Of Check, see CHECKS, 3, 4. Contract, see CONTRACTS, 299–302. Dedication, see DEDICATION, II. 6. Promissory notes for one half of a debt secured by chattel mortgages on property of the debtor, accepted in full satisfaction and Guaranty, Notice of, see GUARANTY, 10, discharge of the indebtedness, constitute a 11. Highway, see HIGHWAYS, 4, 5. Insurance Policy, see INSURANCE, 52–54. On Sale, see SALE, 22-25. By Public, see Town, 12. good accord and satisfaction. Davis, 124 N. Y. 164, Jaffray v. 11: 710 Evidence of, see EVIDENCE, 876. As Witness, see WITNESSES, 7. ACCORD AND SATISFACTION. See also COMPROMISE AND SETTLEMENT. 1. The technical distinction between a satisfaction before or after breach of a contract is disregarded in the state of New York; and a new agreement by parol, followed by actual performance of the substituted agreement, whether made and executed before or after breach, is a good accord and satisfaction of the covenant. McCreery v. Day, 119 N. Y. 1, 6: 503 2. A new agreement, although without performance, if based on a good consideration, will be a satisfaction of the old one if accepted as such. Id. 3. An agreement to deliver a new machine and take back one in controversy is not, before it is executed, a bar to the further prosecution of a pending action to recover the Jatter. A. D. Puffer & Sons Mfg. Co. v. Lucas, 112 N. C. 377, 19: 682 4. A creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of larger amount, such an agreement being nudum pactum; but if there be any benefit, or even any legal possibility of benefit, to the creditor, thrown in, that additional weight will turn the scale and render the consideration sufficient to support the agreement. Jaffray v. Davis, 124 N. Y. 164, 11: 710 5. Retaining the proceeds of a check for less than the amount claimed on an unliquidated bill for physician's services constitutes an accord and satisfaction, where the check was sent with the express statement that it was in full satisfaction. Fuller v. Kemp, 138 N. Y. 231, 20: 785 ACCOUNTS. As Evidence, see EVIDENCE, 324-331. 1. Where the subject-matter of a contract is the ascertainment of the net profits of a firm for the purpose of paying in cash the value of a one-third share, the term "outstanding accounts," unless it otherwise appear, has a particular meaning different from the ordinary or common meaning. Mac Culsky v. Klosterman, 20 Or. 108, 10: 785 2. A bill to review an account settled and confirmed can only be maintained, as a matter of right, for error of law apparent on the face of the record; and as a matter of grace it can only be had upon allegation of newly discovered testimony. Priestley's Appeal, 127 Pa. 420, 4: 503 3. An allegation in a petition for a review of a trustee's account, that the accountant had claimed commissions on money which had not passed through his hands, raises an objection to a question of fact, and not of law, and will not justify the granting of a bill of review. ACKNOWLEDGMENT. As to Whom Necessary, see Deeds, 2. To Prove Execution, see EVIDENCE, 277. 1.The acknowledgment of a deed of a corporation aggregate may be made by a representative of the corporation who has authority to execute the deed, in the absence of any statute particularly relating to the acknowledgment or proof of such deeds. Hopper v. Lovejoy (N. J. Err. & App.) 47 N. J. Eq. (2 Dick.) 573, privy examination before a chancellor or cir- 13. A wife who fails to acknowledge a conveyance of the homestead as required by Ala. Code, 2508, at the time of its execution or subsequently, during the life of her husband, cannot do so efficiently as against the heirs, after the husband's death. Richardson v. Woodstock Iron Co. 90 Ala. 266, 9: 348 14. The omission, from a certificate of acknowledgment of a tax deed, of the words "in and for said county," following the name and title of the justice of the peace who took the acknowledgment, will not render the deed invalid, where the caption or venue gives the name of the state and of the county. Douglass v. Bishop, 45 Kan. 200, 10: 857 12: 588 2. A notary who is the trustee in a deed of trust cannot take an acknowledgment thereto. 