The owner

v. Freeman, 4 Id. 155, and Barker v. Bates, 23 Id. 678, and note. of upland and of flats adjoining, may convey them separately, and the ques tion as to whether, by a conveyance of the upland, the adjacent flats pass as appurtenant, depends upon the intention as ascertained from the terms employed in the conveyance: Barker v. Bates, 23 Id. 678. In Cominonwealth v. Alger, 7 Cush. 79; Porter v. Sullivan, 7 Gray, 445; Wonson v. Wonson, 14 Allen, 79; and Boston v. Richardson, 105 Mass. 358, the principal case is cited to the point, that the presumption is that the title to flats on the seashore fol lows that of the adjacent upland. But in Commonwealth v. Alger, 7 Cush 79, it is further said that the ownership of flats under the colony ordinance i subject to the general right of navigation in the public until such flats ar built upon.

MANNER OF RUNNING DIVISION LINES THROUGH FLATS: See Emerson v. Taylor, 23 Am. Dec. 531, and note. In Wonson v. Wonson, 14 Allen, 79, the principal case is cited to the point that wherever it is practicable, the division lines of adjacent proprietors of upland and adjoining flats are to be projected so as to give each proprietor the same width at low-water mark as at highwater mark. But in Curtis v. Francis, 9 Cush. 442, it is said, also referring to the principal case, that it is well understood that in certain localities the side lines of upland can not be continued in the same direction through the flats. The particular rule of division adopted in Valentine v. Piper, is noticed with approval in Gerrish v. Gary, 120 Mass. 134, and is adopted in Piper v. Richardson, 9 Metc. 156, 158, and Boston v. Richardson, 13 Allen, 162, which related to land in the same locality.

UNRECORDED Deed is Valid and EFFECTUAL against the grantor and his heirs: White v. Loring. 24 Pick. 322, citing Valentine v. Piper.

RICE v. GOVE.

[22 PICKERING, 158.]

AGENT IS A COMPETENT WITNESS TO PROVE HIS AUTHORITY to execute a note for the principal.

FORM OF EXECUTION OF A SIMPLE CONTRACT BY AN AGENT is immaterial if it indicate a ministerial act on the agent's part.

NOTE SIGNED "P. & J. FOR G.," THOUGH THE FORM IS "WE JOINTLY AND SEV ERALLY PROMISE," is nevertheless the note of G.

ASSUMPSIT upon three notes, containing a joint and several promise, and signed "Patten & Johnson for Ira Gove." Gove denied the authority of Patten and Johnson to execute notes as his agents. The plaintiff offered the deposition of Patten to prove his authority. The defendant objected to its admission on the ground of interest; the objection was overruled, and the question reserved for the consideration of the court. Verdict for the plaintiff.

Codman, for the plaintiff.
Chandler, contra.

By Court, DEWEY, J. The exception to the admission of the deposition of Patten, on the ground of his incompetency as a witness in this case, can not be sustained. The general principle, that the testimony of agents and servants may be given without a release, is a very familiar one, and is not controverted by the counsel for the defendant; but he denies the competency of one professing to have acted as an agent, to establish the fact of his authority by his own testimony. The principle as found in the elementary books, as well as in the reported cases, seems to be broad enough to support the position, that in an action against the principal, the authority of the agent to act, may be proved by the agent himself: Paley on Agency, 212; 1 Ph. Ev. 79; Ilderton v. Atkinson, 7 T. R. 480; and Evans v. Williams, cited in a note to the preceding case. These authorities directly affirm the competency of the agent to prove his agency. The principle of the rule as stated, is this, that in any event, the witness is indifferent in point of interest, being liable to account with the defendant if he received the money, as agent, and to the plaintiff, if he did not so receive it. The case of Shiras v. Morris, 8 Cow. 80,' which was cited by the defendant, differs from the present in the fact, that the bill in that case was drawn by the witness under his own name, without any addition to his signature indicating his promise to be in the capacity of agent. In the present case the evidence is not offered to vary or control the written contract, but comes in aid of it.

