Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February i 4 , 1893 IN nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS KFN5045.1?B88 UniVerSity Llbrary '^JfiuRunniSi Vork Court of a p I Cornell University i Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017703178 INDEX-DIGEST NEW YORK COURT OF APPEALS REPORTS, INCLUDING Volumes 1-95 of tlie Regular Series, Keyes, Abbott's Court of Appeals Decisions and Transcript Appeals. BY IRVING BROWNE, Editor of the Albany Law Joubnal and the American Reports. Albans, N. Y.: JOHN D. PARSONS, JR., LAW PTTBLISHER. 1884. Entered, according to act ol Congress, in the year eighteen hundred and eighty-four, By JOHN D. PARSONS, JR., In the Office of the Librarian of Congress, at Washington. PREFACE. My object has been to furnish a guide, in the smallest possible com- pass, to the New York Court of Appeals Reports*. In every instance the exact point alone is denoted — all .f iff seems '\and "queries" are omitted. Where it is possible in a few words to indicate the sub- stance of the decision it has been done; in other instances, words indicating the subject are used. I have endeavored to avoid unneces- sary repetition, for the practitioner ought to have as few pages to handle as possible. The table of cases, under the names of both parties, is the only one of the kind in the State. The work has been carefully verified, and it is hoped that the mistakes are not numerous nor misleading. IRVING BROWNE. TABLE OF STATUTES, SESSION LAWS AND CODES CONSTRUED. 1E.L p. 319, 444, 2 R. L. p. 153, 191, 409, 416, 432, 433, 1 R. S. p. 62, 109, 117, 118, 123, 136. (5th ed. p. 164, 173, 179, 221, 226, 229, 232, 266, 267, 289, 312, 346, 357, 367, 379, 387, Vol. Page. sec. 3 3, 53 sec. 23 2, 459 sec. 2 4, 293 sec. 152 88, 434 sec. 118 27, 188 sec. 178 12, 406 sec. 179 3, 511 sees. 220-222 10, 567 sec, 224..... 11, 461 sec. 1, p. 65, sec. 1 77, 546 sec. 24. ...„..'.. 86, 564 sec. 9 77, 378 sec. 19 68, 514 sec. 42 40, 113 sec. 1 72, 70 ) p. 148, sec. 45. . . 37, 155 sees. 8-11 50, 321 sec. 17 92, 446 sec. 11 79, 627 sec. 19 31, 151 sees. 18,23 71, 276 sec. 49 11. 308 sec. 60 27, 387 sec. 73: 86, 522 sees. 90-95 6, 74 sees. 93, 94 12, 603 sec. 6 82, 351 sec. 1 59, 134 sees. 19, 26. ..... . 52, 374 sec. 8 93, 397 sec. 5 68, 259 sec. 72 61, 205 sec. 1 67, 528 88, 576 Vol. Page. 1 R. S. p. 387, sees. 1, 2 82, 459 388, sec. 4 13, 221 5, 376 391, sec. 9, sub. 4. . . 88, 142 391, sec. 12 62, 348 395, sec. 31 51, 610 396, sees. 36, 37 58, 401 398, sec. 7 65, 263 400, sec. 13 26, 514 412, sec. 83 4, 577 414, sec. 1 16, 424 tit. 4, sec. 1 4, 442 415, sec. 6..... 48, 70 76, 64 463, sec. 38 17, 93 501, see. 1 93, 397 513, sec. 55 20, 252 514, sec. 58... 24, 559 57, 549 517, sec. 81 67, 59 518, see. 86 78, 21 519, sec. 89 54, 132 521, sec. 102 34, 452 532, sees. 23, 24 93, 562 534, sec. 1 ; p. 735, sec. 14 24, 74 586, sec. 44 52, 383 588, sec. 9 15, 9 588, sec. 54 32, 659 589 3, 479 591, sec. 8 13, 114 47, 307 sec. 9 9, 589 593, see. 9 94, 168 vi STATUTES, SESSION" LAWS AND CODES CONSTRUED. 1 R. S. p. 595, sec. 600, sec. sec. 601, sec. sec. 603, sec. sec. 604, sec. sec. 605, sec. 614, sec. sec. 616, sec. 617, sec. Vol. Page. 28 1, 83 1, sub. 6... 59, 96 4 7, 364 1 5, 562 2 93, 162 4 59, 5 94, 334 21, 406 5 91, 1 4 80, 599 8 72, 433 11 21, 406 1 56, 435 4 47, 521 14 88, 513 15 56, 76 662, sec. 8 70, 202 664, sees. 22,30,31.... 7, 228 240 665, sec. 26 56, 424 sec. 28 .".. 1, 80 666, sec. 29 94, 137 676, sec. 70 89, 219 677, sees. 51, 52 46, 12 685, sec. 12 70, 104 690, sec. 1 7, 555 695, sec. 6 51, 295 709 56, 310 710, sec. 6 9, 520 24, 57 720, sees. 15-20 20, 320 723, sees. 14, 15 70, 581 sec. 18 ....24, 9 724, sec. 24 70, 581 726, sec. 40 23, 69 727, sec. 45 52, 332 728, sec. 51 32, 251 89, 251 47, 544 48, 218 sees. 51, 52 59, 342 77, 58 sec. 52 67, 264 22, 564 sees. 51, 53 80, 538 sec. 53 18, 515 sec. 55 24, 9 53, 351 sec. 55, sub. 3 . . . 2, 297 23, 367 sees. 63, 65 12, 394 Vol. Page. 1 R. S. p. 728, sec. 140 43, 462 735, sec. 110 15, 307 sec. 112 11, 397 737, sec. 126: 92, 295 738, sec. 137 13, 509 86, 603 sec. 140 13, 151 739, sec. 147..... 68, 41 22, 170 79, 390 71, 189 741, sec. 5 20, 412 742, sec. 19 67, 400 745, sec. 7 60, 102 749, sec. 3 79, 527 sec. 4 32, 587 sec. 7 14, 430 14, 64 752, sec. 10, sub. 1.... 14, 235 753,sec.'15 14, 235 52, 67 754, sec. 19 41, 313 sec. 22 5, 263 80, 171 13, 535 755, sec. 1 87, 257 756, sec. 1... 89, 641 64, 220 69, 1 66, 157 52, 138 59, 541 sec. 3 ,.. 71, 173 sees. 37, 38 83, 215 762, sees. 37, 38 87, 446 66, 77 79, 23 sec. 39 63, 132 sec. 55 81, 532 763, sec. 8 69, 148 764, sees. 2, 7 62, 513 768, sec. 5 79, 536 772 4, 463 sec. 3....' 64, 242 sec. 8 49, 373 91, 525 773, sec. 3 15, 322 2B.S. p. 3, sec. 1, etc 3, 41 sec. 1, sub. 2 13, 259 3, sec. 4 11, 331 12, sec. 57 2, 388 STATUTES, SESSION LAWS AND CODES CONSTKUED. vii Tol. Page. 2R. S. p. 16 61, 615 23, sec. 35, sub. 7. . . . 84, 4l0 31 69, 215 sec. 3. 88, 629 32, sees. 1, 3-6 46, 236 35, sec. 2 84, 410 49, sec. 47 6, 309 54, sec. 12 72, 184 57, sec. 3..... 52, 530 sec. 4 12, 376 81, 130 sec. 5 45, 256 86, 210 61, sees. 30-39 50, 298 63, sec. 40 94, 535 91, 516 67, 409 sub. 4..... 91, 261 64 25, 9 sec. 42 88, 377 64, 65, sees. 42-48.... 16, 9 sec. 44 77, 369 65, sec. 49... 89, 355 sec. 50 70, 387 68, sec. 67 26, 433 69, sec. 3 14, 449 71, sees. 18-21 14, 449 72, sec. 22 27, 357 74, sec. 27 24, 417 sees. 23, 26 63, 462 77, sec. 42 72, 565 83, sees. 6, 8 66, 489 sec. 7 18, 28 84, sec. 13 89, 1 59, 140 88, sec. 33 89, 352 sec. 34 79, 129 sec. 36 88, 453 89, sec. 38 50, 538 sec. 39 43, 521 90, sec. 43. 36, 15 97, sec. 76 79, 246 100 2, 245 sec. 1 62, 494 88, 309 103, sec. 19 88, 309 106, sec. 37 14, 281 109, sec. 55 1, 341 113, sees. 1,2 58, 282 114, sec. 9 88, 487 116, sec. 18 56, 615 2R. S. p. 116, sec. 18 sees. 19-21 . 134, see. 6 135, sec. 1 ; 137, sec. 1. 136, sec. 5 137, sec. 1 139, sec. 5 sec. 5 ; p sec. 49 . . . . 146, sec. 48 154, sec. 5 173, sees. 38, 39.. 174, sees. 38, 39 . . 191, sees. 152-154.. sees. 153,154.. sec. 155. ... 192,193 194, sec. 170 195, sec. 177 sec. 180 199 sec. 153 209, sees. 5, 6 220, sec. 1 . 223, sec. 10 226, sec. 8.. 241,245 269, sec. 40 275, sec. 2 146, 286, sec. 59. 288, sec. 71. 289, sec. 83.... 297, sec. 27.... 301, sees. 46, 48 10 sec. 48 14, 307, sec. 30 10 Vol. ?age. 71, 217 88, 503 23, 363 66, 649 66, 374 71, 341 79, 19 76, 630 11, 220 86, 18 64, 47 56, 76 70, 270 6, 236 72, 491 84, 105 71, 9 2, 360 79, 527 65, 294 11, 544 11, 575 63, 341 88, 117 89, 480 70, 481 31, 289 25, 588 45, 360 77, 101 57, 399 80, 202 88, 62 69 66, 592 10, 96 20, 210 309, sec. 37 .... 23, 42, 312 56, 317, sec. 1 .... 70, 318, sec. 5 .... 85, 321, sec. 1 ... 61, 346, sec. 21 .... 93, 360, sees. 1.2... .* .... 46, .... 68, 366, sec. 14 .... 2, viii STATUTES, SESSION LAWS AND CODES CONSTRUED. 2 B. S. p. 366, sees. 18, 19, 30, 31, 23 369, sec. 38 370, sec. 46 377, sees. 1-4 385, sec. 49 387, sees. 1, 2 394, sees. 11, 12, 23 . . . 406, sec. 73 sees. 75, 76 447, sees. 1, 2 458, sec. 3 462 463, sec. 30 sec. 36 sec. 38 464, sees. 41, 42 ; p. 469, sees. 67, 68, 72; p. 43, sec. 12 470, sec. 75 sec. 100 492 493, sec. 1 sec. 3 505, sec. 30 512, sec: 28 sub. 4 513, sec. 22 533, see. 47 534, sec. 1, sub. 3 541, sec. 2 542, sec. 4 545, sees. 3, 10, 12 ... . 547, sec. 14 Vol. Page. 1, 20 17, 276 56, 507 4, 513 34, 143 68, 552 50, 332 69, 256 54, 437 58, 383 13, 309 59, 143 61, 524 3, 415 18, 592 80, 599 Vol. Page. . 78, 493 . 10, 130 553, sec. 13. 563, sec. 32, sub. 3, sec 42 587, sec. 57 sec. 61 591, sec. 8 599, sec. 45. 602, sec. 66. 617, sec. 24. 619, sec. 44. 639, see. 30. 648 1, 330 78, 114 10, 164 7, 508 20, 182 3, 438 18, 529 66, 385 16, 569 84, 287 76, 574 40, 105 76, 294 14, 32 57, 479 65, 481 86, 428 68, 153 84, 272 60, 559 53, 128 60, 31 10, 60 48, 305 18, 138 83, 178 18, 360 13, 33 78, 541 . 68, 198 , ,9, 435 2 B. S. p. 656, chap. 5, sub. 3 657, sec. 5, sub. 2. sec. 9 19, 537 664, sec. 25 88, 192 86, 369 sec. 27 63, 307 see. 38 25, 374 665, sec. 37 67, 15 sec. 34 50, 598 668, sec. 10.. 64, 583 sub. 1 ... . 71, 561 673, sec. 33 35, 380 sec. 34 73, 365 677 22, 413 sec. 53 87, 561 sec. 55 49, 436 678, sec. 59 22, 345 78, 377 679, sec. 66 72, 330 681, sec. 1.. 69, 107 682, sec. 8 81, 629 687, sec. 8 92, 146 691, sec. 5 92, 348 694, sec. 23 92, 490 699, sec. 8 53, 511 701, sec. 30 41, 21 702, sec. 27 22, 178 sec. 30 23, 252 703, sec. 33 86, 365 727, sec. 45 56, 95 sec. 50 82, 235 16, 344 728, sec. 55 78, 244 sec. 56 77, 39 731, sec. 1 80, 500 734, see. 13 88, 585 738, sec. 4 31, 463 759, sec. 13 43, 1 768, sec. 8 39, 216 853, (5th ed.) sec. 81. . . 35, 139 3 B. S. (5d ed.) p. 146, sec. 4 30, 393 (2d ed.) p. 222, see. 7 11, 148 p. 294, sec. 3 19, 482 547, sec. 8 31, 157 932, sec. 1 83, 462 1786, chap. 12, sec. 4 80, 171 1789, chap. 14 56, 383 1798, chap. 80 77, 448 1805, chap. 89, sec. 38 27, 87 chap. 98, sec. 3 19, 68 sec. 25 19, 100 STATUTES, SESSION LAWS AND CODES CONSTRUED, ix Vol. Page. 1806, chap. 136 11, 115 1807, chap. 115 70, 303 sec. 3 21, 267 1813, chap. 60 65, 134 654 sec. 3 66, 164 sec. 4 68, 570 sec. 11 46, 131 chap. 86, sec. 83 67, 73 sec. 181. 45, 102 36, 182 85, 459 sec. 175.. 50, 513 sec. 178 49, 150 53, 202 57, 344 sec. 184 92, 262 Sec. 212 37, 275 1815, chap. 199 68, 71 1816, chap. 115, sec. 2. 1, 79 47, 460 chap. 131, sec. 15 76, 108 1817, chap. 205 3, 238 chap. 75 8, 110 1818, chap. 210 46, 318 56, 533 1821, chap. 172 28, 396 chap. 193 1,392 chap. 204 16, 203 1822, chap. 257, sec. 4 47, 501 1823, chap. 242, sec. 43 47, 457 chap. 276 70, 385 1826, chap. 185, sec. 48 20, 370 1827, chap. 172 26, 287 1828, .chap. 137, sec. 27 51, 78 chap. 164, sees. 4, 5 69, 75 1829, chap. 94 17, 502 sec. 33 19, 245 21, 490 sec. 35 15, 9 chap. 78, sec. 43 3, 197 1830, chap. 56 21, 595 sec. 82 29, 447 chap. 75, sec. 21 7, 364 chap. 108 12, 541 chap. 179 24, 521 24, 638 sec. 3 61, 283 chap. 295 25, 163 chap. 320, sec. 20 71, 238 sec. 62 77, 39 B 1830, chap, chap. 1831, chap, chap. 1832, chap, chap, chap, chap. 320, sees. 63, 330, sec. 1... Vol. . 23 Page. 45 31 12 300 77 sec. 10, suh. 4.... 62 sec. 12 23, sees. 16, 17 1 sec. 31..... 26 26 25 158, sec. 1 179, sec. 38 65, 276, sec. 1 7, 1833 chap, chap, chap, chap. 3 78 56 165, sec. 4 2., 227 37, 271, sec. 8 51 sec. 9 57 chap. 279 27 52, 71 sec. 1 77 sec. 3 19 13 14 93 chap. 281 72 83 chap. 319 50, 1834 3 chap. 73 1 sec. 40 4, 5, 1, chap. 1836, chap. chap. 256. 239. 41. sec. 6. sec. 7. chap. 1837, chap. chap. chap. chap, chap. 242. 20. 93. 150. 388, sec. 9 430, sees. 4, 5. 2, 21 1 47, 4, 7, 3, 79, 52 1 3 29 64, 65 91 STATUTES, SESSION LAWS AND CODES CONSTEUED. 1837, chap. 436, chap. 451, chap. 460 sec. sec. 4.. 5 .. Vol. Page. ... 94, 373 ... 81, 21 50, 298 sec. 4 87, 19 sec. 18 6, 190 sec. 22 24, 166 sec. 65 sec. 1838, chap. 206 69, 419 .67 69, 536 sec. 71 24, 46 58, 627 7, 538 82, 291 1839, chap. 218. chap. 355, 1840, chap. 342. chap. 326, chap. 363, chap. 80. sec. 3 19, 8, sec. 10 1, sec. 4 chap. 254. chap. 326, chap. 342, chap. 363, chap. 386 1841, chap. 218 chap. 230, chap. 247 1842, sec. 33 . chap. 157 sec. 7 chap. 318. chap. 130, chap. 342, 1843, chap. 87, chap, chap, chap, chap. sees. 5, 9, 11 . . sec. 18 sec. 21 19, 152 86, 107 89, 75 37 448 79 3, 19 59, 387 86, 11 90, 492 23, 420 66, 395 69, 353 70, 477 76, 432 84, 108 sec. 13 68, 198 sec. 4 17, 521 21, 490 17, 445 4, 66 sec. 3 1, 79 20, 562 4, 300 1, 130 11, 281 54, 62 tit. 4 61, 420 sec. 12 sec. 1 90. 94, 47, 95. chap. 169. 1844, chap. 148, chap. 220. 50, 8 39, 333 4, 51 sec. 12 3, 290 61, 444 1, 371 15, 451 15, 512 47, 157 sec. 5 3, 47 3, 305 chap. 132, tit. 5, sec. 4 1844, 1845, 1846, 1847, chap, chap, chap, chap, chap, chap, chap, chap. chap, chap, chap, chap, chap. chap, chap, chap, chap, chap, chap, chap, chap, chap. chap. chap. chap, chap. chap, chap. chap. chap, chap, chap. chap VoL Page. 300 14 281 315, sec. 11 1, 386 86 69, 75 305 80, 523 315, art. 4, sec. 8 59, 83 300 10, 164 69, sec. 17 89, 460 115, sec. 1 81, 130 sec. 4 80, 171 180, sec. 3 57, 399 234 26, 134 260, sec. 2 1, 379 216 1 9, 575 274 2, 182 13, 299 14, 22 22, sec. 1 1, 379 156 23, 420 291, sec. 20 26, 529 274, sec. 3 26, 580 327 15, 451 432 5, 285 280, sees. 10, 11, 20.. 1, 228 80 21, 179 133 46, 503 506 66, 569 210 24, 150 31, 51 sec. 1 11, 376 sec. 33 52, 383 sees. 34, 35 14, 546 sec. 44 48, 527 270 24, 269 sec. 9 45, 524 470, sec. 34 23, 293 280 47, 330 sec. 37 ... 63, 36 338 92, 415 390 62, 198 sec. 2 80, 156 410 34, 235 56, 507 68, 473 426, sec. 92 26, 467 430 15, 617 450 14, 310 15, 432 89, 24 455 34, 268 54, 528 STATUTES, SESSION LAWS AND CODES CONSTRUED, xi 1847, chap. 455. sec. chap. 460, sec. chap. 480, sec. chap. 495 chap. 498, sec. 1848, chap. 140, sec. chap. 346 chap. 37 sec. sec. sec. chap. 40, sec. sec, Vol. Page. 57, 549 8,9 63, 306 13 67, 330 150 56, 208 146 38, 58 66, 162 4 78, 356 42 38, 103 14, 289 62, 386 8 89, 409 10 83, 582 18 93, 361 8 59, 96 10 89, 334 1848, chap. 1849, chap. chap, chap, chap, chap. 319. sec. 6 91, 308 sec. 12 21, 261 27, 297 49, 183 50, 137 sec. 10 50, 568 sec. 13 56, 559 sec. 12 58, 179 60, 53 62, 202 63, 62 sec. 10 63, 93 sec. 12 65, 252 68, 34 69, 396 72, 100 sec. 4 72, 433 sec. 12 80, 379 80, 610 81, 46 49 sec. 15 83, 156 sec. 12 86, 95 13 63, 422 15 89, 122 18 61, 274 25 52, 203 20 35, 177 26, 203 70, 38 42, 384 2 85, 258 48, 132 5 60, 510 chap. 319 46, 477 sec. sec. sec. sec. chap. 84, sec. chap. Ill chap. 156 ... . chap. 224, sec. chap. 265 Vol, Page. 59, 434 92, 433 17, 64 17, 370 chap, chap chap, 40, 113 121 17, 316 140 8, 483 187, sec. 19 23, 318 194 8, 472 24, 86 195, sec. 5 89, 266 200 12, 268 226 18, 199 21, 9 27, 393 36, 302 sec. 27 23, 508 chap, chap. 250, sec. 256 14, 22, 659 310 191 chap. 308. chap, chap. 1850, chap, chap, chap, chap, chap, chap. chap. chap. 92, 219 52, 389 67, 417 21, 52 77, 1 71, 118 752, sec. 4 24, 583 373. 71, sec. 2 , 82 84 92 32, 659 26, 53 8, 241 51, 12 94 54, 128 102. 45, 78, 323 64 sec. 16 ..... 122 64, 274 68, 570 140 48, 498 89, 75 .... 20, 157 sec. 1 sec. 4 57, 87, 473 294 155 sec. 10 51 sec'. 12 46, 521 12, 628 sec. 13 53, 574 sec. 18 69, 209 sec. 21 67, 371 77, 248 sec. 22 49, 356 sec. 28 84, 308 sec. 28, sub. 5... 58, 152 xii STATUTES, SESSION LAWS AND CODES CONSTKUED. Vol. Page. 1850, chap. 140, sec. 28, sub. 5.. . 84, 247 sec. 28, sub. 6. . . 77, 557 79, 69 sec. 28, sub. 10. . 84, 190 sec. 36 12, 245 sec.^39 25, 442 13, 78 sec. 44 13, 42 51, 568 63, 58 sec. 47 86, 107 sec. 49 49, 455 chap. 170 49, 635 chap. 172 17, 51 23, 275 33, 665 35, 65 chap. 179 60, 40 73 chap. 260 15,489 chap. 275 67, 379 chap. 278 11, 593 chap. 295 64, 188 49, 106 chap. 298 17, 486 chap. 313 42, 384 1851, chap. 485 7, 9 chap. 180 8, 317 chap. 176, sec. 8 62, 348 chap. 513 13, 70 chap. 134, sec. 33 77, 36 chap. 176 48, 71 sec. 2 85, 359 chap. 371 48, 390 chap. 386 85, 117 chap. 389, sees. 285-291.... 28, 605 chap. 444 21, 373 chap. 455 16, 112 chap. 497 24, 485 chap. 504 39, 454 chap. 513 20, 247 57, 409 chap. 371, sec. 2 37, 344 1852, page 48 15, 297 chap. 52, sec. 3 64, 606 chap. 71 18, 592 chap. 82 7, 385 49, 137 chap. 228 62, 645 sees. 6, 7 . „ 57, 331 chap. 277 17, 218 Vol. Page. 1852, chap. 282 93, 196 chap. 361 25, 214 88, 129 chap. 368, sec. 2 88, 527 chap. 375 23,439 24, 114 sec. 2 36, 224 chap. 384 19, 234 31, 285 1853, chap. 62 24, 345 sec. 1 52, 510 71, 552 chap. 80 50, 451 chap. 138 22, 413 chap. 153 61, 542 chap. 179 88, 129 sec. 12.. 17, 584 chap. 220 60, 242 chap. 223 18, 240 chap. 230, sec. 9 76, 558 chap. 230, page 472 15, 512 chap. 238 62, 75 chap. 283 19, 20 chap. 301 85, 117 chap. 333 47, 225 57, 133 63, 93 sec. 2 46, 589 80, 128 chap. 335 35, 94 chap. 407, sec. 29 52, 609 chap. 442 -19, 445 chap. 463 ... 26, 303 67, 506 sec. 17 78, 114 chap. 466 46, 541 sec. 12 76, 64 sec. 13 58, 94 chap. 467, sec. 29 . 45, 446 60, 449 chap. 469 16, 424 sec. 29 60, 249 chap. 579, sec. 6 66, 623 chap. 603, sec. 5 14, 356 chap. 617, sec. 5 31, 446 chap. 654 20, 387 1854, chap. 28 17, 110 chap. 54 50, 302 chap. 74 69, 101 chap. 75, sec. 1 52, 596 chap. 96 19, 245 STATUTES, SESSION LAWS AND CODES CONSTEUED. xiii Vol. Page. 1854, chap. 101 85, 117 chap. 130 34, 20 chap. 188 78, 356 chap. 197 19, 432 chap. 332 19, 408 chap. 370 69, 215 60, 457 78, 601 85, 478 chap. 282 61, 351 76, 254 84, 583 66, 407 sec. 5 60, 116 67, 343 sec. 7 64, 535 94, 13 sec. 8 38, 433 67, 153 81, 190 sec. 13 86, 108 sec. 17 91, 552 chap. 384 48, 486 62, 339 sec. 33 59, 380 58, 463 sec. 13, sub. 2. . . 87, 304 tit. 3, sees. 1, 13, subs. 4, 16. . . . 57, 591 tit. 4, sec. 16 . . . 89, 189 tit. 5, sec. 28. . . . 87, 481 tit. 5, sec. 33 52, 445 chap. 386 30, 447 chap. 398 33, 53 chap. 402 •. 54, 226 77, 388 chap. 654 34, 93 1855,chap. 6 72, 307 chap. 37 59, 40 78, 561 80, 254 sec. 1 23, 342 chap. 42 43, 539 chap. 101, sec. 6 71, 616 chap. 231 13, 378 chap. 327 16, 246 chap. 337...., 16, 58 36, 276 88, 117 sec. 3 78, 492 chap. 339, sec. 3 53, 535 Vol. Page. 1855, chap. 356 76, 339 chap. 404 57, 409 chap. 407 52, 83 chap. 421 21, 111 44, 172 46, 266 54, 262 chap. 427, tit. 1, sec. 3 .... 72, 334 sees. 63, 65 53, 431 sec. 76 66, 5 chap. 428 31, 164 36, 297 chap. 475 60, 242 chap. 536 23, 53 chap. 545.... 21, 517 chap. 559 48, 132 chap. 64 57, 177 chap. 338, sec. 1 62, 224 1857, chap. 63, tit. 8, sees. 1-6. . 78, 56 sees. 4, 6 82, 324 tit. 8, sec. 4 63, 291 chap. 82, sec. 3 81, 109 chap. 185 26, 523 46, 644 sec. 1 30, 505 chap. 228 26, 523 30, 505 chap. 243 59, 131 chap. 344 23, 572 chap. 401 71, 298 57, 171 chap. 405 17, 141 chap. 416 39, 187 49, 269 sec. 3 51, 144 chap, 446 50, 363 67, 486 sec. 7 46, 42 50, 509 60, 16 60, 343 sec. 38 83, 254 chap. 456, sec. Z .... 21, 459 chap. 531, sec. 8 53, 60 chap. 569 19,188 chap. 590, sec. 6 56, 466 chap. 628 17, 516 20, 363 21, 173 sec. 18 77, 331 sec. 29 56, 321 xiv STATUTES, SESSION LAWS AND CODES CONSTKUED. Vol. Page. 1857, chap. 639 59, 316 65, 322 68, 376 chap. 754 50, 416 (vol. 2) chap. 763 68, 71 26, 287 (vol. 2) chap. 569 36, 449 (vol. 2) chap. 628, sees. 22,30 35, 154 1858, chap. 357 42, 107 chap. 129 23, 53 40, 133 chap. 196 37, 267 chap. 204 80, 523 chap. 258 16, 112 chap. 306, sec. 19 19, 529 chap. 314 72, 424 chap. 314, sec. 3 72, 32 chap. 322 31, 330 chap. 332, sec. 1 32, 147 chap. 326, sec. 6 58, 484 chap. 330 36, 113 chap. 338 27, 627 46, 100 52, 80 77, 170 90, 668 sec. 1 60, 16 26 chap. 357, sec. 1 60, 381 1859, chap. 79 44, 415 chap. 174 20, 529 chap. 208 27, 336 35, 125 chap. 213, sec. 1 60, 165 chap. 262, sec. 2 78, 601 chap. 302 32, 355 chap. 312 92, 604 chap. 384 57, 171 chap. 388 82, 351 chap. 385, sec. 4 53, 400 chap. 495 29, 534 1860, chap. 117 24, 399 chap. 139, sec. 5 51, 506 chap. 202 22, 67 chap. 235 43, 476 chap. 254 77, 448 chap. 259, sec. 69 26, 316 chap. 322 44, 156 chap. 340 82, 494 chap. 345 54, 450 87, 98 1860, 1861 Vol. Page. chap. 345 94, 401 chap. 348 39, 196 369 45, 51 54, 29 56, 629 71, 502 59, 649 60, 154 chap. 360 59, 434 79, 327 chap. 896 26, 558 chap. 410 22, 95 25, 406 26, 167 27, 336 chap. 501 69, 557 chap. 508, sec. 33 24, 405 chap. 509 63, 8 chap. 510 60, 385 62, 160 chap. 513 72, 330 • chap. 522, sec. 2 31, 265 chap. 522 68, 71 , chap. 143 .. 67, 528 sec. 40 76, 506 sec. 41 54, 507 sees. 192, 193, 208 65, 516 chap. 169 60, 165 62, 457 sec. 5 62, 339 chap. 303 26, 167 28, 400 chap. 308 81, 62 sec. 1 70, 157 chap. 311 65, 322 70, 430 sec. 1 48, 57 chap. 333, sec. 3 59, 83 chap. 340 45, 234 , chap. 63, sec. 21 89, 128 sec. 39 89, 189 chap. 183, sec. 41 68, 1 chap. 197 50, 598 chap. 300 59, 163 Chap. 385, sec. 8 50, 451 chap. 412 27, 147 chap. 459 35, 302 46, 439 chap. 468 93, 539 chap. 478 45, 766 STATUTES, SESSION LAWS AND CODES CONSTRUED. xv sec. 1 chap. 482. sec. 8 , Vol. Page. 1862, chap. 478 50, 360 63, 476 / 69, 618 76, 50 78, 30 52, 346 79, 273 83, 279 77, 489 36, 358 39, 19 43, 52 48, 313 57, 112 59, 554 61, 530 65, 128 71, 413 35, 551 90, 21 1863, chap. 18, sec. 18 chap. 62, sec. 1 ..... chap. 63, sec. 2 90, 213 chap. 209, sec. 2 47, 108 chap, 212 87, 637 chap. 226.... 29, 124 59, 599 chap. 227, sec. 2 60, 16 chap. 362, sec. 8 78, 306 chap. 422 71, 413 chap. 500 54,' 269 57, 433 59, 367 63, 624 65, 333 sec. 5 56, 610 sec. 14 67, 253 chap. 863, tit. 12, sec. 36. . . 70, 126 tit. 13, sec. 37... 78, 310 1864, chap. 8 46, 70 sec. 22 42, 130 chap. 140, sec. 3 38, 201 chap. 402 45, 551 66, 129 chap. 403, see. 29 91, chap. 517 65, sec. 2 85, chap. 422, sec. 3 . . 38, chap. 544, sees. 1, 2 91, chap. 547 79, chap. 555 67, tit. 7, art. 7, sec. 68, 58, 137 43 328 453 240 83 293 36 85 1865, Vol. Page. 1864, chap. 555, tit. 7, sec 75. . . . 76, 422 tit. 10, sec. 1. . . . 93, 438 chap. 565, sec. 7 , . 77, 350 chap. 578 47' 566 chap. 582, sec. 2 80, 27 chap. 36, sec. 1 ■ 50, 314 41 48, 540 97 67, 516 sec. 10. 48, 524 chap. 181 35, 449 chap. 249 32, 377 8 °0 59, 228 381 46, 178 47, 556 chap, chap. chap, chap. chap. 453 92, 430 sec. 1 52, 434 chap. 544 36, chap. 564 62, chap. 565, sec. 8 84, 85^ chap. 694 92 chap. 733 81,' chap. 778 65' 1866, chap. 74 37 m, chap. 217, sec. 1 46, chap. 347 82, chap. 367, sec. 7 85^ chap. 398, sec. 2 84, chap. 466 89 , chap. 483 36, chap. 534, sec. 1 58, chap. 576 82, chap. 578 34' chap. 633, sec. 7 93, 313 chap. 656 86, 11 chap. 658 64, 377 chap. 697 84,' 308 chap. 723, sec. 6 84, 614 chap. 752 60, 127 chap. 761.... 67, 516 69, 91 chap. 861, sec. 1 77, 347 1867, chap. 19, sec. 2 39, 418 chap. 88 77, 130 chap. 96 47, 608 chap. 360, sec. 25 82, 621 chap. 577, sees. 3, 4 57, 496 sec. 12 38, 386 chap. 697 .. 91, 430 285 567 596 1 311 573 282 661 165 57 196 1 532 11 285 116 172 657 xvi STATUTES, SESSION LAWS AND CODES CONSTKUED. Vol. Page. 1867, chap. 697, sec. 1 83, 538 chap. 708 82, 172 chap. 747 66, 55 sec. 3 56, 504 chap. 774 49, 587 62, 294 chap. 782, sec. 2 89, 401 sec. 8 88, 445 sec. 79 47, 351 chap. 814 45, 356 46, 439 52, 62 sec. 2 50, 477 chap. 860 56, 629 chap. 887 49, 510 chap. 938, sec. 1 51, 401 1868, chap. 254 42, 404 chap. 314 60, 398 chap. 317 70, 28 chap. 442 87, 171 chap. 520 64, 167 chap. 553 71, 513 chap. 577 64, 92 chap. 631 89, 189 chap. 635, sec. 1 60, 165 chap. 717 43, 10 chap. 721, sec. 1 85, 105 chap. 762, sec. 5 63, 604 chap. 776 54, 275 chap. 816 79, 437 449 chap. 818 71, 309 chap. 844, sec. 3 52, 395 1869, chap. 84, sec. 2 57, 473 chap- 90 82,' 172 cha P- 97 60, 165 65, 349 chap.. 241 68) 403 chap. 272 46, 401 chap. 292 86, 512 chap. 314, sec. 2 52, 533 chap. 411, sees. 3, 4 60, 385 chap. 520 69, 242 chap. 558 67, 215 66, 1 -chap. 569 42, 186 sec. 4 76, 186 chap. 588, sec. 1 49 333 cha P' 590 64 [ m chap. 631 49i 86 cha P- 6 78 50, 240 Vol. Page. 1869, chap. 678 94, 490 sec. 1 56, 315 chap. 700... 45, 729 chap. 714 65, 588 chap. 744, sec. 2 62, 339 chap. 793 , 71, 580 chap. 826 68, 17 chap. 855 68, 259 sec. 1 64, 53 sec. 5 71, 481 77, 342 chap. 861 84, 308 chap. 875 47, 501 64, 18 sec. 7 67, 87 58, 491 sec. 11..... 63, 48 chap. 880 42, 378 chap. 888 71, 315 chap. 890 87, 559 chap. 902 77, 297 sec. 7 80, 152 sec. 13 89, 94 chap. 907 45, 772 59, 192 sees. 1, 2 68, 321 chap. 907 , 76, 182 93, 405 chap. 912... 72, 124 chap. 917 70, 220 chap. 967 46, 110 1870, chap. 77 82,318 tit. 3, sec. 10 . . . 68, 479 tit. 7, sec. 1 56, 374 chap. 78 88,445 91, 664 chap. 81, sec. 214 50, 274 chap. 92 56, 629 chap. 129 79, 327 chap. 137 62, 160 62, 504 67, 486 80, 565 sec. 20 52, 526 76, 174 82, 243 sec. 47 77, 347 sec. 60 82, 358 sec. 77 68, 88 sec. 104 60, 303 83, 431 STATUTES, SESSION LAWS AND CODES CONSTKUED. xvii 1870, chap. 137, chap. 163 . chap. 175 chap. 190, sec. 6 . chap. 194 . chap. 225 . chap. 242, chap. 257 . chap. 321 . chap. 340 . chap. 356, chap. 359, chap. 382, chap. 374 chap. 383 chap. 427 chap. 436 chap. 470 chap. 492 chap. 519 chap. 519 chap. 570 chap. 593 . chap. 598, chap. 623 chap. 626, chap. 685 . chap. 741 . 