A tenancy from year to year, so long as both parties please, is determinable at the end of the first year, unless, in the creation of the tenancy, the parties introduce provisions showing that they contemplated a tenancy for two years, at least. Where, therefore, after the expiration of a term at Lady day, 18412, the tenant held over without any express agreement, and paid the usual rent at Midsummer, 1842. Held, that the tenancy thereby created was determined by a notice to quit at Lady day, 1843. Doe d. Clark v. Smarridge, 1842." 393 The following notice to quit was served on a tenant: LIEN. Lien of material men for repairs and supplies furnished for vessel. Davis v. Child et al. 147 By the commencement of a suit in chancery by a judgment creditor, whose execution at law has been returned unsatisfied, he acquires an equitable lien upon the things in action of the judgment debtor. these cases, constituted a lien or security within the meaning of the proviso in the second section of the act, and is protected thereby. The fund in controversy ordered to be paid to the receiver in the creditor's suit in preference to the general assignee. A few days before the passage of the Bankrupt law, D. executed an assignment to B. S., who was a creditor of D., sued him at law, recovered a judgment and had an execution thereon returned unsatisfied. On the 23d September, 1842, he filed a bill against D. and B. to set aside the assignment as fraudulent. The subpoena to answer was served on the same day. In January, 1842, D. petitioned for a discharge under the bankrupt law, and he was in due time declared to be a bankrupt. The assignment was declared to be fraudulent as against creditors, in the suit commenced by S. Held, that S. was entitled to the fund by force of the lien acquired by the creditor's suit, in preference to the general assignee. Storm and o'rs v. Waddell, official or general assignee in bunkruptcy-De Kay v. the same defendant, and S. Merrihew, rec'r, &c., LIS PENDENS. 367 In a suit for the foreclosure of a mortgage, the defendant set up that the mortgage was given for the purchase money, that the lands were conveyed to him without covenants, and that one claiming a paramount title had commenced an ejectment for the recovery of the lands which was in vigorous prosecution, and if successful would divest all the mortgagor's title, except a dower right. The defendant entered into the possession of the lands at the time of his purchase, and had not been turned out or evicted. The defence was overruled, and a decree made for the sale of the lands, and against the mortgagor for the deficiency, in case the proceeds of the sale were insufficient to pay his bond accompanying the mortgage. Banks and o'rs, ex'rs of McCarthy, v. Walker, 340 A bill by the mortgagee against the mortgagor, and the adverse claimant of the land, would be multifarious. Where the debtor was declared a bankrupt under the act of Congress of 1841, upon petition filed after the commencement of such a creditor's suit: held, that the assignee in bankruptcy, irrespective of the proviso in the second section of the Bankrupt act, took the debtor's things in action, subject to the creditor's lien acquired by the suit. Heid further, that the right of the creditor, in' The only recognized ground of equitable inter ib. Where the title to real estate fails, the purchaser has no remedy in equity to recover back the price, unless there was fraud or deceit in the sale. ib. Where it appeared that a debtor was proceeded against on the 21st October, 1343, and that he came to reside in the city of New York on the 17th of October preceding, and had been out of the city since; but had previously hired a house in the city and paid his rent in advance, and that on the 25th October following, his family had removed to such house. Held, that he was a resident of the State of New York on the 21st October. In re James P. Crawford, PARTIES. 76 89 If the defendant mean to deny the existence of the judgment, he should plead nul tiel record Sackett v. Andross, 11 In pleading a bankrupt discharge, a general averment that the court by which it was granted had jurisdiction will not answer; the facts necessary Where the plea alledged, among other things, that to confer jurisdiction must be set forth. ib. the defendant presented a petition for his discharge, &c., signed by him, and duly verified by such affidavits, schedules and other necessary and proper papers as are required by the bankrupt act. Held, not sufficient to show that the proceedings were regularly commenced, but that the plea should have stated what papers in particular were presented. ib. The plea should be so framed as to show that the discharge was granted by the court, not by the judge. ib. To a declaration on a judgment the defendant pleaded a bankrupt discharge obtained on his own voluntary application, but omitted to aver that the debt due the plaintiff was proveable under the bankrupt act. Held, that the plea was therefore bad. ib. ib. Such plea is bad, moreover, if it omit to aver that the plaintiff's debt was not created in consequence of the defalcation of the defendant as a To a declaration in an action on a bond containing public officer, or