The second objection taken to the right of the plaintiff, to recover in this action, is, that the several notes of hand, in the form in which they were drawn, are the promissory notes of the agents and not of the principal. It is undoubtedly true, that this action can not be maintained against the defendant, if the notes, on the face of them, clearly purport to be the notes of Patten & Johnson. It is of no consequence, that they were agents of the defendant, and were authorized by him to execute notes binding on him, if in the present case they have, by the terms of their contract, made it personal and obligatory on themselves.

The particular form of executing a contract not under seal, by an agent, is not material, if it indicate a ministerial act on the part of the agent. It becomes necessary, therefore, to inquire whether from the notes themselves it appears that the signers were giving form and effect to a promise of the prin cipal, or superadding a personal obligation on the part of the

1. 8 Cow. GO.

agents. Upon referring to the notes offered in evidence, it will be seen, that one of the leading circumstances usually indicating an act to have been done by an agent ministerially and not with the purpose of making a personal contract, exists here. The form of the execution of the instrument, is that of an act done in behalf of another. The notes are signed "Patten & Johnson for Ira Gove." This, in a contract not under seal, is clearly a good execution of the notes for the purpose of binding the principal. The only doubt in the present case arises from the introduction of the words "jointly and severally," in the notes. These words, it is said, indicate a personal promise by Patten & Johnson, and can have no proper application to a promise by the defendant alone. If there were not other words in the contract indicating more strongly the purpose to bind the defendant than these do the contrary design, perhaps the words "jointly and severally," should control the construction to be given to these notes. But we think that it may be fairly urged, that the form of the signature of these notes so clearly manifests the purpose to be the execution of a contract binding solely upon the defendant, that if either is to be rejected as surplusage and of no effect, it should be the words "jointly and severally."

The case of Bradlee v. Boston Glass Manufactory, 16 Pick. 347, is supposed by the counsel for the defendant to bear strongly upon the question. It does so upon the effect to be given to the words "jointly and severally," as used in the body of these notes; but upon a particular examination of the facts of that case it will be seen, that the signatures to that contract were by the individual names of those who were alleged to have acted as agents, and were accompanied with no designation of any agency annexed to their names, the only reference to any such agency being found, if anywhere, in the body of the notes. It also further appeared, that the plaintiff had recognized it as the personal contract of the signers, and by a previous suit at law had recovered judgment against the individuals who executed the note, declaring upon their personal contract. These circumstances, in connection with the form of the promise, were considered by the court as sufficient to authorize them to hold the contract to be properly that of the signers of the note, and not of the corporation attempted to be charged as principal. On the other hand, as presenting a case of the application of the rule, that where the form of the execution of the contract clearly indicates it to be done in behalf of another person, the court must give it the construction, that it is not the personal

contract of the signers, is the case of Ballou v. Talbot, 16 Mass. 461 [8 Am. Dec. 146.]

The case at bar has strong features in common with both the cases cited. The promise is made "jointly and severally," but it is made "for Ira Gove." The question is, which of them should control, in giving legal effect to the contract. It is the opinion of the majority of the members of the court, that giving a proper construction to the entire contract, the legal inference is, that it was not intended to be a contract by Patten & Johnson in their individual capacity, but as agents of Ira Gove; and it must therefore be considered as the promise of the defendant, and as such binding on him.

Judgment on the verdict.

AGENT IS COMPETENT WITNESS TO PROVE HIS OWN AUTHORITY: See McDowell v. Simpson, 27 Am. Dec. 338.

FORM OF EXECUTION OF CONTRACT BY AGENT.—The principal case is cited in Abbey v. Chase, 6 Cush. 56, to the point, that the principal and not the agent is bound on a simple contract executed by an authorized agent, where the intention of the agent to bind is known; in Bank of Newbury v. Baldwin, 1 Cliff. 522, as sustaining the proposition, that one who makes and signs a note for a corporation, and adds a description of the character in which he signs it, may rebut any presumption of liability by proof that he was agent of the corporation; and in Barlow v. Congregational Society, 8 Allen, 463, to the effect, that a note made by an agent without naming his principal in the body of it, but signed "A. B. for C. D.," is the note of C. D., the principal. On the point as to who is liable when one party signs as agent for another, see Long v. Colburn, 6 Am. Dec. 160; Garrison v. Combs, 22 Id. 123; Rossiter v. Rossiter, 24 Id. 62; and Welsh v. Usher, 29 Id. 63. The principal case is referred to with approval in Morell v. Codding, 4 Allen, 404, but a distinction drawn between it and a case where the agency does not appear from the signature.

