INDEX. A ACTION. See AGREEMENT, 7. BANKS AND BANKERS, 1. PROMISSORY NOTES, 2. ADULTERY. See DIVORCE. AFFIDAVIT. See JUSTICES' COURTS, 1. PRACTICE, 1, 2, 3. AGENT. See INSURANCE, 1, 5. MUNICIPAL CORPORATIONS, 3 to 7. AGREEMENT. 1. A subscription paper for the erection of an institution of learning provided that the moneys subscribed should be paid to the treasurer of a board of trustees which might be elected by the Wayne County Baptist Association, at a convention then called to meet at Marion on the 30th of May. Held that the obligation of a subscriber did not become inoperative by the omission of the convention to choose trustees at the place and on the precise day mentioned; but that an election of trustees by the convention, not at that time or place, but on a subsequent day to which the convention had been adjourned after meeting at Marion, on the day named, was a substantial compliance with the stipulation of the subscription. Wayne and Ontario Collegiate Institute v. Greenwood, 72 2. A contract for the sale of goods for the price of fifty dollars or more is not taken out of the statute of frauds by the payment of a part of the purchase money, by the buyer, unless the payment is made at the time of making the contract. A payment afterwards will not avoid the statute. JOHNSON, J. dissented. Bissell v. Balcom, 98 3. The plaintiff and defendant, in August, 1861, made a parol agreement for the sale by the former to the latter of fifteen head of cattle then on the plaintiff's farm, but not present, or in sight; the parties agreeing upon the price which was over $50, and was to be paid on the 1st of December thereafter, unless the defendant should sooner take the cattle away. The plaintiff agreed to keep the cattle until that time, unless the defendant should choose to take them away before. The defendant never took any of the cattle away. Held, in an action to recover the price, that there was no delivery and acceptance of the cattle, within the meaning of the statute of frauds; and that the sale was therefore void. ib 4. An agreement, by one person, to cancel" the indebtedness of another, to a third person, is an agreement to pay it. The agreement to cancel must be held to include a promise to do whatever shall be necessary to effect the cancellation. The Auburn City Bank v. Leonard, 119 5. Where a promise made to A., to pay to B. a debt due the latter, has been adopted by B., it is regarded in law as a promise made to him. ib 6. The proper office of construction is to ascertain and determine the intention of the parties. And this is arrived at by considering the character in which the party undertakes; the nature and subject of the undertaking; and the terms employed in the instrument. Per JOHNSON, J. ib In 7. The parties were adjoining proprietors of land embracing a waterpower; the plaintiff owning a grist mill, and the defendants owning, together, a saw mill; both mills being supplied with water drawn from the same source, by means of dams, gates, &c. and a channel leading therefrom to the mill-pond. 1851, H., the then owner of all the lands and mills in question, sold to the plaintiff that portion embracing the grist mill-at the same time executing an agreement under seal, granting to the plaintiff the first use of the water power, to run the grist mill, and covenanting that he would at all times be at an equal expense in keeping up and repairing the dams for their mutual benefit, so as to run both the grist mill and the saw mill. H. subsequently, by separate deeds, conveyed to the defendants the saw mill property, subject to the rights and privileges previously conveyed to the plaintiff. The complaint, after alleging that the defendants, either as copartners, tenants in common or joint tenants, were owners, occupants, possessors &c. of a saw mill on the opposite side of the mill-dam, averred that the plaintiff had repaired and rebuilt the dam; and for the work and labor done, the plaintiff claimed to recover, and demanded that the defendants be adjudged to pay their share or proportion of the cost and expenses incurred; and asked judg-. ment for a specific sum. Held, 1. That the defendants took their deeds subject to the plaintiff's rights; and that the covenant of H. to share in the repairs, was a covenant running with the land, and by the transfer of the grantor's title to the defendants, became binding upon them, notwithstanding the omission of the word "assigns," therein. 2. That the defendants, being tenants of the mill privilege with the plaintiff, and enjoying the benefit of it, were upon well established principles, independent of the covenant of their grantor, bound to share the burden, and to contribute their share or proportion towards the reparation of the dams. 3. That the plaintiff had made out a case in his complaint, which, under the liberal system of practice prevailing since the code of procedure, could be upheld, and that a nonsuit was improperly granted. 4. That if the complaint was defective, it was a proper case for allowing an amendment on terms. Denman v. Prince, 9. But where, by the terms of the written agreement by which a vendee assigned his interest in the contract to another, the assignee expressly agreed to assume the payment of a claim of $312 and interest, to the heirs" of the vendor; Held that it was fairly to be presumed that the claim thus referred to was the purchase money unpaid upon the contract; it not appearing that the vendee was otherwise indebted to the vendor, or his heirs. And that upon such promise, the heirs of the vendor might maintain an action against the assignee, and recover the amount which he had agreed to pay. ib 10. L. and C. being the owners of adjoining lots, (L. owning his lot in fee, and C. holding a contract for his,) and L. being about to erect a building on his lot, they entered into a written agreement, by which one half of the partition wall was to | 15. Held, further, that F.'s remedy was be built upon each lot. L. was to build the wall, and when C. should build upon his lot, he, and those deriving title under him, were to pay L. for one half the cost of the wall. C. sold his interest in his lot to W. W. procured a deed from the owner of the fee, and sold the lot to B., allowing him, by way of deduction from the purchase money, $100, on account of the liability of the owner of the lot to pay L. for one half of the wall. The deed to B. contained this clause: "The above conveyance is executed subject to the wall now standing on the north