those results grow, are enumerated, in determining a matter of jurisdiction, the court will suffer the entries to be corrected. Id. 4. When a judgment is rendered in an action of book account, part of the account having accrued before the first of January, 1839, and a part afterwards, the creditor cannot have an execution upon such judgment against the body of the debtor. Witt v. Marsh et al., 303 5. Where services are performed at the request of two, and the testimony is equally strong to prove a contract against both as against one, both are liable on such contract, and, in an action on book against one of the promissors, the nonjoinder of the other may be taken advantage of before the auditor. Smith v. Watson, 332 6. Where a payment has been made upon a promissory note, the party making it cannot maintain an action on book to recover therefor. Peach v. Mills, 371 7. If a note is sued, and the defendant claim that he has paid certain sums on the note, and this is found against him by the verdict of a jury, he cannot maintain an action on book to recover for such payments. Id. 8. Where property is taken forcibly from the possession of the owner, he cannot waive the tort and recover therefor in an action of book account. Id. be charged on book, or there is to be a subsequent adjustment, an action may be maintained therefor, although it was in tended that the account was to be applied in payment. Id. 13. Where one employs another to purchase an article of property for him of a given description and price, and to pay for it, which is done, the price may be recovered in an action of book account, even where the vendor never accepted the delivery of the article. Paddock et al. v. Ames, 515 BOND. 1. A debtor takes a bond to a third person, for a deed of certain land, on his paying a sum therein mentioned, and erects buildings thereon. The interest of the debtor in the land may be levied on, unless such third person shows some legal or equitable claim thereto. Woods v. Scott et al., 518 2. An attachment of such land is notice to the obligor in the bond of the claim of the creditor, and after that he could only be justified in deeding to the obligee. Id. 3. When, after such attachment, the obligor deeds the land to another for the benefit of the debtor, and receives notes or securities therefor, he holds them, after the payment of his own claims, for the benefit of the attaching creditor who has obtained a judgment and levied an execution on the land attached. 9. Where, in an action on book, the audi- Id. If the person, in whose name the bond is taken, neither claims nor sets up any right to the premises, and there is no proof that he has any legal or equitable right or claim thereto as against the debtor, a decree will pass that the obligor pay whatever sum may be in his hands to the creditor. Id. C CHANCERY. dence for the other. Cannon et al. v. Norton et al, 178 2. An answer, not responsive to the bill, setting up matter in defence or avoidance, must be proved. all damages and costs,-it was held that 1. The answer of one defendant is not evisuch release was a bar to the action. Judd v. Blake et al., 410 10. No recovery can be had in the action on book where the contract is executory and unrescinded, though in part executed. Smith v. Smith, 440 11. Goods delivered in payment of a preexisting debt cannot be recovered for in an action on book, nor by plea in offset. Brooks&Co. v. Jewell, 470 12. But, when, from the nature of the contract,it is contemplated that goods should Id. 3. Quære. Whether the want of parties to a bill can be taken advantage of on the hearing of an appeal from the chancellor. Id. 4. When the want of parties is not insisted on by demurrer, or plea, it cannot be urged at the hearing, unless it manifestly 7. Though improvements are made upon lands mortgaged by a third person, claiming neither under the mortgagee nor mortgagor, yet, if after this the mortgagee enters and occupies, he may be charged for rents that arise by reason of such im-2. provements. Merriam, adm'r, v. Burton et al., 501 8. The administrator is the person to bring a bill to redeem, instead of the heirs. Id. 9. The equity of redemption is not barred by a possession in the mortgagee for a shorter period than fifteen years, though there may be an embarrassment in taking the accounts. Id. 10. Exceptions to a master's report, addressed to the discretion of the chancellor, cannot be revised in this court, which sits as a court of error. Id 11. This court will not set aside the report of the master because the accounts were not verified upon the oath of the party, as specified in the 41st rule of chancery practice. Id. 12. A debtor takes a bond to a third person for a deed of certain land, on his paying a sum therein mentioned, and erects buildings thereon. The interest of the debtor in the land may be levied on, unless such third person shows some legal or equitable claim thereto. Woods v. Scott et al., 518 13. An attachment of such land is notice to the obligor in the bond of the claim of the creditor, and after that he could only be justified in deeding to the obligee. Id. 14. When, after such attachment, the obligor deeds the land to another for the benefit of the debtor, and receives notes or securities therefor, he holds them, after the payment of his own claims, for the benefit of the attaching creditor who has obtained a judgment and levied an execution on the lands attached. 