REPLEVIN.
BOND. Continued.
property, where the defendants claim title by purchase under an execu-
tion sale, it is necessary, in order to support such title, for them to prove
a valid judgment, and an execution issued thereon. Ledford et al. v.
Weber,
87
2. Breach of bond.-A judgment for defendant in the replevin suit
constitutes a breach of the replevin bond, and when admitted in evidence
is conclusive of a right to recover on the bond, saving to the plaintiff in
replevin the right to prove his title to the property in mitigation of dam-
ages. Rankin et al. v. Kinsey,
215
GENERALLY.
3. Proof of title in mitigation of damages.—In an action upon a re-
plevin bond, the plaintiff in replevin may prove his title to the property
in mitigation of damages; and where the property replevied was crops
grown upon mortgaged land, proof of title derived from a sale under the
mortgage is sufficient. Rankin et al. v. Kinsey,
RECITALS.-See MUNICIPAL BONDS.
RENT.-See LANDLORD AND TENANT.
REPLICATION-See PLEADING PRACTICE.
1. Between adjoining towns.-The law providing that bridges be-
tween adjoining towns may be built and maintained at the joint expense
of each town, is construed as meaning where each town has an interest
therein arising from a legal proprietorship in the bridge, growing out of
the concurrent acts of the two boards of commissioners of highways in
building the bridge, and not an interest arising from the proximity of
such bridge to the dividing line between the towns, or an interest arising
from the beneficial use of such bridge by the inhabitants of the two
towns respectively. Com'rs of Highways v. Gibson,
231
SALE.-See BAILMENT.
CONTRACT OF.
1. Breach-Damages.-The measure of damages for a failure by the
vendee to receive personal property sold, is the difference between the
contract price and the fair market value of the commodity at the time
and place of delivery. The vendor, upon a failure of the vendee to take
the property, cannot keep it to await a rise in the market, and charge
the vendee with the expense of such keeping, if at the time of delivery
there is a market price and a sale for the same. Thurman v. Wilson,
2. Passing title.-Where the vendor of goods is requested to deliver
them to a common carrier consigned to the vendee, in a particular man-
ner, the delivery to the carrier vests the title in the vendee, and the ven-
dor cannot retake them unless there exists a right of stoppage in tran-
situ. The vendee thereupon becomes liable to the vendor for the pur-
chase price. Bliss et al. v. Geer,
612
3. Replerin by vendor.-Where the title of goods sold has become
vested in the vendee by delivery to a common carrrier, the fact that the
goods, being seized in transitu by attachment, are replevied in the name
of the vendor, does not change the relation as respects the title to the
goods, nor impair the vendor's right of recovery against the vendee.
Bliss et al. v. Geer,
612
4. Agreement to re-convey.—A bill of sale of goods given to a vendee,
and a contemporaneous agreement by him to the vendor, that upon the
re-payment of the selling price with interest, he would re-convey the
property to the vendor, is fraudulent and void as to creditors and subse-
quent purchasers, and the property may be levied upon as the property
of the vendor. Brinton v. Gerry,
GENERALLY.
5. On credit.-Where goods are sold, to be paid for by bill or note
payable at a future day, and such bill or note is not given, the vendor
cannot maintain assumpsit on the general count for goods sold and de-
livered until the credit has expired, but he may sue immediately for a
breach of the special agreement. Manton v. Gammon et al.,
201
6. Passing title.-Where in a contract of sale of the contents of a
car of grain, the quantity of which is unknown, the sale is for cash, to be
paid as soon as the grain can be weighed, which weighing is necessrry
in order to ascertain the price to be paid, the property in the grain does
not pass to the buyer until payment of the purchase price, even though
the weighing is to be done by him. Hoffman et al. v. Culver et al. 450;
Hoffman et al. v. Warren et al.,
459
7. Property taken on trial.—Where a party desiring to purchase a
horse, sends his servant with directions to bring the horse to be taken on
trial, and if the vendee liked it he would keep it, and the vendor requested
the horse to be returned by a certain day or he would consider it a sale,
to which the servant did not assent, the relation of the parties is that of
bailor and bailee, and a failure to return on the day named does not
create a sale. Colton v. Wise,
395
8. Sale or bailment.—A stipulation that the bailee may sell the thing
bailed, destroys the character of the transaction as a bailment, and it be-
comes a sale. Brinton v. Gerry,
9. When title passes.-Where parties in June sold a machine, the
vendee to take it on trial, and if satisfied, to pay part cash and notes for
the balance, secured by chattel mortgage; and the vendee on July 15th
concluded to take the machine, made the cash payment and gave notes,
and dated for the purpose of securing interest for the full time, the sale
was not completed until July 15th, and until that time the title remained
in the vendors. The sale and making the mortgage were simultaneous
acts, and between them there was no point of time when an execution
lien against the vendee could attach. Pitt's Sons Mfg. Co. v. Poor, 24
JUDICIAL.
10. Enforcing bid.-In order to charge a purchaser under a judicial
sale, who refuses to complete his bid, with any deficiency arising on a re-
sale, the first sale should be reported to the court, the report confirmed,
and an order served on the purchaser to pay the purchase money within
a given time, or in default the estate would be re-sold at his risk. Green-
walt v. McClure,
152
11. Enforcing bid.-The fact that the summons in a proceeding to
foreclose a mortgage, was served by a special deputy appointed by a
deputy sheriff, cannot be relied upon as a defense to an action to enforce
payment of a bid made at a sale under such foreclosure. Thrift v.