15. The power of an officer authorized to Rothschild v. Dougher, 85 Tex. 332, 16: 719 take acknowledgments of married women to 3. A blank in place of the name of the conveyances of homestead property ceases grantor in a certificate of acknowledgment, when he has delivered his certificate of acstating that- personally came before the knowledgment to the parties and it has been notary, and was personally known to be the accepted for recording. He cannot afteridentical person whose name was affixed towards correct errors in his certificate, or the instrument, is not a fatal defect. Milner make a new one, without a reacknowledgv. Nelson (Iowa) 19: 279 ment of the instrument. Griffith v. Ventress, 4. It is the established policy of the law to 91 Ala. 366, 11: 193 uphold certificates of acknowledgment of deeds, and, wherever substance is found, obvious clerical errors and all technical omissions will be disregarded. Summer v. Mitchell, 29 Fla. 179, 14: 815 5. The instrument acknowledged may be resorted to for support to the acknowledg ment. Id. ACQUITTAL. Appeal from, see APPEAL AND ERROR, 17. ACTION OR SUIT. I. NATURE AND RIGHT. a. In General; What Actionable. 1. In General. 2. On Contracts. Effect of Assignment. c. Premature; Conditions Precedent. d. Defenses. II. UNION, CHOICE, OR FORM OF REME IV. b. Bringing in; Intervention. c. State; Officers; Arbitrators. d. Receiver; Corporation; Partner; Carrier. e. Trusts. f. Husband and Wife. g. Cases as to Real Estate. ABATEMENT. a. In General; Pendency of Prior Ac 11. A certificate of acknowledgment signed by a person as "deputy clerk S. & J. C." was held sufficient to show his official character, where the same name was signed as a witness, followed by "J. P.," and the statutes of the state permit acknowledgment before a clerk of the superior court or a justice of the peace. Id. 12. An acknowledgment by a married woman before a notary in Kentucky, of a conveyance of her separate estate in Tennessee, is ineffectual, under Tenn. Act 1869-70, § 2, (Mill. & V. Code, § 3347), which requires a VI. DISMISSAL, tion. c. Revival. V. VENUE. For Limitations of Actions or Suits, see LIMI- Bar of Former Judgment, see JUDGMENT. object to be promoted. Albany First Presby- 2. Wrong without damage, or damage 3. Courts do not sit for the purpose of deMatters Peculiar to the Particular Kind termining speculative and abstract questions of of Actions and Proceedings, see their law, or laying down rules for the future conRespective Titles, such as ADMIRALTY; duct of individuals in their business and social ASSUMPSIT; ATTACHMENT; CASE; Cov-relations, but are confined in their judicia! ENANT; CREDITORS' BILL; DEBT; DIS- action to real controversies wherein legal rights COVERY; EJECTMENT; EMINENT Do- of parties are necessarily involved and can be MAIN; EQUITY; GARNISHMENT; IN- conclusively determined. Thomas v. Musical JUNCTION; MANDAMUS; PARTITION; Mut. Prot. Union, 121 N. Y. 45, 8: 175 PROHIBITION; REPLEVIN; SPECIFIC 4. Where the invasion of a right,-as by the PERFORMANCE; TRESPASS; TROVER; erection of a permanent structure on the land WASTE. of another, if submitted to on the one hand Particular Causes of Action for Wrongs, and persisted in on the other a sufficient length see ASSAULT AND BATTERY; CONSPIR- of time, may result in the extinction of the ACY; DEATH; FALSE IMPRISONMENT; right, a remedy may be sought before actual FRAUD AND FRAUDULENT CONVEY- damage has occurred. Attorney-General, AdANCES; LIBEL AND SLANDER; MALI- ams, v. Tarr, 148 Mass. 309, 2: 87 CIOUS PROSECUTION; NEGLIGENCE; NUI- 5. The maxim de minimis non curat lex does SANCES; PATENTS; SEDUCTION. not apply to the positive and wrongful invasion Actions on Various Instruments and Obli- of another's property. The right to maintain gations, see BILLS AND NOTES; BONDS; an action for the value of property of which CONTRACTS; INSURANCE; JUDGMENT; the owner is wrongfully deprived is never MORTGAGE; PATENTS; SHIPPING. denied. Wartman v. Swindell (N. J. Err. & Causes of Action By or Against Particular | App.) 54 N. J. L. (25 Vroom) 589, 18: 44 Classes of Persons, see BANKRUPTCY; 6. Loaning cash and securities to a county CARRIERS; CORPORATIONS; COUNTIES; treasurer, knowing him to be an embezzler, EXECUTORS AND ADMINISTRATORS; for the purpose of enabling him to conceal his GUARDIAN AND WARD; HUSBAND AND embezzlement by showing the money and seWIFE, VII.; INCOMPETENT PERSONS, curities as the property of the county, does not 14-21; INFANTS, 41, 