C, an owner of land, conveyed it by a
deed, absolute on its face, to W, and
W at the same time executed and
delivered to C a written defeasance
which made the deed, as between
the parties to it, a mortgage; the
deed was recorded as a deed, and
the defeasance was not recorded.
W subsequently conveyed in fee to
the plaintiff, who paid the agreed
price, and recorded his deed, without
having any notice of the defeasance.

1. Held, that the plaintiff, having
bought in actual good faith, acquired
a title perfect as against C, and as
against the defendant, C's remote
grantee under deeds subsequent to
the plaintiff's deed, notwithstanding
the defendant took his deed and paid
the consideration without actual no-
tice of the deed from W to the plain-
tiff, or of the defeasance. Stoddard
v. Rotton,...
..378

2. That 1 Revised Statutes, (p. 756,
§3,) which is to the effect that a
grantee in a deed intended as a
mortgage, unless he records it as
a mortgage, and also records there-
with and at the same time the writ-
ing operating as a defeasance of the
same, shall not derive any advantage
from the recording thereof, cannot
be construed as operating to defeat
the title which the plaintiff thus ac-
quired from W, ..

.id

3. Held, also, that the defendant could
not be treated as a mortgagee in
possession, by force of the deed from
his immediate grantor, although such
grantor, subsequent to receiving a

2. Where a manufacturing Company
was incorporated "for the purpose
of carrying on the business of cut-
ting, sawing and dressing stone of
all kinds, and the business of stone
cutting in all its branches," and its
by-laws provide that the Secretary,
"in the prosecution of the business,
may make, draw, indorse and accept
notes and bills of exchange," such
Secretary has no authority to accept
a bill for the accommodation of the
drawer, drawn and used to raise
money for the use of the latter. The
Farmers' and Mechanics' Bank v.
The Empire Stone Dressing Compa-
ny,

.275

3. Nor has the President or Trustee
or Manager of its affairs, any such
authority by mere virtue of his office
or agency.
id

4. The Company is not liable, upon
such an accommodation bill, so drawn
and accepted by the Secretary, by
direction of such President or Mana-
ger, to a holder who discounted the
same for the drawer before it was
accepted, notwithstanding he recei-
ved the bill in good faith, and paid
value therefor in the expectation that
it would be accepted, and in igno-
rance of the fact that it was drawn
for the accommodation of the drawer
and that the Company had no funds
of the drawer....
...id

A corporation was created for the
purpose of receiving on deposit
sums offered therefor by mariners,
tradesmen, clerks, mechanics, labor-
ers, minors, servants and others, and
investing the same in State or city
stocks or bonds, or loaning the same
on such securities, or on bond and
mortgage on real estate, for the use
and advantage of the depositors;
the business of the corporation to
be managed by a Board of Trustees,
who were authorized to appoint a
President and two Vice-Presidents;
and power was given to hold only.
such real estate as was necessary
for the transaction of its business,
and such as should be purchased at
sales upon judgments or decrees ob-
tained for money so loaned, and the
corporation was prohibited dealing
in or buying or selling any goods,
wares or merchandise. The by-laws
provided for monthly meetings of
the Trustees, and conferred the su-
perintendence and management
upon seven Trustees during the
interval. Upon the foreclosure of
a mortgage, held by such corpora-
tion, upon a manufactory, and a sale
of the mortgaged premises, the cor-
poration became the purchaser.
Thereafter, and after the corporation
had taken possession, one of the
Vice-Presidents, without the autho-
rity of the Trustees, forbade the
Bosw.-VOL. V.

92

1. In an action by an assignee of
one of three co-partners against the
other two for an accounting, the
defendants cannot set up as a coun-
terclaim that in a transaction be-
tween them, and the retiring partner
disconnected from the partnership
business, they sold him goods and
took therefor the notes of a third
person, which on a compromise and
settlement with the latter, after dis-
covering his insolvency, they sur-
rendered to him; and that they
were induced by the fraudulent
representations of the plaintiff's
assignor as to the solvency and
credit of such third person to take
the notes, whereby they were
damaged. Such a cause of action
is not one against the plaintiff, and
for that reason is not a counterclaim
as defined by the Code. Boyd v.
Foot & Cole,.
110
2. In an action on a note given for
fixtures in a coal yard, under an
agreement that if the lease be not

renewed the vendor will refund
half the loss on the fixtures, the
maker of the note may counter-
claim such loss and it appearing that
the fixtures have not been sold,
the amount to be allowed as a de-
duction from the note will be one-
half the difference between the
value of such fixtures for use under
a renewed lease and their value for

the purpose of removal. Wiltsie v.
Northam,..
.421

Vide MONEYED CORPORATION, 1, 13.
PLEADINGS, 13, 14.
PROMISSORY NOTES.

