SHIPPING.

I. (Detention of vessel.) The owner of a minor part of a vessel having refused to consent to a proposed voyage, his share was appraised, and a bond given to him by the other owners, conditioned that at the end of the voyage, which was to the West Indies and back, they would restore him his share in the vessel, unimpaired, or, if she should be lost, would pay him. the appraised value. Instead of returning her directly from the West Indies, they employed her several months in trade from thence to southern ports and back, and thence home. Hereupon it was held, that the obligee might maintain an action on the bond for the detention of the vessel; and that the rate for which she might have been chartered was a reasonable rule for the estimation of damages. Rodick v. Hinckley, 8 Greenleaf, 274.

2. (Authority of master to borrow.) The master of a vessel, being in a foreign port, has authority to borrow money on the credit of his owner for the necessities of the voyage, though the necessity arose from his own misconduct. Descadillas v. Harris, 8 Greenleaf, 298.

SLAVES.

(Executory devise.) A devise to slaves, or for the use of slaves. when set free, is valid as an executory devise. Hope v. Johnson, 2 Yerger, 123.

STATUTES.

(Penalties.) Subsequent statutes which add accumulative penalties, or institute new modes of proceeding, do not repeal former penalties, without negative words. Bennet v. The State, 2 Yerger, 472.

TENANTS IN COMMON.

1. (Several liability.) If one of two tenants in common of a mill .use it to the nuisance of a stranger, the other owner, not actually participating in the wrong, is not liable. Simpson v. Seavey, 8 Greenleaf, 138.

2. Thus where four owned a saw-mill, in the body of which three of them erected a lath-mill for their separate use, the rubbish thrown from which obstructed the mills below, it was held, in an action of the case against all the owners of the saw-mill for this injury, that the fourth owner, having no interest in the lath-mill, was not liable. Ib.

3. (When they may be jointly sued.) If two persons own separate saws in the same mill, under each of which they severally

erect separate lath-mills, for their several use, the rubbish thrown from which becomes a nuisance to the mills below; whether they can be jointly sued for this nuisance, dubitatur. Ib.

TOWNS.

(May release debts.) It is competent for a town, in its corporate capacity, by a vote of the majority, to release a debt, as well as to contract one. Ford v. Clough, 8 Greenleaf, 334. TRESPASS.

1. (Where court has no jurisdiction.) If the court rendering the judgment has no jurisdiction of the cause, the party, the officer, and all assisting in the execution of such judgment, are trespassers. Stewart v. Roberts, 1 Yerger, 387. 2. (Want of jurisdiction.) A obtained a decree against B, and was put in possession of the land, under it. He leased to C, who held possession for three years; the decree was afterwards reversed for want of jurisdiction in the court rendering it: held, that C could not be sued as a trespasser. Waller v.

Condray, 2 Yerger, 171.

TRUST AND TRUSTEE. 1. (Contract voidable.) If a trustee, authorized to sell, enter into partnership with a third person, and contracts and conveys the trust fund to the partnership of which he is a member, the contract is voidable, and can be set aside by the cestui que trust, though a fair price was given. Armstrong's heirs v. Campbell, 3 Yerger, 201.

2. (Abandonment of a trust fund.) In order to constitute an abandonment, or waiver of a trust fund, there must be a clear, unequivocal, decisive act of the party to be benefited, evincing a determination not to accept the benefit designed for him. Breedlove & others v. Stump & others, 3 Yerger, 258.

TRUSTS.

(4 state may be trustee in equity.) A state may be a trustee.in equity; and, under the acts of 1780 and 1782, the state of North Carolina holds the legal estate in fee simple, as express trustee for the officers and soldiers; and can do no act to prejudice the cestui que trust, either by transcending the powers of the trust, or failing to perform what the office of trustee requires to be performed to insure the proper execution of the trust. Pinson & Harkins v. Ivey, 2 Yerger, 296. USURY.

1. (Note void.) A is indebted to B; A loans money at usurious interest to C; B, not knowing of the usury, agrees to receive

the note of C in payment of his debt from A, and C executes his note, which is indorsed to B: held, that the note is usurious and void in the hands of B. Tait's executors v. Hannum, 2 Yerger, 350.

2. (Renewal of note.) A note was made and usurious interest reserved thereon, previous to the passage of the act of 1819, ch. 32, but it was renewed subsequent to the act: held, that the latter note was binding for the original principal and interest. Tilford v. Sumner's executors, 2 Yerger, 255.

A

3. (Discount.) Where notes are made and indorsed, to be discounted at a greater rate of interest than is allowed by law, they are usurious. Dews v. Eastham, 2 Yerger, 463. 4. (Loan of bank notes selling at discount.) A loaned to B $5000 in the notes of a bank at their nominal value, which notes were then selling at a discount of 25 per cent.; B was to repay the $5000 in sixty days in sound currency-held, that this is usury between A and B. Nashville Bank v. Hays & Grundy, 1 Yerger, 243.