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Code, sec. 150 67, 237 sec. 155 13, 83 sec. 157 52, 596 sec. 160 18, 119 59, 176 sec. 162 76, 564 76, 397 sec. 165 11, 547 12, 67 46, 427 sec. 167 56, 12 58, 237 64, 173 68, 294 sec. 171 65, 89 38, 21 49, 78 sec. 173 37, 300 58, 636 78, 74 56, 359 70, 486 46, 200 59, 233 sec. 179 70, 492 sec. 186 57, 582 88, 403 sec. 187 72, 587 sec. 191 81, 91 sec. 197 45, 393 sec. 201 59, 310 98, 143 sec. 203 44, 104 sees. 206-217 49, 259 sec. 207 80, 339 sec. 210 59, 269 sec. 220 9, 263 sec. 222 64, 326 76, 600 sec. 223 18, 463 sees. 227-245 50, 80 sec. 227 54, 164 68, 370 sec. 228 6, 560 sees, 232-236 89,343 sec. 235 56, 52 61, 583 84, 1 92, 256 sec. 238 50, 128 54, 207 Vol. Page. Code, sec. 243 65, 314 68, 585 sec. 244, sub. 4 85, 506 sec. 245 38, 18 sec. 247 18, 315 53, 497 61, 251 45, 468 sec. 254 47, 119 sec. 261 38, 423 sec. 264 53, 371 56, 247 sec. 265 47, 244 54, 147 sec. 267 29, 673 56, 192 sec. 268 46, 565 47, 221 sec. 271 1, 426 1, 608 sub. 1 63, 315 sub. 3 20, 251 sec. 272 46, 565 47, 221 78, 74 sec. 274 1, 611 54, 207 sec. 275 40, 504 sec. 277 ' 9, 470 9, 559 38, 423 sec. 279 1, 423 sec. 282 1, 428 1, 536 17, 9 sec. 283 1, 607 17, 9 sec. 284 26, 383 sec. 288 59, 156 71, 377 sec. 292 48, 27 sec. 294 37, 355 48, 27 sec. 297 47, 368 54, 516 sec. 303 51, 387 69, 462 71, 443 sec. 304 7, 486 21, 466 sec. 305 8, 29 XXII STATUTES, SESSION LAWS AND CODES CONSTRUED. Vol. Page, Code, sec. 305 9, 549 Code, sec. 399. sec. 306 56, 50 7, 486 sec. 307, sub. 5 50, 427 sec. 308 2, 570 sec. 309 37, 380 51, 365 29, 410 62, 333 sec. 313 77, 476 sec. 317 52, 587 sec. 321 607 sec. 329 62, 333 sec. 334 38, 469 60, 371 62, 111 63, 245 sec. 335.... 14, 60 63, 245 87, 409 sec. 338 83, 261 sec. 401, sec. 339 2,561 sec. 427 sec. 344 22, 517 sec. 348 87,409 ■?. sec. 352 47, 67 sec. 356 65, 380 sec. 440, sec. 366 24, 635 sec. 448. sec. 369 56, 671 sec. 449 sec. 371 47, 1 62, 27 sec. 372 27, 130 46, 612 sec. 457 60, 191 sec. 460. 63, 617 Code Civ. Pro sec. 375 42, 373 44, 63 89, 146 sec. 379 89, 146 sec. 381 51, 1 sec. 383 22, 418 24, 518 33, 409 sec. 385 57, 652 63, 261 sec. 388 11, 575 sec. 391 64, 120 sec. 397 11, 128 14, 482 sec. 399 3, 489 9, 170 12, 373 Tol. Page. 13, 293 18, 52 22, 353 26, 264 33, 688 34, 447 44, 58 45, 696 47, 278 51, 43 59, 336 59, 587 62, 80 65, 107 70, 385 387 78, 90 155 282 81, 625 sub.. 7 58, 383 62, 114 84, 63 57, 161 67, 334 57, 161 62, 75 41, 425 49, 266 56, 407 69, 567 3, 341 10, 374 , chap, 16 92, 306 se.c. 14.,.,.,.... 81, 235 87, 521 sec. 17 84, 284 sec. 23 , 88, 611 sec. 160 81, 35 sec, 184, sub. 4. . 83, 174 sec. 190, sub. 3.. 77, 514 sep. 190.. 82, 506 609 85, 628 81, 13 128 87, 160 sec. 191. sec. 382, sub. 5. . sec. 406 72, 499 sec. 426 84, 622 sub. 3 84, 445 sec. 432 87, 137 STATUTES, SESSION LAWS AND CODES CONSTETJED. xxiii Vol Page. Code Civ. Pro. sees. 440,;441, 787 89, 397 Code Civ. Pro., sec. . 93 82 sec. . 77, 232 sec. . 90 293 sec. 93, 552 sec. . 81 40 sec. . 87, 231 sec. . 84, 493 sec. sec. 535. . 81 246 sec. . 72 442 79, 579 sec. sec. 550. 94 473 sec. . 87 272 . 85 502 sec. sec. 599. . 88 611 sees. 595 598. . . . 88, 611 sec. sec. 636. . 84, 141 sec. sec. 638. . 93 93 sec. sec. 682. . 8?, 88 sec. 85, 500 sec. 89, 440 sec. 93, 87 sec. sec. 683. . 81 141 sec. sec. 708, sub. 3. . 94, 508 sec. sec. 713. 31 349 sec. sec. 723. . 88 500 sec. 89, 22 sec. sec. 724. . 78, 362 sec. . 90 461 sec. sec. 758. . 77 480 sec. sec. 763. . 77 515 sec. sec. 786. 86, 270 sec. sec. 791, sub. 5. . 84, 642 sec. sub. 6. . 92, 646 sees sec. 822. 87 272 sec. . 79 415 sec. 80, 198 sees 88, 251 sec. 88, 447 90, 298 sec. 81 151 sees 92, 293 sec. sec. 832. . . 86, 353 sec. 91, 241 sec. sec. 834 . 80 281 sec. 92, 274 sec. sec. 870 . 77, 33 sec. 78, 220 see. 78, 599 Code Crim. Pro., sec. sec. 873 . 86 519 sees. sec. 982 88, 258 sec. 92, 398 sec. Vol. Page. 993 82, 459 997 93, 392 999 79, 506 1005 80, 275 1013 86, 433 1023 84, 284 1207 85, 246 1210 77, 515 1236 81, 182 82, 366 .1240 77, 423 ,1279 76, 602 92, 622 1300 76, 106 1303 85, 652 .1308 72, 613 1317 76, 585 1326 85, 241 .1337 87, 514 1338 85, .21 1342 79, 573 1347 79, 175 .1351 78, 228 1353........ 85, 353 1354 82, 366 1356 88, 611 1368 86, 517 1421 91, 577 1464 88, 600 1766 91, 281 .1778 88, 424 1780 87, 137 1937 92, 581 2281, 2283.. 87, 521 .2534 94, 574 2545 88, 656 2554, 2555.. 91, 235 2586 87, 514 81, 623 ,2662 89, 401 s. 2717, 2718.. 92, 251 .2957 93, 54 . 3165, sub. 2. 93, 93 ,3248 85, 523 .3253 92, 401 .3271 92, 353 3296 87, 184 3331 90, 521 176 92, 85 188-200... 91, 241 519 92, 560 527.... 92,554, 560 ABBREVIATIONS. In the regular series, the first figures denote the volume, the second the page. "Abb." stands for Abbott's Court of Appeals Decisions. " Trans. App." for Transcript Appeals. " Am. Rep." for American Eeports. INDEX-DIGEST NEW YORK COURT OF APPEALS REPORTS. A. Abandonment. See Adveese Possession ; Domicile ; Easement; Highway; Insurance; Ship and Shipping. ABATEMENT AND REVIVOR. Action for claim and delivery of per- sonal property does not abate by plaintiff's death. Potter v. Van Vranken, 36, 619. On death of plaintiff in replevin, action abates. Burkle v. Luce, 1, 163. No abatement where issue has been joined on a counter-claim. Lvoermore v. Bairibridge, 49, 125. Abatement of action against corporation by dissolution. McOulloch v. Norwood, 58, 562. Lien of creditor's bill not extinguished by defendant's death. Brown, v. Nichols, 42, 26. Cause of action for fraudulently induc- ing plaintiff to marry defendant by false representations that he was unmarried does not survive death of defendant. Price v. Price, 75, 244; 31 Am. Rep. 463. Action against vendor of land for fraud- ulent representatioils survives. Haiyht v. Bayt, 19, 464. On death of lunatic, power of commit- tee ceases. Matter of BeckwWi, 87, 503. Alternative mandamus riot abated by death of one petitioner after return. Peo- ple v. Board of /Supervisors of Essex Co., 70, 228. Cause of action by husband for loss of wife's services and for expenses caused by negligence survives plaintiff's death. Gregin v. Brooklyn Crbssiown B. Co., 75, 192 ; 31 Am. Eep. 459. Death of plaintiff husband in action for injury to wife abates action for loss of Society, but action for expenses' and loss of services survives. Gregin v. Brooklyn Grosstomn R. Co., 83, 595 ; 38 Am. Eep. 447. Action for breach of promise of marriage abates with death of defendant. Wade v. Kalhfleisch, £.8, 282; 17 Am. Eep. 250. Action does not abate by marriage of female plaintiff — order of substitution. Mopes v. Snyder, 59, 450. Proceeding to foreclose mechanic's lien under act of 1863, chapter 500, abates on defendant's death. Bemy v. Gardner, 63, 624. Death of mortgagor after decree in fore- closure does not prevent execution. Hays v. Thomae. 56, 521. Foreclosure does not abate by death of mortgagee and his appointment of mbrt. ACCOED AND SATISFACTION. gagor as one of his executors. McGregor v. McGregor, 35, 218. Death of prior mortgagee, party to fore- closure, or devolution of his interest, does not necessitate revivor. Hancock v. Han- cock, 22, 568. Action by officer does not abate by the expiration of his term and the election of his successor after commencement of the term at which the cause was tried. Man- chester v. Herrington, 10, 164. Of partition, by death of one tenant in common. Requa v. Holmes, 16, 193 ; 26, 338. Action by assignee for benefit of credit ors against sheriff for wrongful taking of assets does not abate by plaintiff's death — personal representative should be substi- tuted — consent to substitution of suc- cessor in trust binding. Emerson v. Bleak- ley, 2 Abb. 22; 2 Trans. App. 171; 3 id. 100. Cause of action against stockholder under general insurance act, survives. Chase v. Lord, 77, 1. Liability of joint surety on appeal ceases with his death. Randall v. Sackett, 77, 480. Right of revivor rests in discretion — laches — limitation. Beach v. Reynolds, 53,1. Action may be revived at any time under Code of Civil Procedure, § 757, as amended in 1874, where both parties are dead. Holsman v. St. John, 90, 461. Revivor is by motion — discretion — delay — sole defendant. Ooit v. Campbell, 82, 509. Case proceeds as if substituted party had been in from beginning. Moore v. Hamilton, 44, 666. Bill of revivor when by devisee. Brady v'. McCosker, 1, 214. Mere lapse of time does not defeat right of revivor. Evans v. Cleveland, 72, 486. Stipulation that action shall survive, as condition of postponement — effect of — attorney may make. Cox v. New York Cent., etc., R. Co., 63, 414. Abduction. See Chimin at., Law — Kidnapping. Abortion. See Criminal Law. Acceptance. See Negotiable Instrument. ACCESSION. A willful trespasser gets no title to corn taken by him and converted by him into whisky. SUsbury v. McGoon, 3, 379. Accessory and Accomplice. See Criminal Law ; Witness. Accident. See Insurance ; Negligence. ACCORD AND SATISFACTION. Partly executed accord and tender of performance of residue is not satisfaction. Kromer v. Heim, 75, 574 ; 31 Am. Rep. 491. Assignment and delivery of property on agreement to release constitutes, with- out proof of acceptance. Tlierasson v. Peterson, 2 Keyes, 636 ; 4 Abb. 396. Agreement to accept smaller sum for debt binding when secured by surety — wife's joining husband in mortgage. Heeler v. Salisbury, 33, 648. Agreement to accept notes in settle- ment of claim is not. Bay v. Roth, 18, 448. Compromise of claim without consid- eration is not binding. Bunge v. Koop, 48, 225; 8 Am. Rep. 546. When liability not discharged by un- sealed instrument for nominal considera- tion. Bambmann v. Schvlting, 75, 55. Compromise by creditors must be unani- mous and equal. Bwgin v. Ireland, 14, 322. ACCOUNT — ACTION, I. Note of third, person, to be in full of debt if paid at maturity, discharges debtor if creditor accepts payment after maturity. Conkling v. King, 10, 446. A written receipt of money in full of a claim of damages for personal injuries cannot be contradicted by parol. Coon v. Knap, 8, 402. Receipting a portion of an undisputed account in full does not preclude recovery of balance. Ryan v. Ward, 48, 204; 8 Am. Eep. 539. Stipulation to accept less than amount in suit not satisfaction. Noe v. Christie, 51, 270. See Payment; Pleading; Release. ACCOUNT. Action of, lies only between two mer- chants. Appleby v. Brown, 24, 143. An account stated conclusive unless impeached for fraud or mistake — what constitutes. Lockwood v. Thome, 11, 170. Can only be opened for fraud, mistake or manifest error. Harley v. Eleventh Ward Bank, 76, 618 ; Mclniyre v. Warren, 3 Keyes, 185. Account rendered, not conclusive on either party. Champion v. Joslyn, 44, 653. Rendering account does not make it an account stated. Guernsey v. Bexford, 63, 631. Bill presented and not objected to, is account stated and draws interest. Case v. Hotchhiss, 3 Keyes, 334. Account stated, what assent renders con- clusive. Lochwood v. Thome, 18, 285. Creditor not estopped from recovering quantum meruit by previous presentment of account stating a smaller sum. Wil- liams v. Olenny, 16, 389. Plaintiff must show assent of defendant, express or implied. Volkening v. BeGraaf, 81, 268. Goods sold and delivered at differ- ent times is "mutual, open and current account," within statute of limitations. Green v. Disbrow, 79, 1; S. C, 35 Am. Rep. 496. Where reciprocal demands, action for balance due. Id. Agreement to account for proceeds of sales — embezzlement by agents does not excuse from liability. Walker v. Spencer, 86, 162. May be required from agent intrusted with moneys to invest and deal with — burden on agent to show performance of duties. Marvin v. Brooks, 94, 71. Facts entitling legatee under will to. Matter of McCarter, 94, 558, Action for — form of judgment — coun- ter-claim of judgment. Taylor v. Boot, 4 Keyes, 335. When action lies for accounting of joint adventure in purchase and sale of stocks — evidence. Ma/rston v. Gould, 69, 220. See Agency ; Executor and Adminis- trator; Pleading; Subrogate; Trusts. Accretion. See Water and Water-courses. ACKNOWLEDGMENT. One authorized to take acknowledgment of deeds may do so of mortgages. Trus- tees Can. Acad. v. McKechnie, 90, 618. Taking of, not a judicial act — officer related to parties. Lynch v. Livingston, 6, 422. See Deed ; Mortgage ; Statute of Limitations. ACTION. I. When action will lie. II When action will not lie. III. By and against whom maintainable. IV. By and against whom not maintain- able. V. Form of. I. When action will lie. When action lies against one whose debt has been paid with money belonging to a third. Ely v. Norton, 2 Abb. 19. ACTION, II. On subscriptions on same paper, one as individual, and the other with addition of " exr.," separate actions lie. Erie, etc., B. Co. v. Patrick, 2 Abb. 72. Bill to recover drawback duties. Moore v. Des Arts, 1, 359. For wrongful taking of chattel — tres- pass or replevin — constructive possession. Ely v. EUe, 3, 506. Maintainable upon promise made by defendant to third person for benefit of plaintiff, though without his privity. Secor v. Lord, 3 Keyes, 525. Lies to set aside erroneous or illegal assessment, only when constituting on its face a valid lien on land, and to prevent multiplicity of suits. Heyvoood v. Oity of Buffalo, 14, 534. For death by wrongful act, etc., given to personal representative when the suf- ferer, if living, might have sued. Quin v. Moore, 15, 432. When separate accounts do not consti- tute an entire claim. Secor v. Sturgis, 16, 548. When trustee of fund, entitled to suc- ceed in case of intestacy, prevents a will in favor of third by promising to hold for him, action lies for money had and re- ceived. Williams v. Mtch, 18, 546. For mesne profits — how regulated. Holmes v. Davis, 19, 488. Acceptance of benefits under a will charged with payment of annuity justifies action without express promise. Gridley v. Gridley, 24, 130. For conversion of a billiard-table — when maintainable upon general proof of detention of four of equal value. Clark v. Griffith, 24, 595. For balance of unpaid purchase-money of chattels, not transferred by transfer of acceptances given for part of price but not received in payment. Battle v. Coit 26, 404. Lies for services agreed to be compen- sated by will, and not so provided for. BoUnson v. Baynor, 28, 494. If one reclaims property carried by flood without his fault upon another's land he must pay for the damage done by it. Shel- don v. Sherman, 42, 484; 1 Am. Eep. 569. When lies against agent to recover sub- scriptions paid. Sector, etc., v. Crawford, 43, 476. For money had and received — no de- mand necessary — what equivalent to re- fusal — agency or partnership. Howard v. France, 43, 593. To recover money paid in ignorance of facts. Goss v. Mather, 46, 689. For money had and received in stock transactions. Jaycox v. Cameron, 49, 645. When lies to recover tax illegally col- lected. National Bank of Chemung v. City of Ehnvra, 53, 49. To recover money paid on judgment, lies after reversal — joint debtors — demand of one — revivor. Scholey v. Halsey, 72, 578. For rents and profits — plaintiff must have possession. Bockes v. Lansing, 74, 437. When maintainable for recovery of spe- cific bank bills. Graves v. Dudley, 20, 76. Where mortgagee retains surplus mon- eys to apply on a, subsequent and usu- rious mortgage, mortgagor may recover as for money had and received. Cope v. Wheeler, 41, 303. Lies against one who has assumed a liability of the State to another. Coster v. Mayor, etc., 43, 399: When legislature transfers turnpike to a railroad company without compensation to owners of fee, they may maintain suc- cessive actions for damages. Mahon v. New York Cent. B. Co., 24. 658. Second action against joint debtor un- served, allowed, though judgment in first appealed from. Morey v. Tracey, 92, 581. U. When it will not lie. Debt on chattel mortgage — when does not lie. Culver v. Sisson, 3, 264. Will not lie by rightful claimants against wrongful claimant for money paid latter by a third. Butterworthv. Gould, 41, 450; Patrick v. Metcalf, 37, 332. Action in equity cannot be turned into one of damages by evidence. Bradley v. Aldrich, 40, 504. When, for money paid for stock. Kelsey v. Northern Light OH Co., 45, 505. ACTION, 81, 643. (e.) Bemittitur. Remittitur on reversal by default must be held ten days. Byrne v. Ward, 1, 531. Service of assignment of errors before filing, irregular. Id. Order may be corrected notwithstanding remittitur is filed. Palmer v. Lawrence, 5, 455. Dismissed by this court for want of re- turn, when reinstated. Spoor v. Fwinan, 16, 620. Omission to enter order on remittitur disregarded on subsequent appeals. Chautauqua Co. Bank v. White, 23, 347. No judgment can be entered on remitti- tur reversing interlocutory order. Brown v. Leigh, 50, 427. This court may stay filing of remittitur — what does not constitute filing. Cush- man v. Hatfield, 52, 653. 34 APPEAL, III, t — h. One filing remittitur on judgment partly against him cannot appeal from whole judgment. Genet v. Davenport, 59, 648. Cause will not he reinstated, after judg- ment on remittitur. Jones v. Anderson, 71, 599. Until remittitur filed helow, and action taken, this court may correct ex parte. People v. Nelliston, 79, 638. (/.) Costs. Costs of, in Supreme Court, cannot he added to remittitur from this court. Mc- Gregor v. Buell, 1 Keyes, 153. Judgment affirmed with ten per cent damages. Wright v. Sanders, 3 Keyes, 323. When discretionary. Ayres v. Western B. Co., 49, 660. In equity case this court may affirm without costs. Patten v. Stitt, 50, 591. Motion to compel appellants' attorney to pay costs on dismissal must he made in court helow. Struffman v. Midler, 74, 594. When not in time — re-taxation, Wil- son v. Palmer, 75, 250. From one order, when may reverse series — costs. Stanton v. King, 76, 585. (g.) Case. Case on appeal must show where judg- ment was rendered and its character. La- hens v. Melden, 3 Abb. 1. Rule as to serving copies of case applies to pending. Dresser v. Brooks, 2, 559. Case and exceptions — proper form of. Magie v. Baker, 14, 435. Judge's findings must he incorporated in case. Smith v. Grant, 15, 590. On appeal from referee case must be made. Turner v. Raight, 16, 465. When case cannot be turned into bill of exceptions. Gilbert v. Beach, 16, 606. On appeal to this court from decision of referee there must he a case containing findings of fact and conclusions of law. Otis v. Spencer, 16, 610 ; Westcott v. John- son, 16, 613. Referee's conclusions of fact and of law must be in case. Bissell v. Hamlin, 20, 519. Exceptions must be in case to raise question of law. IngersoU v. Bostwick, 22, 425. Where case contains no evidence, report of referee must be judged by its findings. Tomlinson v. Mayor, etc. , 44, 601. Non-service of copies of case not ex- cused by non-filing of return. Sage v. Volkening, 46, 448. Practice on making case to review re- feree's decision — exceptions after trial — service. French v. Powers, 80, 146. On appeal from Circuit, case should be transcript of proceedings at trial. General Term no power to direct alteration caus- ing it to state the same untruly. Carter v. Beckwith, 82, 83. Amendments disallowed by trial judge need not he printed on appeal to General Term. Kilmer v. New York Cent., etc., B. Co., 94, 495. Amendments disallowed need not be printed in case for General Term. Id. (h.) Probate questions. From order reversing surrogate's decree of probate — rules regulating. Marvin v. Marvin, 4 Keyes, 10. Creditor may appeal from decree of dis- tribution by surrogate, although he re- ceives the amount awarded him. Sigbie v. Westlake, 14, 281. Supreme Court, on reversing surrogate's decree, need not remit for new hearing. Schenck v. Dart, 22, 420. On appeal from surrogate's decree this court may review facts. Id.; Howland v. Taylor, 53, 627. On appeal from surrogate's decree on application for letters of administration Supreme Court cannot receive further evi- dence nor award an issue. Devin v. Patchin, 26, 441. This court examines facts on appeal from surrogate. Robinson v. Raynor, 28, 494. On appeal from surrogate, improper evi- dence will not justity reversal if there APPEAL, IV. 35 was sufficient competent evidence. Clapp v. Fullerton, 34, 190. From surrogate's decree ■without bond for costs is void. Matter of DumesnU, 47, 677. Lies to General Term for surrogate's al- lowances of counsel fees on the merits. Noyes v. Children's Aid Society, 70, 481. Costs on appeal from surrogate are dis- cretionary — construction of order. Law- rence v. Lindsey, 70, 566. On reversal of decree of probate of will Supreme Court must award issue for jury — costs. Sutton v. Bay, 72, 482. Power of this court on appeal from pro- bate of will. Id. Eeversal of surrogate's decree refusing probate — General Term should remit. Dock v. Dock, 84, 663. Objection to surrogate's jurisdiction may be first taken on appeal. Fiester v. Shep- ard, 92, 251. Material error as to evidence, unless judgment clearly right, necessitates re- versal. Matter of Will of Smith, 95, 516. Surrogate's findings of fact conclusive if there is competent evidence to support them. Matter of Will of CottreU, 95, 329. IV. Powers of General Term. When General Term cannot review facts in jury case. Parker v. Jervis, 3 Keyes, 271. Right to rehearing at General Term, of Special Term order. Oracie v. Free- land, 1, 228. ♦ General Term bound to hear appeal from decree in an equity case involving the merits. Dillaye v. Blair, 2, 189. To General Term of Marine Court — security will stay proceedings. Boberts v. Donnell, 31, 446. Before January 1, 1870, judge might sit in review of his own decision. Beal v. People, 42, 270. When General Term may reverse with- out exceptions. Brookman v. HamUl, 46, 636. Does not lie to General Term of New York Common Pleas from judgment by default of General Term of Marine Court. McMahon v. Bauhr, 47, 67. General Term may reverse for improper nonsuit by referee. Scofleld v. Hernandez, 47, 313. When General Term may correct error in rule of damages by modification of judgment. Hayden v. Florence Sewing Machine Go., 54, 221. General Term has no power to award judgment for damages on reversal unless facts agreed to. Cuff v. Dorland, 57, 560. Order denying new trial not reviewable by General Term on appeal from j udgment. Thurber v. Harlem, etc., B. Co., 60, 326. General Term no power to review facts except by appeal from order granting or refusing a new trial. Boos v. World Mat. Life Ins. Co., 64, 236. Lies to General Term from order dis- charging imprisoned debtor. Matter of Brady, 69, 215. General Term cannot render judgment for plaintiff on reversal although facts were found in favor of plaintiff. Ehrichs, v. DeMill, 75, 370. When opinion of General Term may be looked into, to learn ground of order — order for modification of judgment. Sal- mon v. Gedney, 75, 479. Order of County Court dismissing from judgment of justices not appealable to Supreme Court. Code, § 1342. Andrews v. Long, 79, 573. General Term may amend order of re- versal by stating that it was on facts — judgment absolute cannot be pronounced unless it is certain that defeated party can- not succeed on new trial. Guernsey v. Miller, 80, 181. Lies to General Term from order direct- ing judgment on account of frivolousness in answer before entry of judgment. El- wood v. Boof 82, 428. General Term may conform complaint to proof. Harris v. Turnbridge, 83, 92; 38 Am. Rep. 398. Plaintiff in partition dying pending, from order requiring purchaser to com- plete, General Term may enter order nunc pro tunc as before death. Bergen v. Wyckoff, 84, 659. 