the contract price and the actual proceeds of the wheat, including charges. Ib.

4. Where A had contracted to build a house for B, to be paid for when finished, and had refused to go on and perform the contract, because B, after the materials were collected and the building framed, had absconded, was induced to proceed and finish the building upon the representation of C, that he had purchased the interest of B in the work, and upon his promise that he would pay A, it was held that the promise of C was an original undertaking, and not within the statute of frauds. King v. Despard, 5 Wend. 277.

See CONSIDERATION, 4.

FRAUD.

1. The holder of a recorded mortgage does not act fraudulently if he prepare a second mortgage, and remain silent concerning his own. Paine v. French, 4 Ohio Rep. 320. 2. A bill by a purchaser of mortgaged premises from the mortgagor, against the mortgagee to redeem, charges that the mortgagee fraudulently looked on and saw the purchaser from the mortgagor, make large improvements, and did not disclose his title. Such charge of fraud must be answered the bill is not bad on demurrer. Carter v. Longworth, 4 Ohio Rep. 385. FRAUDULENT CONVEYANCE.

1. A stipulation that the vender, who conveys land in payment of a debt, pending a suit, may repurchase in twelve months, at the option of the vendee, is not, of itself, evidence of a secret trust. Burr v. Hatch, 3 Ohio Rep. 536.

2. A family settlement, i. e. a conveyance by a parent of all his real estate to a daughter, for the benefit of herself and her brothers and sisters, made bona fide, will not be set aside, in favor of a creditor at the time of the conveyance, by whose advice and procurement the settlement was made; the creditor having at the time ample security for the moneys due to him by mortgages upon specific portions of the estate, but which, after a lapse of ten years, proved insufficient, at a forced sale, to satisfy his demands. Pell v. Tredwell, 5 Wend. 661. 3. Whether an action at law will lie by a vendee against a vendor for a fraudulent representation as to the title to land, where the vendee accepts a deed without warranty, and is subsequently evicted by the true owner? Quare. Leonard v. Pitney, 5 Wend. 30.

4. The action, at all events, must be brought within six years after the representation; ignorance in the vendee of the defect

of title, and fraudulent concealment, on the part of the vendor, of such defect until within six years before suit brought, is no answer to a plea of the statute of limitations. Ib. 5. A subsequent sale, without notice, of property, by a person who had made a voluntary conveyance, is presumptive evidence of fraud, which throws on those claiming under the voluntary conveyance, the burden of proving it to have been made bona fide. Cathcart v. Robinson, 5 Pet. 281.

6. The modern English decisions making it conclusive evidence of fraud, are not binding on us. lb.

See ACTION, 9.

GUARANTY. See BILLS OF EXCHANGE; LETTER OF CREDIT. HEARSAY EVIDENCE.

Hearsay testimony is competent to prove the death of a person.
Scott v. Madison, 5 Pet. 81.

IMPRISONMENT FOR DEBT. See SATISFACTION.
INDEMNITY.

Where merchants in this country gave a written engagement to their agents at Havana, to save them harmless from all costs, damages and expenses, which might arise in consequence of any law suit which then was or might be brought against them for the recovery of freight or average on the cargo of a certain ship, it was held that the agents were entitled to recover for moneys which they were obliged to pay in consequence of legal proceedings on an award made previous to obtaining the written engagement; the award being made in February, and the engagement in August, 1815. Hill v. Packard, 5 Wend. 375. INDICTMENT.

1. In an indictment for perjury, committed in the taking of an oath by an insolvent, on presenting his petition for a discharge, it is not necessary to set forth more than the substance of the oath. The People v. Warner, 5 Wend. 271.

2. An indictment for stealing bank bills is bad, unless it avers that the accused, at the time of the theft, knew the bills to be bank bills. Gatewood v. State of Ohio, 4 Ohio Rep. 386. 3. If one discharges a gun with knowledge and warning that the report will affect injuriously the health of a sick person in the neighborhood, and such effect is produced by the discharge, he is guilty of an indictable offence. Commonwealth v. Wing, 9 Pick. 1.

4. An indictment, reciting that an act to incorporate the proprietors of a bridge required that there should be a draw, and a pier on each side of the bridge at the draw, and then alleging

that the defendants have neglected to provide a suitable pier 'on each side of the said bridge at the said draw, but have left the said bridge altogether destitute of any pier at the said draw,' was held to be defective, because it contained no direct averment that a bridge had been built. Commonwealth v. Newbury

port Bridge, 9 Pick. 142.

INSURANCE.

1. The right of the master to sell the vessel as the agent of all parties, in cases of extreme necessity, is unquestionable. But good faith in the master and an extreme necessity must concur to justify the sale. The honest opinion of the master, of the necessity of the sale, is not enough; there must be a necessity in fact. Patapsco Ins. Co. v. Southgate, 5 Pet. 621. 2. In an action on a policy of insurance against an incorporated company, by the terms of whose act of incorporation an assignee of the assured may bring an action on the policy in his own name; if the subject insured has been transferred to him, it is necessary that the plaintiff aver in his declaration that he has become the purchaser or assignee of the subject insured ; a general averment that the plaintiff became and was interested in the buildings insured, and that the assured transferred all his right and interest in the policy to the plaintiff, is not sufficient. Granger v. The Howard Ins. Co. of New-York, 5

Wend. 200.

