INDEX. ABATEMENT. Where the defendant in an action of malicious prosecution dies while an appeal from a judgment in his favor is pending, the action abates. Carroll, 338. ACCORD. Clark v. 1. Where accord was to do a thing in satisfaction at future day, performance must be accepted in satisfaction of debt or claim. Johnson v. Hunt, 777, and note. 2. Parol release of judgment for money, in consideration of payment of less sum, invalid, though indorsed upon execution. Weber v. Couch, 682. 3. Agreement in writing not to take any proceedings or judgment in consideration of payment of specific sum for which judgment was rendered in instalments, which were duly paid, is without consideration, and will not prevent plaintiff issuing execution for interest. Beer v. Foakes, 748. ACCOUNT. See PARTNERSHIP, 8. If two executors purchase land with trust funds, and it does not appear that persons interested in estate are debarred by acquiescence or otherwise from availing themselves of advantage of purchase, one executor cannot maintain a bill in equity against the other for account and share of profits. Bowen v. Richurdson, 338. PARTNER ACTION. See ATTACHMENT, 2. COMMON CARRIER, 15. DAMAGES, 9. FRAUDS, 1. Where landlord with consent of tenants sold their share of crop with his own, and afterwards brought action for non-acceptance, his not owning all, neither constitutes a defence nor diminishes damages. Davis v. Harness, 214. 2. Declaration charging defendants with fraudulently and falsely selling goods of his own fabrication as manufacture of plaintiff, by which plaintiff was deprived of sales, sets forth actionable injury. Tobacco Manufactory v. Commerce, 542. 3. Case for deceit will not lie against person for obtaining credit by falsely and fraudulently representing himself to be "a person safely to be trusted and given credit to :" the false representations must consist of definite statements of fact. Lyons v. Briggs, 619. See UNITED STATES, 7. See CONSTITUTIONAL LAW, 21. See CORPORATION, 18. See REMOVAL OF CAUSES, 9. See UNITED STATES COURTS, 1, 2, 4. See CRIMINAL LAW, 26. See EXECUTOR. ADMIRALTY. See ATTACHMENT, 1. CRIMINAL LAW, 17. ERRORS AND APPEALS, 9. SHIPPING, 3. I. Generally. 1. Part owners of vessel are tenants in common, and statement of one of them in another suit as to amount of damage, is not evidence against the others. Clark v. Weeks, 139. 2. Under sect. 941 Rev. Stat., judgment against both principal and sureties in stipulation, executed thereunder, to release vessel against which process has issued, may be recovered at time of rendering decree in principal cause. In Matter of Warden, 748. 3. Quere, Whether decree is lien on real estate of stipulators after appeal. Id. 4. Master can neither sell nor hypothecate cargo, except in case of urgent necessity, and lender is chargeable with notice of facts on which master appears to rely as justification for his act. Bank v. Brigantine, 619. 5. Cargo-owner finding vessel, with his cargo on board, at port of refuge, needing repairs which can not be effected without cost to him of more than he would lose by taking his property, and paying vessel all lawful charges, may pay charges and reclaim property. Id. 6. Where vessel before she breaks ground, is so injured by fire that cost of repairs would exceed her value when repaired, and she is rendered unseaworthy, a contract of affreightment for carriage of cotton by her to foreign port, evidenced by ordinary bill of lading, providing for payment of freight money, on delivery of cotton, is thereby dissolved, so that shipper is not liable for any part of freight money, nor for expenses paid by vessel for compressing and stowing the cotton. Ellis v. Ins. Co., 415. 7. Libellant in suit in rem growing out of a collision, claimed $27,000 damages. After attachment of vessel in District Court, a stipulation in sum of $2100, as her appraised value, was given. Libel having been dismissed by Circuit Court on appeal, libellant appealed to U. S. Supreme Court: Held, that matter in dispute did not exceed $5000, as required by sect. 3 of Act of February 16th 1875. Starin v. Schooner Jesse Williamson, Jr., 476. 8. Decree against vessel for $27,000 would not establish liability of claimant to respond for that amount in personam, unless he was owner at time of collision, which fact must appear by record to authorize court to consider $27,000 as value of matter in dispute on such appeal. Id. II. Collision. 9. Where both parties are in fault, damage is divided equally, and decree is in favor of the one suffering most for half the difference between the losses. Practice in such cases. Reynolds v. Vanderbilt, 69. ADMIRALTY. 10. Statute of Limited Liability does not apply to such a case until balance of damage has been struck. Reynolds v. Vanderbilt, 69. 11. Quære: Must benefit of statute be claimed in pleadings? Id. 12. Where libellant's injury has arisen from fault of two vessels, damages are apportioned equally between them, and decree should be for one-half against each; any balance of unrecovered half to be enforced against the other. Sterling v. Peterson, 140. 