3. (Between co-executors.) An executor may maintain an action at law against his co-executor, on an express promise. Phillips v. Phillips, 1 Stewart, 71.

4. (By co-sureties against principal.) A joint action cannot be maintained by co-securities against their principal for money paid by them unless out of a joint fund. Parker v. Leek and Lambertson, 1 Stewart, 528.

5. (By bearer of a sealed instrument.) The bearer of a sealed instrument, made payable to A B or bearer, and transferred by delivery, cannot maintain an action on it in his own name. Sayre v. Lucas, 2 Stewart, 259.

ACTION ON THE CASE.

1. (Against sheriff for an escape.) In case against a sheriff for an escape, no recovery can be had, unless the jury find expressly that the escape was by his negligence or consent, or that the prisoner might have been retaken. Rountree v. Smith, 1 Stewart, 157.

2. (Against warehousemen.) An action on the case cannot be sustained
against a warehouseman for goods robbed, unless there be some
negligence. Moore v. Mayor and Aldermen of Mobile, 1 Stewart, 284.
AFFIDAVITS.

(When admissible.) Affidavits sworn to before a state magistrate, are
lawfully taken in cases in which, by the regulations of the treasury
'department, they were received as evidence of claims on the United
States. United States v. Bailey, 9 Peters, 238.
ADVERSE POSSESSION.

1. (By corporation.) Where a corporation received a grant of land from
the crown of Great Britain, in 1705, and immediately entered by virtue
thereof, claiming title to the whole premises, under the grant, adverse
to the whole world, and continued such adverse possession under
claim of right for sixty years; it was held, that such corporation ac-
quired a perfect title to the premises covered by the grant, as against
the rightful owner. Bogardus v. Trinity Church, 4 Paige, 178.
2. (By tenant in common.) Where one of several tenants in common
conveys the entire premises held in common, and the grantee enters
into possession under the conveyance, claiming title to the whole
premises, such possession is adverse to the co-tenants of the grantor,
and at the expiration of the period of limitation, their right will be
barred. Ib.

AGENT.

(Where his contract is recognised by his principal.) Where the party with full knowledge of alleged fraudulent circumstances, recognises a contract made by an agent in his name, he cannot afterwards set up the fraud or want of authority in that agent. M'Gowen v. Gerrard and Morgan, 2 Stewart, 479.

AG

AGENT AND ATTORNEY.

1. (How their authority is to be construed.) Every authority given to an agent or attorney to transact business for his principal must, in the absence of any counter proof, be construed to be to transact it according to the laws of the place where it is to be done. A sale of slaves authorized to be made in Louisiana by an executrix, must be presumed to be intended to be done in the manner required by the laws of that state to give it validity; and the purchaser, equally with the seller, is bound under these circumstances to know what the laws are, and to be governed thereby. The law will never presume that parties intend to violate its precepts. Owings v. Hull, 9 Peters, 607. 2. (Ratification of unauthorized acts.) A ratification of unauthorized acts of an attorney in fact, without a full knowledge of all the facts connected with those acts, is not binding on the principals. No doctrine is better settled on principle and authority, than this, that the ratification of the act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is invalid, because founded on mistake or fraud. Ib. AGREEMENT.

1. (Part performance.) Where a complainant, in a court of equity, claims a compensation in damages for the non-fulfilment of a contract which has been in part performed, the benefit received by him from such part performance will be allowed to the defendant, in estimating the damages of such complainant. Taylor v. Read, 4 Paige, 561.

2. (Damages.) The proper measure of damages, for the breach of a contract for the delivery of goods, on sale, to be paid for when delivered, and where no part of the goods have been received, is the difference between the contract price and the actual value of such goods at the time they should have been delivered, and the interest upon such difference. lb.

3. (Same.) Where particular articles of property are to be delivered within a limited period, to be applied for specific purposes, and not for general merchandise, the party who fails to perform his contract to deliver the articles, is bound to make good the loss occasioned by his delinquency; but he is only liable for direct damages, which, according to the nature of the case, may be presumed to have resulted from his failure to perform the contract, and not for remote or speculative damages. lb.

4. (Same.) If a party, entitled to the benefit of a contract, can protect himself from a loss, arising from a breach thereof, by reasonable exertions or common prudence, and he fails to do so, he will not be

permitted to throw the loss, which has arisen from such neglect, upon the other contracting party. Ib.

5. (Same.) Where the defendant contracted to deliver a certain number of saw-logs at a specified price, to be paid for on delivery of the whole, and only a part was delivered, but not paid for, and the contract price of those delivered was more than the difference in value between the residue of the logs and the contract price thereof: Held, that the complainant was only entitled to nominal damages, for the non-performance of the contract as to the delivery of the residue of the logs. lb.

6. (By letter.) Where a merchant in Alabama wrote to his factor in New York, and proposed that he would ship for that place 300 bales of cotton on their joint account, if the agent should immediately, on the receipt of his letter, give notice of his election to accept the proposition; and the agent immediately, upon the receipt of his principal's letter, replied to the same, accepting the proposition, and requesting his principal to designate and mark the cotton to be shipped on their joint account, and to advise him, when the same should be shipped: It was held, that as soon as the agent replied to the letter of his principal, accepting the proposition, the contract was complete, and could not be rescinded by either party, without the consent of the other. Brisban v. Boyd and others, 4 Paige, 17.