REYNOLDS v. OCEAN INS. Co.

[22 PICKERING, 191.]

GENERAL AVERAGE CHARGES NOT INCLUDED IN PARTIAL LOSS.-In estimating the damages under a provision in a marine policy that there shall be no right of abandonment unless, on adjustment as of a partial loss, the sum to be paid by the insurer equals one half the agreed value of the vessel, general average charges are not included.

GENERAL AVERAGE COVERS A LOSS OCCASIONED BY VOLUNTARILY CUTTING the cables of a vessel at anchor and running her ashore, as the best means of saving life and property, such vessel being in imminent peril with every probability that she will soon sink or part her cables and drive ashore if the cables are not cut, and, therefore, the expense of getting the vessel off is not to be included in computing the damage for the purpose of determining whether there has been such a technical total loss as to warrant abandonment.

CONSTRUCTIVE ACCEPTANCE OF ABANDONMENT, WHAT IS NOT.-Where insurers, having refused to accept an abandonment of a vessel cast ashore, take possession of her with the real and declared purpose of repairing and restoring her to the assured, and do, in good faith and with reasonable diligence, make full and substantial repairs which they, in good faith, believe sufficient to restore her to her former condition, and then tender her to the owners, who make no objection to the sufficiency of the repairs, they are bound to accept her, and the abandonment shall not be deemed accepted though there are deficiencies in the repairs. ASSURED MAY RECOVER FOR DEFICIENCIES IN REPAIRS, notwithstanding his acceptance of the insured vessel from the insurers as having been fully repaired, after being cast ashore, where such deficiencies are subse quently discovered.

INSURERS' FAILURE FULLY TO REPAIR AND RE-EQUIP an injured vessel in good faith, and with reasonable diligence after taking possession of her for that purpose, having refused an abandonment, or their refusal or unreasonable neglect to make good defects in the repairs or equipment, which are pointed out by the owner on their tendering the vessel to him, renders the tender ineffectual, and the abandonment is to be deemed accepted.

ABANDONMENT BY ONE JOINT OWNER WHO HAS INSURED in his own name "for whom it may concern," is good prima facie where there is no evidence of dissent by co-owners.

WHETHER ABANDONMENT IS MADE IN A REASONABLE TIME is a mixed question of law and fact, to be decided by the jury.

IT IS EVIDENCE TENDING TO SHOW AN ABANDONMENT SEASONABLE, though delayed for a few days after the first information of a loss, where the jury are satisfied that the delay arose from uncertainty as to the vessel's condition, and was for more definite information and not for speculative purposes; that the vessel was stranded and not bilged; that delay increased the probability that she could not be got off, and that the loss continued total to the time of abandonment.

ACTION on a policy of insurance. On December 19, 1836, plaintiff Reynolds insured the brig Gem in the sum of six thousand five hundred dollars for one year, for whom it might concern. The policy provided that the assured should not have the right of abandonment for the amount of damage, unless, upon an adjustment as of a partial loss, the sum to be paid by the underwriters should equal half the agreed value of the brig. The plaintiffs claimed for a total loss. The cause was tried before Shaw, C. J. On April 9, 1837, the vessel, having struck bottom, was brought to anchor; and as she leaked and was in danger of going down, the captain slipped her cable and she went ashore. Part of her cargo having been removed, the defendants got her off and she was taken to Philadelphia. Thero the defendants repaired her, and she was then tendered to the plaintiff. The expense of getting her off was one thousand five bundred dollars and the cost of repairing two thousand nine