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rules of the common law. Hough- | 16. The plaintiff shows a sufficient
ton v. 'Dodge et al.,

:326 title to the note to maintain an ac-

tion on it, although he bought it by
12. Where the evidence as to the dili- giving his own note for it, and, be-
gence of a Notary to find the makers

fore the second trial of the action,
of a note in order to demand its

took up his own note by assigning
payment at maturity from them

a judgment recovered in the action
personally, is free from conflict, the

itself on a former trial of it, (which
question of its sufficiency to estab-

judgment was reversed and a new
lish due diligence in that behalf is

trial ordered,) and notwithstanding
one of law. Adams v. Leland et

his vendors of the note and his as-


signees of such judgment are the

persons to whom the note was ori-
13. The evidence given on the trial of

ginally given...

this action, to establish due diligence
stated, considered and held "suffi- 17. A Mutual Insurance Company, for
cient to make a prima facie case of

the purpose of increasing its availa-
due diligence..

ble means, took up a subscription
by which its friends agreed to give

their notes for premiums in advance
14. Statements made to the Notary of insurances to be effected by them
by persons to whom he was referred

the subscription not to be binding
at the makers' last known place of until $300,000 was subscribed.
business, as having knowledge of When the subscription was under-
the makers, in answer to questions stood and believed to be made up,
as to where the makers resided or

no fraud being practised on the de-
could be found, held competent fendant, he gave his two notes for
upon the question of the Notary's

$500 each for the amount of his sub-
diligence to find the makers.

scription, and he effected actual in-

surance to an amount for which the
15. Where by an agreement between premiums were over $900, which

L. & A., of the one part, and the was charged to him against his
defendant N., of the other, the said two notes, and he, in addition
former sell their fixtures, &c., in a

thereto, took an open policy upon
coal-yard occupied by them, for a

which the premium considerably
specific sum, and take N.'s negotia-

exceeded the remaining $100, but
ble note, and also sell to N., for no other risks were indorsed thereon
other consideration, a lease of said except those included in the $900:
yard, and guarantee its renewal on Held, that the two notes for $500
certain terms, and agree, if a re- each were valid binding notes, al-
newal be not procured, " to refund though it afterwards appeared that
the one-half the loss on such fix- the whole $300,000 subscription
tures," and no renewal can be pro- was not made up; the notes having
cured, and a suit is brought on such been voluntarily given and there
note by one who is an indorsee of being no fraud on the part of the
it after its maturity, and there is no Company or its Agent. Brookman
fraud in procuring the note or in the v. Metcalf,

transaction on which it is founded,
the most that the defendant can 18. Transfer by such Company to a
have deducted from the recovery on bona fide holder for value, without
the note is one-half of the difference notice, valid though no previous
between the value of such fixtures resolution of the Board of Direc-
for the purposes of use under a re- tors..

newed lease and the value thereof
for the purpose of removal. Wiltsie 19. Where it is set up as a defense to
v. Northam,

421 a note that the maker had with



others subscribed in advance of pre- sequently given his notes for the
miums to be earned by an Insurance amount subscribed, he carinot provo let' Y.
Company, upon condition that the as a defense that the persons who
subscription should not be binding solicited the subscriptions verbally
until the sum of $300,000 was promised some of the subscribers
subscribed, and that the note in suit that they should not be bound
was afterwards given for his sub- thereby to give their notes, or that
scription by the defendant, induced they should have the privilege of
by a false and fraudulent represen,

substituting other notes, or other
tation that the whole amount had similar parol promise. (Slosson, J.,
been subscribed, the burden is upon dissented.)

the defendant of showing that such
subscription had not been made. 24. Whether, if proof of such parol pro-
The New York Exchange Company mise were otherwise admissible in
v. De Wolf,

.593 the face of the written subscription,

the defendant could give such evi-
20. In such case, where the defendant, dence under an answer, which

produces several of the original sub- alleged no such facts, but only that
scription books, and the proof is the requisite amount had not been
clear that one book used in taking subscribed. Qucere?.

subscriptions is not produced, and
other proof shows that, according to Vide Bills Of ExcHANGE.
computations made at the time, a

greater sum than $300,000 had been

subscribed, it is not error to charge

the jury that there is no sufficient

proof that the subscription was
not made up, to the required


21. Where the resolution of the Insu-

rance Company, under which the
subscription was taken, expressly

1. Of Chattels.
includes in the $300,000 a previous
subscription of $40,000, made, but 1. One who buys from a tortious or
not paid in, and the agreement, felonious possessor acquires no title
signed by the defendant, refers to though he acts in good faith, and
such resolution, that is notice to the pays value therefor. Anderson et al.
defendant of its contents, and it v. Nicholas,

is no defense that $300,000 was
not subscribed after the resolution 2. Purchaser is bound to accept goods
was passed, and that the $40,000 on tender, or will be liable for the
are necessary to make up the expenses of storage, &c., during the

id period of delay. Dibble et al. v.
Corbett et al.,

22. Where some of the subscriptions

were by other Insurance Companies
the Court cannot, without the pro-

2. Of Land.
duction of their charters, pronounce
such subscriptions unauthorized and 3. Where a deed absolute in form

id given and intended as a mortgage

is recorded as a deed, (the writing
23. The agreement for the subscrip- of defeasance being a separate in-

tion being in writing, whereby the strument and not recorded,) a bona
subscribers promise to advance their fide purchaser from the grantee,
notes, and the defendant having sub- without notice of the defeasance,