42; INSOLVENCY; render the lender liable to an action in favor LANDLORD AND TENANT; MASTER AND of the county, on the ground that the discovSERVANT; MUNICIPAL CORPORATIONS; ery of his embezzlement and opportunity to OFFICERS; PARENT AND CHILD; PRIN- prosecute him therefor were thereby delayed. CIPAL AND AGENT; PRINCIPAL AND Nelson County v. Northcote, 6 Dak. 378, SURETY; RAILROADS; RECEIVERS; SCHOOLS; SHERIFF; STATE; TELEGRAPHS; TELEPHONES; TRUSTS. Actions to Recover Possession of Personal Property, see REPLEVIN. Civil Damage Suits, see INTOXICATING LIQUORS, IV. Suits as to Taxes, see TAXES, III. c. Causes of Action for Collision and Relat- Jurisdiction of Courts, see COURTS. Effect of Dissolution of Corporation on, I. NATURE AND RIGHT. a. In General; What Actionable. 1. No action to enforce a gratuitous promise can be maintained, however worthy the 6: 230 7. An action cannot be maintained to recover damages merely for an alleged distress of mind, anxiety, mortification, and suspense, resulting from the nonperformance of a contract, without any personal injury or pecuniary loss. Wilcox v. Richmond & D. R. Co. (C. C. App. 4th C.) 8 U. S. App. 118, 17: 804 8. Continuing trespasses by an elevatedrailroad company on easements appurtenant to certain premises give a right of action to the purchaser of the premises, without regard to the price paid by him. Pappenheim v. Metropolitan Elev. R. Co. 128 N. Y. 436, 13: 401 b. Who May Maintain. 1. In General. 9. Only a person to whom the duty is owed can recover for neglect of a duty or obligation existing at common law or imposed by statute. Williams v. Chicago & A. R. Co. 135 Ill. 491, 11: 352 10. When a statute commands or prohibits a thing for the benefit of a person, he shall have a remedy upon it for the thing enacted for his advantage, or for a wrong done to him contrary to its terms. Pauley v. Steam Gauge & L. Co. 131 N. Y. 90, 15: 194 11. Suits to recover a legacy must be 23. In the absence of any issue made before the evidence was introduced, as to plaintiff's right to recover on an implied contract because the services were rendered while he was a minor and therefore his father might claim the compensation, he is entitled to maintain the action,-especially where the father was present on the trial, testifying in his son's favor. Morris v. Kassling, 79 Tex. 141, 11: 398 brought by the personal representative of a | ages to thirty-five different property-holders, if deceased legatee,-not by his next of kin. enforceable at all, can be enforced only by Gale v. Nickerson, 151 Mass. 428, 9: 200 such property-holders. New Haven v. New 12. Taxpayers may maintain suits against Haven & D. R. Co. 62 Conn. 252, 18: 256 town officers to prevent or remedy misappli- 22. A man who has made a contract with cation of town funds. Russell v. Tate, 52 another for the support of his infant daughter, Ark. 541, 7: 180 although the contract in one sense is for her 13. One in actual, peaceable, and exclusive benefit, can himself maintain an action for the possession of personal property may maintain breach of the contract. Vancleave v. Clark, an action for its destruction by the negligence 118 Ind. 61, 3: 519 of a mere wrongdoer. Missouri P. R. Co. v. Cullers, 81 Tex. 382, 13: 542 14. Mere possession of buildings on land, to which plaintiff has no title or right of possession, is insufficient to support an action for their wrongful destruction,-especially in the absence of evidence that they were not attached to the land, or of any right to remove them. Id. 15. A city, having the legal title to its streets in trust for the public, can maintain trespass for the removal of coal underlying the streets and recover the full value of the coal, although no actual damage has been done to the surface of the streets. Union Coal Co. v. La Salle, 136 Ill. 119, 12: 326 16. A creditor of a decedent cannot base a 25. Agents to whom goods were billed by right of action against a third person on the their principals, and who received them, and in latter's conversion of assets of the estate, in a their own firm name contracted for the delivstate where the law does not recognize execu-ery of the goods to themselves, acting as factors de son tort. Rozelle v. Harmon, 103 Mo. tors, and having no pecuniary interest in the 12: 187 goods beyond their lien for commissions, are entitled to maintain an action as trustees of an express trust, under Mo. Rev. Stat. 1879, § 3463, for breach of the contract by the carrier. Wolfe v. Missouri P. R. Co. 97 Mo. 473, 3: 539 339, Public right. 