while acting in a judiciary capacity. two counts, the first on a money bond without setting forth the condition, and the second setting forth the condition, the defendant pleaded nil debet to both counts. Held, as to the first count, that the plea was bad, that it should have been non est factum; but as to the second count, nil debet was a good plea. Jenkins v. Stephens. On a general demurrer to several pleas, if either plea is good the defendant is entitled to judg ment. 37 ib. In an action on the case for seduction, the plea of not guilty only puts in issue the wrongful act, and does not put in issue the fact of the daughter being servant to the plaintiff, under the new rules of pleading in England. Torrence v. Gibbons, Where an insolvent member of a copartnership PTAENT. ib. 99 alledging an attachment of property, in a repli cation to a plea of discharge in bankruptcy, it is not necessary to set forth the delivery of the summons; and if it be alledged that a summons was delivered on a day before the writ sued out, it may be rejected as repugnant and surplusage. The delivery of the summons, in the service of a Kitteridge v. Emerson. 166 writ of attachment, is not a part of the attachment itself, which is to be made before the summons is delivered. The delivery of the summons is necessary to completo the service of the writ, and to require the defendant to answer to the action. ib. PLEADING (EQUITY.) Where a bill for a divorce charged the defendant with having committed adultery, and also with various acts of unkindness and cruel treatment, but contained no prayer for relief by a separation from bed and board on account of such cruel treatment, but merely the usual prayer for a dis solution of the marriage tie, &c., and that the complainant might have such further and other relief as to the court might seem meet. Such bill was held not to be multifarious, that under such prayer, if the complainant failed in obtaining a decree for adultery, her bill must be dismissed. Beach v. Beach, 202 327 In a suit by one trustee against another for making good a portion of the trust funds alledged to have been improperly disposed of, it is not necessary to make all the cestui que trust parties, although it may be necessary to take accounts relating to the estate of a deceased accounting party, and a reference to the master may be ordered for that purpose. Gordon v. Lowe, Nor is it necessary, in such a suit, to bring before the court the personal representative of a deceased trustee, if it appears by the pleadings that such deceased trustee had accounted for all the trust funds that came to his hands. ib. B., the drawer of a bill of exchange, indorsed the bill over for value to C., who soon after it became due, received the money through B., as the agent of the acceptor. C. then, for a nominal consideration, indorsed the bill over to D., who commenced an action thereon against the acceptor. The acceptor then filed his bill against C. and D. for an injunction, and to have the bill delivered up to be cancelled: Held upon the demurrer, that B., the drawer, was not a necessary party to the record. Earle v. Holt, POST OFFICE LAWS. 388 so far as relates to notice; but where it affirmatively appears that notice was not duly given, the presumtion is at an end. ib. Where the plaintiff claimed to have acquired property in a promissory note by delivery from J. H., the widow of the payee, to whom the plaintiff alledged it had been passed by delivery from the payee as a donatio mortis causa; and on the trial this question was submitted to the jury. Held, that no notice could be taken of it by the court on bill of exceptions. Meuir v. Hinman, 61 Where a gift donatio mortis causa is proved, the question whether the testator revoked it is not evidence for the consideration of a jury. ib. Notice of endorsement of promissory note, if sent by mail, must be directed to the post office, where the endorser usually receives his letters, or nearest to his residence. Taylor ex'r v. Union Bank of Florida, 73 The proof by plaintiff of receipt of notice when departed from, must be full and satisfactory. ib. A witness testifying that his invariable practice was to comply with certain requests, and that he "believes" he did, but has no recollection of any instance in which he did so: nor any recollection of his doing so in the instances important in the case in which he is called to testify; is not sufficient to warrant the inference that he did comply with such requests. ib. What is due diligence and sufficient notice are questions of law. ib. An instrument promising to pay a certain sum of money in a year from the date, payable to J. B. or bearer, for the hire of a servant for the year to elapse before the note is due, is negotiable. The City of Tallahassee v. Newby, payable to bearer, it is transferable by delivery, Where a party is a bona fide holder of a promissory and may be recovered under the money counts, ib. note, it may be endorsed to him after suit brought -and such endorsement will relate back to the time of delivery. Call and o'rs v. Jeter, Where there was a special endorsement on a note, and it appeared that the endorser was a mere agent: Held, that the special endorsement written over the endorser's name, might be stricken out. Carmack, J., dissenting, ib. If RAILROAD SHARES. 