A

ACCOUNT.

1. Where T. & Co. rendered to L. &
Co. an account of their mutual deal-
ings, which contained a charge against
the latter of $880,48, and showed a
balance of $5623.41 due them, and
L. & Co. soon afterwards drew a draft
on T. & Co. for an amount corres-
ponding with that balance, which was
paid, and they suffered several months
to clapse before bringing a suit to
recover the item of $880.48 as im-
properly charged to them; it was
held, that when L. & Co. drew for the
balance of the account as sent to
them they agreed to the correctness of
the charges made in the account;
and that from that time the transac-
tion was closed, and they could only
open it by proof of fraud or mistake.
Lockwood v. Thorne,
391

2. Held also, that the fact that after-
wards L. & Co. preferred a claim
against T. & Co. for the amount of
the disputed charge, could not avail
the former firm. And that the fact
that T. & Co. were willing to nego-
tiate with L. & Co. for a settlement
of the matter in controvesy; or that
in their dealings with others T. &
Co. had been willing to treat other
accounts, similarly situated, as open
and unsettled, could not change the
rights of the parties.

ACTION.

ib

1. As a general rule, a defendant who
has an equitable defense to an action,
being now authorized to set it up by
answer, is bound to do so, and he

objection cannot be raised on appcal.
Tibbits v. Percy,

39

2. Where a party, on appealing to the
county court from the judgment of a
justice of the peace, for the purpose
of staying execution of the judgment,
executes an undertaking, with sure-
ties, conditioned that if judgment
shall be rendered against" the appel-
lant, and execution thereon be re-
turned unsatisfied in whole or in part,
the obligors will pay the amount un-
satisfied, and the county court re-
verses the judgment of the justice,
and on appeal to the supreme court,
that court, at general term, reverses
the judgment of the county court and
affirms that of the justice, with costs,
the sureties are liable, not merely for
the amount of the judgment in the
county court, but for the amount re-
covered in the supreme court. Smith
v. Crouse,
433

3. In order to perfect an appeal to the
county court from the decision of a
justice in summary proceedings to
recover the possession of demised
premises, under the statute, security
must be given. Deuel v. Rust, 438

4. Notice of appeal must be given in the
manner provided by ý 354 of the code.
Security for the judgment must be
given, in the form prescribed by

356 of the code, which must be
approved by some officer formerly
competent to allow appeals to courts
of common pleas. And, in addition
to this, in case of an appeal by the
tenant, in order to stay the issuing of
the warrant or execution, security
must also be given for the payment
of all rent accruing or to accrue upon
the premises subsequent to the appli-
cation to the justice.
ib

2.

Thus where parties submitted a con-
troversy to arbitration, by a submis-
sion which provided that a judgment
of the supreme court should be ren-
dered upon the award, and the arbi-
trator made his award in favor of the
plaintiffs, and judgment was entered
thereon; and the defendant made no
motion to vacate or modify the award
for any of the causes specified in the
statute, but appealed from the judg-
ment; it was held that he could not
review the award upon the mer-
its, by serving a case which stated
the testimony before the arbitrator,
and his decisions thereon, and the
defendant's exceptions thereto. All
the testimony and the proceedings
had before the arbitrator, at the hear-
ing, were accordingly struck out. ib
3. Where a submission to arbitration
provided that a judgment might be
rendered in the county court, upon
the award made in pursuance of such
submission; Held, that the party in
whose favor the award was made
might bring an action thereon, with-
out entering any judgment in the
county court, or waiting for a term
of such court to be held. Burnside
v. Whitney,

ASSESSMENT.

632

Where land, situated within the
bounds of any city or village, in which
several persons are interested, is or-
dered by the supreme court to be
sold, under and in pursuance of the
act of May 26, 1841, to authorize
the sale of real estate in certain cases,
to pay assessments" &c., or under the

4. Where an instrument describes it-
self as being a promissory note, and
on its face it purports to be nego-
tiable, by being payable to A. and B.
"or order," and the payees indorse
it in blank, and thus pass it to the
holder as a negotiable promissory
note, they will be estopped from de-
nying that it is such.
ib

5. Where the holder of a note, on its
arriving at maturity, uses due dili-
gence to ascertain the residence of
the indorser, and sends notice of
protest to the place designated as
such, he will be entitled, as such
· holder, to recover against the in-
dorser; although in fact, owing to
misinformation, the notice was not
sent to the right place. And a sec-
ond indorser, who subsequently
pays the amount of the note, to the
holder, and thus becomes the owner
thereof, stands in the shoes of the
holder, and is subrogated to his
rights. And this, although he him-
self knew where the indorser resid-
ed, at the time notice of protest was
sent. Beale v. Parish,
243

6. Thus, where the plaintiffs, being the
holders of a note, before it fell due
indorsed and transferred it to the
C. Bank, and T., the notary of the
bank, at the maturity of the note,
demanded payment of it, and the
next day inquired at the C. Bank
where the first indorser resided, and
was told that they did not know;
and he then gave the plaintiff's no-
tice of non-payment, and inquired
of them where he should send no-
tice to the first indorser, and was
told that he resided either at Dun-
kirk or Buffalo, and was requested
by them to send notice to him at
both of those places, which was done
accordingly; although the indorser
in fact resided at C., and the plain-
tiffs knew that fact; the plaintiffs
VOL. XXIV.

85

8.

A promissory note, given in pay-
ment of a subscription to the capital
stock of a banking association, and
discounted by the bank, for the
maker, is upon a good considera-
tion, and may be enforced by the
receiver of the bank after its fail-
ure, notwithstanding that by an ar-
rangement among the directors, of
whom the maker was one, the in-
strument in question, and others of
a similar tenor given by the others,
were not to be considered as valid
promissory notes, in the hands of
any person, or for any purpose what-
ever, unless the directors should
elect to pay their notes and take
certificates of the stock. Cowles v.
Gridley,
301

And a renewal of such a note, at
maturity, by the maker, on the as-
surance of the cashier that the in-
terest paid "will come back to him
on the making of a dividend to the
stockholders," amounts to a deter-
mination of the maker's election to
take the stock and to become abso-
lutely bound for the amount. ib

9. Where drafts were drawn by J. &
M., the general agents at Albany, of
a line of tow boats, upon H., the
agent of the line in New York, at
the request and for the accommoda-
tion of the Canal Bank, and signed
by J. & M. as "Agents of the Tow
Boat Company," payable to their
own order and indorsed by them as
agents, and subsequently discounted
by the plaintiff, at the request of the
Canal Bank, for a valuable consid-
eration; it was held, in an action
against the tow boat company, that
the plaintiff, being apprised, by the
drafts themselves, that they were
drawn by agents, took them at the
risk of showing, affirmatively, that
the agents not only had the appa-
rent authority to make the drafts,
but also that the same were actually
made for the benefit of the defend-
ants, their principals. The Ex-
change Bank v. Monteath,
371