3. An agreement to indemnify a warrantor against his covenant of warranty, gives no ground of complaint to the warrantee, against the parties to such agreement. Lieby v. Parks, 4 Ohio Rep. 494.

4. The plaintiff describes himself, in an article of agreement under seal, as 'acting as agent for H. & Co.,' but covenants as in his own right, and the defendant enters and enjoys. Held that an action is maintainable in the name of the agent. Potts v. Rider, 3 Ohio Rep. 71. 5. A statute gave a penalty to be recovered by a qui tam action, one half to the use of the prosecutor, and the other half to the use of the town. A person having brought such an action, afterwards compromised it by receiving a sum of money of the defendant and having the action entered neither party on the docket. Held, that the town could not maintain assumpsit against the plaintiff in the qui tam suit to recover a part of the money received by him. Raynham v. Rounseville, 9 Pick. 44. 6. The settlement of the qui tam action being made without the leave of the court, is no bar to another action for the same penalty. lb.

7. Where a statute gives a qui tam action for a penalty, several persons cannot join together in the suit as informers. Vinton

v. Welsh, 9 Pick. 87.

1b.

8. A statute provided that a town might regulate the fishery in a river passing through it, and appoint a committee to enforce the regulations and prosecute all violations of them, and also gave a penalty against the owners of dams on the river, if they did not keep sufficient passage-ways open for fish, the penalty to be recovered, one third for the use of the informer, and two thirds for the use of the town; held, that the committee could not maintain an action for such a penalty in their own names for the use of the town. 9. A, being the owner of a factory and the machinery in it, gave a bond to S, conditioned that he would convey them to S, when certain negotiable notes given as the consideration, should be paid, and that S should have the possession of the property, so long as he continued to pay the notes as they became due, and no longer, and possession was delivered immediately pursuant to the bond. Before the first note became due, the machinery was attached as S's property, and was removed from the factory by the officer, who, before the removal, had full notice of A's title, and the machinery was afterwards sold on execution. A then brought an action against the officer, in which the declaration.

contained counts in trover and case. Held, 1. That A might maintain case for the injury done to his reversionary interest in the machinery: 2. That the proceeds at the sheriff's sale were not the measure of damages in the action: 3. That the measure of damages was the value of the machinery as it stood in the factory, before its removal. Ayer v. Bartlett, 9 Pick. 156 10. Whether the count in trover could be supported, quære. 16. 11. It seems that if S himself had removed and sold the machinery, A might have brought trover against the vendee. Ib. See CORPORATION.

ADMINISTRATION OF ASSETS.

An administrator cannot pay his own debt in preference to a debt of higher degree, in those States, where the principles, as to marshalling assets, prevail. Page v. Patton, 5 Pet. 304. ADMIRALTY.

1. Wherever a lien for seamen's wages exists and attaches upon the proceeds of the ship or freight, the admiralty has jurisdiction over such proceeds. Sheppard v. Taylor, 5 Pet. 711. 2. It exerts such jurisdiction by monition to the parties holding such proceeds. lb.

ADVERSE POSSESSION.

The adverse possession of one, who enters upon land without any pretence of title, operates a disseizen of the true owner only for the portion actually occupied, but the possession of one, entering under a deed or title which proves to be defective, operates a disseizen of the true owner to the extent of the boundaries specified in such deed or title, unless at the same time the actual owner be in possession of a part, claiming title to the whole, where the disseizen will be limited to the part actually occupied. Clarke v. Courteny, 5 Pet. 354.

AGREEMENT.

An agreement made by a devisee, under a mistake as to the construction of the devise, is not conclusive. Bigelow v. Barr, 4 Ohio Rep. 265.

See CONTRACT.

AMENDMENT.

1. Where the seal attached to a certiorari is not the seal of the court out of which the writ issues, an amendment by affixing the right seal, will be allowed. The People v. Steuben, C. P 5 Wend. 103.

2. Where a plea of an insolvent discharge was clearly bad, for the

want of proper averments giving jurisdiction to the officer granting it, the court suspended judgment non obstante veredicto, so

as to give the defendant the opportunity to apply for leave to amend. Soper v. Soper, 5 Wend. 112.

3. Where, from the answer of the defendant, it appears there was a valid and subsisting agreement between him and the complainant, but variant from that set forth in the bill, the complainant. will be allowed to amend his bill as to the terms of the contract, so as to conform it to the admission of the answer, upon such terms as to costs in the court below as the chancellor shall direct. Harris v. Knickerbacker, 5 Wend. 638.

4. An officer returned on a writ, that he had attached a piece of land of the debtor on a certain day. Before that day a mortgage made by the debtor had been placed on record. The officer afterwards, by leave of court, amended his return so as to date the attachment before the recording of the mortgage, though not before its delivery; and the land was seasonably set off to the creditor on an execution issuing in the case. Held, that the title of the mortgagee should prevail over that of the judgment creditor. Emerson v. Upton, 9 Pick. 167.