line of said lot; the party of the second part assuming all the liability under or by reason of any contract now existing in respect to said wall." B. subsequently erected a building upon the lot, using the partition wall therefor. Held, that this was not an agreement by B., in terms, to pay L., or to pay for the wall, but was simply an undertaking to assume the liability of W.; the parties thereby intending nothing more than to limit W.'s covenant, and to save him harmless from all personal liability. Lester v. Barron, 297 11. And that W. not having become personally liable to L.. by taking a transfer of C.'s interest in the lot, L. had no right of action against B. upon the stipulation or condition in the deed to the latter. ib 12 A promise, by one person, having no other inducement or consideration than the naked promise of another to do in a few days what he is, in law, bound to do instanter, is -considered as an agreement simply a nudum pactum ex quo non oritur actio. Farrington v. Bullard, 512 by a direct action to set aside the judgment, on the ground that it was faudulently obtained. That he could not pay the judgment and then sue, and recover the damages occasioned by the fraud; inasmuch as that would involve the necessity of inquiring, collaterally, into the fairness and validity of the former judgment. ib 16. Where an agreement, sought to be enforced, is made between principal and agent, or client and attorney, .giving benefits and advantages to the agent and attorney, the right of action is not deemed to be established on proof of the due execution of the instrument, without clear proof, outside the paper, of its integrity and entire fairness. Brock v. Barnes, 521 17. The legal presumption is against its validity, and the onus is on the agent and attorney to show that all was fair, and that the client acted freely and understandingly. ib 20. A paper, executed by a principal and client to his agent and attorney, affords no presumption on these points, and without direct proof establishing each of the above requirements, is of no value as the basis of a recovery for past services. ib 13. So held where F. being sued by B. for rent, promised to pay the amount actually due in a few days, if B. would discontinue the suit; whereupon B. promised to discon- 21. On the 15th of February, 1859, a tinue it. ib paper was executed by B., an aged, infirm and feeble man, who had been the client of the plaintiff for many years, and for whom the plaintif then acted as general agent, which paper extended back, in its operation, to September, 1836, and gave to the plaintiff an annuity of $100 14. Held, also, that no action on the case would lie against B. for fraud, upon his failure to perform his promise to discontinue the suit, and going on with the suit and recovering judgment therein. ib for each year during that time, payable with interest. The body of the instrument was not in B.'s handwriting, and although under seal, it was not witnessed, nor was there any evidence of value, apart from the paper itself, to strengthen the claim of the plaintiff, under the same, made against the executor of B. after the death of the latter. On the other hand it was proved that settlements were repeatedly made between the parties during the period covered by the instrument, and numerous receipts were given to B. by the plaintiff, being in terms receipts in full of all claims and demands; and that the plaintiff had, in 1858, given B. a due-bill, for $74.87, expressed as being "on settlement, as per receipts this day passed." Held 1. That it required strong and very pointed and significant oral proof to overcome these repeated written acknowledgments of satisfaction of all prior claims and demands; and that nothing less than the most direct and unequivocal evidence against them would suffice. 2. That regarding the benefit and advantages conferred by the instrument as in the nature of a bequest or gift, the paper was wholly without consideration and void. 3. That if it were deemed to provide a recompense for future services, then it was to be regarded, in view of the relation which existed between the parties to it, with the same suspicion, and must be held subject to the same rules, as if it provided remuneration for past services merely, and could be upheld only on the clearest proof that its contents were well understood by B. and that it was made by him to be enforced according to its terms. 4. That the paper was not intended to evidence a bequest; nor was it to be regarded as in the nature of a gift; but according to its plain import, it provided a remuneration for both past and future services. 5. That in the absence of any evidence showing the circumstances under which the receipts were given, by the plaintiff, or to what transactions they had particular reference, they remained wholly unexplained. 6. That there being no evidence in the case which could fairly be said to explain away the effect of the receipts, the plaintiff could not maintain an action 22. Where the principal of a school undertakes that he will, during a specified term, instruct a pupil in the learning and knowledge taught at his school, receive him into his family, and protect him and provide for his physical wants, for a specific compensation, he cannot, for some actual or supposed transgression of the pupil, withdraw his care and protection, deny him the shelter and comfort of his house, and under the name or form of punishment, leave him a wanderer in the streets, destitute of the means of subsistence, without forfeiting the compensation agreed to be paid him. Starr v. Liftchild, 541 25. A. made an arrangement with H. & Co. whereby he was to make deposits with that firm, which were to be subject to his drafts &c. at his pleasure and on demand, and the firm were to allow interest on the deposits, and charge interest on the drafts, at the rate of five per cent per annum. Under this arrangement A. made sundry deposits. He died July 5, 1856. H. & Co., on the 24th of February, 1860, paid to A.'s administrators the principal of the deposits, and interest calculated to July 5, 1856, at five per cent per annum. Held 1. That the effect of the agreement was to give H. & Co. the right to use the money till called for, and they agreed to pay interest till the money was withdrawn; and until that event they were at 5. An appeal without security is ef- ARREST. See PRACTICE, 1, 2, 3. ASSESSMENT. See TAXES AND TAXATION. ASSIGNMENT. 1. In January, 1856, the Atlas Insur- |