payee consent or do not expressly object. Hodges v. v. Holland, xix. 43. 8. Where several persons make a note, payable to one of themselves, he cannot sue upon it at law, but his indorsee may. Pitcher v. Barrows, xvii. 361. 9. The plaintiffs, a bank, authorized their directors, when money was abundant, to solicit and procure notes for discount. One of the directors obtained possession of a note under pretence of getting it discounted for the maker, when money was scarce, and pledged it to the bank for a loan made to himself, the maker knowing that the director had authority to procure notes for discount only when money was abundant. In an action upon the note against the maker, held, the director had exceeded his authority, and been guilty of a fraud, which did not bind the bank; and, as in procuring the discount he did not act officially, the bank was not bound by his knowledge of the facts, and might maintain this action. Washington Bank v. Lewis, xxii. 24. 10. The note being pledged, as well for a prior debt due from the director, as for the money advanced, and such advance made in part for the purpose of securing such debt; held, the plaintiff should recover the whole of the note, not exceeding the joint amount of both considerations. Ibid. 11. A draft, upon which a suit was brought against the acceptor, did not purport to be made at any certain place. The suit was brought in Boston, and the declaration alleged, that the draft was made there. Held, no variance. - Fairfield v. Adams, xvi. 381. 12. But the plaintiff cannot claim damages, without truly averring and proving the place. - Ibid. 13. A joint and several note was signed and left with A., one of the promisers, to be delivered to the promisee, when demanded, in exchange for a note of the same amount, but of prior date, signed by A. alone. No demand was made for the note during's A.'s life, and the promisee brings an action to recover possession of it from A.'s administrator. Held, it was to be presumed that the interest accrued upon the old note was to be paid on making the exchange; that the new note was not de facto a payment of the old one; that the title to it had not vested in the plaintiff, and this action would not lie. Canfield v. Ives, xviii. 253. 14. Four notes, made by one A., and indorsed by the defendant, being in the hands of B., the defendant, before maturity of any of them, gave B. an order for the payment of them (without expressing any priority) from property assigned by A., by an in denture to which the defendant was party, for the payment of the notes in full or proportionally, which property proved insufficient. The assignees, conformably to the order, made a payment, after maturity, of all the notes, and B. applied the money to all of them pro rata, not to those which first fell due. Held, he had a right to make such application. Washington, &c. v. Prescott, xx. 339. 15. In an action on two of the notes, held, the other two, with the indorsements, were admissible in evidence, to explain the appropriation of the money upon the order. — Ibid. 16. Held, in the assessment of damages, the jury were not to regard any future dividend which might be paid upon the order. Ibid. 17. A. the plaintiff, holding a note, indorsed in blank, delivered it to B. and C., attornies and partners, as collateral security for debts due them and others. The note was placed among the private papers of C., who transacted the business. Some time after payment of these debts, but before maturity of the note, D., the maker, paid B. the amount due, without interest, taking a receipt from him alone, which stated that it was in full payment of the note, and that the note was to be delivered up to D. Held, as it was not in fact given up, and as B. and C. had no right to transfer or collect it after payment of the debts, the transaction could not operate as a payment and discharge; and that D. was liable to an action by A.- Wheeler v. Guild, xx. 545. 18. Suits having been brought both against the maker and indorser of a note, the former brings into Court the amount of debt and interest, and offers to pay the cost against himself. Held, the plaintiff might require payment of the costs in the other suit. -Whipple v. Newton, xvii. 168. 19. By the Revised Statutes, c. 120, § 4, 7, a claim upon an attested promissory note is not barred but by the lapse of twenty years. Held, an indorsement upon a note, acknowledging it to be due, signed by the maker and attested by a witness, was not a note within the statute. Gray v. Bowden, xxiii. 282. 20. The maker of a note, given for the price of a chattel, may prove, in reduction of damages, without returning or tendering the chattel to the payee, that he was induced to buy it by misrepresentations of its value. - Harrington v. Stratton, xxii. 510. 21. A verbal promise by the holder of a note to a surety, after its maturity, that he will exonerate the latter and look to the principal, is a good defence to an action against the surety; and if the face of the note does not show him to be a surety, the fact may be proved by parol evidence. - Harris v. Brooks, xxi. 195. 22. The maker of a note, not negotiable, may make the same defence to an action, brought in the payee's name by an assignee, who took it for a valuable consideration and without notice of the fact relied upon, as if it had not been assigned. Dyer v. Homer, xxii. 253. 23. A. gave to the plaintiffs, a bank, his check for money borrowed, and also, with B., the defendant, as surety, made a joint and several note as collateral for the check. The loan being meant as a temporary one, the note was not entered on the books till it had been in the bank six months, and the same further period elapsed, and A. became insolvent, before payment was demanded of B., or notice given him of non-payment. Held, these facts were no defence to an action against B. Commercial, &c. v. French, xxi. 486. 24. A., the payee of a note payable on demand, having indorsed it to a bank as collateral security, B., the maker, paid the amount of it to A. while it was in the bank, taking his receipt, acknowledging such payment, and engaging "to give it up when called for." More than eight months after the date of the note, A. transferred it to another bank, the plaintiffs. Subsequently, A. became insolvent, the note not having then been called for by B. Held, a jury would not be authorized to infer from the receipt, and the delay of B. in calling for the note, that he intended to allow a re-issue of it, and, therefore, that the plaintiffs could not sustain an action against B. - American, &c. v. Jenness, 2 Met. 288. 