See INSURANCE-MARINE, 6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21.
See EXECUTIONS, 35, 36, 37, 38, 40; JUDGMENTS, 17, 18; PLEADING AND
PRACTICE, 12, 13, 16, 19, 22, 24.
1. ACCORD, TO BE GOOD, must be in full satisfaction, and must be executed;
readiness to perform is not enough. Russell v. Lytle, 537.
2. PART PAYMENT, AND AN AGREEMENT TO TAKE THE RESIDUE at a future
day, can not be pleaded as satisfaction in bar to debt on a bond. Id.
3. AGREEMENT TO ACCEPT A SURRENDER OF LAND MORTGAGED as security
for a bond debt, and a tender of performance, can not be pleaded in bar
to an action of debt on the bond. Id.
ACKNOWLEDGMENT.
See EVIDENCE, 1; MARRIED WOMEN, 1.
1. THE VALUE OF AN ARTICLE SOLD may be recovered, either in debt or
indebitatus assumpsit, provided the vendor was to be compensated in
money; and it is not necessary that a price should be agreed upon for
an article sold and delivered in order to maintain either of those actions.
Jenkins v. Richardson, 82.
2. AT LAW, AN HEIR CAN ONLY SUE for the undivided part which belongs
to him; yet in equity, until the other heirs appear, he who demands the
succession, or any part of it, is preferred to a mere usurper who is with-
out any title whatever; consequently, a joint heir or joint owner of prop-
erty may maintain a petitory action to recover the whole property
against one who has no title whatever to the sa.ne. Compton v. Muth-
ews, 167.
See ASSUMPSIT; DEBT; DETINUE; FRAUD, 2.
ADMINISTRATORS.
See EXECUTORS AND ADMINISTRATORS.
AN ENTRY AFTER THE RECORDING OF A DEED can not relate back to the
time the deed bears date, so as to make an adverse possession from such
date.
1. AGREEMENT SIGNED A. B.,
the agreement of C. D.
2. REPRESENTATIONS, MADE BY AN AGENT, at the time he is contracting for
principal, constitute a part of the contract, and they are admissible
against the principal as a part of the res geste; but declarations made by
an agent after the contract has been completed, are not binding upon or
admissible as evidence against the principal. Haven v. Brown, 208.
3. SPECIAL AGENT to whom a horse is delivered for the purpose of sale, has
no authority to apply the same to the payment of his own debts, and if
he does, the owner may maintain replevin therefor, although in the
hands of a bona fide purchaser. Parsons v. Webb, 220.
AGENT FOR C. D., is, in construction of law,
Garrison v. Combs, 120.
4. IF ONE, ACTING AS AGENT WITHOUT AUTHORITY, receives indemnity for
goods of his principal wrongfully taken, and converts the indemnity into
money, such agency may be ratified and the money recovered in an ac-
tion of assumpsit. Gilmore v. Wilbur, 410.
5. AGENT HAS NO AUTHORITY TO LICENSE one to cut timber by virtue of his
authority to bargain and sell land. Hubbard v. Elmer, 590.
6. DECLARATIONS OF AN AGENT SUBSEQUENT TO THE CONTRACT, but in refer-
ence to the subject-matter thereof, are not admissible against his prin-
cipal. Id.
1. ALTERATION OF DEED.-A deed becomes void where, after its due execu-
tion, it is altered by erasure, interlining, addition, drawing a line through
the words-though they be still legible-or by writing new letters upon
the old, in any material part of it, by any person except the obligor.
Letcher v. Bates, 92.
2 ALTERATION of Note After EXECUTION nullifies it, although such altera-
tion was made without the knowledge or consent of the payee, and no
action can be maintained upon it, after such alteration. Id.
3. DEED PARTLY ERASED AND INTERLINED may furnish prima facie evidence
that it was executed as it appears; but the contrary may be proved, and
then the deed is destroyed. Id.
See BILLS OF DISCOVERY, 15; EJECTMENT, 6, 7.
"AND" may be construed to mean "or," when it is necessary to carry out
the testator's intention. Sayward v. Sayward, 191.
See BILLS OF DISCOVERY, 5, 6, 8, 9, 11, 12, 13, 14, 15.
