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Lynch and Stoughton ads. De Viar.

maintain an action for them if the state do not interfere, or he is not divested by a descent, in which case, as he can have no heirs, they cannot take.

3d. An assignment or transfer of a debt secured by mortgage, draws after it the benefit of that security.

4th. The person having the legal estate by mortgage must be a party to a suit for the recovery of the debt secured by it.

5th. All persons whose interest is to be affected by the decree, must be parties. The rule on this subject referred 10. Decree unanimously reversed.

FEBRUARY TERM, 1802.

LYNCI & Stoughton ads. IGNATIUS DE VIAR, Admin

istrator.

1st. An account rendered by one party and not assented to by the other, is not an account stated or settled so as to carry interest.

2d. Money received by one party, the proceeds of a joint enterprise with another, which was terminated, carries interest from the time the enterprise was ended and when it was in the power of the party to pay over the proceeds.

3d. An accountable receipt or promise to do this not being delivered up, is no reason for not paying the money, and a condition that an indemnity should be given against it, as ordered by the chancellor, was directed to be dispensed with. I gave the only written opinion in the case, and the court adopted it unanimously.

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Hikok v. Scribner.-Leavenworth v. Bowne.

HIKOK against SCRIBNER.

A decree reversed because all parties in interest were not before the court, and because in its operation it must affect the rights of others, and compel the appellant to obtain the performance of certain acts from them which he had no power to oblige them to do. It was a decree morally impossible to be executed. The rules on the subject of parties to a suit generally stated.

FEBRUARY TERM, 1804.

LEAVENWORTH against BowNE, and in three other suits

by the same plaintiff against other insurers.

ORDERED that the mariners' wages and provisions from the time of the vessel's capture to the day of her leaving Ramsgate be added to the expenses of reclaiming the property, and that the aggregate sum be paid ratably by the several underwriters on the vessel, cargo and freight; that the cargo be valued at its first costs and charges at the post of departure, the vessel at four-fifths of her actual value at the same place, exclusive of outfits, and without regard to any valuation in the policy; and the freight at one-half of what was agreed to be paid at Havre; that the underwriter on freight pay eight-ninths of the same, which on this calculation shall fall on the freight, and those on the ship the whole of the contribution, which shall belong to her, and also one-ninth of that which is to be borne by the freight.

Smith v. Bell and others.

Smirh against Bell and others.

In Error from the Supreme Court, 1805.

The judgment of the Supreme Court was reversed, and the only written opinion given was that of Chancellor Lansing, who, after considerable argument to show that the allowance of new for old is reasonable, and supported by usage, concludes thus, “ From the nature of the contract of insurance, I think the allowance for replacing the old materials with the new is reasonable and proper, and if so, that as the deduction is professedly made on the principle that the value of the subject insured has been enhanced to that amount, that deduction ought to be made before the test of a technical total loss or not is applied; for the doctrine of technical total loss is expressly founded on the position that the subject insured has been deteriorated more than one half. I am therefore of opinion, that the judgment of the Supreme Court be reversed.”

INDEX.

ABANDONMENT.

See INSURANCE.

ABATEMENT.

Of suit by civil death.

Graham v. Adams et al., 523. Sce vol. 2, p. 408.

See PRACTICE.

ABSENT AND ABSCONDING DEBTORS.

See DEBTORS.

ACCORD AND SATISFACTION.

1. What constitutes.
II. Of the effect of a tender and refusal after Accord.

I. What constitutes.

1. An accord, in order to be an effectual plea in bar, must be executed and

satisfied with a recompense in fact, or with an action, or other remedy to
execute it and recover a recompense. Per Thompson, J., the other judges

Coit f. Woolsey v. Houston, 243.

acc.

II. Of the efect of a tender and refusal after Accord.
2. A. being indebted to B. by a promissory note, for $1,167, it was agreed in

writing between them, that A. should deliver to B. as much coal at ten
dollars per chaldron, as would amount to the sum due on the note, the
coal to be of the like quality with that purchased by A. of B. out of a cer-
tain ship. No time or place was fixed for the delivery, A. having in his
coal yard a large quantity of coal, and sufficient of the quality mentioned,
though consisting of different kinds, immediately afterwards, and at different
times, tendered to B. the coal, in satisfaction of the note, and B. made no
objection to the place or mode of delivery, but said, at one time, he would

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