25. The promiser of a note, discounted by a bank, transferred to the bank shares in an insurance company, as collateral security, but in form absolutely. The shares were attached in a suit against the bank before, and sold on execution after, maturity of the note. The plaintiff received the note from the bank after maturity, and brings an action thereupon against the maker. Held, he could not recover any thing, if the shares, when attached, were equal in value to the note, though, when sold, they were of less value. — Potter v. Tyler, 2 Met. 58. Bond. 1. Where a bond is given to do a certain act on demand, but time is not of the essence of the contract, performance of the act, though there have been a previous demand, if accepted by the obligee, will save the condition of the bond. Hogins v. Arnold, xv. 259. 2. Thus, A. gave a note indorsed by B., and conveyed to B. certain real estate, taking from him a bond, to re-convey to A. on payment of such note at or before maturity, on request. The note was paid, and A. demanded a conveyance, but B. had previously transferred the land to C., and refused to convey. C. afterwards conveys to A., who accepts the deed. A. then sues B. upon the bond. Held, the action would not lie. - Ibid. 3. A subsequent attaching creditor, being admitted by the Court of Common Pleas, under St. 1823, c. 142, to defend an action against his debtor, filed a bond for payment of all such costs and damages as said court should adjudge and decree to have been occasioned by such defence. The action was brought by appeal to the Supreme Court, where the plaintiff prevailed, recovered judgment against the defendant for his whole claim and for costs, and took out an execution which was returned in part unsatisfied. The Court below made no adjudication concerning costs, &c. Held, the plaintiff's only remedy was by suit on the bond, after an adjudication by that Court as to costs and damages; and that he had waived this remedy by taking such judgment against the defendant. Whitwell v. Burnside, 1 Met. 39. 4. If a statute require that a bond be given, to be approved by the Judge of Probate, saying nothing about sureties, a bond thus approved, without a surety, is sufficient. Martin v. Dennie, xvi. 202. 5. Where a statute requires, that, in case of appeal from the Probate Court, a bond shall be "given and filed in the probate office by the appellant," a bond executed and filed by a stranger, with condition that the appellant shall prosecute his appeal, is not sufficient. Leach v. Drake, xvi. 203. 6. A. having sold a pew to B., the parish conveyed it to B. with warranty, having a bond from A. to save the parish harmless, "if any person or persons should establish their title to the said pew, against the_said obligor or his assigns." The pew being claimed by C., B. and C., without notice to A., submitted the question to arbitrators, who awarded in favor of C., and that B. should convey to him all his right; and judgment was rendered upon this award. B. having made a claim upon the parish under their warranty, the parish indemnified him without suit, and then brought an action against A. upon his bond. Held, the above proceedings had not established a title in C., within the meaning of the bond, and that A. might show in defence a want of title in C. Proprietors, &c. v. Bullard, 2 Met. 363. 7. In 1807, the defendant executed a bond, reciting, that he had, in 1803, by warranty deeds, conveyed certain lands to the obligee, and that certain persons had or pretended to have a claim to such real estate, or parts thereof, and then proceeding as follows; "Now, if, &c., shall, &c., keep all the covenants in the deed, &c., and shall quiet and extinguish the lawful claims and rights of all persons whatsover in and to the same lands, and shall procure a good release of such claims and rights to, &c., his heirs, &c., so that, &c., shall not be, &c., molested or disturbed in the possession, &c., or be sued, ejected, or turned out of the possession thereof, then this obligation to be void." Held, the bond was a guaranty, not against the existence of an adverse title, but only against the assertion or enforcing thereof by suit, claim, or entry. Boynton v. Dalrymple, xvi. 147. 8. To an action upon the bond, the defendant pleaded performance, and the plaintiff replied, as a breach, the existence of an adverse right to the land at the time when the deeds were made. Upon demurrer to the replication, held, such demurrer merely amounted to an averment by the defendant, that the replication contained nothing which would, even if true, sustain this suit; and was not an admission of a defect in the plaintiff's title, which was covered by the bond. - Ibid. Canal. 1. In 1793, the defendants were incorporated, with power to make a navigable canal from Merrimack River to Medford, and to appropriate private property to that use. In order to avoid damage to any person by diverting water-courses or flowing land, a special method was provided for ascertaining and making good such damage. A certain toll was authorized, upon completion of the canal; and, unless completed so as to be passable in ten years, the charter was to be void. By one subsequent act, the company were empowered to prolong the canal to Charles River; by another, a further time was allowed for this purpose; and, within this time, it was opened, and toll taken. The defendants had erected a dam across a river, to form a feeder for the canal, and, after it had been open more than twenty years, they built a new dam just below the first, but higher, by reason of which certain private lands were flowed and injured. Held, by the terms of the act no time was limited, within which the power to command the river, for the necessary supply of the canal, must be exercised; that there was no necessary implication, limiting it by the first opening of the canal, because this did not supersede the necessity of using the river; that, if the like power was requisite to the continued use of the canal, as made originally, or subsequently, without objection from any party interested, the power also continued, |