36 APPEAL, V.— VI. Reversal by General Term in jury case need not state whether one of law or fact — judgment absolute — modification. Good- win v. Conklin, 85, 21. When General Term may amend order by ante-dating. Matter of Beekwith, 87, 503. If recovery had on two separate causes of action — General Term may reverse as to one and affirm other. Crim v. Stark- weather, 88, 339; 42 Am. Rep. 250. V. Undertakings. General Term may not dismiss appeal because appellant has not filed new under- taking ordered by Special Term. Genter v. Fields, 1 Keyes, 483. Nature of undertaking to sustain ap- peal. Langley v. Warner, 1, 606. Only one undertaking requisite on, in judgment in replevin awarding different sums to different defendants. Smith v. Lynes, 2, 569. Sureties bound by statutory increase of amount of damages after execution of un- dertaking. Homer v. Lyman, 4 Keyes, 237. On undertaking to stay execution parties not liable when appeal is dismissed. Drummond v. Husson, 14, 60. Exception to sureties on appeal waived by respondent's failing to attend on justi- fication, although sureties also fail. Bal- lard v. Ballard, 18, 491. Sureties on appeal from order to Gen- eral Term, reversed there but affirmed here, are liable. Robinson v. Plimpton, 25, 484. Undertaking need not state considera- tion nor be under seal. Doolittle v. Bin- inny, 31, 350. Undertaking — "intends to appeal" valid. Forrest v. Havens, 38, 469. Sureties on, to General Term, not liable for costs of appeal here — release of sureties on appeal here discharges former sureties. Hinckley v. Kreitz, 58, 583. Undertaking only enforceable to the ex- tent which the statute exacts. Post v. Doremus, 60, 371. Cases must be served although sureties are excepted to. Wade v. DeLeyer, 63, 318. Undertaking necessary on appeal here under Code Pro., § 11, subd. 4. Cowdin v. Teal, 67, 581. Sureties not released by bankrupt dis- charge of judgment debtor pending appeal. Knapp v. Anderson, 71, 466. When new undertaking not required in case of insolvency of one surety. Bering v. Metcale, 72, 613. New undertaking, sureties failing to justify, may be given within the time for appeal. Blake v. Lyons & FeUows Mfg Co., 75, 611. Cause not properly on calendar without undertaking. Raymond v ■ Richmond, 76, 106. When surety of receiver may maintain appeal here. Matter of Guardian Sav. Inst, 78, 408. When leave granted to supply undertak- ing for costs. Architectural Iron Works v. City of Brooklyn, 85, 652. Effect of failure of sureties to justify. Manning v. Gould, 90, 476. Application to dispense with security cannot be made here, but must be to court from which appeal is taken. HiU v. Peekskill Sav. Bk. , 95. See Undertaking. VI. New trial. When new trial granted here, this court must have deemed pleadings sufficient. New York, etc., R. Co. v. Ketchum, 1 Trans. App. 116. Order for new trial cannot be made sub- ject to admission of certain evidence. Bruce v. Davenport, 3 Keyes, 472. Appeal from order for new trial — rule as to. East River Bank v. Kennedy, 4 Keyes, 279. Appeal does not lie to Supreme Court from order granting new trial in justice's court under section 366 of Code of Fro. Wavel v. Wiles, 24, 635. Appellate court cannot reverse and ren- der final judgment, but must order new trial. Astor v. L'Amoreux, 8, 107. On appeal from order granting new trial order must be affirmed unless it appears that It was founded on erroneous conclu- APPEAL, VII. a. 37 sion of law and not on different conclusion of fact. Miller v. Schuyler, 20, 522. On appeal from order granting new trial order to be affirmed if possible on any view of evidence. Sanford v. Mghth Ave. R. Co., 23, 343 ; Macy v. Wheeler, 30, 231. General Term may not order reduction of verdict as the alternative of a new trial. Cassin v. Delaney, 38, 178. Does not lie to Supreme Court from order of Brooklyn City Court granting new trial. Baker v. Remington, 45, 323. On appeal from judgment in equity ac- tion where verdict on specific questions was rendered, General Term cannot set it aside and order new trial. Jackson v. Andrews, 59, 244. On reversal new trial must be granted unless certain that defeated party cannot succeed, foot v. ^Etna, Life Ins. Co., 61, 571. When judgment for services is errone- ous General Term must grant new trial. Whitehead v. Kennedy, 69, 462. Construction of judgment absolute to be entered on affirmance of order for new trial. Miscock v. Harris, 80, 402. See ante I, b, II, a, o, h ; New Triai. VII. Appeal in general, (a.) Miscellaneous matters. On appeal from judgment alone regu- larity of order of reference cannot be in- quired into. Van Marter v. Hotchkiss, 4 Abb. 484. EfEect of enactment of Code of Proced- ure on right of appeal. Mayor v. Seller- merhorn, 1, 423 ; Spaulding v. Kingsland, 1, 426 ; Butler v. Miller, 1, 428 ; Brown v. Fargo, 1, 429 ; Groverv. Coon, 1, 536 ; Bice v. Floyd, 1, 608 ; Tittey v. Phillips, 1, 610. Statute taking away the right of appeal in pending action not unconstitutional. Grover v. Goon, 1, 536. Error in reducing plaintiff's judgment cannot be corrected on defendant's appeal. Weisser v. Denison, 10, 68. Irregular form of judgment cannot be availed of on appeal. Johnson v. Carnley, 10, 570. Special Term cannot, on motion, vacate a judgment on a referee's report for errors of law. Dana v. Howe, 13, 306. Rule of stare decisis applied on second appeal although court not unanimous on first. Oakley v. Aspinwcdl, 13, 500. Where referee's report sets forth an agreement reciting » good consideration this court will not inquire into considera- tion. Cody v. Allen, 18, 573. Judgment on award reviewable by writ of error and not by appeal. Isaacs v. Beth Hamedrash Society, 19, 584. That judgment is absolute when it should have been in the alternative is not ground of appeal. Ingersoll v. Bostwick, 22, 425. On appeal from inferior court, under sec- tion 344 of Code, Supreme Court cannot re- verse for excessive damages. Thurber v. Townsend, 22, 517. County Court should not reverse judg- ment of justice of peace unless clearly un- justifiable by evidence. Burnha/m v. Butler, 31, 480. On different objections, some good and some bad, a bad one prevailing, decision will not be sustained on others unless they can be obviated on new trial. Bascom v. Smith, 31, 595. On mere exception to nonsuit the only question is on sufficiency of evidence. Magee v. Osborn, 32, 669. Immaterial error not prejudicing party, not ground of reversal. Tenney v. Berger, 93, 524 ; 45 Am. Rep. 263. When error not harmless. Greene v. Wliite, 37, 405. Election to remit or take new trial can- not be relieved against. Sitchings v. Van Brunt, 38, 335. Appeal lies from absolute order in sup- plementary proceedings directing debtor to pay a sum of money. Locke v. Mabbett, 2 Keyes, 459 ; 3 Abb. 68. On appeal from judgment, order sustain- ing demurrer to one of the answers may be reviewed. Ay resy. Western R. Corp., 45, 260. Unless appeal taken from order overrul- ing demurrer judgment conclusive. Be Puy v. Strong, 37, 372. 38 APPEAL, VII. b.— c. Appellant may not allege as error what was put into judgment at his request. Proestler v. Kuhn, 49, 654 When appellate court may render final judgment — several appeals must come up together. Muldoon v. Pitt, 54, 269. Stare decisis. Joalin v. Cowee, 56, 626. Keview of facts — when judgment abso- lute imperative. Godfrey v. Mosher, 66, 250. Trifling error as to interest disregarded in absence of specific objection. Mercer v. Vose, 67, 56. Judgment for survivors without being so expressed, not ground of appeal. Seeder v. Sayre, 70, 180. When trespass does not affect title to real estate. Scully v. Banders, 77, 598. Refusal of trial court to find on law — when not reversable error. Loeb v. Sell- man, 83, 601. (ft.) Presumptions. In absence of objection where oppor- tunity was given, all reasonable intend- ments will be made to uphold judgment. Jencks v. Smith, 1, 90. Judgment presumed right — suspending for resettlement of case — this court can- not review facts. Bice v. Isham, 1 Keyes ( 44. This court presumes nothing against judgment. Carman v. Pultz, 21, 547. Justice's return to certiorari must and is presumed to contain all the testimony. Orcutt v.Cahill, 24, 578. Reversal presumed to have been on law unless otherwise stated. Md/rco v. Liver- pool and London Ins. Go., 35, 664 ; Bald- win v. Van Beusen, 37, 487. Findings by referee will be presumed to sustain judgment if consistent with evi- dence. Valentine v. Conner, 40, 248. Presumption to support judgment. Chesebrough v. Tompkins, 45, 289. Order of reversal must show that it was granted on facts or it will be deemed to be on law — opinion cannot be resorted to. Sheldon v. Sheldon, 51, 354. On case to review referee's findings of fact, it is assumed that case contains all the evidence to support them. Perkini v. BUI, 58, 87. General Term is presumed to have re- viewed the facts unless record shows con- trary. Verplanck v. Member, 74, 620. (c.) Questions of fact. Facts only reviewable through findings. City Building and Loan Co. v. Fatty, 4 Trans. App. 311. Order of reversal on facts must so state. Thompson v. Mink, 2 Keyes, 82. Provision that judgment shall be pre- sumed not to have been reversed on facts does not apply to orders. Williams v. Hernon, 3 Keyes, 99. How questions of fact on decision of court or referee reviewed here. Farriliam v. Hotchkiss, 2 Abb. 93. When justice's return does not state that he has returned all the evidence, judgment will not be reversed on ground of defect of evidence to support some items of account in suit Low v. Payne, 4, 247. Referee's finding of facts — general con- clusion — specific request and exception. Grant v. Morse, 22, 323. Referee's finding that an assignment is not fraudulent in fact is conclusive on Supreme Court. Ball v. Loomis, 29, 412. Supplementary finding of facts by Gen-, eral Term disregarded. PlieVps v. Mc- Donald, 26, 82. This court will 1 not set aside finding of facts as against weight of evidence. Bur- gess v. Simonson, 45, 225. When request for submission of ques- tion of fact not necessary. Low v. Sail, 47, 104. If referee's decision is based in part on facts not proven, it must be reversed, al- though it might legally have been rendered on the facts found. Matthews v. Coe, 49, 57. When General Term reverses on facts it need not specify errors in order — may re- verse as to one and affirm as to other joint defendants. Subbell v. Meigs, 50, 480. From order as to new trial in jury case when facts and law were before the court — this court will render absolute judgment APPEAL, VII. d.— e. 39 instead of dismissing. Arnold v. Robert- son, 50, 683. Where application to remit case to referee for findings of fact has been de- nied, the materiality of the facts may be determined on appeal. Meacham v. Burke, 54, 217. When appellate court cannot discrimi- nate as to evidence received for all defend- ants. Devyr v. Schaefer, 55, 447. When finding of fact will not justify reversal. Caswell v. Davis, 58, 223 ; 17 Am. Kep. 233. When this court will send case back for referee to pass on question of fact. Pot- ter v. Carpenter, 71, 74. Order reversing judgment on trial with- out jury, not stating that it is reversed on facts, cannot be reversed except for error of law — opinion may not be looked into. Van Tassel v. Wood, 76, 614. Plaintiff on appeal may claim facts as established altogether at variance with complaint. Cowing v. Altman, 79, 167. When it does not appear that reversal was on facts, request to suspend decision to obtain order from General Term was on facts as well as law will not be granted — amendment should have been made before argument. Hamlin v. Sears, 82, 327. Refusal to find fact, when error of law. James v. Cowing, 82, 449. On appeal from order reversing decision of judge "upon the law and the facts" this court may review the facts. Van Wyek v. Walters, 81, 353. Findings of fact presumed as authorized by the evidence. Parker v. Baxter, 86, 586. Rule as to presumption in favor of facts found. Armstrong v. DuBois, 90, 95. Decision as to facts upheld by evidence will be sustained. Billon v. Coekcroft, 90, 649. Stipulation as to existence of facts not objected to cannot be disregarded on appeal. Wldting v. Edmunds, 94, 309. Case as settled controls as to facts at, trial. Scott v. Morgan, 94, 508. (d.) Waiver. Unless party asks to go to jury, he is deemed to have acquiesced in judge's holding of fact. Mallory v. Tioga R. Co., 3 Keyes, 354. Objection not taken at trial cannot be raised here. Jenkins v. Wheeler, 2 Abb. 442. When right waived by enforcement of part of judgment in appellant's favor. Bennett v. Van Syckel, 18, 481. When objection to answer cannot be raised on appeal. Ashley v. Marshall, 29, 494. Appeal from judgment in appellant's favor, waived by enforcing judgment. Knapp v. Brown, 45, 207. A party's adopting part of judgment in his favor waives right of appeal from that against him when both connected and dependent. Murphy v. Spaulding, 46, 556. Right of appeal not waived by contesting claims on interlocutory accounting. Barker v. White, 58, 204. Agreement to waive — estoppel — dis- missal. Ogdensburgh, etc., B. Co. v. Ver- mont, etc., B. Co., 63, 176. When party appealing from order in part does not adopt the rest. Wallace v. Castle, 68, 370. Appeal from denial of motion waived by renewal on further affidavits. Harris v. Brown, 93, 391. Complaint containing offer to assign bond and mortgages, objection, not raised on trial, that no tender was made, not avail- able on appeal. WJtitney v. Martine, 88, 535. («.) Disposition of judgment. Where only error is excessive damages, appellate court may affirm on condition of reduction Sears v. Conover, 3 Keyes, 113. When justice's judgment should not be reversed. Stephens v. Wider, 32, 351. Refusal to nonsuit will be reversed only in clear case. Metcalf v. Mattisons, 32, 464. 40 APPEAEANCE — ARBITRATION AND AWAED. Judgment affirmed with damages for delay and violation of rule 25. Maker v. Gorman, 38, 25. Error as to one item of damages necessi- tates reversal in toto. WolstenJiolme v. WoUtenholme FUe Mfg. Co., 64, 273. Judgment cannot be sustained for dis- tinct cause of action from that alleged. Southwick v. First Nat. Bk. of Memphis, 84,420. Verdict cannot be sustained on ground taken from party by trial judge. Wangler v. Swift, 90, 38. Reversal of assessment erroneous for ex- cess of $7. 01 held proper. Matter of Deer- ing, 93, 361. Upon appeal here under stipulation where order of reversal affirmed, judg- ment absolute must pass, although evi- dence would have justified a smaller judg- ment. Gray v. Supervisors of Tompkins, 93, 603. APPEARANCE. Voluntary, equivalent to service of sum- mons and complaint. Clwistal v. Kelly, 88, 285. See Attorney and Client ; Judgment. Application of Payments. See Payment. APPORTIONMENT. Rent leases executed by testator , accru- ing after termination of life estate, cannot be apportioned between life tenant and re- mainderman, but go to the latter. Mar- shall v. Moseley, 21, 280. See Landlord and Tenant: Will. APPRENTICE. Power of commissioners of public chari- ties of New York city to bind. People v. Weissenbach, 60, 385. Released from obligation to master by hia voluntary enlistment in government mili- tary service. Johnson v. Dodd, 56, 76. See Master and Servant. APPROPRIATION. A letter advising consignee of draft to order of a third person, payable when the goods are sold, is a specific appropriation. Lowery v. Steward, 25, 239. Appurtenances. See Deed; Easement. ARBITRATION AND AWARD. What is general submission — partial award invalid — but not unless omitted mat- ter was brought to arbitrator's attention. Jones v. Welwood, 71, 208. What is a conditional submission. Mer- ritt v. Thompson, 27, 225. Construction of submission — immaterial errors of arbitrators. Fudickar v. Guard- ian Mut. Life Ins. Co., 62, 392. Submission by agent — when wife of principal bound by. Smith v. Sweeny, 35, 291. Agreement to discontinue trade or pay damages — submission as to, when valid. Curtis v. Gokey, 68, 300. Executors may submit — extending time by parol — mutual promises ■*- guar- anty of performance of award. Wood v. Tunnidiff, 74, 38. Force of agreement to arbitrate disputes arising under contract — construction of, as to canal tolls. President, eta. , of Dela- ware and Hudson Canal Co. v. Pennsylva- nia Coal Co., 50, 250. Executory covenant not discharged by parol arbitration — sealed submission changed to parol by parol agreement to accept — estoppel. French v. New, 2 Abb. 209. Married woman may submit to arbitra- tion. Palmer v. Davis, 28, 242. ARBITRATION AND AWARD. 41 Agreement to arbitrate operating as can- cellation of lease. Morris v. Hiscock, 91, 340. Arbitration of claim to freehold in realty is absolutely void and not to be ratified. Wiles v. Peck, 26, 42. Controversy as to equitable title to lands cannot be submitted. Olcott v. Wood, 14, 32. When award within submission. Cur- tis v. Gokey, 68, 300. Submission between partnership and creditor — when bar to action against one partner — conflict of laws — omission to cover some property. Backus v. IPobes, 20, 204. Submission of cause of action to arbitra- tion works discontinuance of action thereon, although arbitrators do not con- sent to act, and the submission is not ac- knowledged. Omission to appeal from order setting cause down for trial does not waive submission. MeNulty v. Solley, 95, 240. Covenant in lease for arbitration as to value of premises as basis of rent — arbi- trators not agreeing, and being about to appoint an umpire, as provided, court will not enjoin them and adjudge rights of parties — construction of covenant. Livingston v. Sage, 95, 289. Construction of award — indorsement of three where but two had signed. Ott v. Schroeppel, 5, 482. Award less comprehensive than submis- sion is prima facie valid. Id. Award embracing matters submitted and others not submitted is good as to former, and the latter may be disregarded. Doke v. James, 4, 568. Award being delivered, arbitrators can- not make another to cure error. Id. Evidence to contradict the intention ex- pressed on face of the award is incompe- tent. Id. On submission to three, providing that any two may sign award, the three must sit and hear. Bulson v. Lohnes, 29, 291 ; Cruger v. Hudson River B. Go., 12, 190. Submission is valid without agreement for judgment on award. Howard v. Sex- ton, 4, 157. 6 Arbitrators may act without being sworn. Id. Failure to take oath may be waived — when two disagree and a third is brought in there must be a, rehearing. Bay v. Hammond, 57, 479 ; 15 Am. Rep. 522. Error of judgment no ground for setting aside award. Perkins v. Giles, 50, 228; Morris Bun Coal Co. v. Salt Co. of Onon- daga, 58, 667. Award set aside for refusal to hear per- tinent and material testimony — court de- termines whether arbitrators exceeded or refused to exercise powers — when deci- sion not reviewable. Halstead v. Seaman, 82, 27; 37 Am. Rep. 536. Award without evidence if hearing waived valid and bars action on claim. Wiberly v. Matthews, 91, 648. Agreement after written submission to accept parol award, void as to a cov- enant under seal. Jprench v. New, 28, 147. Consent to accept copy of award is bind- ing. Oidley v. Gidley, 65, 169. Provision in contract that disputes should be settled by arbitrators, no bar to action on contract. Haggart v. Morgan, 5, 422. And the submission is no bar where the arbitrators have failed to make award within the limited time. Id. Award is bar to suit on original cause of action — discharges surety when it ex- tends time of payment. Coleman v. Wade, 6,44. Award, to operate as a bar, must be pleaded. Braeill v. IsJiam, 12, 9. Award must be certain and final. His- cock v. Harris, 74, 108. By State auditors, may be impeached for the claimant's fraud. State of Michigan v. Phomix Bank, 33, 9. Action lies in Supreme Court on award, although submission provides for judg- ment in County Court. Burnside v. Wliit- ney, 21, 148. When submission revoked by one party pending hearing, the other, paying the arbitrators' fees, may recover them from him. Miller v. Prest. of Junction Canal Co., 41, 98. 42 AECHITECTS — AEKEST (CIVIL). ARCHITECTS. Action for pay for plans — effect of talc- ing them back. Nourry v. Lord, 3 Abb. 393 ; 2 Keyes, 617. See Contract; Mechanics' Lien. ARREST (CIVIL). Laws 1879, chapter 542, as to arrest when complaint charges fraud does not apply to actions then commenced. Hum- phrey v. Hayes, 94, 594. Reasonably clear case must be made. Cormier v. Hawkins, 69, 188. Affiant not required to state sources of his knowledge of matters alleged posi- tively. Pierson v. Freeman, 77, 589. Sworn complaint is affidavit for arrest. Palmer v. Hussey, 59, 647. Cannot be granted on complaint setting out two causes of action, upon only one of which an arrest is proper. Bowenv. True, 53, 640. Cannot issue on complaint stating a bailable and a non-bailable cause of action. Madge v. Puig, 71, 608. Complaint need not affirmatively show cause for arrest, when it is outside cause of action. Bowery Nat. Bk. v. Duryee, 74, 491. In action on judgment of another State, defendant liable to arrest if original cause of action would have warranted. Baxter v. Drake, 85, 502. To justify an execution, under Code of Procedure, the record need not show lia- bility to arrest; order of arrest is sufficient. Corwin v. Freeland, 6, 560. Arrest and attachment proper in same action. Bockford, etc., B. Co. v. Boody, 56, 456. Practice as to — pleading and evidence when right to is dependent on extrinsic facts. Segelken v. Meyer, 94, 473. When order may issue on judgment modified so that execution cannot issue. Mott v. Union Bank, 4 Trans. App. 291. Banker receiving deposits, knowing his hopeless insolvency. Anonymous, 67, 698. Party who has elected to take judgment as for goods sold cannot maintain order of arrest for conversion. Melds v. Bland, 81, 239. In action to recover personal property, where defendant has sold it to put it beyond the owner's reach. Barnett v. Selling, 70, 492. Not proper where action is founded on agent's acceptance for moneys collected. Farmers and Mechanics' Nat. Bk. of Buffalo v. Sprague, 52, 605. When constructive factor may be ar- rested. Standard Sugar Befinery v. Dayton, 70, 486. Under Code of Pro., § 179, sub. 4, can- not be had except for actual personal fraud. Hatliaway v. Johnson, 55, 93 ; 14 Am. Rep. 186. Not proper here for cutting down tele- graph line in another State. American Union Telegraph Co. v. Middleton, 80, 408. Police property clerk detaining stolen property under order of court, not liable to. Simpson v. St. John, 93, 363. Sheriff discharged from liability by ap- proval of bail by default, and default can- not be opened. Lewis v. Stevens, 93, 57. When bail not exonerated by surrender under Code of Pro., § 179, sub. 3 — sheriff liable under section 201. McKenzie v. Smith, 48, 143. Where sureties fail to justify, court may exonerate sheriff on his surrender of pris- oner to custody. Brady v. Brundage, 59, 310. After giving bail defendant has right to be at large until failure of bail to justify — Code, § 186 et seq. Arteaga v. Con- ner, 88, 403. While debtor is imprisoned creditor cannot proceed against sureties on securi- ties. Koenig v. Steckel, 58, 475. After defendant's body taken on execu- tion, order of arrest not revived by reversal of the judgment. People v. Bowe, 81, 43. Undertaking in unauthorized form, void. Cook v. Freudenthal, 80, 202. Undertaking accepted by sheriff, when valid as agreement of parties though not in pursuance of statute — surrender — laches. Toles v. Adee, 84, 222. ASSAULT AND BATTERY — ASSESSMENT. 