that is prayed for; if he does not, the plaintiff's own oath, when sufficiently full and explicit, is conclusive. Ib.

AGREEMENT.

1. An agreement to pay the costs of a justice on a compromise, means only the legal costs. Wallace v. Coates, 1 Ashmead, 110.

2. When an illegal contract is made between parties who are in pari delicto, the contract is void, and neither party can maintain any action which requires for its support the aid of such illegal contract. Where A. & W. employed R. to sell for them on commission tickets in a lottery not authorized by law, under an agreement that R. should be considered as the purchaser of all the tickets he did not sell or return by a particular day', it was held, that although the purchase of the tickets by R. was not illegal, yet as the agreement with respect to the purchase was only a part of an entire contract, which was illegal, the whole was void. Roby v. West, 4 N. H. Cas. 285.

3. A bond executed by a collector of town taxes to the selectmen, for the faithful performance of his duty, will not be regarded as a voluntary agreement, but as founded on a sufficient consideration, not illegal or opposed to sound policy. Montville, v. Haughton, 7 Con. 543.

4. Where the plaintiff in an action against B., on his guaranty of A.'s note, averred in the declaration, that in consideration the plaintiff would delay the collection of said note, and not exact payment thereof for four years thereafter, and of the plaintiff's promise of forbearance to collect the same for that time, the defendant promised, &c. it was held that this was a sufficient allegation of consideration for the defendant's engagement. Breed v. Hillhouse, 7 Con. 523.

5. An agreement within the statute of frauds and perjuries, carried into execution on one part, by acts performed with a view to the agreement claimed, is thereby taken out of the statute, and may be proved by parol evidence. Crocker v. Higgins, 7 Con. 342. 6. Therefore where A. conveyed land to B., for less than half its value, on condition that B. should give a lease of such land to C. for life, and deposited the deed with an agent accompanied by a written memorandum directing it to be delivered to B., on payment of the purchase money; B. paid the purchase money and received the deed, and then refused to give a lease to C.; on a bill in chancery brought by C. against B. to obtain such lease, it was held that the agreement being executed in part, was taken out of the statute of frauds and perjuries, and might be proved

by parol evidence; and that C. was entitled to the remedy sought. lb.

7. A person for whose benefit an agreement is made, though not a party to such agreement, may maintain a suit in chancery for its specific performance. Crocker v. Higgins, 7 Con. 342. 8. On a bill in chancery for the specific performance of an agreement, fraud in the defendant cannot be shown as the ground of a decree, unless it be substantially averred in the bill. 1b. See ASSUMPSIT, 1, 2; ATTORNEY, 1, 2.

APPEAL.

1. Where a suit was instituted before a justice, and the parties appeared and chose referees, and agreed that their award should be final and conclusive, which agreement was, at the request of the parties, and in their presence, entered by the justice on his docket, the court held the agreement to be binding, and dismissed an appeal entered by the plaintiff. Bocleau v. Phillips, 1 Ashmead, 92.

2. When the Common Pleas is in possession of a case in the shape of an appeal, although defectively entered, the functions of the justice terminate. Robinson v. Shrouds, 1 Ashmead, 168. 3. The course for a party to take, who believes his opponent has entered an irregular appeal, is promptly to move the court to strike it off. Ib.

4. A party cannot be deprived of his right of appeal by the wilful or accidental omission of a justice of the peace, after he is ready and willing to comply with all the legal pre-requisites to an appeal. Louderback v. Boyd, 1 Ashmead, 380.

5. In such a case the party has his remedy by action against the defaulting magistrate; but the court, under the circumstances, would permit the appeal to be filed nunc pro tunc. 1b.

6. When an appeal from a decree of a judge of probate is granted by this court, upon a petition for that purpose, under the statute of July 2, 1822, nothing is open to objection in the proceedings of the court below, upon the hearing here, except the grievances alleged in the petition, as the reasons of the appeal. Bean v. Burleigh, 4 N. H. Cas. 550.

APPRENTICE.

1. In Pennsylvania a parent cannot make his child a servant, but children may be bound apprentices to some useful trade, art or mystery. Commonwealth v. Baird, 1 Ashmead, 267.

2. A master has a right to use moderate correction in the case of an offending apprentice. Ib.

3. The father of an infant cannot bind him as an apprentice,

without his consent; and it is necessary that the infant should become a party to, and execute the indenture. Commonwealth v. Moore, 1 Ashmead, 123.

4. A mother may bind the children of an habitual drunkard, found so by inquest, and confirmed by the verdict of a jury, to an useful trade or occupation. Commonwealth v. Coxe, 1 Ashmead, 71.

5. An indenture of apprenticeship is not necessarily invalid because the father of the apprentice is in full life, and the binding made without his consent. Ib.

6. It is not necessary that the person who consents as next friend to the minor, should have received an appointment as such from legal authority. Commonwealth v. Roach, 1 Ashmead, 27. 7. An indenture executed by a minor, with the consent of his sister as next friend, is valid. Ib.

8. No arrangement nor contract between a master and his apprentice, altering the persons to whom an apprentice is bound, can be valid, unless ratified by the consent of the parent or other person standing in loco parentis, in writing. Commonwealth v. Leeds, 1 Ashmead, 405.

