stone, 191.
2. Will not lie to recover in money for the service of plaintiff's minor soL,
where the contract was that the defendant should pay in boarding, cloth-
ing and schooling, the son, who voluntarily left defendant's employment,
the latter being always ready to pay in manner stipulated. Roundy v.
Thatcher, 262.
3. For labor and services, will not lie against defendant, for services
performed by his wife's sister, upon an implied promise, where no ac.
count was kept, and during all the time the sister was supported by de-
fendant. Bundy v. Hyde, 659.
ATTACHMENT. See DEBTOR and CREDITOR, 20; PARTNERSHIP, 5.
1. The pendency of an attachment suit in Massachusetts, is no bar to a
suit brought in New York by the receivers of an insurance company upon
the premium notes. Osgood v. Maguire, 191.
2. A judgment in such suit might be. Id.
3. Though an extraordinary remedy, the plaintiff is to be protected
when he is within the spirit of the statute authorizing it. Rowles v.
Hoare, 590.
4. In New York may be dissolved, for want of jurisdiction, fraud in ob-
taining, defective papers and various other causes. Id.
5. Motion to dissolve may be made after judgment in the action. Id.
6. The plaintiff may oppose motion to dissolve, by affidavits contradict-
ing the defendants. Id
ATTORNEY. See HUSBAND AND WIFE, 22, 37; TRUST AND TRUSTEE, 4.
1. A party employing an attorney has a right to his services, and to con-
fide all the facts of the litigation to him, without the danger of having
those facts used for his disadvantage. Davis v. Smith, 51.
2. An attorney, by purchasing the interest of the adversary, acquires
no right as against his client. Id.
3. Where a written contract between a county and an individual shows
upon its face that it was made by the county for the professional services
of the individual as an attorney and counselor at law, which services are
such as the law requires to be performed by the county attorney, such
contract is prima facie void. Clough v. Hart, 95.
4. Where a written contract, between a city of the first-class and an indi
vidual, shows upon its face that it was made by the city for the profes-
sional services of the individual, as an attorney and counselor at law,
which services are such as the law requires to be performed by the city
attorney, such contract is prima facie void. Id.
5. Where the petition of the plaintiff sets forth such a contract as a foun.
dation for a decree for the specific performance of such contract, but does
not set forth any facts which would show that such contract is not void,
such petition does not state facts sufficient to constitute a cause of action.
Id.
6. The court has no jurisdiction to strike an attorney from the roll for
an act not connected with an attorney's duties. Dicken's Case, 123.
7. An attempt to make an opposing attorney drunk in order to get an
advantage of him, is good ground to strike off. Id.
9. The plaintiff's attorneys are not entitled to have a judgment entered
in favor of the plaintiff against the defendant, for their benefit, when a
default has been previously entered, and the parties have then made a
bona fide settlement. Hooper v. Welch, 192.
9. The authority of an attorney to bring a suit will be presumed until
contrary is shown. Town of Lisbon v. Hotton, 719.
AUDITA QUERELA. See DEBTOR And Creditor, 15.
AWARD. See ARBITKATION.
BAGGAGE. See COMMON CARRIER, 10.
BAILMENT. See EQUITY, 13.
1. A bailee without reward of certain bonds deposited for safe keeping,
will be liable for the loss unless he uses such care as a person of common
prudence in his situation and business usually bestows in the custody of
similar property belonging to himself. Maury v. Coyle, 52.
2. A banker receiving a package of money as a special deposit without
compensation, is bound only for slight care, and responsible only for
gross negligence. Hale et al v. Rawallie, 52.
3. The pledgee of bonds delivered as security for a loan, is liable to an
action for conversion, if he refuses to deliver them after payment of the
loan. Roberts v. Bredell, 262.
4. The damages would be the value of the bonds with interest. Id.
5. The statute of limitations does not begin to run until demand and re-
fusal. Id.
1. A depositor in a national bank which has failed and passed into the
hands of a receiver, may set off the amount of his deposit against his debt
to the bank on note. Platt v. Bently, 171.
2. The officers of a bank are bound to know whether the drawer of a
check is a customer of the bank and whether his account justify payment.
Salt Springs Bank v. Syracuse Savings Ins., 591.
3. A cashier has no authority to discharge the debtors of the bank with-
out payment. Cochico Nat. Bank v. Hasbik, 720.
. If the cashier informs a surety that a note is paid, in consequence of
which he surrenders certain securities, the bank is estopped to deny that
such note is paid. Id.
BANKRUPTCY.
I. Jurisdiction. See infra III.
1. Where the United States courts have acquired jurisdiction of a bank-
rupt's estate, the State courts lose jurisdiction of all claims provable under
the Act. Woolfolk v. Woolfolk. 329.
2. Whether the claim for homestead and exemption, under a State Con-
stitution. is a debt, such as may be proved before the Bankrupt Court.
is for that court alone to decide. Id.
1. Effect of the Institution of Proceedings.
3. No valid lien upon property of a bankrupt can be acquired by pro-
ceedings in a State court after the filing of the petition in bankruptcy.
Stuart v. Hines, 86.
4. Nor is an assignee in bankruptcy bound to go into a State court to
defend a suit commenced against the bankrupt after the filing of the pe-
tition. Such an action is as to him a nullity. Id.
III. Practice.
5. In a proceeding against a debtor as an involuntary bankrupt.
the order under section 40 of the Bankrupt Act, requiring the debtor to
show cause why the prayer of the petition that he be declared bankrupt
should not be granted, may be served personally outside the territory ef
the jurisdiction of the court making it. Stuart v. Hines, 86.
6. That order need not be served by a marshal or officer of the court, but
may be served by any one authorized by the solicitor for the petitioner.
Id.
7. The rule is the same where one or more of several partners institute
proceedings in bankruptcy voluntarily, in which certain members of the
partnership refuse to join; the parties so refusing are proceeded against
as involuntary bankrupts, and service of the order to show cause why
they should not be declared bankrupt may be made on them, outside the
territorial jurisdiction of the court, and by a person other than the execu
tive officer of the court. Id.
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