43 Bail may he given after execution against property is issued. Bostwick v. Ooetzel, 57, 582. When plaintiff cannot claim money deposited under Code of Pro. , § 197. Com- mercial Warehouse Co. v. Ofaber, 45, 393. Surety on bond for discharge released by neglect to proceed against principal. Toles v. Adee, 91, 562. On execution, remedy for illegal. Smith v. Knapp, 30, 581. See False Imprisonment ; Insolvency. Arson. See Criminal Law. Assault. See Criminal Law. ASSAtJLT AND BATTERY. Not justifiable in preventing unau- thorized use of right of way. McMillan v. Cronin, 75, 474. Evidence of provocation ; of plaintiff's bad character ; of specific acts of immo- rality of witness. Corning v. Coming, 6, 97. In resisting attempt to cut hay on side of highway — evidence of title in defend- ant competent. Bliss v. Johnson, 73, 529. Nonsuit — joint assault, defect of evi- dence against one — motion for discharge. Lobar v. Koplin, 4, 547. See Damages ; Evidence ; Pleading. ASSESSMENT. Por street improvements according to benefit is constitutional. People v. Mayor, etc., 4, 419. For improvement is not "taxation." Roosevelt Hospital v. Mayor, etc., 84, 108. An assessment where only two of the three assessors acted is void, and cannot be cured by ratification by the common council. Doughty v. Hope, 1, 79. Requisites of publication of redemption notice. Id. Commissioner to assess benefit may be trustee of society to be assessed — assess- ment of church property — death of one assessor. People v. Mayor, etc., 63, 291. Assessors having jurisdiction not per- sonally liable for erroneously overruling claim of exemption. Foster v. VanWyck, 2 Abb. 167 ; 3 Trans. App. 196. When assessors not individually liable for erroneous assessment. Williams v. Weaver, 75, 30. Assessors individually liable for assess- ment without jurisdiction. Mygatt v. Washburn, 15, 316. Assessors liable for error in determining question of residence of owner of personal property and thereby assessing a non-resi- dent. Dorwin v. Strickland, 57, 492. Assessors personally liable for know- ingly assessing lands of non-resident to owner personally — estoppel by acquies- cence of agent. Hilton v. Fonda, 86, 339. For paving— burden of proof to vacate — "prior paving. " Matter of Petition of Brady, 85, 268. For sidewalks, under Laws of 1854, chapter 384 — action to annul certificate of sale — costs. Newetlv. Wheeler, 48, 4SQ. For drainage — void unless grant of easement has been procured. People v. Haines, 49, 587. Of consequential damages of land-own- ers for grading street, when void. Howell v. City of Buffalo, 15, 512. For street improvement, when a lien. Morange v. Mix, 44, 315. Void when not made against owners. Chapman v. City of Brooklyn, 40, 372. Made by village authorities, when not assailable collaterally for want of jurisdic- tion. Porter v. Purdy, 29, 106. When further may be ordered by city. Meech v. City of Buffalo, 29, 198. For expense to gas company by reason of street improvement where pipes were relaid not allowable against adjoining land- owners. Matter of Deer ing, 93,361. For local improvement — when not void, although benefited lands omitted. Bald- win v. City of Oswego, 2 Keyes, 132. 44 ASSESSMENT ^- ASSIGNMENT. For local improvement — oath of com- missioners made void by addition of "to the best of his ability " — commissioners may not require objections to be made in writing unless statute so directs — waiver of defect. Merritt v. Village of Port Chester, 71, 309 ; 27 Am. Eep. 47. When action lies to set aside. Hatch v. Oity of Buffalo, 38, 276. When action will not lie to set aside. Guest v. Oity of Brooklyn, 69, 506. When may be canceled of record. Ournen v. Mayor, 79, 511. Having been judicially declared void, moneys collected under it may be recovered without its being vacated. Horn v. Town, of New Lots, 83, 100; 38 Am. Rep. 402. Where assessors err in determining what property is benefited by improve- ment, remedy is certiorari, not action. Kennedy v. City of Troy, 77, 493. Payment of an assessment for local im- provement, regular on its face, is not voluntary and may be recoverd back on its being set aside. Peyser v. Mayor, etc., 70, 497 ; 26 Am. Eep. 624. Payment of apparently valid but really invalid assessment may be recovered back. Strusburgh v. Mayor, etc., 87, 452. When action lies by tenant covenanting "to pay all assessments" to recover back money paid on assessment afterward set aside. Purssell v. Mayor, etc., 85, 330. Under act of 1871, ch. 670, § 12, when voidable for fraud. Dederer v. VoorJiies, 81, 153. Assessment pursuant to ex parte order of court, not conclusive on stockholder in action to recover same. Guykendall v. Corning, 88, 129. If record does not show petitioner as- sessed, fatal to application to vacate. Matter of Churchill, 82, 288. Assessors cannot be compelled by man- damus to make oath to assessment-roll. People v. Fowler, 55, 252. See Bank ; Constitutional Law ; Corporation ; Insurance ; Landlord a*fd Tenant ; New York City ; Tax- ation. ASSIGNMENT. Parol, of cause of action valid. Hooker v. Eagle Bank of Rochester, 30, 83. Consideration is an essential element to support an equitable assignment. Tall- man v. Hoey, 89, 537. Expression of consideration in. Chau- tauque County Bank v. Risley, 19, 369. Of thing in action presumed to be upon sufficient consideration. Eno v. Crooke, 10, 60. Order on specified fund not assignment unless on consideration. Alger v. Scott, 54, 14. Of non-negotiable chose in action by one having apparent ownership confers title on bona fide purchaser, but recital is not evidence of valuable consideration against real owner. Moore v. Metropolitan Nat. Bk., 55, 41 ; 14 Am. Rep. 173. Order for money due from another, when is. Hall v. City of Buffalo, 2 Abb. 301. A bill of exchange drawn against a consignment, and a mere letter of advice, do not operate to appropriate the proceeds to payment of the bill. Cowperthwaite v. Sheffield, 3, 243. Joint owner cannot assign joint prop- erty. Gates v. Andrews, 37, 657. Fraudulent — when no defense to cred- itor at large in possession. Andrews v. Durant, 18, 496. Of land, when declared fraudulent, trustee not accountable for rents received and applied before suit or lien. CoUumb v. Read, 24, 505. Of stock — construction — continuing se- curity. Merchants' Nat. Bk. of Whitehall v. Hall, 83, 338 ; 38 Am. Rep. 434. Of chose in action, cannot be impeached for fraud by attaching creditor in defense of action by assignee for conversion. Castle v. Lewis, 78, 131. When order by contractor on municipal board amounts to equitable assignment. People v. Comptroller of City of New York, 77, 45. Order on fund in hands of comptroller of city is an assignment. Hall v. City oj Buffalo, 1 Keyes, 193. ASSIGNMENT — ASSIGNMENT FOR CEEDITOES. 45 When order on fund is an equitable. Brill v. Tuttle, 81, 454; 37 Am. Rep. 515. Equitable — order for moneys. South- ard v. Watsh, 77, 301. Of cause of action — not general. Tie- meyer v. Turnquist, 85, 516 ; 39 Am. Rep. 674. Of chattels after conversion gives as- signor right of action — consideration not to he inquired into by strangers. McKeage v. Hanover Fire Ins. Co., 81, 38 ; 37 Am. Rep. 471. Right of re-entry for non-payment of rent is assignable. VanRensselaer v. Ball, 19, 100. Cause of action for conversion is as- signable. Bichtmeyer v. Bemsen, 38, 206. Of all one's interest in goods carries right of action against carrier for non-de- livery. Waldron v. Willard, 17, 466. Right of action for money lost in gam- ing is assignable. Meech v. Stoner, 19, 26. The interest of next of kin of person killed by negligence in recovery therefor is assignable. Quinn v. Moore, 15, 432. Of chattels to be manufactured, as col- lateral security, is valid. Smith v. Beat- tie, 31, 542. Of expectancy, to secure existing debt, valid. Stover v. Eycle'shimer, 3 Keyes, 620 ; 4 Abb. 309. Of mere expectancy is valid in equity when the subject comes into existence. Field v. Mayor, etc., 6, 179. Where parts of a demand are severally; assigned, a suit may be maintained by one of the assignees to enforce his part. Id. Payment by debtor to original creditor after notice of assignment is no defense against assignee. Id. Of expectancy in trust fund, when valid — consideration — gift. Ham v. Van Or- den, 84, 257. Cause of action may be assignable, al- though assignor or assignee may be disa- bled from maintaining action in this State. No fraud to assign to resident to avoid ob- jection to an attachment by non-resident. McBride v. Farmers' Bank, 26, 450. Contract to plant and sell crop, assign- able by buyer without seller's assent. Sears v. Conovir, 4 Abb. 179. Construction and validity of equitable assignment of unenforceable claims against New York city. Jones v. Mayor of New York, 90, 387. Claim for balance of unpaid purchase^ money of chattels does not pass by trans- fer of acceptances given for part of price but not received in payment. Battle v. Coit, 26, 404. Of judgment against manufacturing corporation carries remedy against trustees for not signing annual report. Bolen v. Crosby, 49, 183. Assignment of debt held valid without notice to debtor. Coates v. First If at. Bk. of Emporia, 91, 20. Assignee of non-negotiable chose in ac- tion must notify debtor in order to protedt himself against payment to assignor — constructive notice. Heermans v. Ells- worth, 64, 159. Assignee of judgment takes subject to equities. Blydenburgh v. Thayer, 1 Trans. App. 221 ; 1 Abb. 156. ' Sub-assignee of mortgage takes subject to equities between his assignor and the mortgagee. Bush v. Lathrop, 22, 535. The assignment of the principal debt carries with it the necessary collaterals. Dorsheimer v. Nichols, 1 Abb. 519. Absolute, may be shown by parol to be a collateral security. Mulford v. Muller, 1 Keyes, 31. Of claim in suit, as collateral security, does not render assignee liable for costs. Wolcott v. Holcomb, 31, 125. See Contract ; Corporation ; Insur- ance ; Landlord and Tenant ; Mort- gage ; Negotiable Instrument; Patent. ASSIGNMENT FOR CREDITORS. Direct to certain creditors is not in trust — acceptance presumed — delivery — for- eign attachment — conflict of laws. Van Buski/rk v. Warren, 2 Keyes, 119. Executed in name of debtor and ac- knowledged by attorney for that purpose valid — act 1860, chapter 340. Lowensteity v. FloMromd, 82, 494. 46 ASSIGNMENT FOE CEEDITOES. By copartners, not void because one of assignors is an infant. Yates v. Lyon, 6, 344. Of all debtor's property, more fully de- scribed in schedule, carries property not specified in schedule. Piatt v. Lott, 17, 478. Of all property, referring to schedule, carries it, although schedule names none — partnership may prefer debts not of firm. Turner v. Jaycox, 40, 470. Preferred creditor taking place of as- signee and purchasing preferred debts — duty to other creditors. Chapman v. TJiomas, 4 Keyes, 216. When not shown to be fraudulent in fact — omission of property from schedule — relationship of assignee to assignor. Slmltz v, Hoagland, 85, 464. By non-resident, carries property here. Ockerman v, Cross, 54, 39. Under one for benefit of single creditor, United States have no right to priority. Bouchand v. Dias, 1, 201. . General assignment with preferences valid if free from fraud. Hauselt v, Vil- mar, 76, 630. When not void in law. Livermore v. Northrup, 44, 107. Assignee may not carry on business — not entitled to commissions on value of mortgaged property, but only to what he got therefor. Matter of Accounting of Bean, 86, 398. Provision for working up stock avoids. Dunham v. Waterman, 17, 9. Where assignee is a lawyer, provision for counsel fee avoids. Nichols v. Me- Kwan, 17, 22. Void for agreement with preferred cred- itors to enable assignor to continue busi- ness in name of another. Eaydock v. Coope, 53, 68. Under New Jersey statute — construc- tion of statute — when assignment valid. Boese v. King, 78, 471. What is finding of good faith — not void for exoneration of assignee for liability for uncollectible debts — may authorize appointment of attorney. Casey v. Janes, 37, 608. Solvency does not avoid; direction to convert into cash. Qgden y. Peters, 21 , 23. Construction of — rule that general words are restricted by schedule subordi- nate to rule that intention shall govern. Emigrant Ind. Sav. Bank v. Roche, 93, 374. Direction to pay debts " to grow due," valid; provision to pay debts for which assignor "may be rendered liable," ap- plies only to past debts. Brainerd v. Dunning, 30, 211. Authorizing sale on credit, void. Bar- ney v. Gtriffin, 2, 365; Nicholson v. Leavitt, 6, 510 ; Kellogg v. Slauson, 11, 302 ; Por- ter v. Williams, 9, 142 ; Townsend. v. Stearns, 32, 209. And cannot be cured by new instrument. Porter v. Williams, 9, 142. Direction to " convert into cash, or other- wise dispose of to best advantage," avoids. Rapalee v. Stewart, 27, 310. Authority to convert property into " money or available means " renders void. Brigliamv. Tillinghast, 13, 215. Authority to sell at such time and in such manner as seems to assignee most for benefit of creditors does not avoid. Town- send v. Stearns, 32, 209. Authority to assignee to convert into money within such convenient time as to him may seem meet, at public or private sale, does not avoid. Benedict v. Hunt- ington, 32, 219. When not construed to authorize sale on credit. Kellogg v, Slauson, 11, 302. Not void for forbidding sale on credit, nor for conditional preference, nor for directing payment of sheriff's fees on cer- tain attachment proceedings against as- signed goods. Chrant v. Chapman, 38, 293. To pay specified creditors, without pro- viding for others, and reconvey residue, void on its face. Barney v. Oriffln, 2,365. Assignment of part of debtor's property to certain creditors in person, reserving surplus, is valid, being but a mortgage. Leitch v. Hollister, 4, 211. For one particular creditor and return of surplus valid. Dunham v. Whitehead, 21, 131. Provision that assignee shall not be lia- ble for loss, except from gross negligence or willful misfeasance, renders void. Litchfield v. White, 7, 438, ASSIGNMENT FOR CREDITORS. 47 Omission to assign right to redeem lands from execution does not vitiate. Dow v. Platner, 16, 562. Assignor may confer power to compro- mise doubtful debts. Id. When authority to compromise avoids. McOonnell v. Sherwood, 84, 522 ; 38 Am. Rep. 537. Power to compromise — how construed — evidence — declarations of assignor af- ter assignment, incompetent. Coyne v. Weaver, 84, 386. It is lawful to prefer those who will re- lease for a certain amount. Spaulding v. Strang, 37, 135. Preference of certain creditors to a cer- tain extent, on condition of discharge, not void as against others. Spaulding v; ' Strang, 38, 9. Preferences lawful — authority to as- signee to employ attorneys, etc., and have compensation, not unlawful. Jacobs v. Remsen, 36, 668. Preference with view to benefit assignor avoids. Elias v. Farley, 3 Keyes, 398. Direction for sale and conversion, when not deemed to vest absolute discretion. Jessup v. Hulse, 21, 168. Innocence of assignee will not uphold fraudulent. Griffin v. Marquardt, 17, 28. By corporation, in contemplation of in- solvency, void. Sibell v. Remsen, 33, 95. Husband may prefer debt to wife. Jay- cox v. Caldwell, 51, 395. Preference of landlord for rent with in- tent to secure future gratuitous occupa- tion for assignor avoids. Elias v. Farley, 2 Abb. 11. When mortgagee cannot compel as- signee to pay taxes. Matter of Assign- ment of Lewis, 81, 421. Action by assignee of firm against ac- commodation indorser of note of one part- ner — indorser being preferred, cannot compel application of moneys. E.dley v. Bergen, 67, 346. By firm, presumptively void, for pre- ferring individual to firm creditors. Surlbert v. Bean, 2 Keyes, 97. By portion only of partners of firm property cannot be impeached by creditors of assignors on ground that other partners did not join. Adee v. Cornell, 93, 572. Appropriation by insolvent firm of firm property to individual debts, avoids. Wilson v. Robertson, 21, 587. By insolvent partnership — action by creditor for accounting and distribution — all bound by decree. Kerr v. Blodgett, 48, 62. When cause of action for fraud against partners does not pass by. Calkins v. Smith, 48, 614 ; 8 Am. Rep. 575. Reservation of surplus in partnership assignment, when fatal. GoUomb v. Cald- well, 16, 484. Not avoided by giving priority of pay- ment to a usurious j udgment. Murray v. Judson, 9, 73; Gliapin v. Thompson, 89, 270. Cannot be invalidated by assignor's dec- larations subsequent — evidence to in- validate. Cuyler v. McCartney, 40, 221. Testimony of assignor that he meant to gain time — what is not direction for im- mediate sale without regard to creditor's interest — direction to pay amount of notes not due to indorsers and not to holders. Griffin v. Marquardt, 21, 121. When finding of fraud not sustainable. Putnam v. Kubbell, 42, 106. Assignor's remaining in possession un- explained is evidence of fraud, and so are his declarations during possession. Adams v. Davidson, 10, 309. Want of change of possession is only presumptive evidence of fraud. Ball v. Loomis, 29, 412. Evidence inadmissible that parties did not agree that assignee should retain pos- session. Party impeaching may inquire of assignor his intent in making assign- ment. Forbes v. Waller, 25, 430. Assignment transfers right of action for wrongful conversion. McKee v. Judd, 12, 622. Assignees may not purchase assigned property. Colburn v. Morton, 3 Keyes, 296. One assignee cannot assign his interest to co-assignees. TliMther v. Candee, 3 Keyes, 157. When assignee may demand assignor's bank deposit as against a demand of the 48 ASSIGNMENT FOE CREDITORS — ASSOCIATION. bank charged against it, Union Bank, 9, 211. Assignee may sue to set aside fraudulent conveyance by assignor. McMalum v. Allen, 35, 403. Assignee takes title subject to levy under execution. Mumpei v. Rushmore, 79, 19. Purchaser from assignee on credit es- topped to deny assignee's power so to sell. Bmall v. Ludlow, 20, 155. And cannot defend on ground that plaintiff took transfer of claim from as- signee agreeing to apply it in payment of the cestui que trust. Id. ' ' Misconduct, " ' ' incompetency " — what sufficient for removal. Matter of Petition of Gohn, 78, 248. Must be acknowledged. Hardmann v. Bowen, 39, 196. Bill of sale, absolute on face, but really in trust for creditors, must be acknowl- edged. Brilton v. Lorenz, 45, 51. Failure of assignor to make schedule — new assignment. Juliand v, Rathbone, 39, 369. Requirements as to inventory — prom- issory notes — fraudulent mortgage — Verification — delivery. Pratt v. Stevens, 94, 387. Cannot be set aside by simple contract creditor. Reubens v. Joel, 13, 488. Cannot be set aside by receiver appointed in supplementary proceedings. Kennedy ■v.TIiorp, 51, 174; Bostwick v. Menck, 40, 383. Not void because bond not approved. Thrasher v. Bentley, 59, 649. Omission to deliver verified schedules not fatal. Produce Bank v. Morton, 67, 199. Effect of assignees not giving security — concurrence of assignees, when neces- sary — one not giving security cannot act. Brennan v. Willson, 71, 502. Not avoided by subsequent bankrupt proceedings against assignor — filing bond not essential to title of assignee. Bost- wick v. Burnett, 74, 317. Action by assignee for proceeds of col- lections in hands of agent — trust not dis- charged release by executor of deceased partner of assignors. Stanford v. Lockwood, 95. Proceedings to compel accounting by assignee — requisites of petition — ab- sence of bond no defense. Matter of As- signment of Farnam, 75, 187. Action for accounting of assignee — counter-claim. Duffy v. Duncan, 35, 187. Assignee can only be compelled to ac- count for benefit of all creditors. Sehuehle v. Reiman, 86, 270. Sureties of assignee not liable upon judgment in favor of creditors, declaring assignment void. People v. GhaVmers, 60, 154. Judge of Common Pleas of New York city may act under act of 1860, etc. — ref- eree may not take and state account of assignee. Matter of Accounting of Mor- gan, 56, 629. Fees of assignee. Barney v. Griffin, 2, 365. Assignor cannot provide higher com- pensation for assignee than is allowed ex- ecutors, etc. Id. Not avoided by provision for just and reasonable compensation to assignee. CampbeM v. Wbodworth, 24, 304. Commissions of assignee are only upon moneys actually received. Matter ofMuOmrt, 89, 259. Assignee entitled to full indemnity for expenditures. Colbwrn v. Morton, 1 Abb 378. When assignee for creditors not liable to arrest for disobedience of judgment in action to set aside assignment. Myers v. Becker, 95, 486. See Bankruptcy ; Conflict of Laws ; Insolvency. ASSOCIATION. When not a partnership — when should not be dissolved by court. Lafond v. Deems, 81, 507. When member cannot be struck from rolls without notice, although he has assignment of claim to him — | failed to .give notice of change of resi- ATTACHMENT, I.— IV. 49 dence. Wachtel v. Noah Widows and Or- phans' Society, 84, 28 ; 38 Am. Rep. 478. Member of voluntary unincorporated association cannot maintain action against, ■nor can assignee. McMahon v. Rauhr, 47, 67. See Corporation ; Manufacturing Company ; Religious Society. Assumpsit. See Action ; Contract ; Pleading. ATTACHMENT. I. When attachment lies. II. Parties. III. Jurisdiction. IV. Affidavit. V. Practice. VI. Summons and service. VII. Undertaking. VIII. Levy. IX. Motion to vacate or dissolve. X. Sales. XI. Costs and fees. I. When attachment lies. Requisites for issue, under 2 R. S. 3, § 1, etc. Staples v. FairchUds, 3, 41; also Van Alstyne v. Erwine, 11, 331. Creditor after judgment may maintain action to enforce lien of, by setting aside fraudulent assignment by debtor. Me- chanics and Traders' Bk. v. Dakin, 51, 519. Proceeds of execution in hands of sheriff liable to, against judgment creditor — levy. Wehle v. Conner, 83, 231. May be made of deposit drawn upon by check which has been certified and depos- ited by another. Bills v. National Park Bk., 89, 343. Shares of non-resident in foreign cor- poration doing business here not liable to. PUmpton v. Bigelow, 93, 592. II. Parties. Against absconding debtor — application showing absconding merely from city of 7 New York, and not from State, void on face. Castellanos v. Jones, 5, 164. Against foreign corporation — service on trustee. Wright v. Douglass, 7, 564. Non-residence must be distinctly proved, and cannot be inferred from mere addition or description. Payne v. Young, 8, 158. May issue in favor of firm, some mem- bers of which are non-resident. Renard v. Hargous, 13, 259. Against non-resident — all creditors share — effect of French concordat. Matter of Bonuaffe, 23, 169. Against one partner may be levied on partnership property. Smith v. Orser, 42, 132. Against foreign corporation — sheriff or plaintiff may assume prosecution of actions brought by the corporation on stock sub- scriptions — effect of, on other creditors attaching — death of sheriff. O'Brien v. GlenviUe Woolen Co., 50, 128. May issue against National bank of another State. Robinson v. Nat. Bk. Newberne, 81, 385 ; 37 Am. Rep. 508. From State court may not issue against insolvent National bank. National Shoe andL. Bk. v. Mechanics' Nat. Bk., 89, 467. Against insolvent National bank invalid under Federal statute though bank there- after increased its capital and paid other debts — Federal statute not repealed by act of July 12, 1883. Raynor v. Pacific Nat. Bk., 93, 371. III. Jurisdiction. S. Requisites of application under 2 R. 13, § 62 — jurisdiction. Van Alstyne v. Erwine, 11, 331. Jurisdiction of New York city Superior Court to issue. Kerr v. Mount, 28, 659. Requisites of jurisdiction in supplement- ary proceedings against judgment debtor. Miller v. Adams, 52, 409. IV. Affidavit. Sufficient statement of applicant's title in affidavit for. Mall v. Stryker, 27, 596. One sued for seizing goods under, may show that prior sale by defendant in at- tachment to claimant was in fraud of creditors. Id. 50 ATTACHMENT, V.