17. The enforcing of an order of railroad commissioners requiring a railroad company to conform to their schedule of rates is a matter of public right for which an action may be maintained in the name of the state. Campbell v. Chicago, M. & St. P. R. Co. (Iowa) 17: 443 18. The refusal of the attorney-general to bring, or consent to the bringing of, a suit affecting a public right, does not prevent the Supreme Court of Wisconsin from rightfully taking original jurisdiction thereof upon the relation of a private citizen in the name of the state. State, Lamb, v. Cunningham, 83 Wis. 90, 17: 145 2. On Contracts. 19. A promise made by one person to another, for the benefit of a third person who is a stranger to the consideration, will not support an action by the latter. One who is not a party to a contract cannot sue upon it. Marston v. Bigelow, 150 Mass. 45, 5: 43 But see next cases following. 20. An agreement, secured by a mortgage, made by a wife's brother to whom the husband on separation paid a sum of money for her support, to provide for and maintain her during her life without expense to her husband, and to indemnify and save the latter harmless from any charges on her account, may be enforced by the wife, although she is not a party to the instrument. Coleman v. Whitney, 62 Vt. 123, 24. A principal is entitled to maintain an action on a contract made by his agent with a telegraph company for the delivery to the principal of a message, under a fictitious name, Milliken v. Western U. Teleg. Co. 110 N. Y. 403, 1: 281 26. One with whom, as trustee for a wife, an agreement is made by her husband for separation and the payment of money for her support by the husband, is the trustee of an express trust, who can maintain an action in his own name to enforce or execute the trust. Clark v. Fosdick, 118 N. Y. 7, 6: 132 27. One who contracts to purchase land is not liable to a suit for specific performance in the name of one who did not make the contract and who was not the owner of the property at the time the contract was made, but who subsequently acquired the title for the purpose of conveying it. McGovern v. Hern, 153 Mass. 308, 10: 815 28. An agreement in a contract between two persons for the formation of a corporation, to the effect that the new corporation shall assume and pay the rent due under an existing lease between third persons, will not give the lessor a right of action to recover such rent from one of the members of the corporation upon his refusal to carry out the agreement, if there was no understanding as to the assumption of the lease with either the lessor or the lessee, neither of whom had knowledge of the agreement, although the person refusing to carry out the agreement had taken possession of the leased property and occupied it for some time before the corporation was ready to use it. Lorillard v. Clyde, 122 N. Y. 498, 10: 113 9: 517 29. A bill in equity may be brought by a 21. A contract between a city and a rail- town, for itself or its inhabitants, to protect road company, by which the former consents their rights under a bond given to its treasurer to the closing of certain streets upon the con- 130 years before, without having an adminissideration that the latter shall pay certain dam-trator appointed for him in whose name to bring the suit. Middletown v. Newport Hospi- | 32. A contract by a vendor with a third person to pay a judgment gives no right of action in favor of a vendee by quitclaim who has been compelled to pay it to protect his land. McClure v. Melton, 34 S. C. 377, 13: 723 33. The fact that distributees who have received a portion of the estate of the decedent, who contracted to procure covenantees to release a covenantor from his obligation, may be called upon to contribute towards the damages which may be recovered for the breach of such contract, will not preclude them from exercising their right as covenantees to enforce the covenant, where their liability will in no event be coextensive with their claim, and there is no means of determining what such liability will be. Wood v. Bullard, 151 Mass. 324, 7: 304 3. Effect of Assignment. 