1. General words used in an agreement,
are to be so restricted as to subserve
the intentions of the parties. Cod.
dington v. Davis,
16
2 Accordingly, where the maker of a
promissory note which was held by an
endorsee made an assignment for the
benefit of his creditors, preferring the
endorser as a creditor to the amount of
the note, and the holder for a separate
debt due him on account, and the
holder in conjunction with other cred-
itors of the maker, executed an instru-
ment referring to the assignment, and
agreeing in consideration thereof, to
discharge the maker from all claims
and demands existing in their favor
respectively against him, over and
above what they might realize under
the assignment on his agreeing to pay
the balance of their debts, after the ex-
that the evidence should be applicable | See DAMAGES, 2, 3.
exclusively to the good counts. It will
be so amended, if the evidence was
applicable as well to the good as to
the bad counts. Postley v. Mott, 353
2. Where the judge certified a portion of
the evidence, by which it appeared
that testimony had been received
which was only admissible under a
bad count, the amendment was refu-
sed, though the judge had given a cer-
tificate that all the evidence
applicable to all the counts.
Where there is a legal right to demand
The plaintiff's attorney is not liable for
the defendant's costs, where the plain-
tiff removed from the state pending the
suit, but only where he was a non-resi-
dent when it was commenced.
ander v. Carpenter,
See COSTS, 6.
PRACTICE, 14.
See LANDLORD AND TENANT, ", 8.
money, and no other remedy than an BANKS AND BANKING ASSOCI-
action ex contractu, the law, for the
purpose of the remedy, will imply a
promise of payment. Norton v. Coons,
See COURTS OF A Justice of THE PEACE,
5, 6, 17
1. The provision in the act of 1840,
amending the general banking law,
(Stat. 1840, p. 304, § 4,) applies to
and renders illegal all promissory notes
made by a banking association, unless
made payable on demand and without
interest, though not intended to circu-
late as money. Swift v. Beers, 70
2. The endorser of a bill or note may, be-
fore the paper matures, make a valid
agreement to waive a presentment and
notice of non-payment. Such an
agreement does not require a consider-
ation to support it. Coddington v.
Davis,
16
3. Where an endorser of a note had been
preferred in respect to his liability, in an
assignment made by the maker for the
benefit of his creditors, and had trans-
ferred to the holder his interest under
the assignment, and afterwards, while
the note was running to maturity,
wrote to the holder, saying, "You need
not protest T. B. C.'s note, due &c. for
&c., and I will waive the necessity of
protest thereof;" held sufficient to dis-
pense with a presentment and notice
id
of non-payment.
4. The letter itself without the other cir-
cumstances, would have been a valid
waiver of a demand and notice. Per
JEWETT, J.
14. Where the maker has a known resi
dence when the note is given, which
is not changed before it becomes pay-
able, a regular demand must be made,
though the note is given and dated at
a different place from his residence. id
15. Accordingly, where one who resided
in Florida made a note at Troy, dating
it at the latter place, and continued to
reside in Florida until it became due,
which fact was known to the holder,
who instead of causing a demand to
be made of the maker, procured the
note to be presented to the endorser
residing at Troy, and then gave him
notice of non-payment; held that there
was nothing in the case to dispense
with a demand of the maker, and that
the plaintiff could not recover.
27. A promise in writing to accept a bil.
before it is drawn, in order to amount
to an actual acceptance, must de-
scribe it in terms not to be mistaken
and so as to identify and distinguish
it from other bills. Per HAND, Sena-
id
20. Such a bill is dishonored by the fail-
ure of the acceptor to pay on either
day, at the place designated. Per See AGREEMENT, 2.
WALWORTH, Chancellor.
22. In an action by the endorsees against
the acceptor of an instrument bearing
date"Leipsic, April 18th, 1839," and
drawn thus: " For fr's 8755-60, pay'-
ble &c. on the 31 Dec'ber 1839. Ön
the 31st Oct. of this year, pay &c. to
the order of ourselves 8755 francs 60
cts., payable in Paris, the 31st Dec.
of this year," &c. HELD a valid bill
of exchange, notwithstanding the am-
biguity as to the time of payment. id
BANKS AND BANKING ASSOCIATIONS.
PRINCIPAL AND SURETY, 11.
1. No action will lie by the holder of a
mortgage against another for negli
gently injuring the mortgaged premi-
ses, by which the plaintiff has lost his
security. Gardner v. Heartt, 232
2. But an action on the case will lie | CASES OVERRULED, DOUBTED
against one who, with intent to de-
fraud the plaintiff, has destroyed or
injured the value of premises upon
which he has a lien by mortgage or
judgment. Per BEARDSLEY, J. id
Stewart's Executor v. Lispenard, (26
Wend. 255.) First paragraph of mar-
ginal abstract examined and approved.
Blanchard v. Nestle,
The case of Williams v. Thorp, (8 Cow-
en, 201,) overruled. Marvin v. Rich
mond,
58
The case of The People v. Bodine, (1
Denio, 281,) commented on and ex-
plained. People v. Honeyman, 121
The case of Blunt v. Aikin, (15 Wend.
522,) examined and limited. Wag-
306
goner v. Jermaine,
The cases of The Bank of Rome v. Cur-
tiss, (1 Hill, 275,) and Pardee v.
Robertson, (6 id. 550,) commented on
and doubted. Per BEARDSLEY, J.
Stevens v. Rowe,
327
1. A certiorari lies at common law to re-
move an assessment. Per BEARDSLEY,
J. Weaver v. Devendorf,
117
2. But as the allowance of the writ is
discretionary, it is generally refused on
grounds of public policy and conven-
ience. Per BEARDSLEY, J.
id
6. Where tenants in common of a water
course and dam and of several mills
depending for water upon such dam,
made partition, by which some of the
mills were apportioned to each; and
each of the parties covenanted with
the other to keep in repair distinct and 3.
separate portions of the dam, held that
case for not repairing would not lie by
one of them against the grantee of the
other, and that covenant was the prop-
er remedy.
id
|