— VIII. In justice's court — requisites of affida- vit, bond and return. Bascom v. Smith, 31, 595. Affidavit must state that same claimant is ' ' over and above all counter-claims " — construction of affidavit to vacate. Sup- pert v. Haug, 87, 141. V. Practice. Filing report and recording appoint- ment of trustees, directory. Wood v. CJuipin, 13, 509. For contempt, how issued — omission of seal from bond not fatal — pleading. KeUy v. McCormick, 28, 318. Sureties on bond for release cannot raise objection that complaint does not show issue of execution against principal. Id. Merger in judgment. Lynch v. Crary, 52, 181. Attachment and arrest, proper in one action. Rockford, etc., R. Go. v. Boody, 56, 456. When absconding of defendant suffi- ciently stated. Mayor, etc. , v. Oenet, 63, 646. Action in Marine Court cannot be com- menced by short attachment against resi- dent of county. Hamland v. Wehle, 65, 85. Summons need not be first served — debtor may be non-resident although he has a place of business here. Wallace v. Castle, 68, 370. Jurisdiction — deposition of witness Allen v. Meyer, 73, 1. Publication of summons — order on thirtieth day after granting, publication in one paper on that day and in another on next, invalid. Taylor v. Troncoso, 76, 599. Request of defendant to suspend — es- toppel — affidavit may be used on second application — publication of summons — when second attachment valid. Mojar- rieta v. Saenz, 80, 547. Of judgment cannot be executed by serving copy warrant on attorney. Matter of Claim of Flandrow, 84, 1. Junior attaching creditor could move to set aside prior, for want of jurisdiction in affidavit. Jacobs v. Hogan, 85, 243, Order against third person to deliver debtor's property to sheriff not authorized. HaU v. Brooks, 89, 33. VI. Summons and service. Void for failure to serve or publish summons — not made valid by defend- ant's appearance. Blossom v. Bstes, 84, 614. When voluntary appearance equivalent to service of summons. Catlin v. Ricketts, 91, 668. Service of, upon executor where special administrator acting, insufficient to bind estate. Matter of Flandrow, 92, 256. When last day to serve summons is Sun- day, service may be on Monday — mis- statement in summons as to time to an- swer not jurisdictional error, and sum- mons amendable. GrOboon v. Freel, 93, 93. VII. Undertaking. What is non-resident. Maggart v. Morgan, 5, 422. Sureties on bond are estopped from de- nying non -residence. Id. Bond under 2 R. S. 12, § 55, is not in- valid for having but one surety. Ward v. Whitney, 8, 442. In Marine Court attachment good with- out bond — appearance to set aside, no waiver. Tiffany v. Lord, 65, 310. Moneys deposited in lieu of undertak- ing on appeal, subject to attachment by third person. Bunlop v. Patterson Fire Ins. Co., 74, 145 ; 30 Am. Rep. 283. When action to restrain suit on under- taking to discharge attachment not main- tainable. Kelly v. Christal, 81, 619. Undertaking given to discharge attach- ment — discharge in bankruptcy no de- fense to action. McComos v. Allen, 82, 114. VTII. Levy. Levy on real property is effectual with- out taking actual possession. Burkhardt v. McClellan, 1 Abb. 263 ; Rogers v. Bon- ner, 45, 379. ATTACHMENT, IX.— ATTORNEY AND CLIENT. 51 Levy on securities pledged — what is insufficient specification in notice to holder. Clarke v. Qoodridge, 41, 210. How attachment executed on property incapable of manual delivery — notice. O'Brien v. Merchants and Traders' Mre Ins. Co., 50, 128. Attachment may be levied before serv- ice of summons — county judge may issue in Supreme Court in case not triable in his county. Webb v. Bailey, 54, 164. IX. Motion to vacate or dissolve. Need not be made to judge who granted — construction of affidavit to vacate. Ruppert v. Saug, 87, 141. Attachment may not be vacated pending plaintiff's appeal from judgment for part of demand. Wright v. Rowland, 4 Abb. 649. Attachment cannot be discharged by offer to pay judgment from which plaintiff has appealed. Wright v. Rowland, 4 Keyes, 165. Sheriff may uphold seizure by showing that claimant's title is fraudulent — judg- ment as evidence. Rinchey v. Stryker, 28, 45. On motion to vacate attachment, if affi- davits are used by mover plaintiff may in- troduce affidavits to rebut them. Yates v. North, 44, 271. Neither sheriff nor attaching creditor can maintain suit to set aside debtor's fraudulent assignment of property at- tached. Thurber v. Blanek, 50, 80. Right of subsequent lienor to vacate or modify attachment — moving papers — proof by affidavit. Steuben Co. Bank v. Alberger, 75, 179. When judgment creditor may move to vacate — statement of material facts on information and belief insufficient. Steu- ben Co. Bank v. Alberger, 78, 252. Subsequent lienor may move to vacate attachment though levy made under — Code, § 682, means actual, not constructive application. Woodmansee v. Rogers, 82, 88. Denial of motion to vacate on one ground does not bar second motion on another. Steuben Co. Bank v. Alberger, 83, 274. Right of lienor to set aside — voluntary transferee of part of property has right. Trow's Printing, etc., Co. v. Hart, 85, 500. Receiver of National bank, not a party, may move to vacate. National Shoe and Leather Bank v. Mechanics' Nat. Bank, 89, 440. Attachment creditor seeking to vacate prior attachment must prove his levy valid — opinion of attorney is not proof. Tim v. Smith, 93, 87. X. Interest of principal in sales and collec- tions in hands of agent is "incapable of manual delivery " — principal being mem- ber of firm, levy as on credits of firm can- not reach such moneys — assignment by principal before levy. Greenlree v. Rosen- stock, 61, 583. When attachment does not defeat title under previous sale by unrecorded deed. Lamont v. Cheshire, 65, 30. When payment of moneys to plaintiff on sale under, after vacating ,of, not a con- version. Bay v. Bach, 87, 56, XI. Costs and fees. Fees of sheriff — how regulated in Marine Court. Tiffany v. St. John, 65, 314 ; 22 Am. Rep. 612. Auctioneer's fees. Griffin v. Selmbold, 72, 437. Attorney's lien held superior to attach- ment by creditor of client. Williams v. Ingersoll, 89, 508. See Contempt ; Sheriff ; Supple^ MENTARY PROCEEDINGS. Attempt. See Criminal Law. ATTORNEY AND CLIENT. I. Admission of attorneys. If. Removal of. m. Retainer of. 52 ATTORNEY AND CLIENT, I.— V. IV. Powers of. V. Liability of. VI. Proceedings against. VII. Compensation of. VIII. Men of. IX. Substitution of. X. Privileged communications. XI. CUent. I. Admission of attorneys. Constitution does not restrict legislature in determining qualifications. Matter of Cooper, 22, 67. Citizen of another State not entitled to admission as matter of right. Matter of Henry, 40, 560. Alien cannot be admitted to the bar. Matter of O'NeUl, 90, 584. II. Removal of. Disbarment — practice. In re Percy, 36, 651. May be subjected to costs for improperly instituting disbarment proceedings and imprisoned for non-payment. Matter of Kelly, 62, 198. Attorney may be disbarred for colluding to procure fraudulent divorce. Matter of Gale, 75, 526. Order disbarring for misconduct based on evidence reviewable on facts in this court — affidavit may originate proceed- ings but is not evidence on the trial. Mat- ter of Eldridge, 82, 161 ; 37 Am. Rep. 558. What justifies — mode of proceeding — service of copy of charges — pardon — order as bar. Matter of an Attorney, 86, 563. III. Retainer of. Being enjoined as attorney for one client does not limit his professional action for another having different interests. Slater v. Merritt, 75, 268. Party in court on attachment to punish for contempt may be represented by. Watrous v. Kearney, 79, 496. IV. Powers of. May demand assignment under non-im- prisonment act. Steward v. Biddlecum, 2, 103. Stipulation postponing execution fraudu- lently issued may be valid. Bead v. French, 28, 285. Attorney may not purchase client's land in litigation. Case v. Carroll, 35, 385. Of another State may recover here as assignee. Winfield v. Potter, 38, 67. Cannot settle and release cause of action without authority. Barrett v. Third Ave. R. Co., 45, 628. May not satisfy judgment without pay- ment. Beers v. Hendrickson, 45, 665. Has no implied power to compromise or release judgment without payment, nor to settle suit. Mandeville v. Reynolds, 68, 528. Cannot consent to commencement of new action against his client or CTeate new cause of action. Arthur v. Homestead Fire Ins. Co., 78, 462 ; 34 Am. Rep. 550. V. Liability of. Not liable for referee's fees. Judson v. Cray, 11, 408. When liable for costs. Voorhees v. Mc- Cartney, 51, 387. Collecting and paying over, cannot be ordered to refund. Matter of Wilmerd- ings v. Fowler, 55, 641. Liable to sheriff for his fees on execu- tion. Campbell v. Cothran, 56, 279. Not liable for services of stenographer. Bonynge v. Field, 81, 159. Only liable for sheriff's fees on execu- tion when judgment satisfied, or execution countermanded. Van Kirk v. Sedgwick, 87, 265. When may not be compelled to surrender insurance policy. Matter of H , an Attorney, 87, 521. Neglect of attorney to pay over moneys to which plaintiff was entitled though alleged to have been received in a fiduciary capacity and converted, held not to consti- tute a tort Segelken v. Meyer, 94, 473. Refusing to state whether his client di- rected execution sale, estopped from de- ATTOKNEY AND CLIENT, VI.— VIII. 53 nying his own responsibility. Ford v. Williams, 24, 359. VI. Proceedings against. When not liable to punishment as for oontempt for abuse of confidence of court. People v. Randall, 73, 416. In an action brought by a client to set aside a transaction with an attorney the burden is on the attorney to show want of fraud. Mason v. Ring, 3 Abb. 210. When purchase of chose in action by prohibited (2 R. S. 288, § 71), using to compel party to do particular thing not violation of statute. Moses v. McDivitt, 88, 02. VII. Compensation of. What evidence of value admissible — account rendered and its effect. Case v. Eotchkiss, 1 Abb. 324. Assignment of judgment for costs to attorney prevents set-off against debt from client to judgment debtor. Ely v. Cook, 28, 365 ; 2 Abb. 14. Assignment of prospective costs to at- torney cannot be defeated by set-off of a prior judgment. Perry v. Chester, 53, 240. An attorney cannot be deprived of his contingent compensation where his client settles without his consent. Marsh v. RdVbrook, 3 Abb. 176. Attorney entitled to compensation irre- spective of merits of suit — account stated. Case v. Hotclikiss, 3 Keyes, 334. Contract for contingent compensation — settlement by client. Hitchings v. Van, Brunt, 38, 335. Attorney who is a broker cannot charge counsel fees for conversations about the business unless by agreement. Walker v. American Nat. Bk., 49, 659. Partnership of attorneys may recover for services although one of them was not admitted to practice in the particular court. Sarland v. Lilienthal, 53, 438. Provision that they may contract for compensation is not retroactive. White- fiead v. Kennedy, 69, 462. Attorney assigned to defend prisoner cannot recover for services from county. People v. Board of Supervisors of Niagara County, 78, 622. Receiver of insurance company not liable for services of attorney to company after receiver appointed. - Barnes v. Newcomb, 89, 108. Compensation of attorney cannot be fixed in proceeding of which client has not notice. Goddard v. Stiles, 90, 199. " Facts held to constitute unprofessional conduct furnishing defense to action for services. Chatfield v. Simonson, 92, 209. Attorney for clients not of record, not entitled to their funds in court not pro- cured by his services or to enforcement of lien thereon for services. Attorney-Gen. v. North. Amer. L. Ins. Co., 93, 387. Contract to conduct proceeding is entire, and withdrawal by attorney without cause or notice forfeits right to compensation — employment by client of counsel un- friendly to attorney sufficient cause for withdrawal. Tenney v. Berger, 93, 524 ; 45 Am. Rep. 263. Acting adversely to client's interest, not entitled to compensation — bound by con- tract as to terms of service. Andrews v. Tyng, 94, 16. VIII. Lien. Code has not abolished lien for costs. Lien extends to any portion of damages agreed. Rooney v. Second Ave. R. Co., 18, 368. Has lien on judgment for costs — when payment to nominal party is fraud against real party in interest. McGregor v. Corn- stock, 28, 237. When judgment is for damages and costs notice must be given. Marsliall v. Meech, 51, 140 ; 10 Am. Rep. 572. Reversal — notice — assignment. Pulver v. Harris, 52, 73. One attorney has no lien for individual claim on client's papers held by his firm. Bowling Green Sav. Bk. v. Todd, 52, 489. Lien for compensation — agreement for contingent fees — settlement by client. 54 ATTORNEY AND CLIENT, IX.— ATTOKNEY-GENERAL. Wright v. Wright, 70, 96, 98 ; Coughlin v. New York Gent., etc., R. Co., 71, 443; 27 Am. Rep. 75. Attorney has lien for services to execu- tor on moneys of estate. Matter of Appli- cation of Knapp, 85, 284. When invalid as against estate on em- ployment of executor — tender — parties. Lawrence v. Townsend, 88, 24. When effectual. Ward v. Craig, 87, 550. Agreement with client that services shall be paid from moneys from suit creates lien superior to attachment. WiMiams v. In- gersoU, 89, 508. On judgment does not prevent discharge of judgment on account of bankruptcy. Blumenthai v. Anderson, 91, 171. IX. Substitution of. Notice of motion to quash when notice to appoint another attorney has been given. Jewell v. Sehouten, 1, 241. Refusing to go on with suit because client does not furnish money, court may substitute another with discretion as to terms. Matter of H. , 93, 381. X. Privileged communications. Confidential communications. Mulford v. Midler, 3 Abb 330 ; Totes v. Olmsted, 56, 632. Words used in a legal proceeding and pertinent to the controversy are privileged. Oarr v. Selden, 4, 91. Communication by client to attorney in presence of opposing party not confidential. Whiting v. Barney, 30, 330. Attorney employed to draw deed may testify to directions received from and transactions between both parties. Heb- bard v. Haughian, 70, 54. Suit need not be pending — evidence of opinion as to whether attorney was acting as counsel, incompetent. Bacon v. Fris- Ue, 80, 394 ; 36 Am. Rep. 627. To what exclusion extends — common attorney of both parties. Root v. Wright, 84, 73 ; 88 An. Rep. 495. XI. Client. When client bound by attorney's direc- tions to sheriff for levy — construction of stipulation. Armstrong v. Dubois, 4 Keyes, 291. Attorney issuing executions and direct- ing levy according to client's direction and indemnifying sheriff not liable as trespasser. Ford v. Williams, 13, 578. Where a client assigns to his attorney an interest for a grossly inadequate price, although to defraud his creditors, reas- signment will be ordered. Ford v. Har- rington, 16, 285. When client liable for costs to opposite party in ejectment, although prosecution without his knowledge. Hamilton v. Wright, 37, 502. When suitor has sustained damage by contempt of attorney remedy is by sum- mary proceeding. Foster v. Townshend, 68, 203. Agreement for contingent fee — collu- sive settlement by client when upheld — attorney cannot acquire interest in cause of action not assignable. Coughlin v. New York Cent., etc., R. Co., 71, 443 ; 27 Am. Rep. 75. Client liable for attorney's proceeding under statute subsequently declared un- constitutional. Poucher v. Blanchard, 86, 256. Client discontinuing action cannot ques- tion regularity on behalf of attorney. Mr- Bratneyv. Rome, etc., R. Co., 87, 467. See Costs; Evidence; Judgment; Trial. ATTORNEY-GENERAL. Cannot be compelled to bring suit to try title to office. People v. FairchMd, 67, 334. May waive appeal and discontinue ac- tion to annul contract for canal repairs — when oral agreement binding. People v. Stephens, 53, 308. Unless authorized by statute cannot ap- point special counsel to act for him. Attor- ney-General v. Continental Life Ins. Go., 88, 571. AUCTION — BAILMENT, III. 55 Attornment. See Landlord and Tenant. AUCTION. Purchaser cannot avoid purchase at, on ground of prior private sale by owner. Minturn v. Main, 7, 220. If secret vendee, bids sale is voidable, but purchaser must offer to rescind and to return goods. Id. Auctioneer may maintain action for price although he has received his fees. Id. Where auctioneer strikes off property for less than he is authorized to do, the owner is not bound but he is. Bush v. Cole, 28, 261. Auctioneer not liable in damages on con- tract of sale where he made no memoran- dum. Baltzen v. Nieolay, 53, 467. An agreement signed by one employing auctioneer alone is sufficient under the statute to authorize commissions in excess of the prescribed rate. Carpenter v. Le Count, 93, 562. Of lands — on vendor's failure to make title purchaser may recover his deposit with interest — judgment against vendor is bar to action against auctioneer — pay- ment to clerk of court for vendor. Cock- roft v. Muller, 71, 367. See Judicial Sale. Average. See Insurance ; Ship and Shipping. Avoidance. See Contract ; Infancy. Award. See Arbitration and Award. B. Bail. i Arrest and Bail : Criminal Law. BAILMENT. I. What constitutes. II. What does not constitute. III. Bailee's lien. TV. Surrender by bailee. V. Denial of title by bailee. VI. Conversion by bailee. I. What constitutes. Delivery of wheat to be made into flour, when bailment and not sale. Mallory v. Willis, 4, 76 ; Wadsworth v. Allcott, 6, 64 ; Foster v. Pettibone, 7, 433. Evidence to show ownership as execu- tors ; of usage, inadmissible, when terms are plain. Wadsworth v. Allcott, 6, 64. II. What does not constitute. Receipt, when does not constitute, Eaton v. Alger, 2 Abb. 5. Tow-boat owners are not bailees. Wells v. Steam Nw. Co., 2, 204 Agreement by a miller to take wheat and give flour therefoi is not a bailment, but a sale. Norton v. Woodruff, 2, 153. Transfer of note on agreement to ac- count for it, not a bailment. Eaton v. Alger, 2 Keyes, 41. III. Bailee's lien. One hired to saw a certain quantity of logs, sawing and delivering part has a 56 BAILMENT, IV.— BANK, II. b. lien therefor on the rest, Congdon, 4, 552. Bailee can hold for lien against attach- ments against bailor. Truslow v. Putnam, 4 Abb. 425. IV. Surrender by bailee. Delivering to bailor's wife, not equiva- lent to delivery to bailor when bailee was ordered not to -deliver except on bailor's written direction. Kowing v. Manly, 49, 192 ; 10 Am. Rep. 346. Bailee may surrender to true owner. Western Trans. Co. v. Barber, 56, 544. V. Denial of title by bailee. Bailee of money to be paid on condition to another cannot set up that other's want of interest, or fraud, in his action there- for. McKay v. Bra/per, 27, 256. Limitation of doctrine that bailee can- not deny title of bailor. Cook v. Holt, 48, 275. VI. Conversion by bailee. Bailee liable for conversion for refusing delivery because of levy afterward found invalid. Rogers v. Weir, 34, 463. Bailee refusing to surrender property to owner on indemnity against adverse claimant is guilty of conversion — dam- ages. Ball v. Liney, 48, 6 ; 8 Am. Rep. 511. Where wife gets husband's property from bailee by fraud he may sue both therefor, but it is no bar to the husband's action against him. Kowing v. Manly, 49, 192. See Agister; Bank; Cahrier; Con- version; Innkeeper; Pledge; Ware- houseman. BANK. I. Acts of incorporation. II. Banking business, (a.) Collections. (&.) Deposits. (c.) Lien of bank. (d.) Certificate of deposit, (e.) Title to deposit. (/.) Payment. III. Banking powers. IV. Liability of banks. (a.) Generally. (&.) Suits by or against. {c.) Certification of checks by. (d.) Usury of, («.) Negligence of. {/.) Insolvency of. ' (g.) Taxation of. V. Bank officers. (a.) Generally. (&.) Directors. (c.) Cashier. (d.) President. VI. Bights and liabilities of stockholders. VII. Individual banking. VIII. Savings banks. IX. National banks. I. Acts of incorporation. Not subject to provisions of 1 R. S. 588, except as incorporated in general bank act of 1838. Leavitt v. Blatahford, 17, 521. Requisites of proof of incorporation in action by. Leonardsville Bank v. WiUard, 25, 574. II. Banking business. (a.) Collections. Right of collecting bank to proceeds of collections for claim against remitting bank — usage. Commercial Bank of Clyde v. Marine Bank, 3 Keyes, 337. An arrangement between banks to col- lect for each other and credit balance due, the collections being mingled with the general funds of the bank, held to create the relation of debtor and creditor simply. People v. City Bank of Rochester, 93, 582. (6.) Deposits. Suspended right of set-off, when re- vived — operative against assignee of deposit. Robinson v. Howes, 20, 84. May set up fraud of customer in getting discounts, in defense or counter-claim in his action for subsequent deposits, al- BANK, II. c. — f. 57 though it has paid the money. Andrews v. Artisans' Bank, 26, 298. Where deposit is attached, bank may not deduct amount of a check not pre- sented but which the teller had agreed to pay — chargeable with notice of con- tents of attachment. Duncan v. Berlin, 60, 151. Depositor not precluded from recovering moneys charged against him for payment of checks on indorsements forged by his clerk, by neglect to examine pass-book. Welsh v. German-American Bank, 73, 434; 29 Am. Rep. 175. May receive deposit as collateral security for performance of contract between two others — action for — parties — costs. BushneU v. Chautauqua Co. Nat. Bank, 74, 290 ; 30 Am. Rep. 319. May not retain balance of customer's deposit to pay unmatured indebtedness to bank — set-off. Jordan v. Nat. Shoe and Leather Bank, 74, 467. Relation between bank and its trustees that of principal and agent — between trustees and depositors, trustee and cestui que trust. Hun v. Cary, 82, 65 ; 37 Am. Rep. 546. Authority to agent to deposit does not imply authority to check out. Bates v. First National Bank, 89, 386. (c.) Lien of hank. Does not exist as to securities pledged for particular debt. Wyckoff v. Anthony, 90, 442. ((?.) Certificate of deposit. The restraint upon issues by Laws of 1840 is not confined to paper designed for circulation as money, but includes a certi- ficate of deposit. Lea/mtt v. Palmer, 3, 19. A trust deed executed as security there- for falls with it. Id. Manner of signing — evidence of good faith of holder, when not required. Barnes v. Ontario Bank, 19, 152. Is mere receipt — evidence admissible to explain — notice to produce. Hotclikissv. Mother, 48, 478. Depositor not concluded by certificate of deposit signed by president individually — parol evidence admissible — question of fact. Coleman v. Fi/rst National Bank of Elmira, 53, 388. Cannot be set off against claim on dis- counted note. Munger v. Albany City National Bank, 85, 580. (e.) Title to deposits. What is a delivery of money to bank. Sotchkiss v. Artisans' Bank, 2 Keyes, 564. When property to bill transmitted to bank for credit vests in bank. Scott v. Ocean Bank, 23, 289. Receiving notes for collection from an- other bank gets no better title than the latter had — demand. McBride v. Far- mers' Bank, 26, 450. Cannot hold pledge except for specific loan in absence of agreement. Duncan v. Brennan, 83, 487. Title to check deposited vests in bank. Metropolitan Nat. Bank v. Loyd, 90, 530. (f.) Payment. When draft deemed paid by bank. Weedsport Bank v. Park Bank, 2 Keyes, 561. What amounts to payment of note by check on — effect of book-entries. Pratt v. Foote, 9, 463. Dividends must be paid in cash — cus- tom to contrary inadmissible. Fide v. Chittenango Bank, 34, 548. Payment to paying teller in absence of receiving teller, valid. Fast River Nat. Bank v. Gove, 57. 