34. An action cannot be maintained on an indemnifying bond given upon the levy and execution of mortgaged goods, by the assignee of the mortgagee's right to damages on such bond, unless such assignee has also received an assignment of the mortgage debt. Garretson v. Ferrall, 78 Iowa, 166, 6: 377 35. An assignee of the right of action to set aside a deed for fraud, although receiving also a conveyance from the assignor, who is a cotenant, under agreement to maintain the action for their joint benefit, is not, as to the interest assigned, entitled to maintain the action under a statute requiring actions to be prosecuted in the name of the real party in interest. Gruber v. Baker, 20 Nev. 453, 9: 302 36. The fact that a person has sold all his stock in a corporation does not prevent him from maintaining an action for fraudulent representations whereby he was induced to become a stockholder therein. Teachout v. Van Hoesen, 76 Iowa, 113, 1: 664 c. Premature; Conditions Precedent. 37. If a contract fixes the time for a payment agreed upon, but fixes no time for doing that which is the condition of the payment, performance of the condition is not a condition precedent to an action. Donovan v. Judson, 81 Cal. 334, 6: 591 38. The right to bring an action for purchase money of land, under a contract by which one party agrees to convey, without fixing any time therefor, while the other agrees to pay the price a certain time after final judgment in his favor in a certain pending suit, accrues when such time has expired, although no conveyance is made. 39. Where goods are purchased upon an agreement to give a promissory note for the price, payable in one year, with interest, on a refusal of the purchaser to make and deliver the note after the goods have been delivered, the vendor may, without waiting for the expiration of the credit, maintain an action at once for the breach of the agreement; and the measure of damages will be the price of the goods sold and delivered. Stephenson v. Repp, 47 Ohio St. 551, 10: 620 40. The rule that a malicious prosecution must have terminated before a suit for damages can be based thereon does not apply to a just cause of action, in respect to which the only grievance is that an excessive attachment of goods was made, not to secure the debt, but to injure the defendant. Zinn v. Rice, 154 Mass. 1, 12: 288 41. No subsequent demand upon a sheriff is necessary to recover money collected by him upon execution under an exempt judgment, where he has applied it upon another execution which has not been lawfully levied thereon against the creditor in the exempt judgment, without any notice to him or opportunity to make any demand. Wylie v. Grundysen, 51 Minn. 19: 33 Notice. 42. The requirements of notice in the Massachusetts Employers' Liability Act, § 3, only apply, so far as 1 is concerned, to the cases lying outside the common-law rule but embraced by § 1, unless the plaintiff, although having a common-law remedy, insists on relying upon the statute alone. Ryalls v. Mechanics Mills, 150 Mass. 190, 5: 667 43. Although township officers receive no actual notice of the unsafety of a bridge maintained by the township, yet if by the exercise of reasonable care they might have known of such condition, or if they had actual knowledge through any other means, a statutory requirement as to notice before bringing suit against the township is satisfied. Moore v. Kenockee 4: 555 Twp. 75 Mich. 332, that claims against the city shall be presented 44. The provision of the charter of Lansing, before suit, and a reasonable time be given the counsel to investigate them, is complied with by presentation to the council, reference to the city attorney, and return of the claim to the council, which lays it on the table for three months before suit is brought. Dundas v. 5: 143 Lansing, 75 Mich. 499, 46. A railroad company cannot complain that a statute is unconstitutional in discriminating against its employes by giving a right of action against it for negligence causing the death of any person who is not in its employ. Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 92 Ky. 233, 14: 579 47. An unlawful act of a person, if it directly contributes to a personal injury which id.he sustains, is a conclusive bar to a recovery |