110 135 A Railroad company issued certain new shares, and gave the proprietors of the old shares the option of taking the new ones, without expressly fixing the time within which the application was to be made: but they directed that all shares not appropriated, should be allotted to such proprietors as should apply for shares before a certain day. Held, that the right of taking the shares determined on that day, although, in consequence, a proprietor might be excluded from the possibility of exercising it. Pearson v. London and Birmingham Railroad Co., 298 RECEIVER. Where a receiver, in discharge of his trust, commenced a suit against A. B., and employed the solicitor of one of the parties to the original suit. Held, that A. B, being a stranger to the original suit, had no right to object thereto, Warren. rec'r, v. Sprague, 122 What Master's Report as to surplus moneys, should Evidence necessary to justify the delivery up of a contain. Franklin v. Van Cott, REVISED STATUTES. 162 No person has a right to use the names, marks, letters, or other symbols, which another has got up or been accustomed to use, in his manufactures or business. Equity will restrain such deceptive and fraudulent use of trade marks, by injunction, and will decree an account for damages. The alienage of the person whose trade marks are simulated, and his residence in a foreign country, do not affect his right to their exclusive use, when he has introduced them here. Nor is it any answer to the suit, that the simulated article is equal in quality to the genuine manufacture. A commission merchant who sold the spurious article, knowing its falsity, was subjected to the costs of a suit instituted by the genuine manufacturer to restrain its further sale. Coats v. Shepard and o'rs, 404 prisoner charged with having forged an acceptance in England, under the provisions of the treaty between the United States and Great Britain, commonly called the Ashburton Treaty. The United States v. Warr, 346 TRESPASS. In an action of trespass against justices, where they justified the imprisonment of a plaintiff under a conviction which stated, in the words of the statute, that he by night unlawfully did enter certain land, with a net, for the purpose of taking game, &c., and the plea alledged that he did by night enter the land for the purpose of taking game by night in the said land; the plea was held bad, because the conviction did not alledge that the plaintiff was by night in certain land for the purpose of taking game by night in the said land, although the conviction followed the words of the statute. Where an act is made punisnable by summary conviction, which act may be lawful if done under certain circumstances, such circumstances should be negatived in the conviction. Fletcher v. Calthorp and an'r, 393 The legal interest in chattels real, seized and sold under a fieri facias, is not vested in the sheriff, in the interval between the seizure and comple tion of the sale to a purchaser. Where, after seizure and sale by auction of chattels real, under a fieri facias, the sheriff remained in possession an unreasonable time for the further execution of the writ. Held, that the execution debtor might maintain trespass against him. Playfair v. Musgrove, 410 A condition in an agreement that time is to be the essence of the contract in reference to covenants for payment of the purchase money, is waived by the acceptance of instalments at subsequent periods. Hunter v. Daniel, 295 The Master of the Rolls refused to make an order for opening biddings, although the sum offered by the proposed purchaser, was of an amount sufficient to satisfy the rule of the court where the property was of such a nature that the sale of it might be placed in jeopardy, should the contract founded upon the higher bidding not be completed. Wallond v. Wallond, Variance sale of foreign exchange. Blatchford. See Usury. WRIT. 306 Halford v. 311 which an article is sold, is not, in this State, implied. In this respect the New York and English rule, as now understood, seem to differ. ib. On a sale of provisions as merchandise, a warranty that they are good and wholesome, is not implied. This principle applies only to provisions sold for domestic use. ib. WILL A gift of "cash, or moneys," so called, held not to include promissory notes, long annuities, or Columbian bonds. Beales v. Beales, 58 A gift to " A. and his family," confined to children living at the date of the will. ib. A., by his will, gave certain leasehold property to trustees upon trust, to apply the rents and profits, in the first place, in payment of an annuity of fifty pounds to his daughter-in-law, and to accumulate the surplus for the benefit of his three grand-daughters: Held, that the annunity was not a charge upon a sum of money in the hands of the trustees which had been accumulated from surplus rents, although the leases of the property had nearly expired, the testator having expressly excluded any sale of the property, except in the event of the death or second marriage of his daughter-in-law. Darbon v. Rickards, WRIT OF ENQUIRY. 300 |