597. Genera] deposit by maker of overdue note held by bank does not operate as payment to discharge indorser — optional with bank whether to apply it. National Bank of Newburgh v. Smith, 66, 271 ; 23 Am. Rep. 47, note. Charging notes discounted for customer to his account as they mature, according to custom, is payment. Crocker v. Whit- ney, 71, 161. When receiver not bound to pay amount of check to owner remitting for collec- 58 BANK, III. — IV. b. tion — trust. People v. Merchants and Me- chanics' Bank, 78, 269 ; 34 Am. Rep. 532. Payment of forged checks — customer owes no duty to bank, to examine re- turned vouchers. Welch v. German- American Bank, 73, 424 ; Weisser v. Deni- son, 10, 68 ; Frank v. Chemical National Bank, 84, 209 ; 38 Am. Rep. 501. III. Banking powers. Sale at discount of Canada bank bills — Laws of 1830, chapter 295 — taking in payment a draft — Laws of 1839, chapter 355, §3 ; 1850, chapter 251 — seller may surrender draft and recover. Buffalo City Bank v. CoaZd, 25, 163. May sell foreign bank notes except for circulation. Sacketts Harbor Bank v. Codd, 18, 240. May assign judgment in which it has no beneficial interest without resolution of directors. Eno v. Crooke, 10, 60. Power to borrow — restraints upon. Curtis v. Leavitt, 15, 9. May not make an accommodation in- dorsement. Bank of Genesee v. Patchin Bank, 13, 309. Notes of, on time and interest, on a pur- chase of State stocks are void in any hands. Bank Commissioners v. St. Lawrence Bank, 7, 513. Although the stocks were pledged to payment of its circulating notes. Id. May not purchase State stocks to sell nor to raise money except as security or in pay- ment of loan or debt. Tallmage v. Pell, 7, 328. May not subscribe for railroad stock. Nassau Bank v. Jones, 95, 115. When may not sell collaterals at pri- vate sale — offset or counter-claim. Strong v. Nat. Mechanics' Banking Ass'n, 45, 718. Refusing to redeem its bills in specie, the bank superintendent may sell its secu- rities deposited with him. Metropolitan Bank v. Van Dyck, 27, 400. IV. Liabilities of banks, (a.) Receiving and sending to its corre- sponding bank paper for collection, and the latter sending to its own correspond- ing bank, the first corresponding bank is alone liable to the depositing bank. Montgomery County Bank v. Albany City Bank, 7, 459. Cannot protect itself by payment of check with forged indorsement. Morgan v. Bank of State of New York, 11, 404. Assignment of certificate of withdrawn stock — valid against bank granting cer- tificate and subsequently lending on faith thereof. Oallanan v. Edwards, 32, 483. When becomes liable to drawee of check. Oddie v. Nat. City Bank of New York, 45, 735 ; 6 Am. Rep. 160. Not liable to action on unaccepted check. JEtna Nat. Bank v. Fourth Nat. Bank, 46, 82 : 7 Am. Rep. 314. When not protected by confiscation pro- ceedings in refusing to pay check to payee. Bisley v. Plmnix Bank of City of New York, 83, 318 ; 38 Am. Rep. 421, note ; affirmed, 30 Alb. L. J. 30. Liable to correspondent for amount paid on check with forged indorsement. Bank of Brit N. Amer. v. Merchants' Nat. Bank, 91, 106. Payment upon forged indorsement — holder liable to drawee paying, though certified. Id. Liable to association depositing with it though managed by its officers. FishkUl Savings Institution v. Bostwick, 92, 564. (ft.) Suits by and against banks. Cannot recover amount paid by it on checks forged by depositor's clerk, and re- turned with pass-book. Weisser v. Beni- son, 10, 68. Defense of paying depreciated bills on loan must be pleaded. Codd v. BatJibone, 19, 37. Where one acts as agent of another, not liable in action brought to recover money alleged to have been extorted — remedy against other bank. Amer. Nat. Bank v. Wlieelock, 82, 118. Transaction as to check left for collec- tion held to discharge drawer and render collecting bank liable to owner. Briggs v. Central Nat. Bank, 89, 182 ; 42 Am. Rep. 285. BANKS, IV. c— e. 59 May recover back payment on check with forged indorsement notwithstanding delay in discovering forgery — interest to be added from time of payment. Corn Bxch. Bank v. Nassau Bank, 91, 74 ; 43 Am. Rep. 655. An arrangement between banks to col- lect for each other held to render each simply debtor to the other for amount col- lected. People v. City Bank of Rochester, 93, 582. (c.) Certification of check by. Or note, equivalent to acceptance of bill on demand. Meads v. Merchants' Bank of Albany, 25, 143. President may not certify his own checks, and no one can recover on such certifica- tion — holding for long period as security implies bad faith. Claflin v. Farmers and Citizens' Bank of Long Island, 25, 293. Effect of — how canceled — rights of bank afterward. Irving Bank v. Wether- ald, 30, 335. Binding as to bona fide holder although there were no funds — custom. Cooke v. State Nat. Bank of Boston, 52, 96 ; 11 Am. Rep. 667. Does not guarantee genuineness of fill- ing up. National Bank of Commerce in New York v. National Mechanics' Bank- ing Association in New York, 55, 211 ; 14 Am. Rep. 232; Clews v. Bank of New York, 89, 418; 42 Am. Rep. 303, note. Does not guarantee against alterations in body. Marine Nat. Bank v. Nat. City Bank, 59, 67 ; 17 Am. Rep. 305. Bound by statement of teller that its apparent certification of check is genuine. Continental Nat. Bank v. Nat. Bank of Commonwealth, 50, 575. Evidence of custom to regard certifica- tion of checks as importing obligation to pay notwithstanding forgery of filling up inadmissible — not estopped by teller's assertion that check was genuine. Secu- rity Bank of New York v. National Bank of the Republic, 67, 458 ; 23 Am. Rep. 129. (d.) Usury of. Organized under general act not within provision of safety fund act restricting interest. International Bank v. Bradley, 19, 245. Is bound for loan to it although evi- denced by draft illegally issued and trans- ferred to another bank for a rate of inter- est forbidden by safety fund act. Oneida Bank v. Ontario Bank, 21, 490. Bank reserving interest forbidden by its charter, the loan is void — indorser of discounted paper not liable. Bank of Salina v. Alvord, 31, 473. National — subject to State usury laws. First Nat. Bk. of Whitehall v. Lamb, 50, 95 ; 10 Am. Rep. 95. Liable to penalties of National bank act for taking excessive interest on business paper — conflict with State law. Johnson v. Nat. Bank of Gloversville, 74, 329 ; 30 Am. Rep. 302. In action by, on note, usurious interest cannot be recovered, but twice the amount of such interest cannot be counter-claimed. National Bank of Auburn v. Lewis, 81, 15. (See 75, 516 ; M Am. Rep. 484.) Release of penalty for usury by insolvent debtor valid. Oetmany. Second Nat. Bk., 89, 136. State banks not relieved from penalties of usury by act of 1870. Farmers' Bank v. Rale, 59, 53. Limitation of rate of discount — credit to borrower is "payment" — business paper subject to the limitation. Nash v. White's Bank of Buffalo, 68, 396. National — forfeiture for usury — ac- commodation indorser may set off — af- fects series of renewals. National Bank of Auburn v. Lewis, 75, 516 ; 31 Am. Rep. 484. («.) Negligence of. Receiving bill for collection is liable for default of its agents and correspond- ents. Commercial Bank of Pennsylvania v. Union Bank of New York, 11, 203. Employed to collect note — liable for neglect of notary in protesting. Ayrault v. Pacific Bank, 47, 570 ; 7 Am. Rep. 489. 60 BANKS, IV. f.— V. c. When not negligent in collecting note — taking and presenting draft — evidence of damage. Indig v. National City Bk. of Brooklyn, 80, 100. Liability of, for negligence in collec- tion of draft First Nat. Bk. v. Fourth Nat. Bk., 89, 412. (/.) Insolvency of. Insolvent, may not transfer to one of its directors, bonds in exchange for its own stock, either at common law or under 1 E. S. 589. GiUet v. Moody, 3, 479. Stockholders postponed to creditors in settlement of bank's affairs. Hollister v. Hollister Bank, 2 Abb. 367; 2 Keyes, 245. Unlawful transfer of assets — void as to receiver subsequently appointed unless bona fide purchaser — director chargeable with notice — purchaser with notice may not recoup the consideration paid. Gillett v. Phillips, 13, 114. Provisions of act of 1849, concerning insolvent, constitutional — proceedings under. Empire City Bank, 18, 199. May not transfer or assign in contem- plation of insolvency. ' ' Contemplation of insolvency." Robinson v. Bank of Attica, 21, 406. Dividend by receiver. Matter of Hol- lister Bank, 23, 508. Payment by insolvent bank of check to depositor, not a transfer or assignment in contemplation of insolvency. Dutcher v. Importers and Traders' Nat. Bank, 59, 5. Receiver may not allow set-off of de- mand assigned after his appointment — ratification or waiver ineffectual for same purpose. Van Dyck v. McQuade, 85, 616. (g.) Taxation of. United States bonds not taxable by State, but franchise exercised by investment in such bonds may be taxed. Monroe Sav- ings Bank v. City of Rochester, 37, 365. National — State taxation of stock, People v. Comm'rs of Taxes, 35, 423 ; City of Utica v. Churchill, 33, 160 ; reversed, 3 Wall. 573. National — actual value of shares is basis of taxation — this applies to State banks converted into National banks. People v. Comm'rs of Taxes and Assess- ments', 67, 516. National bank shares cannot be assessed under act of 1865. First Nat. Bank of Sandy Hill v. Fancher, 48, 524. Taxation of stockholder — deduction for real estate must be reckoned on value of capital stock. People v. Comm'rs of Taxes and Assessments, 69, 91. National — assessment of stock — sepa- rate items in roll — place of assessment — owner not entitled to deduction for debts. Williams v. Weaver, 75, 30. When entitled to deduction from tax for building erected on leased land. Peo- ple v. Comm'rs of Taxes, 80, 573. V. Bank officers, (a.) Generally. Officers making illegal loans liable for actual loss only. Knapp v. Roche, 94, 329. (b.) Directors. Knowledge acquired in individual capacity not chargeable to bank — no pre- sumption that such knowledge communi- cated. Atlantic State Bank v, Savery, 82, 291. Chargeable with notice of matters of ordinary business known to cashier. New Hope and Delaware Bridge Go. v. Phenix Bank, 3, 156. Ratification by silence and'acquiescence. Id. (c.) Cashier Purchase of land for, by cashier, not necessarily invalid although bank not au- thorized to buy lands. White v. Lester, 4 Abb. 585. Clerk, acting as temporary cashier, has no implied authority to transfer property of the bank — demand and refusal — evi- dence of conversion. Potter v. Merchants' Bank, 28, 641. BANKS, V. d. — VIII. 61 "When cashier not liable to, for negli- gence — care required of. Commercial Bank of Albany v. Ten Myck, 48, 305. When bank not bound by unauthorized acceptance by assistant cashier. Pope v. Bank of Albion, 57, 126. Bank liable for conversion of bonds by cashier. Mshkill Sav. Inst. v. Nat. Bk. of mshkill, 80, 162 ; 36 Am. Rep. 595. Liability of sureties on bond of default- ing cashier. Bostwick v. Van Voorhis, 91, 353. Cashier is not liable to bank for neglect of duty in failing to comply ■with its rules when compliance is prevented or excused by acts of directors. A bank on discover- ing a misappropriation of its funds can only ask their return or the property purchased with them. It cannot ask both, and is bound by its election. Second Nat. Bk. of Oswego v. Burt, 93, 233. Cashier may bind by agreement with creditor as to application of funds. Coats v. DonneU, 94, 168. (d.) President. "When bank chargeable with knowledge of president acquired in series of transac- tions — parties — costs. Holden v. New York and Erie Bank, 72, 286. "When bank chargeable with conversion of collateral securities by president with knowledge of manager. Cutting v. Mar- low, 78, 454. "VI. Rights and liabilities of stockholders. Conditional subscriptions for organizing cannot be enforced without performing the conditions • — alteration of articles — certifi- cate by subscriber — excess of subscrip- tions over amount authorized. Burrows v. Smith, 10, 550. When stockholders may transfer stock free from lien. Bank of Attica v. Manu- facturers and Traders' Bank, 20, 501. Personal liability of stockholders. Matter of Oliver Lee & Co.'s Bank, 21, 9. Alteration of charter — married woman liable as stockholder — transfer of stock — apportionment of debts Matter of Reci- procity Bank, 22, 9. Provision forbidding transfer of stock until shareholder shall discharge debts due the bank, includes unmatured liabilities. Leggett v. Bank of Sing Sing, 24, 283. Stockholders personally liable only as prescribed by charter. Lowry y. Inman, 46, 119. Having permitted transfer of stock upon a forged power of attorney and canceled the certificates, may be compelled to issue new certificates or pay the value. Pollock v. National Bank, 7, 274. Title to stock passes by assignment and delivery of certificate without transfer on books. Leitch v. We'ls, 48, 585. VII. Individual banking. "Who liable as general partner in indi- vidual bank. Juliand v. Watson, 43, 571. "Individual banker" defined — action for penalty under act of 1875, chapter 371, section 49. People v. Doty, 80, 225. VIII. Savings banks. Loss of pass-book excuses non-produc- tion. Warhus v. Bowery Sav. Bank, 21, 543. When protected by regulations by pay- ment to holder of pass-book with forged order. Schoenwald v. Metropolitan Sav. Bank, 57, 418. Negligence in paying to wrong claimant. Appleby v. Erie County Sav. Bank, 62, 12; Allen v. WUliamsburgh Sav. Bank, 69, 314. Preference over other creditors of insolv- ent banks extends only to deposits and not to loans — loan not made a deposit by want of authority to make the loan. Rosenback v. Manufacturers and Builders' Bank, 69, 358. What are proper allowances on settle- ment of accounts of receiver of savings bank Matter of Guard Sav. Inst., 78, 408. Mortgage executed by trustee to make deficiency caused by loss on loan — not invalid within act of 1875, chapter 371 — 62 BANKS, IX.— BANKEUPTCY, I. trustees personally liable for deficiency. Best v. Thiel, 79, 15. Deposit " in trust " — payment to depos- itor valid until notice from beneficiary. Boone v. Citizens' Sav. Bank, 84, 83 ; 38 Am. Rep. 498, note. When trustee not liable to receiver for dividends unlawfully paid. Van Dyck v. McQuade, 86, 38. When liable on contract by president authorized by resolution of directors — voidable pledge of stock. Sistare v. Best, 88, 527. Payment to administrator of joint deposi- tor presenting book after notice does not release' from liability to other to extent of deposits made Mulcahey v. Emigrant, etc., Bk., 89, 435. Deposit by parent in trust for child creates trust. Willis v. Smyth, 91, 297. Judgment creditor not entitled to pref- erence over depositor. People v. Mechan- ics, etc., Sav. Institution, 92, 7 IX. National banks. Provision against transfer of stock until liabilities to, paid, gives no lien. Conklin v. Second Nat. Bk. of Oswego, 45, 655. Can deal in government securities. Van- Leuven v. First Nat. Bk. of Kingston, 54, 671 ; Terkes v. Nat. Bank, 69, 382 ; 25 Am. Rep. 208. What sufficient evidence of appoint- ment of receiver under 13 U. S. Stat, at Large, 99, § 50. Piatt v. Beebe, 57, 339. Gratuitous bailee — when and when not responsible for special deposit — evidence. First Nat. Bank v. Ocean Nat. Bank, 60, 278 ; 19 Am. Rep. 181 ; Pattison v. Syra- cuse Nat. Bk., 80, 82 ; 36 Am. Rep. 582. Liable for bonds received for exchange for registered bonds, and stolen. Terkes v. Nat. Bk. of Port Jervis, 69, 382 ; 25 Am. Rep. 208. Mortgage on real estate to secure future debt to, void. Crocker v. Wldtney, 71, 161; Contra, Simons v. First Nat. Bk. of Union Springs, 93, 269. May take married woman's note charg- ing her separate estate. Third Nat. Bk. v. Blake, 73, 256. In another State, liable to attachment in courts of this State. Robinson v. Nat. Bk. of Newberne, 81, 385. Attachment from State court against insolvent National bank will not lie. U. S. R. S., § 5798. Nat. Shoe and L. Bk. v. Mechanics' Nat. Bk., 89, 467. Loan enforceable although exceeding one-tenth of capital. U. S. R. S., § 5200. Duncomb v. New York, Housatonic, etc., B. Co., 84, 190. Receiver of National, when no proceed- ing under National banking act for for- feiture of charter, may maintain action against directors for negligence — if re- ceiver is one of the negligent directors, one stockholder may sue in behalf of all, may be brought in State court. Brinck- erJwffv. Bostwick, 88, 52. Attachment against insolvent bank in- valid (U. S. R. S., § 5242) though capital afterward increased and other debts paid. Federal statute declaring invalidity not repealed by statute of 1883. Raynor v. Pacific Nat. Bk., 93, 371. Drafts by one firm on another in a different place are bona fide bills of ex- change under section 29 of the National banking act, though the two firms are composed of the same persons. Second National Bank of Oswego v. Burt, 93, 233. BANKRUPTCY. I. Jurisdiction. II. Effect of assignment. III. Powers and duties of assignee. IV. Preferences. V. Proof of claims. VI. Fiduciary capacity. VII. Payment. VIII. Actions by or against assignee. IX. Practice. X. Discharge. XI. Effect of discliarge. I. Jurisdiction. Of IT. S. District Court in proceeding by assignee in. Chemung Canal Bank v. Judson, 8, 254. BANKRUPTCY, II. —IV. 63 Supreme Court has jurisdiction of action by assignee to recover estate — assignee tanes real estate subject to incumbrances valid except as against judgment creditors. Cook v. Whipple, 55, 150 ; 14 Am. Rep. 202. Assignee suing need not establish juris- diction of bankrupt court — what must show. Conev. Purcell, 56, 649. State court has jurisdiction of action by assignee to recover debt due bankrupt. Kidder v. Horrobin, 72, 159. State court has jurisdiction of action by assignee to recover property fraudulently assigned by bankrupt — appearance of aliens and non-residents gives jurisdiction. Oleott v. Maclean, 73, 223. Mortgage preferring individual to firm debt, when not void as against the act — submitting to jurisdiction of State court. Hewitt v. Northrup, 75, 506. State courts have jurisdiction of action by assignee to set aside chattel mortgage and compel accounting by mortgagee. Ansley v. Patterson, 77, 156. II. Effect of assignment. Bankruptcy of husband does not author- ize proceeding to charge wife's separate estate for her debt contracted before mar- riage. Vanderheyden v. Mallory, 1, 452. But creditor may prove claim against husband in bankruptcy. Id. Proceedings against mortgagor or mort- gagee do not suspend action of foreclosure. Lenihan v. Hamann, 55, 652. Assignment dissolves attachment of State court. Miller v. Bowles, 58, 253. General assignment without preferences before bankrupt proceedings is not void as against bankrupt act. Thrasher v. Bent- ley, 59, 649 ; Haas v. O'Brien, 66, 597. Proceedings do not avoid prior general assignment with preferences when no claim made under bankruptcy proceed- ings. Bostwick v. Burnett, 74, 317. Assignment discharges lien of attach- ment levied within four months of com- mencement of proceedings, proprio vigore. Duffeld v. Morton, 73, 218. Involuntary proceedings do not prevent indictment in State court for false pre- tenses. Abbott v. People, 75, 602. III. Powers and duties of assignee. Assignee under act of 1841, having no- tice of foreclosure suit though not made party, is bound by decree. Cleveland v. Boerum, 24, 613. Time for assignee to sue for injury to property — mere wrong-doer cannot im- peach proceedings. Stevens v. Hauser, 39, 302. Assignee cannot maintain action of con- version against mortgagor or purchaser for value of equity of redemption — but may redeem. Winslow v. Clark, 47, 261. Corporation not liable for negligence of assignee in involuntary bankruptcy. Metz v. Buffalo, Corry & Pittsburgh B. Co., 58, 61 ; 17 Am. Rep. 201. Assignee of insolvent railroad, when not liable to action of negligence causing death. Car dot v. Barney, 63, 281. Assignee's title vests from filing of pe- tition. Morris v. Mrst Nat. Bk. of New- York, 68, 362. Assignee may sue to set aside fraudu- lent chattel mortgage. SoutJiard v. Ben- ner, 72, 424. Warrant to marshal does not authorize him to take property in possession of a third person claiming title. Boyle v. Sharpe, 74, 155 ; reversed, 102 U. S. 686. When right to disaffirm pledge of secu- rities for usury passes to assignee. Balton v. Smith, 86, 176. rv. Preferences. When creditor not chargeable with knowledge of attorney in another State of insolvency of debtor confessing judgment. Hoover v. Greeribaum, 61, 305 ; affirmed, 91 U. S. 308. Giving indorsed note is not fraudulent preference. Dal/rymple v. Hillenbrand, 62, 5 ; 20 Am. Rep. 438. Case of unlawful preference — reasona- ble cause to believe insolvency. Upfiain v. New York Loan and Trust Co., 76, 1. 64 BANKRUPTCY, V. — X. Release by insolvent of penalty for usury to National bank valid if not a pref- erence. Getman v. Second Nat. Bk., 89, 136. Chattel mortgage executed as renewal of old mortgage not a fraudulent prefer- ence. Brackett v. Savvey, 91, 214. V. Proof of claims. When creditor releases collateral mort- gage by proving debt. Mercliants' Nat. Bank of Syracuse v. Gomstock, 55, 34 ; 14 Am. Rep. 168. When lien of factor and principal passes with notes to transferees, and is extin- guished by proof as unsecured and ac- ceptance of dividend. Johnson v. Dick- inson, 78, 43. Proof of claim pending action for fraud in sale — election. Motterv. Tuska, 87, 166. VI. Fiduciary capacity. Moneys received by agent having inter- est in them under contract, discharge good defense. Barber v. Sterling, 68, 367. Collateral securities pledged for a loan are not held in — discharge bars action. Hennequin v. Clews, 77, 427 ; 33 Am. Rep. 641, note. Conversion by agent is not in a — must be " actual " as distinguished from " con structive " fraud. Palmer v. Hussey, 87, 303. VII. Payment. What is not a payment by insolvent within four months of filing petition within prohibition of act. Tyler v. Brock, 68, 418. VIII. Actions by or against assignee. Action may be brought on original debt and a new promise proved to avoid dis- charge. Dusenbury v. Soyt, 53, 521 ; 13 Am. Rep. 543. When assignee cannot recover amount ,of check paid by insolvent bank to depos- itor. Dutclwr v. Importers and Traders' Nat. Bank, 59, 5. Assignee cannot maintain action to re- cover collaterals usuriously pledged, with- out offering to pay sum loaned. Wheelock v. Lee, 64, 242. Sale of lands by assignee cannot be col- laterally assailed — interest under will. Smith v. Scholtz, 68, 41. Limitation as to actions against assignee — when action for conversion of stock is barred — notice of action. Esmond v. Apgar, 76, 359. IX. Practice. One indebted to bankrupt cannot set off a demand purchased after filing of peti- tion. Smith v. Brinkerhoff, 6, 305. Petition by one partner of bankrupt firm works same result as if all petitioned. Id. The purchaser will take the seller's share of the estate and nothing more. Id. Innocent under-statement of claim does not invalidate composition. Beebe v. Pyle, 71, 20. Declarations of bankrupt as against as- signee — statute of limitations. Von Sachs v. Kretz, 72, 548. Proceedings as constructive notice — re- vesting of assigned property. Page v. Waring, 76, 463. When right of set-off does not arise. Munger v. Albany City Nat. Bank, 85, 580. Order in, relieving sheriff from liability for failure to sell under execution. Dor- rance v. Henderson, 92, 406. X. Discharge. In pleading discharge facts cannot be averred, but when discharge is offered in evidence, jurisdiction is presumed prima facie. Buckman v. GoweU, 1, 505. When fraud in discharge may be proved without pleading it. Id. Requisites of plea of discharge under voluntary provisions. MaCormick v. Pickering, 4, 276. Note by third person to creditor in con- sideration of withdrawal of opposition to BANKRUPTCY, XI. —BASTARDY. 