13. Ocean steamer starting from crowded slip should have look-out at stern, and use towage if necessary to avoid injury. AGENT. See ACTION, 2. ATTACHMENT, 10. Id. BILLS AND NOTES, 3, 10. CONTRACT, 10. CORPORATION, 12. EQUITY, 14. INSURANCE, 1, 2, 8, 11, 15. MUNICIPAL CORPORATION, 5. RAILROAD, 12. 1. That lessee takes lease executed under seal, for unnamed principal, but in his own name, will not render unnamed principal liable for rent. Borcherling v. Katz, 748. 2. If vendor elect to give exclusive credit to husband, whom he knows to he purchasing for his wife, he cannot afterwards recover from wife as principal; but vendor ignorant of existence of principal can afterwards recover from him. Miller v. Watt, 338. 3. In absence of express authority or custom of trade, agent furnished with funds cannot bind principal by purchase upon credit. Kamarouski v. Krumdick, 140. 4. Agent to solicit orders has no implied authority to receive payment. McKindly v. Durham, 140. 5. Order solicited by such agent is a mere proposal to be accepted or not, as principal may see fit. Id. 6. The words "agents not authorized to collect," stamped in large legible print on face of bill, are notice not to pay agent. Id. 7. Where agent enters into contract without disclosing his principal or agency, if principal takes advantage of contract, he must do so subject to all rights and equities of which other party, who had no knowledge of agency, might avail himself as against agent, assuming him to be principal. Miller's Ex'rs v. Sullivan, 476. 8. Where agent commits tort while acting within scope of his employment, he and employer may be sued separately or jointly; and it does not matter in what proportions, if any, they share the benefits. Coal Co. v. McCulloh, 476. 9. Cases in which head employee has been held not liable for trespasses of workmen under him, are distinguishable from those where tort is in consequence of command or neglect of general superintendent. Id. 10. Broker not entrusted with possession of property, contracted in his own name to sell same to vendee, who had no knowledge that broker was not real owner, but dealt with him as such. Broker notified principals that he had sold for them, and directed where to ship property. Owners, without knowledge of how broker had contracted, and without conduct clothing broker with authority to receive payment or any possession, actual or constructive, of property, delivered same to vendee. Held, payment to broker no bar to recovery by owners. Crosby v. Hill, 683. ALIMONY. See HUSBAND AND WIFE, I. A. and wife conveyed their farm to B., husband of granddaughter, in consideration of his agreement, secured by bond and mortgage on premises, to pay A. annuity of $250 on 1st of April, for life, and if wife survived, to pay her an annuity of $200 for life. A.'s wife outlived him. Held, that her annuity was apportionable. In re Iron Co., 748. ARBITRATION. See PARTNERSHIP, 10, 11. Award based on statements made by each party not set aside on bill filed ARBITRATION. by one alleging drunkenness at time of reference and statement, where proor shows he was capable of acting intelligently. O'Neil v. Rodgers, 214. ARREST. See EXTRADITION, 1. ASSIGNMENT. See ATTACHMENT, 8. BANK, 2. BILLS AND NOTES, 16. CORPORATION, 2, 3. ESTOPPEL, 3. LANDLORD AND TENANT, 1. PARTNERSHIP, 3. 1. Delivery of savings bank book as collateral security transfers an equitable title to deposit superior to subsequent attachment. Toft v. Bowker, 70. 2. Assignment for benefit of creditors who should release, with reservation of surplus to assignor, is fraudulent and void as to creditors not releasing. Lawrence v. Norton, 258, and note. 3. Statutes allowing preferences among creditors should be strictly construed, and assignments creating such preferences held void, when not in strict compliance with terms of law. Id. 4. Assignee for benefit of creditors under state law not "legal representative" of assignor under sect. 30 of National Currency Act of 1864, providing for a recovery of twice the amount of interest in case of usury. Barnet v. Bank, 70. 5. Provision in contract that if contractor fails to pay for labor and materials, other contracting parties may withhold moneys earned under contract and pay same, does not deprive contractor of right of alienation, and his assignees will be entitled to moneys earned under contract in order in which they acquired title. Shannon v. Mayor, 748. 6. Statute required assignee for benefit of creditors to sell all the assigned property at public auction within 120 days. Held, that deed authorizing the assignee to sell at private sale, at his discretion as to time and manner, was void. Jaffray v. McGehee, 344. 7. Insolvent guardian, who had misappropriated his ward's money, within six months before filing of petition in insolvency against him, in order to prefer his ward, deposited his own money in his name as guardian. Held, that his assignee could maintain bill in equity to recover amount, although ward was ignorant of misappropriation and insolvency. Bush v. Moore, 344. 