lien; as to such purchaser, and the
lands so purchased, and such lands be
declared to be freed and discharged of
and from the apparent lien of such
judgment, and of and from any and
every proceeding whatsoever, under
and by virtue of, or founded on such
judgment.
id.

Vide ABATEMENT, 1, 3.

COSTS, 2; ante, 622, 629.

16. Parties.

1. When one person enters into a con-
tract with two others by name, without
knowing or having at the time any
reason to suspect that they have a
partner in the business to which such
contract relates; in a suit upon such
contract the two with whom it is made
may alone be sued, and it is not neces-
sary to make their partner, if they had
one, a party. As to such a transaction,
and under such circumstances, he may
be treated as a dormant partner, al-
though the plaintiff knew before suit
brought that, the two had such a partner
at the time the contract was made.
Hurlbut v. Post.

Vide ACTION, 6; and ante 636.

17. Receiver.

28

2. In this case, the day to which it was
last adjourned, either by the judge or
by the consent of the parties, was the
9th of July, 1857. On that day the
plaintiff neither moved the matter be-
fore the judge, nor called his attention
to it, nor did he again move in the
matter until the following October. On
the 16th of December, an order was
made, based on the original order
(granted on the 11th of March), and
on an examination of the debtor, and
of a witness had on the 17th and 24th
of April, appointing a receiver of the
debtor's property.
id.

3. Nor has he any right, in such a case,
to sell the mortgaged property in par-
cels, but is bound to sell the whole
together, so as to enable the mortgagee
to follow it in the hands of the pur-
chaser.

5.

1. A power of attorney which, by its
terms, authorizes the attorney "to buy
and sell real estate and personal pro-
perty, and to collect rents, money, and
debts, and to do every act and thing
necessarily pertaining thereto," and
given as the principal was about to
leave the State temporarily, and ac-
companied with a deposit, by the prin-
cipal, of $1,800 in money with the
agent, does not authorize the agent to
purchase a merchant tailor's establish-
ment, and give promissory notes, in
the name of the principal, for the con-
tract price. Mills v. Carnly.

159

2. Accordingly, when such an agent, as-
suming to act in the name of his prin-
cipal, made such a purchase, amount-
ing to $4,123.16, and took a transfer
of the property to his principal, and
paid for it by cancelling a debt for
$966, which the vendor owed to such
agent, and by giving four notes for
$789.29 each, in the name of his prin-
cipal, at 3, 6, 9, and 12 months, the
agent being irresponsible, and not in-
forming his principal of the fact of such
purchase, and subsequently the proper-
ty was seized on an execution against
such vendor, and a suit was brought
by such agent, in the name of his prin-

cipal, against the sheriff, for such tak-
ing of the property, and the Judge at
the trial charged the Jury that, the
agent had authority, under such a
power, to make such a purchase, and
to agree to pay the contract price in
instalments, and therefore could give
notes in the name of his principal, and
that such notes would be valid, and
that, in so far as the validity of the
transfer depended upon the fact of
there being a sufficient consideration
to uphold it, the consideration in this
case was sufficient, held, that the charge
was erroneous, and that, on such a state
of facts, there was no sufficient consi-
deration to uphold the sale, as against
the creditors of the vendor; and that
the notes given by the attorney were
not obligatory upon his principal. id.

3. On the facts of this case, as established
by the evidence given at the trial, it
was also held, that the inference, that
the purchase and sale were made, and
immediately followed by an assignment,
by the vendor, of all his property to
such agent, with a view and with the
intent, by means thereof, to effect a
favorable compromise with the credi-
tors of such vendor, and to speculate,
out of such a result; and that the jury
would have so found but for the erro-
neous instruction as to the sufficiency
of the consideration, was a just one. id.

Vide EVIDENCE, 9.

COMMON CARRIERS, 3, 4; and
ante, 436, 490, 497.

PURCHASER (bona fide), RIGHTS OF.

Vide DEVISE, 8.
POWERS, 4, 5.

RECEIVER, 5; and ante, 659.

R

RAILROAD COMPANY.
Vide ante, 77.

RECEIVER.

Vide PRACTICE (Title), RECEIVER.

2. When a sheriff takes possession of per-
sonal property, under service of legal
process, he is bound only to ordinary
care and diligence in its custody, i. e.
the same care and diligence that a pru-
dent man would take of his own pro-
perty. But if the sheriff leave the pro-
perty in the possession of the defendant
in the action, he becomes an insurer
of it to the plaintiff, and nothing will
excuse him in the event of a loss, but
the act of God or of public enemies.
Moore v. Westervelt.

357

3. Such is the settled rule, where pro-
perty is taken by the sheriff under an
execution, and, in reason, the rule is
just as applicable, when the possession
is so taken in an action, under the
Code, for the delivery of personal pro-
perty.
id.

4. In such an action, the sheriff did not
take actual possession of the property;
and it was proved, in the present suit,
which was brought by the plaintiff in
the former, that the deputies, whom