1. Under an attachment issued in pur- suance of the act against abscond- ing and absent debtors, the sheriff may take and sell property of which the absconding debtor is a tenant in common with another, though it be in the possession of his co-tenant. Mersereau v. Norton, 179 2. But the sheriff can sell only the un- divided moiety or interest of the debtor, and the purchaser at such sale becomes a tenant in common with the other co-tenant, who can- not, therefore, maintain trespass or trover against him, the tenancy in common not being severed or de- stroyed by the sale.
leed by feme covert, vide COLONIAL LAWS, 3. DEED, I. 1, 2, 3.
1. Where the plaintiff has an entire de- mand, he cannot divide it into dis- tinct parts, and bring separate ac-
tions for each; as, on an entire contract of sale of goods, he cannot maintain an action for one part of the goods sold, and another action for another part. Smith v. Jones, 229
2. So, where there has been a trespass or conversion by any single indi- visible act, in relation to several chattels, the plaintiff cannot split his claim for damages, by bringing separate actions of trespass, or tro- ver, for each particular article seised or converted; and a recovery for one part or parcel is a bar to an action for another part or parcel. Farrington and Smith v. Payne,
3. An action on the case against a
sheriff for a false return, is within the provisions of the act for the more easy pleading in certain suits, (March 21st, 1801, sess. 24. c. 47. s. 4. 1 N. R. L. 155.) and the plaintiff is bound to show that the cause of action arose within the county where he has laid his venue. Seeley v. Birdsall, 267 4. There is a distinction between acts done colore officii and virtute officii: in the former case, the act being of such a nature, that his office gives him no authority to do it, the sheriff is not protected by the statute; but where, in doing an act within the limits of his authority, he exercises his authority improperly, or abuses the confidence which the law re-
poses in him, these are cases to which the statute applies. Seeley v. Birdsall,
267 5. The suing out the writ is the com- mencement of the suit, and not the exhibition of the bill. Per Spencer, J. Fowler v. Sharp and another, 326
Cumulative remedies, vide DISTRESS.
Limitation of action, vide LIMITATION OF ACTION.
ACTIONS LOCAL AND TRAN- SITORY.
1. No action lies for representing the plaintiff's ferry not to be as good as another rival ferry, and inducing and persuading travellers to cross at the other, and not at the plain- tiff's ferry. Johnson v. Hitchcock, In
185 2. A mortgagee cannot maintain an action for waste against the mort- gagor, at least until after a forfeiture of the mortgage. Peterson v. Clark, 205 3. A person having an expectant in- terest in land, less than the inherit- ance, cannot maintain an action for ib.
4. A person, erecting a mill and dam upon a stream of water, does not, by the mere prior occupation, un- accompanied with such a length of time as that a grant may be pre- sumed, gain an exclusive right, and cannot maintain against a person erecting a mill and dam above his, by which the water is in part diverted, and he is in some degree injured. Platt v. Johnson and Root, 213
5. Where a damage is suffered by the act or omission of a public officer, contrary to his duty, the party in- jured may maintain an action on
the case against the officer. Bart- lett v. Crozier,
250 6. Where an overseer of highways wilfully neglects to repair a bridge within his district, by reason of which the plaintiff's horse falls through and breaks his leg, an ac- tion on the case may be maintained. ib.
7. It seems, that the declaration, in such action, should allege, that the commissioners of the town had pro- vided materials, and that the de- fendant had the means of making the repairs; but the omission is cured, after verdict, by the common law intendment, that the defect was supplied on the trial, by proof. ib.
8. An action on the case will lie against a sheriff for not returning an execution, or the party may pro- ceed by attachment. Burk v. Campbell,
an action under the 2d section of the act to prevent gaming, (sess. 24. c. 46. 1 N. R. L. 153.) by the losing party, against the winner, to recover back money lost at play, and paid, the plaintiff may declare generally in debt, for money had and received, without stating his case specially, or referring to the statute; but it is otherwise in the case of an action brought by a common informer. Collins v. Ra- grew, 5
Vide DEVISE, 3. EJECTMENT, 1.
1. An agent who makes a contract in behalf of his principal, whose name he discloses, at the time, to the per- son with whom he contracts, is not personally liable. Rathbon v. Bud- long,
2. There is no difference in this re- spect between an agent for govern- ment and an individual. 3. The principal is liable for the acts of a general agent, acting within the general scope of his authority; and a third person cannot be affected by any private instructions from the principal to his agent. Munn v. The Commission Company;
44 4. But the principal is not bound by the acts of a special agent beyond his authority. ib.
5. A company incorporated for the purpose of selling goods on commis- sion, is bound by the acceptance of its general agent of a bill drawn on the company, on account of goods stipulated to be deposited with the company, for sale on com- mission.
to receive a passport from the cap- tor, to protect the vessel from another capture. ib
3. In an agreement for the sale and conveyance of land, the vendor cov- enanted to convey the land, which was to be surveyed, free of encum- brances, by the first of January. The land was not surveyed in time, and the vendee declared that he would take no advantage on ac- count of the vendor's not conveying on the precise day mentioned in the agreement. It was held, that the vendee, by enlarging the time, did not waive his right to recover a sum which was fixed and liquidated by the agreement, as the amount of damages to be recovered by the party failing in performance, even admitting that his consent to extend the time amounted to an agree- ment; for such subsequent agree- ment by parol, was void by the statute of frauds, and could not alter, revoke, or modify the previous valid contract. Hasbrouck v. Tap- 200 4. A mere extension of the time of performance of an agreement, is not a waiver of any of its stipula- tions. S. C. Per Thompson, Ch. J.