3. A part owner may insure his individual interest in a vessel, without specifying that interest.

Turner v. Burrows, 5 Wend.

541. 4. If it clearly appears that the owner who effected insurance, did it on joint account, and the language of the policy is for account of whom it may concern, or for account of the owners, any one having an interest in the vessel insured may claim the benefit of the policy; but where the policy contains no words importing interest in any other than the person effecting it, none but himself can claim the benefit of the policy. Ib. 5. The principle of the marine insurance, one third new for old, is applicable to insurance of steamboats, on the western waters. Wallace v. Ohio Ins. Co. 4 Ohio Rep. 242.

6. The necessity which will justify a master of a ship in selling her, is one in which he has no opportunity to consult the owners or insurers, and which leaves him no alternative. Hall v. Franklin Ins. Co., 9 Pick. 466.

7. A ship insured at Boston, in December, for one year, and owned partly in Boston, but chiefly in New-Orleans, on her

voyage from Boston to New Orleans struck on a shoal on the coast of Florida on the 18th of February following, but by the assistance of wreckers she was got off, and according to a previous stipulation insisted on by the wreckers, she proceeded to Key West, in order to have the salvage adjusted either by arbitration or by a judgment of a court of admiralty, the nearest court being 300 miles distant. She arrived at Key West on February 23d. She did not leak, and she might have remained at Key West in safety, until notice of the disaster should have been sent to Boston. Notice was sent to the part-owners at New Orleans, and one of them arrived at Key West on March 17th. A survey was then had and the vessel was condemned as unworthy of being repaired, and on the 21st she was sold. The expense of repairing her at Key West, would have exceeded fifty per cent. on her value, but at New Orleans or Boston, (to either of which ports she might have proceeded, and in fact, after the sale, she did proceed to Boston, with the same master,) the expense would have been less than fifty per cent. It was held, that the sale was not necessary, and that the insurers were not affected by it. lb.

8. The voyage from Key West to a suitable port for making repairs, would have been a voyage of necessity, and so protected by the policy. lb.

9. The expense of repairing a ship at the place where she is injured, is not the criterion for determining whether there is a constructive total loss, if there are no reasonable means of making the repairs at that place, and the ship can be safely navigated to a port where the repairs can be made at an expense of less than fifty per cent. on the value of the ship; but in such case it is the duty of the master to proceed to such port to make the repairs. 1b.

10. The assured cannot abandon on the ground of imminent danger of a total loss: As if a ship, having sustained damage, is abandoned while on her way to a port to repair, the abandonment will have no effect in case she shall arrive and the repairs shall cost less than fifty per cent. on her value. 1b. See TRUST, 1,

INTEREST.

2.

1. In an action to recover interest due on a contract, distinct from the principal, the interest due is recoverable with interest. Watkinson v. Root, 4 Ohio Rep. 373.

2. Where an agent, having received money, unreasonably neglects to inform his employer of it, he is liable for interest from the

time when he ought to have given information. Dodge v. Perkins, 9 Pick. 368.

See MORTGAGE, 2.
JUDGE.

A judge who issues a warrant under the statute authorizing summary proceedings against tenants, who hold over, to dispossess a person, without having jurisdiction of the matter, is a trespasser, and an action lies against him by the person dispossessed, although such person came illegally into possession. Evertson v. Sutton, 5 Wend. 281.

JUDGMENT.

1. A judgment is not discharged by a commitment on a capias ad satisfaciendum, if the defendant escape from prison, or is discharged therefrom by operation of law. Taylor v. Thompson, 5 Pet. 359.

2. In Maryland where a judgment is a lien upon the property of the debtor, held that a commitment of the debtor to prison, from which he escaped, on a capias ad satisfaciendum issued on such judgment, was no release of such lien.

See ORPHAN'S COURT.

JUDGMENT, Arrest of.

lb.

After a verdict for the plaintiff, which he applies to one only of several counts, judgment will not be arrested on the ground that such count is repugnant to other counts. White v. Snell, 9

Pick. 16.

JUDGMENT, Foreign.

1. To an action of debt on a judgment rendered in a sister state, commenced by attachment of goods, &c. a defendant may plead in bar of a recovery, that no process was ever served upon him in the suit in which the judgment was rendered, and that he never appeared thereto in person or by attorney, notwithstanding that in the record it is averred that the defendant appeared to the suit. Starbuck v. Murray, 5 Wend. 148.

2. It is not a good plea in such action that the defendant, at the time of the commencement of the suit in such sister state, was, and ever since had been, an inhabitant and resident of another state, and that he was not, during all the time aforesaid, within the state where the judgment was rendered. Ib.

3. If the jurisdiction of the court, as to the subject matter or person, is not impeached, the record of such judgment is entitled to full faith and credit. Ib.`

4. And such plea is equivalent to a denial of appearance in person or by attorney. Holbrook v. Murray, 5 Wend. 161.