15. If the person, in whose name the bond is taken, neither claims nor sets up any right to the premises, and there is no proof that he has any legal or equitable right or claim thereto as against the debtor, a decree will pass that the obligor pay whatever sum may be in his hands to the creditor. Id. Id. 3. 4. CONSIDERATION. Where the plaintiff took a note against two debtors and also a note against one of the same debtors, and, at the time of taking them, agreed, in writing, to give up the latter note to the maker on his paying the note signed by both debtors, and further agreed to give thirty days notice before he called for the money, it was held that the agreement to give such notice was without consideration, and that the plaintiff might maintain an action upon the note signed by one of the debtors, the other note not being paid, without giving notice. Card v. Curtis, 236 The inference to be drawn from such agreement is that both notes were given as security for the same debt. Id. A purchase of a right of redemption, under an agreement to pay a certain sum if the purchaser succeeds in obtaining a decree, permitting him to redeem the premises, or nothing if he fails in obtaining such decree, is illegal and void in a case where the person in possession has been in possession for a long time under a deed of warranty, intended to convey the fee of the land. Wright v. Whitehead et al., 268 An allegation that, on &c., in consideration that the plaintiff, at the defendant's request, had then and there delivered to the defendant a certain horse in exchange for a certain other horse, the defendant then and there promised that the latter horse was sound, is an averment that the warranty was given at the time of the exchange, and shows a sufficient consideration for the promise.296 5. It seems that a forbearance to bid at a Wightman v. Carlisle, public auction, for the sale of the support of the paupers of a town, is a valuable consideration for a note given for such forbearance. Noyes v. 384 But such a transaction is contrary to Day, public policy and the note is, therefore, void. Id. 6. CONSTABLE. See Towns, 3, 4. CONSTRUCTION OF TERMS. See CONTRACT, 1,19. CONTRACT. 1. After verdict and motion in arrest of 195 268 4. In construing contracts, courts will en- 4. Members of a society organized with deavor to avoid what is unequal, unreasonable, and improbable, if this can be done consistently with the words of the contract. Royalton v. R. & W. Turnpike Co., corporate powers, under the statute for the support of the gospel, are not competent witnesses, at common law, for the corporation; and it is not a case within the act passed in 1816, making, in certain cases, corporators witnesses. Id. 5. Towns and turnpike corporations have almost an unlimited discretion in regard to entering into contracts for building roads and bridges, and keeping them in repair, and may contract to pay a gross sum, at once, or by instalments or an annuity. Royalton v. R. & W. Turnpike Co., 311 5. Towns and turnpike corporations have almost an unlimited discretion, in regard to entering into contracts for building roads and bridges, and keeping them in repair, and may contract to pay a gross sum, at once; or by instalments, or an annuity. Id 6. The powers of the directors of private corporations, to bind them by contracts, depend exclusively upon the charter and 6. The powers of the directors of private by-laws (or statutes) of such corporations respectively. Id. 7. Where a contract is made by one person, which in some sense ultimately concerns others, the question, whether the one contracting is personally bound by stipulations contained in it, is one of intention mainly. Hinsdale v. Partridge, 1. 547 8. In such case, if the party contracting have no authority from the principal to make such contract on his behalf, or if the other party knowing all the facts consent to look to his credit, or if he require the assurance of the agent, he will be personally liable upon the contract. Id. 9. The construction of a contract depends upon its terms, the subject matter, and 2. 3. 311 corporations, to bind them by contracts, depend exclusively upon the charter and by-laws (or statutes) of such corporations respectively. COST. Id. When two suits are pending to recover the same debt, and a judgment is rendered in one and paid, this cannot be pleaded in bar of the other without payment of the cost. Stevens v. Briggs, 44 Payment after suit commenced cannot be pleaded in bar unless it is a payment of the cost of the suit. In such a case the plaintiff may recover nominal damages. Id. A judgment cannot be rendered for a plaintiff to recover cost, only, unless 1. A conveyance by the husband, shortly 2. Though the wife separate from the hus- Id. E EJECTMENT. Ladd v. A trustee may recover,in ejectment, against EVIDENCE. 1. The certificate of the clerk of the proper 14 99 288 7. An indictment against a town for not Id. 8. Where, in an ancient deed, conveying 9. Before evidence of the contents of a 311 10. In an action of covenant broken, upon 438 1. Where a debtor, in an appealed suit, Id. |