5. In an action to recover the amount of a promissory note, delivered by the plaintiff to the defendant, in pursuance of an agreement between them, of which note the defendant had received payment, the plaintiff may show that he was, at the time of making the agreement and de- livering the note, insane, and inca- pable of contracting. Rice v. Peet, 503
Agreement avoided by fraudulent mis- representations, vide ASSUMPSIT FOR GOODS SOLD.
Illegal agreement, vide SHERIFF, 1.
Vide COVENANT, 4, 5. DEED, . 7. 465
1. Where one count in a declaration is good, and the others bad, if the judge will certify that the evidence applied solely to that count, or that all the evidence given would prop- erly apply to that count, as well as the others, the verdict may be amended by applying it to the good count; and if the evidence did not particularly apply to the bad count, the verdict may also be amended. Cooper v. Bissel, 318 2. Where a Court of C. P.. refused leave to amend a general verdict, by applying the evidence to one count, and to enter a nol. pros. as to the other, this Court, on a writ of error, judgment having been en- tered on the verdict below, cannot grant leave to amend the record.
ib. 3. It seems, that a Court of errors cannot grant an amendment by in- quiry into facts dehors the record. ib.
From order of removal, vide EVIDENCE, VI. 18.
Vide FRAUDULENT SALES AND CONVEY- ANCES, 1.
Where an assignee recovers a judgment in the name of his assignor, and takes out a ca. sa., giving the sheriff notice of his equitable interest, and the sheriff, having arrested the de- fendant, suffers him to escape, the assignee my maintain an action
against the sheriff, for the escape, in the name of the assignor, which the sheriff cannot defeat by taking a release from the nominal plaintiff. Martin v. Hawks, 405
Assignment by debtor in trust to pay debts, vide FRAUDULENT SALES AND CONVEYANCES, 4, 5, 6, 7, 8.
1. Where a party in a suit becomes entitled to costs from the opposite party, for opposing a motion, who (the costs having been taxed) promises to pay the bill, the promise is founded on sufficient considera- tion, and will support an action. Warner v. Booge, 233 2. Where an ejectment cause was re- ferred by consent of the parties, and the land in question surveyed, it was held, that the party succeed- ing in the cause, who had paid ex- penses attending the survey, was entitled to recover half of these ex- penses from the opposite party, there being some evidence of an agree- ment that they should be borne equally, and such expenses not being admissible in the taxation of the costs of the suit. Low v. Vrooman,
238 3. Where a person has, at the request of an overseer of the poor, and on his promise that he would see him paid, boarded a pauper, and fur- nished him with necessaries, he may maintain an action of assump- sit against the overseer, although no order had ever been made for the relief of the pauper. King v. But- ler, 281 4. A declaration in assumpsit stated a promise from the plaintiffs to the defendant not to require the pay- ment of a certain note, endorsed by the defendant to the plaintiffs, in consideration whereof the defend- ant promised the plaintiffs to in- demnify them from one third of all loss which they might sustain in
consequence of their endorsement of certain notes for a third person; that the plaintiffs had never required payment of the note, and that they had sustained a loss to a certain amount: Held, that the declaration was bad, in not stating that the third person was insolvent, other- wise there was no consideration for the defendant's promise, either of benefit to himself, or of loss to the plaintiffs; besides, the insolvency of the maker of the notes must be averred, because the promise of the defendant must be construed to mean, that he would pay one third part of the loss, provided it could not be recovered of the maker of the notes, and not merely that the defendant should be liable, in the first instance, for one third of the loss. Morse and Bellinger v. Morse, 425
Assumpsit for non-delivery of goods, vide ASSUMPSIT FOR GOODS SOLD.
ASSUMPSIT FOR GOODS SOLD.
Where the defendant sold the plaintiffs
the whisky, his fraud would have been a defence to the action, and that the plaintiffs, having delivered the whisky, might recover the price of it, under a count for goods sold and delivered. Pierce and Pierce v. Drake, 475
ASSUMPSIT FOR MONEY HAD AND RECEIVED.
1. Where tenants in common sell and convey land, and one only receives the purchase money, the other may maintain an action of assumpsit against him for money had and re- ceived, to recover his proportion of the price. Coles v. Coles,
159 2. Where, on a parol agreement for the exchange of lands, which is void by the statute of frauds, the plaintiff delivered to the defendant the promissory note of a third person, as a pledge, to be forfeited in case of the plaintiff's non-compliance with the agreement, and the de- fendant received payment of the note, the plaintiff may recover the amount of the note from the de- fendant, the delivery of the note being without consideration. v. Peet,
ASSUMPSIT FOR MONEY LENT AND MONEY PAID.
a note of the president and directors of a certain company, and also two shares of the stock of the com- pany, for which he was to be paid in whisky, fraudulently represent- ing the company to be good and responsible, when, in fact, he knew them to be insolvent, and the plaintiffs executed their notes, or agreements, to deliver the whisky at a future period, which they de- livered accordingly, and having afterwards discovered the insol- Against vency of the company, tendered the defendant the note and stock which they had received from him; it was held, that the special contract was vitiated by the fraud of the defend- ant, by which the presumption that the note and stock were taken as payment, was repelled; that, had the plaintiffs been sued by the 'defendants for the non-delivery of
sheriff, vide ACTION ON THE CASE, 8.
1. Where process is issued out of a justice's Court, against an attorney or counsellor, and served during the term of the Court of which he is an attorney or counsellor, the defend-
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