9. So, where an apprentice was bound to two co-partners or the survivor of them, and it was provided by the indenture, that, in case of a dissolution, he was to have the right to elect or choose which of the said co-partners he would serve, and afterwards the partnership was dissolved, and one of the partners assigned to the other all his right, title, and interest in the said indenture, the court held, that to make the election of the apprentice valid and binding, it must be done with the consent of the parent or guardian, and that the dissolution of the partnership abrogated the indenture, the parent not consenting to the election. Ib. ARBITRATION.

1. An action cannot be discontinued after the jurisdiction of the arbitrators has attached; and their jurisdiction is considered as attaching from the moment of their appointment. Horn v. Roberts, 1 Ashmead, 45.

2. And where, previous to the meeting of arbitrators, the plaintiff entered a discontinuance on the docket, and then attended the meeting of the arbitrators, and after they were sworn offered to discontinue, it was held, that the discontinuance could not divest the jurisdiction of the arbitrators.

3. And it seems, that if a plaintiff were to discontinue in the presence of the arbitrators, before they were sworn, and the

arbitrators were, nevertheless, to proceed and find for the defendant, the court could not interfere.

1b.

4. If, under an unqualified submission, referees take upon themselves the whole responsibility, and decide a question of law, otherwise than the court would have done; or, if in such a case, knowing what the law is, they choose to disregard it, and decide according to what they consider the equity and good conscience of the case, the parties are bound by the decision. Greenough v. Rolfe, 4 N. H. Cas. 357.

5. So if a distinct question of law is referred, under circumstances that show an intention in the parties that the law of the referees shall be the law of the case, the parties will be bound by the decision, however erroneous. 1b.

6. An erroneous judgment of the referees, when their judgment has been fairly exercised, is not alone, a sufficient ground to set aside an award.

1b.

7. But when referees, intending to decide according to law, mistake the law, this is a good objection to the award. lb.

8. It will be presumed, that referees intend to decide according to law, where it was agreed by the parties that they should decide according to the law and justice of the case.

SEE APPEAL.

ASSIGNEE.

Ib.

1. Under the act of 24th March, 1818, 'to compel assignees to settle their accounts,' the Court of Common Pleas has power to make an order requiring the assignees, in a voluntary assignment for the benefit of creditors, to produce, and to submit to the inspection of a creditor, any books, papers, or documents, which are in their possession, and which came to them from the assignees. Ingraham v. Coxe, 1 Ashmead, 38.

2. Where a petitioner is discharged under the insolvent laws, the court has not the power to compel him to produce his books and papers to his assignees. Hodge's Case, 1 Ashmead, 63.

3. Where an assignment is made for the benefit of creditors, the preference of the landlord arises from his right to distrain the goods assigned, and where that right does not exist, the rent being due and in arrear, or where, if the right to distrain does. exist, he omits to exercise it, and suffers a bona fide sale and removal by the assignees, he stands in the same position with respect to the proceeds of the sale as any other creditors. Morris v. Parker, 1 Ashmead, 187.

4. While the goods of the assignor remain on the premises they

are liable for rent in arrear, but when no rent is in arrear, or if

the goods are bona fide sold and removed from the demised premises, the landlord has no specific lien for his rent on such goods, or preferred claim on the avails of them in the hands of the assignee. Ib.

5. But the assignees are bound to pay rent to the landlord for the period during which they occupy the premises for the purpose of discharging the duties of the trust.

ASSIGNMENT.

1b.

1. The assignment of a debt, due by a third person, is a good equitable transfer of such debt as against a subsequent attaching creditor, notwithstanding no notice of such assignment is given to the debtor until after the attachment. Stevens v. Stevens, 1 Ashmead, 190.

2. Where an assignor assigned all his property in trust for the sole use and benefit of his wife and children, but directed all the debts contracted by him subsequent to the first day of January, 1822, and not paid, to be paid out of the proceeds, held, by the court, that the trust created for the benefit of his wife and children was fraudulent and void as to all creditors excluded from the benefit of the assignment, and that the direction to pay all the debts of the assignor contracted since 1822, was a precise and unequivocal preference to that class of creditors, which gave them the first claim on the fund assigned. Bradway's Estate, 1 Ashmead, 212.

3. The balance of funds remaining in the hands of the assignee, after paying the class of creditors preferred in the assignment, and which, by its terms, would have been payable to the 'wife and children' of the assignor, was ordered by the court to be paid to his administratrix, to be by her appropriated and distributed according to law. Ib.

4. Though a promissory note, not payable to order, is not assignable so as to vest the legal interest in another person, yet the assignment of such note transfers the equitable title, which will be recognised both in a court of equity and in a court of law, and fully protected. Lyon v. Summers, 7. Con. 399. ASSUMPSIT.

1. Where several individuals put their names to a subscription paper, and promise to contribute each a certain sum to an object which all are desirous to accomplish, the promise of each may be considered as made in consideration of the promises of the rest; and if one refuse to pay, the others, having accomplished the object, may recover of the one who refuses to pay the sum by him subscribed. George v. Harris, 4 N. H. Cas.

533