DIGEST OF RECENT DECISIONS. Principal Cases in GREENLEAF'S REPORTS of Cases in the Supreme Court of Maine. Vol. 8. YERGER'S REPORTS of Cases in the Supreme Court of Tennessee. Vols. 1, 2 and 3. ACCOUNT. 1. (For mesne profits in equity.) The owner of land after a judg ment in his favor in ejectment, or when he obtains the possession by other means, can call upon the disseisor, in equity to account for the mesne profits of the land by him received. Nelson v. Allen & Harris, 1 Yerger, 360. 2. (Administrator's.) When an administrator's account is settled by commissioners appointed by the court, it will not be opened for alleged mistakes and errors in distributing the property, after the expiration of twelve years from the discovery of the supposed errors. A court of equity will not relieve after such lapse of time. Burton & wife v. Dickinson & others, 3 Yerger, 112. ACTION. 1. (Abatement by death of defendant in replevin.) Upon the death of the defendant in replevin, the suit abates, the administrator not being authorized to come in and defend. Merritt v. Lumbert, 8 Greenleaf. 128. 2. (By deputy sheriff against bailees of property attached.-Evidence.) A deputy sheriff, having attached personal property on mesne process, delivered it to third persons, who stipulated to keep it safely, and to see it forthcoming within thirty days after judgment in the suit in which it was attached. Upon the rendition of judgment, the term of office of the sheriff, and therefore of his deputy, having expired, the execution was placed in the hands of the new sheriff for collection, who, within the thirty days, demanded the property of the deputy who had attached it. It was held that the deputy, being thus made liable to the attaching creditor, might maintain an action for the property, against the bailees; and that the new sheriff was a competent witness for the plaintiff in the action. Brad bury v. Taylor, 8 Greenleaf, 130. 3. (Bond to pay award.) Where the parties entered into a submission to arbitration, pursuant to Stat. 1821, ch. 78, and the debtor also gave a bond to the creditor, conditioned to pay the sum awarded, in six months; but the report of the referees, though notified to the parties, was not made to the court holden next after the award, as the statute requires; yet this omission is no bar to an action on the bond. Small v. Connor, 8 Greenleaf, 165. 4. (Land sold under a void judgment.) Where land is sold under a void judgment, the purchaser, who has paid his money to the sheriff, may recover it from the plaintiff in the execution, whether it was all paid to him by the sheriff or not. Henderson v. Overton, 2 Yerger, 394. 5. (Note not yet due.) When it appears on the face of the record, that the action was brought before the bond or note sued on was due, the judgment will be arrested. Bell v. Bullion, 2 Yerger, 479. ACTION OF THE CASE. (Diversion of water from plaintiff's mill.) In an action of the case for diverting water from the plaintiff's mill, it is no defence that the mill stands within the limits of tide waters, and is therefore a public nuisance. Simpson v. Seavey, 8 Greenleaf, 139. ADVANCEMENT. 1. (Bond taken to father and son jointly.) Where the father paid the purchase money for land, and had the bond for title made to his son and himself jointly, this is an equitable advancement to the son of an undivided moiety. Thompson's Heirs v. Thompson's Devisees, 1 Yerger, 97. 2. (Father trustee for the son.) Where the father, in such case, procured the deed to be made to himself alone, he becomes a trustee of the legal estate for the son, for a moiety; and upon the death of the son his heirs, in equity, may divest a moiety of the legal estate out of the father. Ib. 3. (Hotchpot.) A testator devised all his real and personal estate to his children. After making his will, he acquired other real property, and then died; after his death his wife was delivered of a son. It was held, that before the devisees could entitle themselves to a share of the subsequently acquired real estate, they must bring into hotchpot the land devised to them. Vance v. Huling, 2 Yerger, 135. APPEAL. (When it lies.) An appeal will only lie from a final decree. Berryhill v. M'Kee & others, 3 Yerger, 157. APPRENTICE. · (Indenture.) An indenture of apprenticeship, executed by the father of a minor, but to which the minor was not a party, conveys no right to the custody of his person or labor; it is not binding upon him. Stringfield v. Heiskell, 2 Yerger, 546. ARBITRAMENT AND AWARD. 1. (Examination of parties.) Whether referees may lawfully examine the parties themselves before them, v. Hunnewell, 8 Greenleaf, 19. quære Putten 2. (Submission of question of law.) Where two parties submitted a question of betterments, popularly so termed, to referees, who were to determine as referees' whether the tenant was 'by law entitled' to claim betterments, and if so, to what amount; and then agreed to a written statement of facts, upon which the referees decided that the tenant was 'legally entitled' to betterments, to a certain amount;—it was held, in an action upon this award, that the question of law was definitively submitted to the referees; and that any mistake of law, on their part, was not open to further examination. Smith v. Thorndike, 8 Greenleaf, 119. See also Walker v. Sanborn, S Greenleaf, 288. ARREST. (Evidence of it.) Where the officer and execution debtor being together, the debtor said he had surrendered; and the officer thereupon remarked that he had appointed a third person to be his keeper; this was held to be sufficient evidence of an arrest. Strout v. Gooch, 8 Greenleaf, 127. ASSIGNEE. (Memorandum on a bond.) Where a memoranduni was made on a bond, executed for the purchase money of land, that the land was to be a lien or security for the payment of the bond. Held, that the assignee of the bond could enforce the lien in equity. Eskridge v. M Clure and Walker, 2 Yerger, 84. ASSIGNMENT. 