See ATTORNEY AND CLIENT, 11; PLEADING AND PRACTICE, 1, 2, 15, 16, 19
APPLICATION OF PURCHASE MONEY.
See JUDICIAL SALES, 1, 2.
1. DLBTOR MAY PUT ALL HIS CREDITORS ON AN EQUALITY by assigning his
property to them, or conveying it to a trustee, for ratable distribution
among them, where no creditor has obtained a preference at law or in
equity. Corning v. White, 659.
2. DEBTOR'S ASSIGNMENT IN INSOLVENCY after suit is commenced takes only
the surplus after satisfying the complainant's debt. Id.
ASSUMPSIT FOR MONEY HAD AND RECEIVED lies to recover back money paid
on a contract which the other party refuses to perform, or which it has
become impossible for him to comply with; but where the inability of
such party to comply with his contract is relied upon for a recovery
against him, the facts going to show such inability must be averred in
the declaration. Philipson v. Bates, 444.
See PARTNERSHIP, 1; TORTS, 1, 2.
1. SHERIFF, IN AN ACTION FOR CERTAIN PROPERTY returned by him as hav
ing been attached, can not falsify his return, and prove that he did not
attach the property. Fisher v. Bartlett, 225.
2. PROPERTY HAVING BEEN ATTACHED, and delivered by the officer to a third
person for safe keeping, the latter may, in an action upon his promise to
redeliver the property, show that it did not belong to the person as whose
property it was attached, and that he has restored it to the true owner.
Id.
3. IF A RECEIPTOR DELIVER THE GOODS ATTACHED to the general owner, he
may lawfully sell the property, whether bound by the attachment or not.
Denny v. Willard, 389.
4. ON A SALE BY THE GENERAL OWNER, to whom the receiptor has delivered
goods attached, the receiptor, or even the officer, may become the pur-
chaser. Id.
5. AN OFFICER CAN NOT CONTRADICT HIS RETURN and deny that he made a
valid attachment, but he may show that the property attached was in a
third person and not in the debtor. Id.
6. IN DEFENSE TO ACTION FOR FAILURE TO LEVY an execution upon goods
previously returned as attached, the officer may show that the goods had
been bona fide assigned prior to the attachment, to a receiptor of the
goods on an earlier attachment. Id.
7. WHERE GOODS ARE NOT BOUND BY AN ATTACHMENT, the attaching cred-
itors can not hold the officer responsible for any surplus moneys he may
have realized from a prior attachment. Id.
8. LEVY OF ATTACHMENT on a house, lot, and easements, what held suffi-
cient. Hedge v. Drew, 416.
9. BREAKING OPEN THE OUTER DOOR of a dwelling-house against the prohibi-
tion of the owner, for the avowed purpose of levying an attachment on
the owner's goods therein, renders the attachment void. Пlsley v. Nichols,
10. DEBT EVIDENCED BY NOTE PAYABLE TO ORDER may be attached; but the
plaintiff, in order to recover judgment against a garnishee, must show
that the defendant was still the holder of the note. Scott v. Hill, 462.
11. WHERE THE DEBTOR'S GOODS ARE MIXED with those of a third person,
though without such person's knowledge, the sheriff may attach and
hold the whole until the stranger identifies his goods and demands a re-
delivery. Lewis v. Whittemore, 466.
1. ATTORNEY SHOULD BE REQUIRED TO FURNISH EVIDENCE of his authority
to prosecute a suit, whenever there is a reasonable ground to apprehend
that he is proceeding without the permission of the plaintiff. Bet v.
Wilson's Administrators, 88.
2. MERE POSSESSION OF BOND does not authorize prosecution of suit on it in
the name of the obligee. Id.
3. PRIVILEGED COMMUNICATIONS TO AN ATTORNEY.-The privilege of con-
fidence is the privilege of the client, and not of the attorney. Extent to
which the privilege should be carried, considered. Foster v. Hall, 400.
4. THIS PRIVILEGE IS CONFINED TO COMMUNICATIONS to members of the
legal profession, to interpreters necessary to facilitate the communica-
tion between attorney and client, and to clerks. Id.