ALIMONY.

(Temporary.) The allowance for temporary alimony, pending the suit of the wife for a separation, will be limited to the actual wants of the wife, until the result of the suit in her favor establishes her right to a more liberal allowance. Germond v. Germond, 4 Paige, 643. ANNUITIES.

(Evasion of the statute of usury.) The ingenuity of lenders has devised many contrivances by which, under forms sanctioned by law, the statute of usury may be evaded. Among the earliest and most common of these, is the purchase of annuities secured upon real estate or otherwise. The statute does not reach these, not only because the principal may be put in hazard; but because it was not the intention of the legislature to interfere with individuals in their ordinary transactions of buying and selling, or other arrangements made with a view to convenience or profit. The purchase of an annuity or rent charge, if a bona fide sale, has never been considered as usurious, though more than six per cent. profit be secured. Yet it is apparent, that if giving this form to the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter. Courts, therefore, perceived the necessity of disregarding the form, and examining into the real nature of the

transaction. If that be in fact a loan, no shift or device will protect it. Though this principle may be extracted from all the cases, yet as each depends on its own circumstances, and those circumstances are almost infinitely varied; it ought not to surprise if there should be some seeming conflict in the application of the rule by different judges. Different minds allow a different degree of weight to the same circumstances. Scott v. Lloyd, 9 Peters, 418.

APPEAL.

1. (Where no final decree.) A decree of a circuit court perpetuating an injunction, in a case on which some matters of account were left open for further consideration, is not a final decree; and an appeal will not lie on such a case. Brown v. Swann, 9 Peters, 1.

2. An appeal does not lie from the decree of the district court of the United States for the district of Louisiana, dissolving an injunction. Hiriart v. Ballon, 9 Peters, 156.

3. (Parties.) No persons but those appearing to be parties to the record, can be permitted to be heard on an appeal or writ of error. Harrison v. Nixon, 9 Peters, 483.

4. (Evidence.) After a case had been fully heard in the superior court of middle Florida, the judge of that court, in examining the evidence in the case with a view to its decision, considered that he had discovered in the date of the water mark in the paper on which one of the original Spanish documents had been written, a circumstance which brought into doubt the genuineness of the instrument. No objection of this kind had been made during the argument of the cause; and after the supposed discovery, no opportunity was permitted, by the court of Florida, to the claimants, to explain or account for the same. After the appeal had been docketed in this court, the appellants asked permission to send a commission to procure testimony, which it was alleged would fully explain the circumstance, and offered to read ex parte depositions to the same purpose. By the court. This is refused, because in an appellate court, no new evidence can be taken or received, without violating the best established rules of evidence. Under such circumstances, it would be dealing to the petitioner a measure of justice incompatible with every principle of equity, to visit upon his title an objection which the claimant was not bound to anticipate in the court below, which he could not meet there, and which this court were compelled to refuse him the means of removing by evidence. We will not say what course would have been taken, if his title had depended on the date of the paper alluded to: as the case is, it is only one of numerous undisputed documents tending to establish the grant, the validity of

which is but little, if it could be in any degree affected by the date of the permission. Mitchel et al. v. The United States, 9 Peters, 711. ARREST OF JUDGMENT.

1. (Indictment for felony.) When a prisoner is found guilty on an indictment for felony, and the judgment is arrested, it does not prevent his being re-indicted. The State v. Phil, 1 Stewart, 31.

2. (Where time of assault and battery is not alleged.) The judgment will be arrested on an indictment for assault and battery, the time of the commission of the offence being in blank. The State v. Beckwith, 1 Stewart, 318.

ASSAULT AND BATTERY.

1. (Evidence.) The plaintiff may, in such action, prove that he was pulled about, and detained and held by the defendant, if it be part of the same assault, though no imprisonment is laid in the declaration. Logan v. Austin, 1 Stewart, 476.

2. (Mitigation of damages.) The defendant may show in mitigation of damages, that the plaintiff consented to be whipped. Ib.

ASSIGNMENT.

1. (Preference of creditors, and a release.) A debtor has a full right to prefer some creditors to the exclusion of others, and may lawfully stipulate, that those who accept the property assigned shall release him, the contract being voluntary. Robinson v. Rapelye and Smith, 2 Stewart, 86.

2. (Where the debts and properly are not particularly mentioned.) A deed of assignment by a debtor, of all his effects for the benefit of all his creditors, is not void on account of the debts and property not being particularly described and specified. Ib.

3. (When operative against an attaching creditor.) And such deed will be operative against an attaching creditor here, though executed in New York. Ib.

ASSIGNMENT AND ASSIGNEE.

(Against statute.) An assignment, void in part upon the ground of being against the provisions of a statute, is void in toto, and no interest passes thereby to the assignees as against creditors who did not assent to it. Wakeman v. Grover, 4 Paige, 24.

ASSUMPSIT.

1. (Corporation subjected to by agents.) The ancient doctrine that a corporation can act in matters of contract under its seal only, has been departed from by modern decisions; and it is now considered, that the agents of a corporation may, in many cases, bind it, and subject it to an action of assumpsit. Chesapeake and Ohio Canal Company v. Knapp and others, 9 Peters, 541.

2. (Special declaration.) A promise to board the plaintiff for a certain