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INDEX.

A.

ACCOUNT

See page 691.

ACTION.

there was on the part of the defendants
a want of reasonable skill and pru-
dence in the construction of their road
at the place of the accident, or a ne-
glect on their part to adopt a useful
improvement in the construction of the
switch, by which the danger of the
accident would have been materially
reduced, and which improvement was
known to the defendants, and they
had it in their power to apply it, the
defendants were liable if their omis-
sion to adopt the improvement caused
the accident, unless there was negli-
gence on the part of the deceased that
concurred to produce the result.
To this part of the charge the counsel
for the defendants also excepted.

1. The deceased was an engineer in the
employ of the New Haven Railroad
Company and was killed by the ac-
cident of the cars which he was run-
ning being thrown off the tract of the
road; the action was brought by his
widow, as his administratrix, for the
recovery of damages, under the statute,
and was founded on the allegations.Held, that the exceptions were not well
that the accident was caused, partly
by the negligence of a switch-tender
in the employ of the defendants, and
partly by the insufficiency of the
switch itself. Both these questions
of fact were submitted to the jury,
and were found by them in favor of
the plaintiff.

The Judge, upon the trial, charged the
jury that, although the deceased was
in the employ of the New York and
New Haven R. R. Co., yet if he was
running their train upon the defend-
ants' railroad, and by reason of the
negligence of the switch-tender em-
ployed by the defendants, that train
was thrown from the track, and his
death thus caused without any negli
gence on his part concurring to pro-
duce the accident, the defendants were
responsible in the action.

To this portion of the charge the counsel
for the defendants excepted.
The Judge also charged the jury, that if
D.-VI

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2.

3.

taken, the charge of the Judge being,
in point of law, entirely correct, and
being directly applicable to the ques-
tions of fact raised by the evidence.

Held, further, that the finding of the
jury upon the questions of fact, spe-
cially submitted to them, was fully
sustained by the evidence. Smith, Ad-
ministratrix, etc. v. New York and Har-
lem R. R. Co.,
225

The defendant sued Brooks & Hop-
kins, had an attachment issued, and on
it seized the property in question, be
ing the property of the plaintiff's tes
tator. T. Jackson, and Carr & Burnett,
and S. V. Moers, subsequently and
severally sued Brooks & Hopkins, and
had attachments issued, which were
levied on the same property, but with
out their direction. Judgments were
obtained, and executions issued in all
of said actions. The sheriff refused to

sell on either of the executions, unless | indemnified for so doing. Carr & Burnett executed to the sheriff an indemnity bond in their own suit, and executed as sureties one given by Moers in his suit, by the terms of each of which the sheriff was indemnified against the consequences of levying and selling, under the executions, in those two actions. Johnson having, in his lifetime, sued Carr & Burnett for a forcible and wrongful taking of the property in question, the plaintiff, on the 31st of August, 1855, released them from all causes of action whatever. The present action was commenced about the 1st of July, 1852, after all the executions had been issued to the sheriff, and before the execution of the indemnity bonds. Townsend, Executor. v. Hoppock,

499

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8.

9.

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The execution of a bill of sale, expressing a pecuniary consideration, and a delivery of it with the property, present no obstacle to showing that such consideration was not wholly pecuniary, but consisted in fact of a special agreement in which E is interested, and its non-performance to E.'s damage. મો.

Whether, if the executory contract to sell and deliver had been rescinded before it was obligatory on either party to it, and it should appear that the delivery of the goods, and the execution and delivery of the bill of sale, and of the receipt, were cotempora neous acts, they would preclude the parties to them, or the plaintiff, from showing the agreement to have been such as the complaint states, Querc, id

10. When a constable, on an attachment issued out of a Justice's court against one person, seizes and removes property found in the possession of another, and the latter claiming to be the owner, and desiring to so proceed under Part 3, Title 4, § 31 of the Revised Statutes, as to perfect a right to have the property restored to his possession, he must, among other things, give a bond in a penalty equal to double the value of the property attached, though such value be $2800, and the debt which it was seized to satisfy be only $421. In such a case a bond in the penalty of $1000, though correct in all other respects, and duly approved and rendered to the constable attaching, will not make it his duty to deliver the property attached to such claimant, and consequently, will not make his refusal to deliver it to such claimant a wrongful act on his part, for which such claimant can maintain an action against him. John Kamena v. Wanner and Thompson, 698

a paper stating that he consents to sell See ANTE, pp. 225, 315, 351, 446, 549, such property for his indebtedness to

629, and (679, Corey v.).

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6. Although a judgment was recovered
for the amount of extra supplies, in
favor of the defendant in the action,
held, that he could insist upon retain
ing the lien of the mortgage until it
was paid, but was only entitled to the
usual legal remedies of a judgment
creditor.

3. The plaintiff had delivered to a third
party a bond and mortgage in a speci-
fied sum, to be held as security for the
payment of the contract price of stone 7.
to be supplied under a contract. The
defendants subsequently supplied other
stone under a separate agreement, and
the defendants alleged that it was
orally agreed that the mortgage should
stand as security for such further sup-
plies. The amount was ascertained
and reported by the referee. id.
Held, that, assuming the evidence satis-
factory, parol evidence of such an ex-
tension of the mortgage was inadmis-
sible.

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id.

4. The English and American authorities
bearing upon the point examined. The
doctrine of tacking, in its less technical
sense, and as between the debtor and
the creditor, not repugnant to justice.
The English cases of various classes :-
1st. Of bills to redeem, where the forfeit-
ure being absolute at law, the court
has refused its interference, except up-
on payment of the demands partly due.
This was held in the early cases, but
it is doubtful whether it is now the
law.

2d. Cases of mere equitable mortgages,
where the whole principle rests upon
the intention resulting from an advance
of money, and deposit of title-deeds
This peculiar equity appears to be un-

id.

The plaintiff purchased of the defend-
ants the one-sixth of 66 bales of cotton,
for which he paid them in full. The
purchase was made in Boston, under
an agreement that the cotton should
be delivered at New York, and be
there sold on account of all the owners,
and be divided between them. When
the cotton arrived in New York, the
defendants, instead of making a sale or
division, by mistake, and without the
consent or knowledge of the plaintiff,
sent it out of the state to a manufac
tory belonging to themselves in New
Jersey.

Held, that the agreement did not consti

tute all who were interested in the
cotton partners, so as to preclude the
plaintiff from maintaining an action
against the defendants alone for the
eleven bales, or their value, to which
he was entitled. The defendants, by
not delivering the cotton in New York,
according to their agreement, rendered
themselves separately liable. Ward v.
Gaunt,
257

8. Some time after the defendants had
discovered their mistake in sending
the cotton out of the state, they offered
to bring back and deliver to the plain
tiff the bales to which he was entitled,

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9.

And although the amount of alimony
rests in the sound discretion of the
court, the allowance ought not to be
made on a condition that the wife re-
lease all claim and right to dower. id.

10. It seems that on settling the final de-
cree, and settling the amount of ali-
mony, it would be proper to give leave
to apply to the court for any modifica-
tion of the allowance which the chang-
ing circumstances of the parties-and
especially the death of the husband,
whereby the title to dower would be-
come absolute-may render just. id

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