A.

ACCORD AND SATISFACTION.

1. It is well settled that an accord and
satisfaction by one of several obli-
gors or wrongdoers is a satisfaction
as to all; and a partial satisfaction
by one of several wrongdoers is a
satisfaction, pro tanto, as to all.
Merchants' Bank v. Curtiss, 317

2. In an action against the defendant
for fraud in the negotiation of a
loan from the plaintiff to H., upon
his bond and mortgage, and for
fraudulent representations and con-
cealments relative to the mortgaged
premises, it appeared that the nego-
tiation of the loan was conducted
by C., an attorney employed by the
defendant; that on the discovery of
the fraud, C., being charged there-
with, executed, together with one
T., a bond to the plaintiff, condi-
tioned for the payment of the mort-
gage debt; that C. subsequently
confessed judgment in favor of the
plaintiff for the amount then unpaid
upon the mortgage debt, and paid a
portion of such judgment. Held
that if there was any evidence to
connect C. with the fraud, and to
show a guilty complicity on his part,
it should have been submitted to
the jury, with instructions that if
they found the defendant and C.
were both engaged in practicing a
fraud upon the plaintiff, then the
sum paid by C. on his bond, and the
judgment recovered thereon, should

be allowed to the defendant in di-
minution of the damages, to that
amount.
ib

3. And that the jury should have been
further instructed that if they found

the defendant and C. together prac-
ticed the fraud upon the plaintiff,
and that upon C.'s being charged
with it, he and T. executed their
bond to the plaintiff in settlement
and satisfaction of the cause of ac-
tion then existing, the plaintiff was
not entitled to recover. BACON, J.
dissented.
ib

See EVIDENCE, 12.

ACCOUNT.

Although, ordinarily, an inquiry in
reference to the subject matter of
an accounting before a surrogate
would not be competent, in a col-
lateral proceeding; yet in a case
where the defendant was seeking
to invalidate a decree there made,
by proof that it was procured by
fraud, collusion and conspiracy, and
where similar evidence had already
been introduced; it was held that
the most liberal rule should have
been allowed to prevail, and any tes-
timony which might tend to throw
light upon the question of intent,
and the good faith of the parties,
should have been admitted.
People v. Townsend,

The
520

See EXECUTORS AND ADMINISTRATORS,
1, 2, 3, 5.

ACTION.

1. Plaintiffs, by their complaint, sought
to join a cause of action alleged to
exist in their favor, as the heirs at
law and legatees of Stephen G. with
a cause of action in their favor as
the legatees of Smith G.; two of
the defendants being executors of

ministrator with the will annexed
of Stephen G. And the defendants
were called upon to account for both
estates, although the parties proper
to an accounting under the one will
were not the same as those under
the other. Nor were the defendants
sought to be made liable under each
will for the same property, or in the
same character. The proportion of
interest, also, to which the plaintiffs,
or some of them, were entitled, so
far as they were legatees or inter-
ested under both wills, was entirely
different in the two cases. Held, on
demurrer, that there was a misjoin-
der of causes of action; the matters
not arising out of the same transac-
tion, or transactions connected with
the same subject of action, nor affect-
ing all the parties to the action.
Viall v. Mott,
208

2. Well settled rules, prior to the code,
forbade an attempt to settle in a
single action, matters so entirely
distinct and disconnected; and the
provisions of section 167 of the code
do not allow it.
ib

3. One aggrieved by a private nuisance
may have his action, or he may
abate the nuisance. A party sus-
taining a special injury from a pub-
lic or common nuisance may also
have his action, and in the like case
he may abate the nuisance. Har-
rower v. Ritson,
301

See INSURANCE, (FIRE,) 22, 24.
LANDLORD AND TENANT, 2, 3.
RAIL ROADS, 14.

RAIL ROAD COMPANIES, 1 to 6, 12.

ADMINISTRATION.

1. Where one dies without leaving a
child, father or brother him surviv-
ing, having made a will by which
he appointed his wife sole execu-
trix, and the executrix subsequently
dies, intestate, leaving assets of the
testator unadministered, it is com-
petent for the surrogate, upon the
application of a sister of the testa-
tor, to appoint her husband admin-
istrator cum testamento annexo, de
bonis non of the testator; and this
without citing any one to appear
and show cause, &c. Cobb v. Beards-
ley,

192

1. Where the plaintiffs deposited mon-
ey with the defendants, who were
bankers, at Chicago, and received
from them a certificate stating that
the plaintiffs had deposited in their
office "$1781.42, Ills. cy., payable
to the order of themselves" on the
return of the certificate; Held that
the fair construction of the terms
"Ills. cy.," if applied to the payment
of the certificate, was that the same
might be paid in bills of banks
which at the time of payment were
received and passed as ordinary cur-
rency in Illinois, in the usual trans-
actions of business; but that pay-
ment could not be made in the same
bills which were received by the de-
fendants. Hulbert v. Carver, 62