65 discharge is void, although the bankrupt was ignorant of it. Bell v. Leggett, 7, 176. Discharge, under act of 1841, when set up as a bar to an action, may be defeated by proof of -fraudulent transfers in con- templation of bankruptcy. Caryl v. Bus- sell, 13, 194. Discharge under English act — English statute must be proved — when not opera- tive here. Monroe v. Ouilleaume, 3 Keyes, 30. Discharge not assailable in State court because improperly granted. Ocean Nat. Bank v. Oleott, 46, 12. Stay of judgment on subsequent dis- cbarge — laches — merger. Monroe v. Up- ton, 50, 593. When discharge may be impeached in State court for fraud — territorial juris- diction of court granting discharge is an issuable fact. Poillonv. Lawrence, 77, 207. Composition does not discharge fraudu- lent debt. Argall v. Jacobs, 87, 110 ; 41 Am. Eep. 357. Judgment against bankrupt may be dis- charged notwithstanding attorney's lien. Blumenthal v. Anderson, 91, 171. XI. Effect of discluvrge. Discharge extinguishes judgment, and creditor seizing goods under is trespasser, but not so of officer. Buckman v. CoweU, 1, 505. Discharges a judgment obtained pending the proceedings, if founded on a precedent debt, and discharges the costs. Clark v. Bowling, 3, 216. Of one joint obligor, who has assumed whole obligation and indemnified his co- obligor, bars recovery by latter for his pay- ment of obligation. Crafts v. Matt, 4, 603. Covers claim against carrier for loss of goods. Campbell v. Perkins, 8, 430. Releases liability as co-surety on re- plevin bond, although suit was undeter- mined when discharge was granted. To- bias v. Rogers, 13, 59. When discharge bars lien under sec- tions 51 and 52 of statute of uses and trusts. Ocean National Bk. v. Oleott, 46, 12. 9 Debt against corporation not discharged though proven. Anson Brass and Copper Co. v. New Lamp-Chimney Co., 53, 123. Only cuts off claims provable at date of petition Bobinson v. Pesant, 53, 419. Of judgment debtor pending appeal does not release sureties on undertaking. Knapp v. Anderson, 71, 466. Confession of jiidgment after discharge — fraudulent trust before discharge — action by creditors after two years — evi- dence of declarations — plea of discharge. Dewey v. Moyer, 72, 70. No defense in action of tort. Hun v. Cory, 82, 65 ; 37 Am. Rep. 546 ; Bradner v. Strang, 89, 299. No defense to action on undertaking given to discharge attachment. McCombs v. Allen, 82, 114. When discharge does not affect rights of parties for whom bankrupt has made deposit as agent in name of another. Falkland v. St. Nicholas' Nat. Bank, 84, 145. No defense to action on judgment ren- dered after it in court of another State. Severe Copper Co. v. Dvmock, 90, 33. BASTARDY. Compromise money paid to superintend- ent of poor may be recovered back when it appears that there was no pregnancy. Bheel v. Sicks, 25, 289. See Parent and Child. Battery. See Assault and Battery ; Criminal Law. Bawdy-House. See Criminal Law; Landlord and Tenant. Benevolent Society. See Corporation; Will. 66 BETTING AND GAMING — BILL OF LADING, II. Bequest. See Will. BETTING AND GAMING. Contract to buy gold coin in future not void — option to deliver — intent. Bige- low v. Benedict, 70, 202 ; 26 Am. Rep. 573. Option sale of stock when not gaming contract — presumed legal in absence of proof. Story v. Solamon, 71, 420. " Straddle " stock contract, not neces- sarily a wager — burden of proof. Harris v. Tumbridge, 83, 92 ; 38 Am. Rep. 398. Contract for driving horse for prizes and premiums, when valid — pools — entrance fees. Harris v. White, 81, 532. Action lies for money lost at, and repre- sented by ivory markers purchased by the loser from the defendant. Meech v. Boner, 19, 26. Action lies by master against keeper of gaming-house for his moneys lost there by his servant. Caussidiere v. Beers, 2 Keyes, 198. Loser may recover his deposit from stakeholder although paid to winner, without demand, and without joining other contributors. Buckman v. Pitcher, 1, 392. Action for stake — limit of recovery — party plaintiff — interest — defense, that \ stake was in prohibited circulation. Buck- man v. Pitcher, 20, 9. Erroneous instruction as to evidence of direction to surrender stakes. Storey v. Brennan, 15, 524. Bond not void as wager. Whealon v. Fay, 62, 275. See Contract. Bigamy. See Criminal Law. BILL OF LADING. I. Effect of delivery as to title. II. G&neral matters. I. Effect of delivery as to title. Indorsee of bill of lading obtained by fraud gets no better title than his indor- ser. Dows v. Perrin, 16, 325. Title passes by delivery, if so intended, although not indorsed. City Bank v. Borne, etc., B. Co., 44, 136. Title of transferee of, as collateral secu- rity as against consignee. Moyrine Bank of Chicago v.' Wriglvt, 48, 1. Delivery as security operates as delivery of the goods — papers need not be filed as chattel mortgage. First Nat. Bank of Cincinnati v. Kelly, 57, 34. When order for delivery of goods does not transfer title under bill of lading — conversion — damages — factors' act. Me- chanics and Traders' Bank v. Farmers and Mechanics' Nat. Bank, 60, 40. Securing draft — effect of delivery. Magoun v. Sinclair, 66, 30. Delivery without indorsement carries title to goods — agreement to deliver ' ' reg- ular bill indorsed " — evidence — dama- ges. Merchants' Bank of Canada v. Union B. etc., Co., 69, 373. When delivery does not vest title ex- cept in trust as specified in indorsement. Farmers and Mechanics' Nat. Bank v. Hazeltine, 78, 104 ; 34 Am. Rep. 518. Equities between one making advances on faith of, and consignee holding ware- house receipt wrongfully delivered by owner. Hazard v. Fiske, 83, 287. When bill of lading transfers title — intention of parties necessary. Brand v. Focht, 1 Abb. 185. Owner of merchandise loses title as against bona fide holder of instrument in nature of — right of stoppage in transitu. Bawls v. JDesJiZer, 4 Abb. 12 ; 3 Keyes, 572. When protects party advancing. West- ern Trans. Co. v. Marshall, 4 Trans. App. 366. II. General matters. Assignee of, cannot hold carrier for " deficiency of quantity " of goods pur- chased before shipment. Meyer v. Peck, 28, 590. What,amounts to. Dows v. Greene, 24, 638. BILL OF PEACE — BONDS, I. 67 Third persons affected with, construct- ive notice of its contents when acquiring title under it. Farmers and Mechanics' J¥at. Bank v. Logan, 74, 568 : Farmers and Mechanics' Nat. Bank v. Atkinson, 74, 587. Exemption for barratry — "mariners" — "theft." Spinetti v. Atlas Steamship Co., 80, 71 ; 36 Am. Eep. 579. Compulsory payment by master for de- ficiency — when recoverable from con- signor. Van Santen v. Standard Oil Co., 81, 171. Presumption of ownership from pos- session and from acceptance of accom- panying draft — acceptance may be shown by parol. Sprague v. Hosmer, 82, 466. Usage not competent to contradict. Simmons v. Law, 3 Keyes, 217. See Carrier ; Railroad ; Ship and Shipping. BILL OF PEACE. In favor of county against numerous holders of notes to determine rights in one action. Board of Supervisors of Sara- toga Co. v. Deyoe, 77, 219. BILL OF PARTICULARS. Office of — remedy for defects. Mat- thews v. Hubbard, 47, 428. May be required from plaintiff in crini. con. Tilton v. BeecJier, 59, 176 ; 17 Am. Rep. 337. In action by attorney-general under act 1875, chapter 49, court may order. Peo- ple v. Tweed, 63, 194. May be ordered on behalf of plaintiff — action on policy of life insurance — times and places that insured had bronchitis and spitting of blood, also as to other insur- ances and applications therefor. Dwight v. Qermania Life Ins. Co., 84, 493. Annexed to a complaint is amendable. Melmn v. Wood, 3 Abb. 272. For omission to serve when ordered, court may strike out complaint. Gross v. Clark, 87, 272. Bill of Sale. See Assignment; Mortgage — Chattel; Sale. Bills and Notes. See Bank ; Negotiable Instrument ; Payment ; Surety ; Usury. Board of Audit. See Courts. Boarding-house Keeper. See Innkeeper. Boilers. See Negligence. BONDS. I. II. Indemnity. III. Requisites of. IV. Sureties on. V. Actions on. An unsealed instrument payable to bearer is valid as a " bond " under an act directing issue by commissioners " under their official signatures." People v. Mead, 24, 114. When obligee is out of State, and no place of payment is specified, readiness to pay is sufficient without tender. Hale v. Patton, 60, 233 ; 19 Am, Rep. 168. Under non-imprisonment act — when not voidable for mistake — not void as wager. Wheaton v. Fay, 62, 275. On administration, not void because of mistake in name of surrogate's county — revocation of letters — accounting — de- cree binding on sureties, Oerould v. Wil- son, 81, 573. 68 BONDS, II. — BOUNDARY, I. By railroad company — stolen and forged — condition precedent — waiver — negli- gence. Maas v. Missouri, etc., By. Co., 83, 223. II. Indemnity. On bond by A. to indemnify B. against his note to C, C. cannot recover. Turk v. Bidge, 41, 201. Does not inure to benefit of third party unless so intended — extinguishment of interest. Simson v. Brown, 68, 355. What covered in » particular case. Sari v. Messenger, 46, 253. Want of consideration — construction. Some Ins. Co. v. Watson, 59, 390. Evidence of consideration — damages — effect of possession of, by principal. Belloni v. Freeborn, 63, 383. To pay debts of firm — when not sim- ple indemnity — when creditors may pro- ceed against estate of obligee. Kohler v. Matlage, 72, 259. Against mortgage — requisites of com- plaint — evidence of damages — objec- tions. Beers v. Shannon, 73, 292. To officer — not -construed to cover un- authorized trespass — ratification — knowl- edge of attorney. Clark v. Woodruff, 83, 518. III. Bequisites of. Indorsement on, when does not consti- tute signers joint obligees. Brown v. Champlin, 66, 214. To secure discounts, "to be binding for one year only from date, " covers all paper discounted in the year though not maturing until afterward. Davis v. Cope- land, 67, 127. By Special administrator, need not state actual appointment — burden of proof. Dayton v. Johnson, 69, 419. Joint, in business and for benefit of partnership, regarded as partnership ob- ligation although executed individually and individual in purport. Berkshire Woolen Co. v. JuiUard, 75, 535 ; 31 Am. Hep. 488. To bank, for exhibition as asset to bank department — construction — considera- tion — public policy — ultra vires — estop, pel — conditional delivery. Surd v. Kelly, 78, 588 ; 34 Am. Eep. 567. Seizure and sale of property of one on execution against another not a breach of condition of official bond. People v. Lucas, 93, 585. IV. Sureties on. Liability of sureties in insolvency pro- ceedings. Cobb v. Savmon, 23, 148. Delivery on condition that another sign — when surety released. People v. Bost- wiek, 32, 445. See Dillon v. Anderson, 43, 231 ; Guild v. Thomas, 25 Am Rep. 706, note. When surety cannot question for alter- ation. BusseU v. Freer, 56, 67. V. Actions on. In action on, of indemnity for money paid, obligee may recover to amount of penalty with interest as damages. Lyon v. Clark, 8, 148 ; Brainerd v. Jones, 18, 35. Laborers on public works cannot main- tain action on bond given by contractor to State when the contract has been sublet. MeCluskey v. Cromwell, 11, 593. On attachment, conditionally delivered, and surrendered — when action lies on. Bennett v. Brown, 20, 99. When assignee of bond and mortgage may recover on bond although he has bought the premises at execution sale un- der subsequent judgment. Southworth v. Scofleld, 51, 513. See Appeal; Executor and Admin- istrator; Office and Officer; Sher- iff; Town Bonding; Undertaking. BOUNDARY. I. II. Practical location. I. On a city street carries to the center, v. N. Y. Cent. B. Co., 23, 61. BOUNDARY, II. — BEIDGE. 69 By "side of lane" — when fee remains in grantor. Mott v. Mott, 68, 246. By a cliff on shore of bay — title to land between clifi and high- water mark. Trus- tees, etc.,?. Kvrk, 84, 215 ; 38 Am. Rep. 215. "Along the high- water mark of pond" is a fixed line. Cook v. McClure, 58, 437; 17 Am. Rep. 270. " To the bank of a creek " carries grant not to'the center, but to low-water mark. Halsey v. McOormiek, 13, 296. See 23 Am. Rep. 23 ; 28 id. 75. When carries to center of creek. Seneca Nation of Indians v. Knight, 23, 498. Oral evidence admissible to identify. Coleman v. Manhattan, etc., Co., 94, 229. II. Practical location. What is — boundary between town of Rochester and Hardenburgh patent. Hunt V. Johnson, 19, 279. When not effective to change true line. Beed v. McCourt, 41, 435. Invalid except when there is uncertainty. Yosourgh v. Tator, 32, 561. On faith of improvements, binding. 'Lawny v. Moore, 33, 658. When boundary disputed, practical lo- cation by agreement is binding — revoca- tion. Wood v. Lafayette, 46, 484. Occupation to, and maintenance of di- vision fence, when evidence of practical location. Jones v. Smith, 64, 180. Long acquiescence in, will not be dis- turbed. Avery v. Empire Woolen Co., 82, 582. See Turner v. Baker, 27 Am. Rep. 239, note. Must be acquiesced in for long time. Corning v. Troy Iron and Nail Factory, 44, 577 ; Beed v. McCourt, 41, 435. With twenty years' acquiescence bind- ing. Beed v. Farr, 35, 113. Oral agreement on division line, acted on for only five years, not binding. Terry v. Chandler, 16, 354. But acquiesced in for forty years is con- clusive although founded in mistake. Baldwin v. Brown, 16, 359. Evidence — actual possession not neces- sary. Batcliffe v. Cray, 3 Trans. App. 117. Agreed upon under mistake of facts, not binding. Coon v. Smith, 29, 392. See Adverse Possession ; Deed ; Ju- risdiction; Water and Water-course. Breach of Promise of Marriage. See Abatement and Revivor ; Dama- ges ; Marriage. BOUNTIES. Act as to, constitutional — repeal by im- plication. Powers v. Shepard, 48, 540. By town for enlistments — considera- tion. Carver v. Creque, 48, 385. Agreement as to, on enlistment of sub- stitute. Decker v. Saltzman, 59, 275. BRIDGE. When franchise to erect, not exclusive. Fort Plain Bridge Co. v. Smith, 30, 44. Congress may authorize bridging of a navigable stream — obstruction of stream — Brooklyn bridge. People v. Kelly, 76, 475. Action for destruction of bridge and loss of tolls by carrying away of another bridge subsequently built. Chenango Bridge Co v. Paige, 83, 178 ; 38 Am. Rep. 407 ; 27 N. T. 87 ; reversed, 3 Wall. 51. When tax for, legally imposed. HiU v. Board of Supervisors, 12, 52. Toll-bridge taxable as real estate. Hud- son Bimer Bridge Co. v. Patterson, 74, 365. Between towns — no joint liability to build unless there is in each town a law- ful highway to connect — ' ' opened and worked." Beckwith v. Whalen, 70, 430. On line dividing towns to be maintained by towns jointly — notice and waiver. Day v. Day, 94, 153. Between towns — act of 1857, chapter 639, confers no authority to build bridge over a marsh. Matter of Freeholders of Irondequoit, 68, 376. 70 BROKERS, I —BROOKLYN, III. Proceedings to compel repair, under act of 1857, chapter 639, do not lie where bridge is wholly in one town. Matter of Petition of Freeholders of Cattaraugus Co., 59, 316. See Highway ; Negligence. BROKERS. I. Contracts and authority of. II. Commissions of. I. Contracts and authority of. A general authority to a broker to buy and load a vessel does not, in absence of sufficient custom, give him the right to borrow the money to make the purchase upon his personal credit. Bank of State of Indiana v. Bugbee, 1 Abb. 86. Act of 1866, chapter 547, imposing duty on brokers' sales on imported merchandise not unconstitutional under State Constitu- tion, but is under Federal. People v. Moring, 3 Abb. 539. Principal may repudiate purchase by bro- ker misrepresenting facts, and recover from him moneys paid. Levy v. Loeb, 89, 386. Title to note pledged by broker entrusted with it for sale. Farwell v. Importers, etc. , Bank, 90, 483. II. Commissions, etc. A broker employed to sell is entitled to his commissions when he has found a pur- chaser at the authorized terms. Barnard v. Monnot, 1 Abb. 108. When broker is entitled to commissions for selling real estate. Interference of owner. Briggs v. Howe, 1 Abb. 189 ; 4 Keyes, 424. For sale of land — effecting agreement, is entitled to compensation, ■ although agreement is not reduced to writing. Bar- nard v. Monnot, 3 Keyes, 203. Statute restricting commissions for nego- tiating loans applies to all without respect to time. Cook v. Phillips, 56, 310. To sell patent — not entitled to commis- sions for obtaining customer who formed partnership with patentee. Fraser v. Wyckoff, 63, 445. For purchase of bonds — when principal not liable for deficiency on sale — commis. sions from both sides. Levy v. Loeb, 85, 365. See Agency ; Damages ; Factok ; In- stjrance ; Stock Broker. BROOKLYN. I. Boundary of. II. Liability for negligence. III. Streets and improvements. IV. Taxation and assessments. V. Miscellaneous. I. Boundary of. Boundary between New York and Kings counties is actual low- water line on Brook- lyn side. Atlantic Bock Co. v. City of Brooklyn, 3 Keyes, 444 ; 1 Abb. 24. II. Liability for negligence. City not exempted by charter from lia- bility for negligence of officers in perform- ing duty of city. Hardy v. City of Brook- lyn, 90, 435 ; 43 Am. Rep. 182. Liability for negligence of Gowanus canal commissioners. New York, etc., Co., v. City of Brooklyn, 71, 580. Commissioners for street improvement held not liable to one injured at draw- bridge crossing. Fitzpatrick v. Slocum, 89, 358. III. Streets and improvements. Construction of act of 1879, chapter 385, section 4, as to letting contracts for sewer- age. Matter of Leeds, 53, 400. Determination of common council that a petition for an improvement was signed by a majority of the land-owners, is con- clusive. Matter of Petition of Kiernan, 62, 457. Board of water and sewage commission- ers may act without petition. People v. City of Brooklyn, 65, 349. When liable to ejectment from lands deeded to city by railroad company for street. Strong v. City of Brooklyn, 68, 1. BROOKLYN, IV. — V. 71 Construction of acts for opening North Thirteenth street. Matter of Application of City of Brooklyn, 73, 179. Act of 1868, chapter 631, for widening certain streets, constitutionality — validity of assessment. Matter of Sackett, etc., Streets, 74, 95. Has no power by extending streets to deprive owners of water-front and uplands of right to build piers within line pre- scribed by law. City of Brooklyn v. New York Ferry Co., 87,204. Street railways in, and validity and con- struction of legislation concerning. Peo- ple v. Brooklyn, etc., B. Co., 89, 75. Liable for lands taken for Sackett street improvement. Sage v. City of Brooklyn, 89, 189. IV. Taxation and assessment. Act of 1854, chapter 384, section 33, as to deeds on tax sales', makes deed evidence only of regularity of sale and not of assess- ment. Rathbone v. Hooney, 58, 463. Requisites to jurisdiction in summary proceedings by grantee of tax title under act of 1854, chapter 384, title 5, section 33 — certiorari. People v. Andrews, 52, 445. Signer of petition for repaving may move to set aside assessment for want of author- ity. Matter of Petition of Sharp, 56, 257; 15 Am. Rep. 415. Act of 1872, chapter 812, making reas- sessment valid. Matter of Van Antwerp, 56, 261. Assessment in 1872 for filling lots, ordered by council without petition, void. Matter of Banta, 60, 165. Acts for establishment of Prospect park do not authorize assessment for lands out- side the city. Matter of Lands in Flat- lush, 60, 398. Assessment under act of 1869, chapter 744, section 2 — resolution as certificate — signing list. Sorchan v. City of Brooklyn, 62, 339. Action to set aside assessment as irregu- lar and fraudulent. Boyle v. City of Brooklyn, 71, 1. Act of 1874, amending charter, did not confirm assessments laid without jurisdic- tion. People v. City oj Brooklyn, 71, 495. Power of courts to relieve from assess- ment — act of 1875, chapter 633, section 13. Matter of Petition of Mead, 74, 216. Summary proceedings to recover land sold for taxes — proof of service of notice of sale must be by common-law evidence — affidavit not competent. People v. Walsh, 87, 481. Defective verification of roll invalidates tax sale, and payments can be recovered back — registrar can warrant validity of certificate of sale. Brevoort v. City of Brooklyn, 89, 128. • Construction of Laws of 1880, chapter 572, in relation to unpaid taxes. People v. O'Keefe, 90, 419. Statute of 1882, chapter 363, validating irregular taxes, does not validate previous tax sale — right of owner to mandamus. Matter of Clementi v. Jackson, 92, 591. V. Miscellaneous. Treasurer of Inebriates' Home entitled to excise moneys as against board of police and excise — may compel payment by mandamus. People v. Board of Police and Excise, 63, 623. Common council may prohibit unlicensed cartmen. City of Brooklyn v. Breslin, 57, 591. When police board may remove police- man for incapacity. People v. Board of Police and Excise, 69, 408. Appointment of clerk by justice of peace must be approved by mayor — if he re- turn it with objections, requires two-third vote of common council to validate. People v. Schroeder, 76, 160. Justice of the peace no jurisdiction where summons served outside of the city limits. Oeraty v. Beid, 78, 64. City Court rendered judgment against defendant residing and served with pro- cess outside of city — void for want of jurisdiction. Moag v. Lamont, 60, 96 ; Landers v. Staten Island B. Co., 53, 450. City Court cannot, by consent, acquire jurisdiction not conferred by statute. Ba- •uidsburgh v. Knickerbocker L. Ins. Co., 90, 526. 