COVENANT.

1. In an action for a breach of the
covenant of seizin in a conveyance
of land, where the breach was as-
signed in the complaint by negati-
ving the words of the covenant, and
the answer averred the contrary,
(viz., that the defendant was, at,
&c., the true and lawful owner, &c.,)
in the exact words of the covenant:
Held, that the defendant held the
affirmative of the issue and the bur-
den of proof, and must prove his
title. Accordingly, where, upon the
trial of such an issue, neither party
offers any evidence, the plaintiff is
entitled to judgment. Potter v.
Kitchen,
...566

CUSTOM.

Vide USAGE.

D

DAMAGES.

LAT81 SCHOOL

BRARY.

3. Such an agreement implies, though,
it does not in terms contain,
mise of each of the creditor signing
it, to and with every other of such
creditors, to accept the composition
stipulated for, and to abstain from
all efforts to collect more.......

4. Where such an agreement bears
date December 15, 1857, and pro-
vides that the notes to be accepted
in satisfaction shall be for equal
amounts at six, nine and twelve
months, from January 1, 1858, it is
not indispensable to the continuing
validity of the agreement that such
notes be delivered or tendered on
said 1st day of January. If no de-
mand of them be made, they must
be tendered within a reasonable
time.
...id

5. An attaching creditor may im-
peach a fraudulent transfer, by his
debtor, of his personal property.
Thayer v. Willet, Sheriff,......344

DEED.

1. Deed recorded as a deed, intended
as a mortgage, but accompanied by
a defeasance which is not recorded,
will protect a purchaser from the
grantee, who buys in good faith
without notice of the defeasance,
against the grantor (or mortgagor)
and those claiming under him. Stod-
dard v. Rotton,...
..478

2. In action in covenant of seizin,
the defendant alleging seizin has
the burden of proof. Potter v.
Kitchen,
..566

DEFENSE.

Vide BANK CHECK.

COMMON CARRIER, 9.
CORPORATION, 8, 9.
COUNTERCLAIM.

MONEYED CORPORATION, 13.

PLEADINGS-ANSWER.
PLEADINGS-DEMURRER.

DELIVERY.

Vide SALE, 1, 3, 4.

DEMAND AND REFUSAL.
Vide CONVERSION.

DEBTOR AND CREDITOR.

DEMURRER.

Vide PLEADINGS, 6, 8, 9 to 14.

DISCOVERY.

Vide PRACTICE, title DISCOVERY.

DIVORCE.

Vide ALIMONY.

E

EJECTMENT.

Vide CONVEYENCE, 1, 2, 3.

EQUITABLE ASSIGNMENT.
Vide INSURANCE, 7.

EVIDENCE.

1. Where, in an action to recover
freight for carrying property in a
certain vessel and on a voyage
named, from New York to San
Francisco, the defense is, in part,
that it was not carried under such
a contract as the bill of lading signed
by the master expressed; but was
carried under a special contract made

between the shipper and one R. R.
Hunter; and that Hunter was duly
authorized by the owners to make
such contract; an admission at the
trial that an advertisement (which
was produced) was published prior
to making such contract, daily in
two newspapers (named) at the port
where such merchandise was ship-
ped, for a period of six weeks; sta-
ting (inter alia) that persons desiring
freight should apply to R. R. Hun-
ter, 80 Broadway; J. Belknap Smith,
88 Wall street; or to the captain or
agent on board at Pier 4, North
river," imports that such advertise-
ment was published by authority of
the owners of the vessel; and that
each of the persons named in it was
authorized to make contracts for
the carrying of goods in the vessel
on that voyage. Trask v. Jones et

al.....

..62