Frittz,
12. Indemnity. An officer may require an indemnifying bond, if there
is reasonable doubt as to the ownership of the goods levied upon, or as
to their liability to be taken in execution. Stanton v. McMullen, 326
13. Irregularities.-The fact that the execution demanded the collec-
tion of a greater rate of interest than that allowed by statute, or that the
sale was adjourned for less than the statutory time, cannot be used by the
obligor in an indemnifying hond to defeat a recovery upon the same. At
the most these were mere irregularities, of which the execution debtor
might avail himself if done within a reasonable time. Stanton v. Mc-
Mullen,
14. Refusal to pay bid.-The purchaser at a judicial sale is always en-
titled to such interest as the defendant actually has, and if, from any de
fect in the proceedings, a sale is so void as that it cannot transfer the in-
terest of the defendant, then the purchaser is not bound by his bid, but
may successfully resist any action seeking its enforcement. Thrift v.
Frittz,
SCHOOLS.-See MUNICIPAL BONDS.
GENERALLY.
1. Estoppel of directors.-A township treasurer, by consent and
direction of the school directors, received from the collector of taxes, cer-
tain coupons of the district in place of money due the district. In an
action against him for money received which he had failed to pay over,
held, that the directors were cstopped from tendering back the coupons
and demanding payment of the money. Humiston et al. v. Trustees of
Schools,
122
2. Suit on bond to trustees.-A bond made to the "Board of Trustees
of Township No. 5, etc., may be sued on in the name of the "Trustees
of Schools of Township No. 5,” etc., and there is no force in the objec-
tion that there is a variance between the instrument sued on and the one
offered in evidence. Trustees of Schools v. Rodgers et al.,
33
UNION DISTRICTS.
3. Appeal from order of superintendent.—Where upon appeal from
the order of the board of trustees granting a petition to dissolve a union
district, the county superintendent reversed the action of the board of
trustees, it was not error for the circuit court to quash the proceedings
before the superintendent. He had no power to act in the premises.
Badger v. Knapp,
222
4. Dissolution. In proceedings under the statute for the dissolution
of union school districts, the county superintendent has no power to act
respecting the appointment of property to each district, except in cases
where the board of trustees refuse to grant the prayer of the petitioners,
in which case he may order the board to make such change. Badger v.
Кварр,
1. Final. A decree for separate maintenance is a final order from
which an appeal may be taken. Hunter v. Hunter,
GENERALLY.
2. When allowed.-To authorize a decree for separate maintenance
for causes other than those for which a divorce will be granted, it ought
at least to be proved that there was reasonable danger of personal vio-
lence to complainant, or a persistent, unjustifiable course of conduct on
the part of the husband, which would necessarily render the wife misera-
ble if she continued to remain with him. Hunter v. Hunter,
SERVANT.-See MASTER AND SERVANT.
1. Judgment note.-The giving of a judgment note after the causes
of action alleged in the plea of set-off had accrued, was a waiver of the
right to interpose them as a set-off to the note. Borchsenius v. Canut-
son,
SIC UTERE TUO.-See WATER-COURSES.
SPECIAL DEPUTY.-See OFFICER.
1. Promise to the debt of another.—Where a person surrendered a
bond for a deed which he held against another, in consideration that the
latter would pay to a third person the amount expressed in the note,
such promise is not within the Statute of Frauds, as being a promise to
pay the debt of another; but is an independent contract, upon which
such third person may maintain an action in his own name against the
promisor. Mathers v. Carter,
225
1. When begins to run.-Where a vendor entered into a written
contract to convey land, and received the purchase-money, and after-
wards conveyed to another, the right of the first vendee to bring his ac-
tion for damages, accrued upon the conveyance to such third person, and
the statute begins to run from that time. Cochrane v. Oliver,
2. Written contracts.-The limitation for actions upon written con-
tracts, is sixteen years, and where a plaintiff brought his action for dam-
ages upon a written contract for the conveyance of land, the statute bar
will be sixteen years, and the fact that in such action the plaintiff seeks
to recover only the purchase-money paid by him, will not change the
cause of action so as to allow the interposition of the statutory bar of five
years' limitation. Cochrane v. Oliver,
176
NEW PROMISE.
3. Acknowledgment to third person.—An acknowledgment of indebt-
edness made to a third person who had no authority to act in the matter
for the creditor, will not remove the bar fof the statute. Bloomfield v.
Bloomfield, 261; Katz v. Moessinger,
536
4. What is not.-A mere statement by the debtor that he wanted to
settle, coupled with a request to know the amount of his indebtedness,
without an adjustment and settlement of the account, comes far short of
such a promise or acknowledgment as will take the case out of the bar
of the statute. Bloomfield v. Bloomfield,
STIPULATION.-See PRACTICE.
1. Defense of suit.-A surety may recover contribution from his co-
surety for costs and expenses in defending a suit against him for the debt,
if the defense was made under such circumstances as to be regarded pru.
dent. Wagenseller et al. v. Prettyman et al.,
192
RELEASE.
2. Levy upon property of principal.-Where an execution against a
principal and surety is levied upon property supposed to belong to the
principal, and there being doubt as to the ownership of the property, the
levy is abandoned, if it turns out that the property in fact belonged to
the principal the release of the levy operates as a discharge of the surety.
Brinton v. Gerry,
SURFACE-WATER.-See WATER-COURSES.
1. Setting aside-Tender of taxes paid.—In a proceeding in equity
by the owner of land to set aside and declare void a sale of land for
taxes, and certificate issued thereunder, the complainant must first pay
|