5. Upon a plea in abatement to an original writ made returnable to this Court, that it was not under the seal of this Court, the Court refused to allow the writ to be amended by affixing the seal. Hall v. Jones, 9 Pick. 446.

APPROPRIATION.

1. An administrator in Virginia held in his hands personal property of his intestate which is there called legal assets, and all the proceeds of real estate which he had sold as a commissioner appointed by the court, which are called equitable assets, and by the laws of that state, the legal assets in that state are applied to the payment of debts acording to their dignity, but the equitable are distributed ratably among all the creditors; and payments were made (under a decree of court directing generally that such payments should be made out of the funds of the intestate) by such administrator and commissioner, without showing in any way whether made from legal or equitable assets; held that his sureties, as administrator, could not have such payments credited to the legal assets so as to discharge them from their liability. Backhouse v. Patton, 5 Pet. 161.

2. The law, in default of any appropriation being made by debtor or creditor, will not apply such payments uniformly to the extinguishment of debts of the highest dignity. lb.

ARBITRATION.

1. Under a general submission to arbitration by partners, of all accounts, dealings, controversies, demands, &c. as well individ

ual, as partnership concerns and transactions, an award, giving the joint property to one of the partners, and directing him to pay the other partner a sum in gross, and to discharge and satisfy the debts owing by the firm, is good, and will be supported, especially if there be no evidence that the arbitrators have decided matters not in dispute between the parties. Byers v. Van Deusen, 5 Wend. 268.

2. An award that one of the parties shall have and own, in his own

right, all the interest which the parties jointly had in a certain brewery, near a certain village, cannot be objected to for uncertainty. lb.

3. A submission of all demands includes all questions concerning real as well as personal estate. lb.

4. In a suit at law on an arbitration bond for not performing an award, it is no defence that the party sought to be charged, had not notice of the hearing and did not attend. Elmendorf v. Harris, 5 Wend. 516.

5. A parol appointment by arbitrators, of an umpire, is good, unless the submission require it to be made in writing. 1b. ASSIGNMENT.

1. Where a manufacturing company is formed, the parties are to be held a joint stock company subject to the law of partnership. The officers, under a general power to contract, may bind the company by a loan of money to be employed in conducting the the business. Wells v. Wilson, 3 Ohio Rep. 446.

2. An administrator replevies goods as the property of his intestate, in the hands of a stranger. On the trial, the property is

proved to be in a third party, and the stranger obtains judgment, for the value, against the administrator, equity will hold the judgment for the benefit of the real owner of the goods. Steele v. Lowry, 4 Ohio Rep. 76.

3. An assignment of a mortgage executed by a treasurer of a corporation, though under the seal of the corporation, of which he is the keeper, without the direction or knowledge of the managers, and no subsequent ratification shown, is void. Jackson v. Campbell, 5 Wend. 572.

4. Where property is assigned by a debtor to two persons by one instrument, to hold to them respectively in the proportions which the debts due to them respectively bear to each other,' and the assignment is proved to be fraudulent and void as to one of the assignees, it is nevertheless valid in respect to the other who is innocent of the fraud; their interest in the fund being several, though if the instrument were valid in the whole, they

would take as tenants in common. Prince v. Shepard, 9 Pick.

176.

ASSUMPSIT.

1. A shipment of tobacco was made on account and at the risk of the owner, at New Orleans, by his agent, to Messrs. Tiernan & Sons, to whom the owner was indebted for a balance of account, and the owner drew two bills on the consignees, and on the same day assigned, on the back of a duplicate invoice of the tobacco, to Jackson the drawee of the bills, so much of the proceeds of the tobacco, as would be equal to the amount of the bills, and requested the consignees to hold so much of the net proceeds of such tobacco subject to the order of such assignee. The consignees, on the day after the receipt of the shipment, attached the property by a writ of garnishment, and the next day refused to accept the bills drawn on them; notice of the assignment was not given till subsequently to this time. Held that the consignees were not liable to the assignee, Jackson, in an action of assumpsit. Tiernan v. Jackson, 5 Pet. 597.

2. A parol agreement by a parent that his child, aged 16, shall serve a third person until he arrives to the age of 21, when his master is to pay him $100, is within the statute of frauds; but if any services are rendered under such contract, there may be a recovery for the same upon a quantum meruit. Shute v. Dorr, 5 Wend. 204.

3. Where two persons agree equally to bear and pay the losses and damages which may be sustained in consequence of one of them being special bail for a third person, and after they have. equally contributed to the payment of the debt, one of them is refunded the amount paid by him, he is answerable to the other for a moiety of the money received by him. Smith v. Hicks, 5 Wend. 48.

4. Assumpsit will lie by a stranger against a party for necessaries furnished to and support provided for one whom such party is under a legal obligation to maintain so held, in a case where on the division of the property of the father among his sons, one of them, in consideration of receiving a greater portion of the estate than his brother, assumed to provide for his father and his step-mother; after the death of his father he refused to provide for his step-mother, she was supported by her own son and an action brought by him against the party receiving the property was sustained. Forsyth v. Ganson, 5 Wend. 558.