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May limit their common law liability

as carriers of passengers by express



Special contract, by accepting and

using a free pass or ticket with
special provisions printed thereon.
Boswell v. Hudson River Railroad




3. Where a valid contract is made
for the sale and delivery of the
wheat in a specified boat for cash;
and the buyer designates a vessel
into which the wheat is to be de-
livered and the seller accordingly
has it measured as is customary
in such cases and placed on board
of such vessel, and sends to the
buyer a duplicate measurer's return
or certificate of the quantity, and a
bill for the wheat at the contract
price, and the seller thereupon re-
quests payment from the buyer,
who answers that he will pay on
Saturday, (the second day there-
after,) and the seller makes no ob-
jection thereto; and where there is
no fraud in making such contract or
obtaining such delivery, a person in
good faith advancing money on the
same day to such buyer on the se-
curity of such wheat and on the
faith of his being the owner thereof
will obtain a valid title thereto as
against the seller to the extent of
such advance; although such buyer
fails after obtaining such advance
and thus becomes unable to pay to
the seller any part of the contract
price. Durbrow et al. v. McDonald
et al..





1. In an action to recover the pre-
mium stipulated in a policy of re-
insurance, the defendant cannot al-
ter the policy nor entitle himself to
an abatement from the premium by
proof of a usage and custom among
Însurance Companies to allow an
abatement from the stipulated pre-
mium nor by proof of a cot po-
raneous parol agreement to make
such abatement. St. Nicholas Insu-
rance Company v. Mercantile Mutual
Insurance Company,


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5. Where, in such a case, an advance
is made to such buyer upon the
understanding at the time of both
parties to it, that it is made on the
security of such wheat; and that
the person advancing should thence-
forth have the control of it and that
a bill of lading should be issued to
him as the shipper of it, making the
wheat deliverable to his order at
the port of destination, and such
bill of lading is immediately there-
after so issued and delivered; the
person so advancing from the time
thereof has the right of possession
and of control, as against the


security, assigns his account to a
third person who brings an action
thereon and the defendant therein
claims to set off one of such notes
which had been paid to the assign-
or, after the assignment but before
the suit was brought, and after-
wards the suit is settled by the
payment of ten per cent of the sum
sued for and costs, such settlement
is no bar to an action by the de-
fendant therein to recover from the
said assignor the amount of the
other note, although it was paid
pending the former action and be-
fore the settlement. Bates v. Cobb
et al.,


6. Evidence of other cotemporaneous
purchases by such buyer and of his
failure to pay therefor on the day
he agreed to pay, there being no
evidence that they were fraudulent
or that any representations were
made in negotiating the contract
for the wheat in question, is inad-


3. A settlement "in full of an ac-
count and demand sued upon in
this action" does not embrace any
matter not embraced in the contro-
versy as disclosed by the pleadings









(of an action, effect of.)
1. Settlement by officers of a corpo-
ration without authority, what
amounts to a ratification. Hough-
ton v. Dodge et al.,



1. In an action for taking goods by
an alleged transferree, the Sheriff

may show that he took the goods
under an attachment against the
transferror, and that the trans-
fer was made with intent to de-
fraud creditors, although the attach-
ing creditor has not recovered
judgment. Thayer v. Willet, Sher-

2. Vide LEASE. (Sheriff's sale and con-

veyance terminates lease.) ....619



1 Revised Statutes, 590, $ 6. Ef-

fect of transfer of stock pledged
to a moneyed corporation, and
omission to sell the same.
Butterworth, Receiver, v. Ken-


2. Where a party who claims a bal-
ance of account against another,
and holds two notes as collateral

Bosw.-Vol. V. 96

1 Revised Statutes, 591, 8 7.

Transfer to moneyed corpora-
tion not valid, unless it be to

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1 Revised Statutes, 591, § 9.

Transfers by moneyed corpora-
ration when insolvent or in
contemplation of insolvency
with intent to give a preference.
Holbrook v. Basset, ..., 147
Nelson et al. v. Wellington,.178

1 Revised Statutes, 756, § 3.

Deed absolute in form, intend-
ed as a mortgage, but defea-
sance not recorded. Stoddard
v. Rotton,



(To personal property.)
1. One who has either tortiously, or
feloniously, without the knowledge
or consent of the owner, obtained
the possession of a certificate of
stock having a power of attorney in
blank annexed thereto, cannot con-
fer title on a third person by selling
and delivering the same for a valua-
ble consideration, although the pur-
chaser acts in good faith, believing
he is dealing with one who owns or
has due authority to sell the stock.
Anderson et al. v. Nicholas, ....121





2. One who receives such a certificate
and power, and sells the same or
causes the same to be sold, by
direction of one whom he supposes
to be the owner or to have due au-
thority, is liable to the actual owner
for a conversion of the stock, not-
withstanding he has paid over the
proceeds to the person employing




Purchase of spurious stock,.506



City of New York liable for damages

for changing the grade of a street
when not done according to law. 414

1. Of a bill of exchange transferred
as security for an antecedent debt
by one who has no authority. Scott
v. Ocean Bank, ..


Vide BOND.


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