1. (Notice to debtor sufficient to protect assignee.) In order to protect the assignee of a chose in action from the effect of any subsequent payment by the debtor to the assignor, it is sufficient if he give the debtor notice of the assignment, without exhibiting the security, or offering him any other evidence of the fact. Davenport v. Woolbridge, 8 Greenleaf, 17. 2. (Of mortgage and note over-due.) A note, and the mortgage given to secure the payment of it, having been assigned to a third person when over-due, in an action on the mortgage, brought by the assignee against the mortgagor, it was held that the latter might set up, in defence against the assignee, any payments made by him to the original mortgagee, prior to notice of the assignment. Lithgow v. Evans, 8 Greenleaf, 350. 3. (Mortgagee a competent witness for assignee.) The mortgagee is in such case a competent witness for the assignee, being properly released. And where the release was of all demands, it was held that this did not affect the validity of the assign. ment, which was absolute on its face, nor consequently, the plaintiff's right to recover; though the witness testified that the assignment was in fact intended as collateral security for the payment of a debt due to the assignee; the legal operation of the release being to vest the mortgage absolutely in the assignee, and to discharge his claim of indemnity against the assignor. Ib. 4. (Suit by dissenting creditor.) If goods be assigned in trust for the payment of debts, and the assignee be summoned as the trustee of the debtor, in a suit brought by a dissenting creditor the latter is to be preferred to such creditors as had not assented to the assignment prior to the service of his process. Copeland v. Weld, 8 Greenleaf, 411. 5. (Assent of preferred creditors presumed.) The assent of preferred creditors to an assignment for the payment of debts may well be presumed, their claims being fully provided for; that of other creditors must be expressed. lb. 6. (When purchaser from assignees is chargeable as trustee of the debtor.) Where goods were so assigned, which the trustees sold, taking the purchaser's notes on time, which were not yet payable, it was held that he was still chargeable for their value, as the trustee of the debtor, in a foreign attachment. lb. 7. (Whether assent may be presumed.) Whether, if a general assignment be made, for the equal benefit, pro rata, of all the creditors of the assignor, their assent to it may be presumed; — quare. 16. 8. (Verbal assent.) Whether a verbal assent to such assignment is sufficient; quære. Ib. 9. (Signature to one of the parts of a triplicate indenture.) Whether, if the written assent of the creditor be necessary, and the inden ture be made in triplicate, his signature to one of the parts is sufficient; - quære. Ib. ASSUMPSIT. 1. (No action for services constituting a good defence to an action on a note.) Where the promissor, in a note payable in specific articles, performed services for the holder, which were accepted in payment of the note; after which the holder sold it to a third person; it was held that the promissor could not maintain an action for the value of his services, they still constituting a good defence to an action on the note. Joy v. Foss, 8 Greenleaf, 455. - 2. (Tenant in common.) A tenant in common cannot in general sue his co-tenant in assumpsit, when the latter has received all the rents, &c. He must proceed by action of account or bill in equity. Terrel v. Murray, 2 Yerger, 384. ATTACHMENT. (Setting aside judgment.) When a judgment by default has been taken against a defendant, in attachment, the court may at any time during the term, set it aside upon defendant's replevying the property attached and offering to plead. Roberts & Phillips v. Stewart, 1 Yerger, 390. ATTORNEY. The courts have the 1. (Power of courts to strike from the roll.) power, without the intervention of a jury, to strike an attorney from the roll, for improper conduct as a member of the bar. Smith v. The State, 1 Yerger, 228. 2. (Acceptance of challenge to fight a duel.) It is good cause to strike an attorney from the Roll, that he accepted a challenge to fight a duel, or that he fought a duel in a sister state, and killed his antagonist. Ib. 3. (Counsel in aid of prosecution by the state.) The prosecutor for a state case has no authority to employ counsel to aid in the prosecution; the state may employ assisting counsel, and the counsel have the same right to appear that they would have in a civil cause. Exparte, B. Gillespie, 3 Yerger, 325. 4. (Where principal lives at a distance.) A person acting as an attorney for another, who lives at a distance, must be considered as such until matters in litigation are ended, unless the relation is put an end to; and the relation cannot be made to cease by the attorney only, when his refusing to be considered attorney will embarrass the adverse party. Love v. Hall, 3 Yerger, 408. |