8. Two debtors made an assignment: one was subsequently discharged in bankruptcy, and the other removed from the state. Afterwards a creditor, who had accidentally failed to become a party to assignment, sought to do so by bill in equity. Held, that although trustees had funds sufficient to pay him same dividend which had been paid to other creditors, he could not do so. Bank v. Smith, 214. 9. Not void because it does not direct payments pro rata in case there be not enough to pay in full. Unless otherwise directed by assignment, law imposes that duty upon assignee. Lindsay v. Guy, 542. 10. Where insolvent debtors have made an assignment, setting out in deed names of creditors and amounts due, persons so named are cestuis que trust, and entitled to equitable relief in case of mismanagement, waste or violation of trust by assignees. Cohen v. Morris, 543. 11. If trustee mismanages and wastes trust property, and persists in so doing, injunction and appointment of receiver is proper remedy. Id. 12. In such a case as above, where debt is undisputed, creditor, although his claim is not reduced to judgment, may assail assignment as fraudulent, and may seek to set it aside as to property obtained from him by fraudulent representations with which assignees are connected. Id. 13. Whether on final hearing complainants can both attack assignment as fraudulent and claim under it, not decided. Id. ASSUMPSIT. When contract for building has not been so performed as to justify recovery thereon, the value of the work and materials can only be recovered in assumpsit when owner has actually accepted building, which is not necessarily implied by mere occupation thereof. Bozarth v. Dudley, 140. ATTACHMENT. See ASSIGNMENT, 1. MORTGAGE, 1. White 1. Wages of seamen on coasting voyage on Atlantic coast subject to. v. Dunn, 808. 2. Mortgagee of goods attached, while in possession of mortgagor, by invalid attachment, may maintain replevin against attaching officer. Allen v. Wright, 808. 3. Money held under invalid attachment may be recovered of attaching officer in action for money had and received. Id. 4. Lien acquired by attachment of easily removable property is lost by neglect to retain possession. Thompson v. Baker, 141. 5. Where attachment is only of interest of co-tenant, sale of whole article is unlawful. Id. 6. Officer may break into shop or other building not connected with dwelling-house, in order to serve process of attachment, provided he first asks admission, if any person is present to grant it, and is refused. Clark v. Wilson, 415. 7. He is not obliged to first seek elsewhere for chattels to attach. Id. 8. Assignment in good faith of wages to be earned under existing contract, is valid against subsequent garnishment, provided garnishee have such notice of assignment as will enable him to disclose it in his affidavit. Tiernay v. McGarity, 620. 9. Levy of attachment for debt of grantor upon lands fraudulently conveyed gives lien which is not disturbed by decree setting aside conveyance and sub. jecting property to sale for payment of judgment recovered after levy. McKinney v. Bank, 70. 10. B.'s funds on deposit in bank were attached. The bank, as garnishee, showed that deposit was in name of "B., agent;" and that it knew nothing of any principal. It appearing that no one had, as principal, ever claimed the deposit, Held, that bank was liable as garnishee. Proctor v. Greene, 416. 11. The Maryland Act of 1876, ch. 285, prescribed a mode in which the claimant, by filing petition and giving bond, might procure discharge of property levied on. Held, 1. That upon trial of issue joined upon such claim, the question of damages as well as right of property is to be settled. 2. That petition need not in terms claim damages. 3. That requirement by said act of a bond in "double the appraised value," &c., necessitates an appraisement wherever there is claim. 4. That taking bond in less than amount prescribed, does not defeat claimant's recovery nor prevent inquiry of damages. Turner v. Lytle, 339. 12. Whether claimant, knowing of levy and seizure, is compelled to resort to this method of asserting his rights, quære? Id. ATTORNEY. See EVIDENCE, 4. 1. Is liable for fees for service and entry of his writs, and neither serving officer nor clerk is required to perform the services without prepayment. Tilton v. Wright, 466, and note. 2. Compromise of suit by attorney with apparent authority binds client, unless so unfair as to put other party on inquiry or imply fraud. Black v. Rogers, 70. 3. May contract for contingent fee, and such agreement does not make him party to action, or render evidence admissible of his personal treatment of opposite party. Gilchrist v. Brande, 620. 4. Where property is conveyed to attorney in trust, without his professional advice, and he mortgages same for purpose of raising money which he claims is due him from cestui que trust, and afterwards sells the property and appropriates proceeds to his own use, he cannot be summarily disbarred, but injured party must be left to his remedy by suit. People v. Appleton, 476. 5. In exceptional cases attorney's misconduct in his private capacity may be of so gross a character as to require his disbarment. Id. AUCTION SALES. See AUCTION SALES, 1. AWARD. See LIMITATIONS, STATUTE OF, 10. BAIL. Where bail in criminal case could not reasonably anticipate and prevent |