5. A note is executed for $607 payable in certain bank notesit is afterwards agreed to extend the time of payment, and a note is executed for $607 payable in specie, the bank notes were only worth about $456-held, that this is usury. Lawrence v. Morrison, 1 Yerger, 444.

VENDOR AND VENDEE.

1. (Rents and profits.) Where land is sold subject to be re-purchased by the vendor, by a specified day, which is done, the vendee is entitled to the rents and profits accruing in the intermediate time. Bennet v. Holt, 2 Yerger, 6.

2. (Mortgage.) Where there is a great disparity in the money advanced, and the property conveyed; where possession is retained by the vendor; where there is no price fixed; where there is no covenant to repay the money, these are all circumstances tending to prove the conveyance is a security or mortgage. lb.

3. (Recision of the contract on account of fraud.) Fraud, or misrepresentation of any material circumstance on the part of the vendor, in relation to the land sold, will authorize a recision of the contract. Donelson v. Weakley & others, 3 Yerger, 178.

VERDICT.

(When a bar.) A verdict of acquittal or conviction upon a good indictment in cases affecting life or limb, will be a bar to a 39

VOL. XII.-NO. XXIV.

subsequent prosecution for the same offence, although no judg ment was ever entered upon it. The State v. Norvell, 2 Yerger, 24.

WATER-COURSE.

1. (Right to use the water.) The right to use the water of a stream for domestic purposes, watering cattle, and irrigation, is to be so exercised as not essentially to diminish, or unreasonably to detain the water. And the right of using it for this latter purpose will not justify the taking of water for other purposes, to the injury of other proprietors. Blanchard v. Baker, 8 Greenleaf, 253.

2. (Diversion of water.) In an action of the case for diverting a water-course, if the unlawful diversion be proved, the plaintiff is entitled to recover, without proof of actual damage. lb. 3. (Occupancy.) Whether aquatic rights are acquired by mere prior occupancy, not continued for twenty years; — quære. lb. WITNESS.

1. (Bargainor.) The bargainor in a deed is an admissible witness to prove his own deed void as having been made to defraud his creditors. Calloway v. Willie's lessee, 2 Yerger, 1. 2. (Attendance pay.) A person summoned as a witness is entitled to his attendance pay, although he is a party in another suit, which necessarily compelled his attendance. Hopkins v. Waterhouse, 2 Yerger, 323.

3. (Corporation.) In questions respecting the rights and immu nities of a corporation, individuals who are not personally interested, though members of the corporation, are competent witnesses for the corporation. Mayor and Aldermen of Jonesboro' v. M'Kee, 2 Yerger, 167.

4. (Attendance pay.) Witnesses attending without being subpœnaed, are not entitled to prove their attendance, and have it taxed in the bill of costs. Hopkins v. Waterhouse, 2 Yerger, 230.

5. (Competency.) One of several persons, jointly indicted for a riot, although he has pleaded and defended separately, is not a competent witness for his co-defendants. The State v. Mooney & others, 1 Yerger, 431.

6. (Competency.) When defendants are jointly indicted for a misdemeanor, they cannot be witnesses for or against each other, until discharged from the prosecution or convicted. lb.

DIGEST OF ENGLISH CASES.

COMMON LAW.

Comprising 4 Barn. & Adol. Part 4; 5 Barn. & Adol. Part 1; 2 Neville & Manning, Part 3; 10 Bing. Part 2; 3 Moore & Scott, Part 3; 1 Crompt. & Meeson, Part 5; 3 Tyrwhitt, Part 3; and a selection from 6 Carr. & Payne, Part 1-all Cases included in former Digests being omitted. AMENDMENT.

An instrument running-three months after date I pay to A. B. &c.' was declared on as a bill of exchange; the judge (the cause being undefended) allowed the declaration to be amended by stating it as a promissory note; and directed also a corres ponding amendment in an order which had been obtained for admitting the hand-writing of the defendant and the indorsers. Moilliett v. Powell, 6 C. & P. 233.

ATTORNEY.

1. (Joint retainer.) If a party employ two attorneys, partners, to manage a suit for him in a court of which one of them only is an attorney and alone does the business there, both may sue him in the common form for the bill of costs. And if there be evidence aliunde of a contract with both, it is not conclusive on the other side that the retainer was given to the latter attorney only, and that he only was mentioned in the rule for taxing costs. (1 Tyr. 274; 1 C. & J. 345'; 2 B. & B. 11.) Arden v. Tucker, 4 B. & Ad. 815. 2. (Lien on deeds.) An intended mortgagor delivers to the intended mortgagee certain deeds for the purpose of investigating the title to the property; the latter hands them to his attorney for that purpose, and he prepares the mortgage. The attorney has no lien upon the deeds against the mortgagor for his costs of preparing the mortgage. (4 Taunt. 807.) Pratt v. Vizard, 2 N. & M. 455.

BILL OF EXCHANGE.

1. (Notice of dishonor, waiver of.) A bill of exchange was dishonored in London on the 29th May. On the same day the clerk of the drawer saw the last indorser in Yorkshire, and a