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
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