5. THE COMMUNICATION CAN NOT BE DISCLOSED AT A FUTURE TIME, or in
another suit, although the client making the communication may not be
a party thereto, and may have no interest in it. Id.
6. THE RULE OF PRIVILEGE ought to be strictly construed, having a tend-
ency to prevent the full disclosure of the truth. Id.
7. THE PRIVILEGE IS NOT CONFINED TO COMMUNICATIONS made for the
purpose of enabling an attorney to conduct a cause in court, but is ex-
tended so as to include communications made to one's legal adviser,
whilst employed in that character, and when the object is to get his legal
advice and opinion as to legal rights and obligations. Id.
8. THE PERSON CONSULTED must be of the profession of the law, and it is
not enough that the party making the communications thinks he is. Id.
9. HE MUST BE CONSULTED OR EMPLOYED in the particular business to which
the communication relates. Id.
10. THE PRIVILEGE DOES NOT EXTEND to matters not communicated by the
client as confidential, but as facts known of his own knowledge. Id.
11. AN ATTORNEY MAY WAIVE HIS CLIENT'S RIGHT of appeal by an agree
ment of record. Pike v. Emerson, 468.
BAILEE FOR HIRE WHEN NOT LIABLE.-Where a person undertakes, for
pay, to keep the horse of another, and while he is keeping him in the
manner agreed upon, he escapes and is lost, without any negligence on
the part of the bailee, the latter is not liable. Owens v. Geiger, 437.
BILLS AND NOTES.
See NEGOTIABLE INSTRUMENTS.
1. ON A BILL OF DISCOVERY THERE CAN BE NO HEARING on the merits,
unless relief as well as discovery is asked. Price v. Tyson, 279.
2. BILL OF DISCOVERY LIES ONLY to obtain a disclosure of facts in relation
to a civil, and not to a criminal case. Id.
3. WHERE IT APPEARS FROM THE BILL THAT THERE IS NO REMEDY, the
plaintiff can not have a discovery. Id.
4. BILL OF DISCOVERY DOES NOT LIE AGAINST ONE NOT INTERESTED, and
who may be made a witness, and enough must be stated to enable the
court to judge of the alleged liability of the defendant. Id.
5. PLAINTIFF IS ENTITLED TO A FULL ANSWER, where relief may be had in
chancery, as to every material allegation of his bill. Id.
6. DEFENDANT MAY STATE MATTERS IN BAR or avoidance of the plaintiff's
claim, by way of further answer, after having answered all the allega
tions of the bill.
7. BILL OF DISCOVERY PERFORMS THE OFFICE OF A SUMMONS when used in
aid of an action or suit in another court. Id.
8. ANSWER TO A BILL OF DISCOVERY may introduce matters in avoidance of
the plaintiff's claim.
9. RULE AS TO IMPERTINENT MATTER IN ANSWER.-The general rule is that
if the answer goes out of the bill to state anything not material to the
defendant's case, it will be deemed impertinent, and may be expunged.
Id.
10. NOTHING IS IRRELEVANT THAT MAY HAVE INFLUENCE upon the suit at-
tending to the nature of it. Id.
11. WHERE PERTINENT MATTERS ARE MIXED with impertinent, so that they
can not be separated, the whole shall be expunged. Id.
12. CO-DEFENDANT OR A STRANGER MAY HAVE SCANDALOUS MATTER, which
is also impertinent, stricken out of an answer, at the cost of the party
filing it. Id.
13. PERTINENT MATTER, THOUGH SCANDALOUS in itself, is not to be so con
sidered. Id.
14. ANSWERS TO IMPERTINENT QUESTIONS, though reflecting and imperti-
nent, are not scandalous. Id.
15. ON AMENDMEnt of a Bill of Discovery AFTER Answer, so as to pray
relief, the defendant can not put in a complete answer over again; and if
he does so, that part of it answering anything beyond the amended bill
will be expunged as impertinent. Id.
16. MATTERS UPON WHICH the DefendaNT INTENDS TO RELY as a defense
to the plaintiff's claim, stated in answer to a bill of discovery, are not
impertinent. Id.
17. RELEVANCY, LEGALITY, AND COMPETENCY OF TESTIMONY brought out by
a bill of discovery, are to be determined by the court for whose use the
discovery is required. Id.
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