3. An agreement between B. and G.
H. recited that certain promissory
notes were to be executed by G. H.
and P. H. to B. and placed in the
hands of T., to be held by him until
certain criminal prosecutions against
G. H., then pending, should be " dis-
continued and ended," and then the
notes were to be delivered by T. to
B. A further condition on which
the notes were to be delivered to B.
was that he should not arrest G. H.,
or cause him to be arrested, on any
process whatever, but should cease
all proceedings against him. Notes
were executed in pursuance of this
agreement, and put into the hands
of T. In an action thereon, by a
subsequent holder; Held that in
effect both agreements were similar,
and that the object and intent of
both was to obstruct the course of
justice, for a pecuniary considera-
tion. Porter v. Havens,
343

8. The trustees of a literary institution
being engaged in erecting a build-
ing, the defendant requested them
to complete the same, and for the
purpose of enabling them to do so,
he subscribed a paper, by which he
agreed to pay to the institution $200,
in consideration of which he was
to receive eight shares of the cap-
tal stock of the institution. Upon
the faith of this promise expendi-
tures were incurred, and the build-
ing completed, to the defendant's
knowledge, and with his consent
and approval. Held, on demurrer,
that the agreement was upon a suf-
ficient consideration, and that an
action would lie, thereon. The

Where, upon appeal from a decree of
the surrogate made upon an appli-
cation for letters of administration,
it appears that the sole issue tried
was, whether the person to whom
the citation was addressed was or
was not the widow of the deceased;
and the evidence leaves the court in
doubt whether there was a marriage
between the deceased and the per-
son claiming to be his widow, it
will, especially where there is off-
spring from the alleged marriage,
recognized by the deceased as his,
order the case to be tried by a jury,
at the circuit. Patchen v. Devin, 430

3. The legislature has no right to di-

rect a municipal corporation to pay
a claim for damages for breach of a
contract, out of the funds or prop-
erty of such corporation, without a
submission of such claim to a judi-
cial tribunal.
ib

2. Thus a bond taken by the sheriff,
on the arrest of a defendant upon an
attachment issued in supplementary
proceedings, with only one surety,
is not within the purview of the stat-
ute prohibiting the taking of any
bond, &c. by a sheriff or other offi-
cer colore officii in any other case or
manner than such as are provided
by law.
ib

3. Such a bond is not utterly void as
forbidden by statute, or taken cor-
ruptly colore officii. It is irregular,
and the plaintiffs are not bound to
receive it. If they refuse to receive
it, they may hold the sheriff for an
escape of the prisoner.
ib

4. But if the plaintiff, on the failure of
the defendant to appear, obtains an
order for the assignment to him of
the bond, and for the issuing of a
further attachment, but fails to issue
the same, and the defendant is sur-
rendered by his bail, and is dis-
charged, the plaintiff will be held
to have waived the irregularities of
the sheriff's proceedings, and adopt-
ed his acts and the security which
he had taken, at least so far as to
excuse him from liability for an es-
cape.
ib

See EXECUTORS AND ADMINISTRA-
TORS, 4, 5.

BROOKLYN (CITY OF.)

1. The effect of the act of the legisla-
ture of March 31, 1848, as amended
in 1850, (Laws of 1848, ch. 156;
Laws of 1850, ch. 313,) authorizing
the owners of certain lands on the
East river in the city of Brooklyn
to erect, construct, build and main-
tain bulkheads or wharves on the
lands under water in front of their
lands, as far into the river as the
permanent water line established by
the act of 1836, was to convey and
confirm to such owners a title to the
lands under water in front of their
premises, as far as the exterior line
of 1836, or to the use of them for
piers or bulkheads, so far as the
state was concerned. Wetmore v.
The Atlantic White Lead Co., 70

2. And so far as any other individuals,

or the public at large, are concerned,
the act of March 31, 1848, must be
construed as conferring upon the

4. If there is no public highway run-
ning through the land so made by
the proprietors in front of their
premises, neither the public nor an
individual has a right to use the
wharves erected thereon, for the
purpose of reaching an adjacent
street, against the will of the owner,
on the ground that the wharves hav-
ing been erected upon ground cov-
ered with the waters of a navigable
river, cannot be appropriated to pri-
vate use, but must still continue a
highway.
ib

5. It is impossible, in the face of the
act of 1848, and of the act of 1836,
establishing a permanent bulkhead
line in front of the city of Brook-
lyn, to regard the appropriation of
the waters of the east river by
wharves erected by the property
owners mentioned in the first named
act, even as a purpresture; but if it
were so, it would not follow, as long
as the wharves were not a nuisance,
that a private individual could ei-
ther abate them, or enter upon them
without the consent of the owners.
Per EмOTT, J.

ib

6. In the absence of any pretense that
the channel, or the navigation, have
been injuriously affected by such
wharves, no right to abate or to pass
over them, can be asserted against
them as a nuisance.
ib

7. The acts of the legislature author-
ized an appropriation of the lands