72 BUILDING ASSOCIATION — CANALS, IV- Election law, act 1872, chapter 575, con- stitutional. People v. Livingston, 79, 279. Acts of 1871, chapter 47 ; 1875, chapter 258, as to supplying water, construed — contract under. Kingsley v. City of Brooklyn, 78, 200. BUILDING ASSOCIATION. Trustees need not sign copy articles to be filed. Second Manhattan Building As- sociation v. Hayes, 2 Keyes, 192 ; 4 Abb, 183. See Corporation. Burglary. See Criminal Law. Burial. See Cemetery Association; Deed. o. CANALS. I. Generally. II. Officials. III. Collectors. IV. Contractors. V. Appraisals and awards. Damages for enlargement of Erie, con- struction of statutes. Danforth v. Say- dam, 4, 66. On abandonment of canals, used for ca- nals, title continues in State. Rexford v. Knight, 11, 308. Commissioners not bound to repair bridges over State basin at Albany. JFol- lett v. People, 12, 268. When use of elevator in canal is not il- legal obstruction. People v. Horton, 64, 610. Easement in water of State canals not obtainable by prescription. Burbank v. Fay, 65, 57. II. Officials. Auditor not bound by unauthorized draft by canal commissioner. People v. Sclioon- maker, 13, 238. Commissioner not authorized to appraise damage by permanent appropriation of water. Id. Canal board on reversing or modifying award of appraisers must state grounds. Resolution for rehearing is an applica- tion in writing. People v. Gardner, 24, 583. Where commissioners alter highway, portion not embraced within canal still belongs in fee to adj oining owner. Biggins v. Reynolds, 31, 151. Power of board to appoint superintend- ent of repairs. People v. Bell, 38, 386. Right of commissioners to take materials from adjoining premises — extraordinary repairs — appropriation of land, what is. TenBroeck v. Sherrill, 71, 276. III. Collectors. Construction of "collectors of tolls on the canals." People v. Benton, 27, 387. In spite of act April 19, 1859, the canal board could appoint an assistant collector of tolls on June 9, 1859. People v. Benton, 29, 534. IV. Contractors. When mandamus does not lie to contract- ing board. People v. Contracting Board, 27, 378. Contractor liable to one injured by his negligent repairs. Robinson v. Chamber- lain, 84, 389. CANALS, V. — CAIIKIEES, I. 1 — 2. T6 Contractor liable for negligence in re- pairs injuring another. French v. Donald- aim, 57, 496. Contractor for State liable in trespass for injury to lands by blasting in construction of canal. St. Peter v. Denison, 58, 416 17 Am. Rep. 258. Contractor for repairs, when liable for damage by neglect — assignability of claim. Fulton Fire Ins. Go. v. Baldwin, 37, 648. When allowance for work not embraced in contract proper. People v. Dayton, 55, 367. When board may not be enjoined. People v. Canal Board,, 55, 390. Waiver by State of cause of action against contractors for fraud — act of 1870, ohapter 55. People v. Stephens, 71, 527. V. Appraisals and, awards. Appraisers may hear claims however old — all need not be present during tak- ing of all of evidence. People v. Thayer, 63, 348. Action to set aside award of appraisers not maintainable — remedy is appeal to board. People v. Wasson, 64, 167. Award of appraisers for damages cannot be attacked collaterally — excess of juris- diction — legislative appropriation. Peo- ple v. Schuyler, 69, 242. Mandamus lies to appraisers to make return to appeal. People v. Canal Ap- praisers, 73, 443. CARRIERS. I. Carriers of goods. 1. Who are. 2. Contract of shipment. 3. Exemption from, contract. 4. Connecting lines. 5. Neglect and delay by, during transportation, and damages. 6. Carriers of animals. 7. Duty on arrival of goods at desti- nation. 8. Delivery. 9. Freight charges and lien for. 10. Miscellaneous. 10 II. Carriers of passengers. 1. Who are passengers. 2. Duties of carriers to 3. Mules as to tickets and ion of 4. Liability for assaults on passengers. 5. Baggage. 6. I. Carriers of goods. 1. Who are. Tow-boat owners are not common car- riers. Wells v. Steam N~av. Co., 2, 204. Tow-boat owner, not — presumption where boat is owned by master and cargo by another — concurrent injury. Arctic Fire Ins. Co. v. Austin, 69, 470 ; 25 Am. Rep. 221. Liability of charterer of canal boat for a single trip, retaining charge. Campbell v. Perkins, 8, 430. Who is also warehouseman — when pre- sumed to receive goods as carrier. Ladue v. Griffith, 25, 364. Special employment does not show a com- mon carrier. Allen v. Sackrider, 37, 341. Railroad mortgage trustees, foreclosing and buying in and operating road, are car- riers. Rogers v. Wheeler, 43, 598. When canal boat owner not common carrier. Fish v. Clark, 49, 122. Express company is. Belger v. Dins- more, 51, 166 ; 10 Am. Rep. 575. When liable as, on bill of lading for forwarding across Isthmus of Darien — evidence of custom inadmissible. Sim- mons v. Law, 4 Abb. 241. 2. Contract of shipment. When bill of lading reads, " shipped in good order," the burden is on the carrier to show that an injury happened before shipment. Price v. Powell, 3, 322. Declarations of master of vessel are com- petent to show such injury, if made before delivery. Id. Mere receipt for goods does not exclude parol evidence of the contract. Admissions of agents. McGotler v. Hooker, 8, 497. 74 CAKKIERS, I. 3. Is not estopped by admission in bill of lading that goods are in "good order." Ellis v. Willard, 9, 529. When owner demands and receives goods at an intermediate point, he is liable for full agreed freight, unless waived. Id. Effect of issue of separate bills of lading of cargo shipped by one and belonging to several. Wright v. Baldwin, 18, 428. Oral agreement of shipment controls although inconsistent with bill of lading subsequently given and not assented to. Bostwick v. Baltimore & Ohio R. Co., 45, 712. Railroad may agree on special rates of freight. Nelson v. Hudson B. B. Co., 48, 498. Bill of lading is conclusive evidence of contract. Long v. New York Cent. R. Co., 50, 76. Not concluded by statement of amount of goods in bill of lading — when consignee liable for freight. Abbe v. Eaton, 51, 410. Bill of lading, "quantity guaranteed,'' binds carrier for specified quantity — evi- dence of meaning — measurer's returns not competent — admission of agents. Bissel v. Campbell, 54, 353. When custom of parties effectual to control contract of shipment. Shellon v. Merchants' Dispatch Trans. Co., 59, 258. Shipper bound by conditions of bill of lading delivered before shipment, although differing from prior oral agreement. Oer- mania Fire Ins. Co. v. Memphis, etc., B. Co., 72, 90; 28 Am. Rep. 113. Shipper chargeable with notice of con- tents of bill of lading delivered before shipment — evidence of prior negotiations incompetent. Hill v. Syracuse, etc., R. Co., 73, 351 ; 29 Am. Rep. 163, note. Bound by agreement to carry for stipu- lated sum. Baldwin v. Liverpool, etc., Steamship Co., 74, 125; 30 Am. Rep. 277. Construction of bill of lading partly written and partly printed. Miller v. Hannibal & St. Joseph R. Co., 90, 430 ; 43 Am. Rep. 179. 3. Exemption from negligence by contract. May limit liability by express agrees ment. Bow v. New Jersey Steam Nov. Co., 11, 485. From loss or damage does not excuse gross carelessness of servants. QuiLlaume v. Hamburgh & Am. Packet Co., 42, 212 ; 1 Am. Rep. 512. For loss or damage by fire does not cover case of carrier's negligence — duty to adopt improvements in machinery, etc. Steinweig v. Erie By., 43, 123 ; 3 a m. Rep, 673. Limitation in baggage express company's receipt — when not binding. Blossom v. JDodd, 43, 264 ; 3 Am. Rep. 701. When exemption inures to connecting carriers — deviation renders liable. Ma- ghee v. Camden & Amboy B. Co., 45, 514 ; 6 Am. Rep. 124. Through contract — exemption from lia- bility for fire — burden of proof. Lamb v. Camden & Amboy R. Co., 46, 271; 7 Am. Rep. 327. When purchaser of goods to be sent by railroad is bound by seller's agreement to release company from risks of transporta- tion. Nelson v. Hudson R. R. Co., 48, 498. Where he is exempted from liability by contract except for his negligence, the burden of proof of negligence is on plaint- iff. Cochran v. Dinsmore, 49, 249. Must be clear. EdsaU v. Camden & Amboy R. and Transp. Co., 50, 661. Express company — when acceptance of receipt for baggage with limitation of liability is binding. Belger v. Disnmore, 51, 166 ; 10 Am. Rep. 575. May not exempt himself from liability for loss by his own negligence — express contract to carry beyond terminus over- rides general provision to contrary. Con- diet v. Grand Trunk By. Co., 54, 500. May stipulate against losses through negligence — construction of contract. Magnin v. Dinsmore, 58, 168. When exemption in bill of lading does not apply after arrival — when carrier lia- ble for acts of his servants after arrival. OleadeU v. Tlwmson, 56, 194. CARRIERS, I. 4. 75 Does not cover loss by his own negli- gence. Westcott v. Fargo, 61, 542 ; 19 Am. Rep. 300. When carrier limits liability unless value stated, shipper's silence estops him as to ordinary negligence. Magnin v. Dinsmore, 62, 35 ; 20 Am. Rep. 442. When carrier stipulates for exemption unless value of goods is stated, the ship- per's silence releases, although carrier makes no inquiry. Magnin v. Dinsmore, 70, 410 ; 26 Am. Rep. 608. Shipper bound by limitation of liability in receipt which he understands to consti- tute a contract, although he does not read it. Mrkland v. Dinsmore, 62, 171 ; 20 Am. Rep. 475. Front liability ' ' from whatsoever cause arising " does not include his own negli- gence. Maynard v. Syracuse, etc., B. Go., 71, 180 ; 27 Am. Rep. 28. When acceptance of receipt from bag- gage express eompany does not establish contract for exemption — omission to read. Madan v. Sherard, 73, 329 ; 29 Am. Rep. 153. When stipulation for exemption from liability so construed as not to include his own negligence. Holsapple v. Borne, etc. , B. Co., 86, 275; Nichols v. N. Y. Cent. B. Go., 89, 370. Liability of carrier for injury to goods awaiting delivery — special contract held not to avoid liability. McKinney V. Jew- ett, 90, 267. Liable for loss from his negligence though by contract goods are " at owner's risk. " A failure to deliver on demand at destination is prima facie evidence of neg- ligence. Canfield v. Baltimore & Ohio B. Go., 93, 532 ; 45 Am. Rep. 268. At owner's risk — liability — presump- tion from accident. French v. Buffalo & ErieB. Co., 2 Abb. 196. Mail agent in postal car, riding on free pass — stipulation for exemption of railroad liability for negligence is void. Seybolt v. New York, Lake Erie & Western B. Go., 95, 4. Connecting lines. The owners of property delivered to a forwarder for transportation, and by him delivered to a carrier, may sue the carrier for not delivering it. Green v. Clarke, 12, 343. May be bound as principal for entire route made up of several connecting car- riers, although separate tickets are issued. Quinby v. Vanderbilt, 17, 306.' Receiving goods to be delivered to a second, remains liable as insurer although latter neglects to receive them, so long as he retains possession. Goold v. Oha/pin, 20, 259. Intermediate consignee not liable for freight of part of cargo delivered, when carrier has lost or converted the rest. Davis v. Pattison, 24, 317. Delay of transportation to get bill of back charges, subjects to liability for in- jury to goods by freshet. Michaels v. New York Gent. B. Co., 30, 564. Beyond terminus — liable for unneces- sary deviation beyond instructions. John- son v. New York Cent. B. Go., 33, 610. Intermediate, liable until delivery or notice to next. McDonald v. Western B. Go., 34, 497. Merely receiving goods addressed to a place beyond the terminus of his own route binds only to delivering to next carrier. Boot v. Great Western B. Go., 45, 524. Reasonable time must elapse for second carrier to take from first — custom. Mills v. Mich. Cent. B. Co., 45, 622 ; 6 Am. Rep. 152. Liability of express company to " for- ward " beyond its own route — evidence of contract — book entries. Beed v. United States Express Co., 48, 462 ; 8 Am. Rep. 561. Contract to carry beyond route not im- plied from mark on goods or use of printed blank — cannot impose exemption from liability on behalf of connecting carrier. Babeock v. Lake Shore By. Co., 49, 491. On contract for through transportation exemptions inure to connecting carriers although not so expressly provided. Man- hattan Oil Co. v. Camden & Amboy B. and Trans. Co., 54, 197. Contract to deliver to connecting carriers and fixing entire freight does not give second benefit of exemption of first — de- livery at common warehouse with notice 76 CAERIEES, I. § — 6. makes second liable. ^2tna Ins. Co. v. Wheeler, 49, 616. Provision in snipping receipt as to mode of forwarding beyond terminus may not be contradicted by parol. Hinckley v. New York Gent., etc., B. do., 56, 429. When not excused from delivering to next, by demand of agreement to exempt from liability. Bawson v. Holland, 59, 611 ; 17 Am. Rep. 394. Who liable for negligence — measure of damages. Sherman v. Hudson B. B. Co., 64, 254. Pro rata freight — storing instead of delivering — recovery of charges of ante- cedent carrier. Western Transp. Co. v. Hoyt, 69, 230 ; 25 Am. Rep. 175. Connecting, when entitled to limitation in bill of lading — negligence — delay. Whitworth v. Brie By. Co., 87, 413. Part owner of one of several connecting lines may be liable as carrier over whole route — damages — lost time, proper ele- ment, without specific proof of value. Ward v. VanderbUt, 4 Abb. 521. 5. Neglect and delay during transpor- tation, and damages. Liable for goods destroyed by accidental fire on float at place of destination before reasonable time for consignee to remove them. Miller v. Steam Nav. Co., 10, 431. Contracting to deliver merchandise within given time, not excused by freezing of canal. Harmony v. Bingham, 12, 99. Not liable for delay of freight caused by accumulation without his fault. Wibert v. N. T. & Erie B. Co., 12, 245. Is not liable for value of property by omission to deliver within reasonable time, but only for damages. ScomU v. Griffith, 12, 509. Railroad liable for damage from delay of freight by strike of employees. Black- stock v. N Y. & Erie B. Co., 20, 48. That detention caused by willful act of conductor no defense. Weed v. Panama B. B., 17, 362. Liable for injury by act of God if his unreasonable delay contributed. Bead v. Spaulding, 30, 630. Excused where property taken from him by legal process. Bliven v. Hudson B. B. Co., 36, 403. Not liable for loss by necessary jettison — construction of bill of lading. Price v. Hartshorn, 44, 94 ; 4 Am. Rep. 645. Measure of damages — evidence — letter — conversations. Sturgess v. Bissell, 46, 462. When liable for depreciation of goods • after arrival and before notice to consignee. Zinn v. New Jersey Steamboat Co., 49, 442 ; 10 Am. Rep. 402. Acceptance of cargo is not per se dis- charge of vessel and owner from liability for injury to cargo in transit. Home Ins. Co. v. Western Transp. Co., 51, 93. Not excused for loss of property by fact that it was marked with name of ficti- tious firm in whose name owner was do- ing business. Wood v. Erie By. Co., 72, 196 ; 28 Am. Rep. 125. Action for goods stolen from packages delivered — burden is on plaintiff to show stealing done while in possession of de- fendant and before the delivery to con- signee — insufficient proof. Ganfield v. Baltimore, etc., B. Co., 75, 144. When liable for loss of perishable prop- erty. Tierney v. New York Cent., etc., B. Co., 76, 305. Liable for injury to cargo carried on deck by shipper's consent — paying freight does not bar suit for damages. Schwinger v. Baymond, 83, 192 ; 38 Am. Rep. 415. 6. Carriers of animals, and damages. Not insurer against injuries arising from nature and propensities of the animals, and not preventable by diligent care. Clarke v. Bochester & Syracuse B. Co., 14, 570 ; Maynard v. Syracuse, etc., B.Co., 71, 180 ; 27 Am. Rep. 28. Although shipper of cattle selects the vehicle, with opportunity to know its de- fects, carrier is liable for injury by deten- tion resulting from such defects. Con- tributory negligence. Harris v. Northern Indiana B. Co. , 20, 232. Stipulation of exemption for negligence and delay does not excuse abandonment of CARKIEES, I. ? — 8. 77 contract. Keeney v. " Grand Trunk B. Co., 47, 525. Liability of. Penn v. Buffalo & Erie B. Co., 49, 204 ; 10 Am. Rep. 355. When shipper assumes risk of injuries from heat this includes such injuries through negligence. Cragin v. New York Cent. B. Co., 51, 61 ; 10 Am. Rep. 559. At shipper's risk — duty of — negligence. Bills v. New York Cent. B. Co., 84, 5. 7. Duty on arrived of goods at destination. Retaining goods on vessel after arrival after refusal of consignee to receive, holds as bailee and bound only to ordinary care. Hathorn v. Ely, 28, 78. Liability ceases when consignee, after notice of arrival, agrees that goods may be left over night in freight-house — lost by fire. Fenner v. Buffalo, etc., B. Co., 44, 505 ; 4 Am. Rep. 709. Express company cannot free itself from liability by notiee of arrival. Witbeck v. Holland, 45, 13 ; 6 Am. Rep. 23. When liable only as warehouseman after arrival. Weed v. Barney, 45, 344 ; 6 Am. Rep. 96 ; Collins V. Burns, 63, 1 ; Pelton v. Bens. & 8ar. B. Co., 54, 214 ; 13 Am. Rep. 568 ; Matteson v. N. Y. Cent. B. Co., 76, 381 ; Bumeel v. N. Y. Cent. & H. B. B. Co., 45, 184 ; 6 Am. Rep. 61 ; Sogers v. Wheeler, 52, 262. Goods delivered, to await further orders from shipper while in custody of carrier, only liable as warehouseman. O'Neill v. N. Y. Cent. & H. B. B. Co., 60, 138. Duty as to imported goods on arrival. Bedmond v. Liverpool, etc. , Steamboat Co. , 46, 578 ; 7 Am. Rep. 390. Duty to notify arrival — how modified by usage when received on Jioliday — neg- ligence — burden of proof. J. Bussell Manufg. Go. v. New Haven Steamboat Co., 50, 121. When notice of arrival to consignee may be dispensed with by usage — goods arriving on holiday. Bussell Manufg. Co. v. New Haven Steamboat Co., 53, 657. Not bound to protect bulky freight landed and paid for and partly removed by consignee. Goodwin v. Baltimore & Ohio B. Co., 50, 154 ; 10 Am. Rep. 457. By water — duty as to landing perish- able goods — "fine day." McAndrew v. Wldtlook, 52, 40 ; 11 Am. Rep. 657. Excused from liability if consignee's residence is unknown and he does not give him notice. of it. Pelton v. Bensselaer & Saratoga B. Co., 54, 214 ; 13 Am. Rep. 568. When notifying consignee of arrival waived by agreement — city baggage — express. Henshaw v. Bowland, 54, 242. May store if , consignee not found. Northrop v. Syracuse, ete., B. Co., 2 Trans. App. 183. At wharf at place of destination does not discharge without notice to consignee and reasonable time to remove the goods. Priee v. Powell, 3, 322. Address of package to consignee in care of carrier's agent does not relieve carrier. Bussell v. Livingston, 16, 515. Of money from bank to bank, discharged by delivery according to consignee's direc- tion. Sweet v. Barney, 23, 335. Construction of statute making connect- ing road liable for delivery of freight — foreign road. Burtis v. Buffalo & State Line B. Co., 24, 269. To clerk of, outside the office, does not render carrier liable for loss before it came to carrier's hands. Cronkite v. Wells. 32, 247. When can refuse to deliver goods in default of proof of authority to receive. McEntee v. New Jersey Steamboat Co., 45, 34 ; 6 Am. Rep. 28. Liable for delivery to fraudulent claim- ant. Bassett v. Spofford, 45, 387 ; 6 Am Rep. 101. Liable for delivery to fraudulent de mandant without proof of identity. Price v. Oswego & Syracuse B. Co., 50, 213 ; 10 Am. Rep. 475. Where he receipts goods belonging to A., for delivery to B., and subsequently by shipper's direction delivers to another, he is liable to B. for conversion, v. Hudson Biver B. Co., 49, 70. 78 CARRIERS, I. 9 — 10. Consignee must take away goods in reasonable time after notice — is a ques- tion of law. Hedges v. Hudson R. R. Co., 49, 223. What order from consignor justifies delivery — question of fact. Viner v. New York, etc, Steamship Co., 50, 23. When delivery as to carrier and not warehouseman implied. Sogers v. Whee- ler, 52, 262. When delivery may be justified by proof acquiescence of former similar de- liveries. Ontario Bank v. New Jersey Steamboat Co., 59, 510. By water — mode of delivery, not speci- fied, regulated by custom of port or course of trade — what justifies a substituted de- livery—measure of damages. Richmond v. Union Steamboat Co., 87, 240. In action against, for non-delivery of goods, burden on plaintiff — must give some evidence of, before carrier to prove delivery. Roberts v. Chittenden, 88; 33. When delivery to teller of money di- rected to "T., cashier," etc., is valid. Hotohkiss v. Artisans' Bank, 2 Abb. 403. 9. Freight charges and lien for. Excessive freight paid to, under pro- test, may be recovered. Harmony v. Bingham, 12, 99. Effect of owner's recovery of insurance on goods lost in transit on carrier's right to freight. McKibbin v. Peck, 39, 262. When intermediate consignee not liable for freight — no promise implied from bill of lading. Dart v. Ensign, 47, 619. When lien not discharged by warehous- ing goods. Western Trans. Co. v. Barber, 56, 544. When consignee liable for freight — discharge of liability. Davison v. City Bank, 57, 81. Whether carrier received compensation from others, immaterial. Roberts v. John- son, 58. 613. When cannot recover freight on goods destroyed by fire before delivery — back charges — usage. New York Cent., etc., R. Co. v. Standard Oil Co., 87, 486. Estoppel of owner of vessel in action for freight by bill of lading — counter- claim by assignee for non-delivery of part of cargo — acceptance of part does not bind to pay freight of whole. Byrne v. Weeks, 4 Abb. 657. Has no lien on goods for neglect of con- signee to take them away — is claim in nature of demurrage. CrommeUn v. New York & Harlem R. Co., 4 Keyes, 90. 10. Miscellaneous. Consignor, if owner, may maintain action against, for loss of gotods. Thomp- son v. Fargo, 49, 188 ; 10 Am. Eep. 342 ; Price v. Powell, 3, 322. Prima facie consignee is owner. Thomp- son v. Fargo, 49, 188 ; 10 Am. Rep. 343. Where goods are delivered to a carrier for delivery to a forwarder, who makes advances, the latter may maintain action against one to whom the carrier wrong- fully delivered. FUzhugh v. Wiman, 9, 559. Who is also warehouseman, is liable as carrier from receipt of goods into his warehouse for carriage. Blossom v. Grif- fin, 13, 569. His character not changed by his re- ceipting the goods "to be forwarded." Id. Collision with sunken vessel not "act of God." Merritt v. Earle, 29, 115. Not liable for goods unless put under control of him or his servants with his assent. Orosvenor v. New York Cent- R. Co., 39, 34. By water, may choose either of custom- ary routes, in absence of contract to con- trary. White v. Ashton, 51, 280. Definition of "article forwarded." Wet- zell v. Dinsmore, 54, 496. When cause of action in consignee. O'NeUlY.N. Y. Cent., etc., R. Co., 00, 138. Receiving goods to await orders before shipment, liable only as warehouseman. Id. Liability for negligent issue of bill of lading to one not entitled — evidence — record of verdict — custom. Farmers and Mechanics' Bk. v. Erie Ry. Co , 72, 188. CAKKIEKS, II. 1 — 2. 79 Of goods " C. O. D." — taking check in- stead of money — consignee accepting it, carrier discharged. Rathbun v. Citizens? Steamboat Co., 76, 376 ; 33 Am. Rep. 321. When recovery for baggage not bar to action for loss of merchandise. Millard ■v. Missouri, etc., R. Co., 86, 441. II. Carrier of passengers. 1. Who are passengers. Is liable for gross negligence toward passengers carried gratuitously. Nolton v. Western R. Co., 15, 444. Railroad may contract with gratuitous passengers for exemption from liability for any negligence. Wells v. N Y. Cent. R. Co., 24, 181 ; Perkins v. Same, 24, 196. But not for willful misconduct or equiva- lent recklessness. Id. ' Railroad liable for gross negligence to one traveling on a drover's pass. SmitJi v. N Y. Cent. R. Co., 24, 222. May exempt itself from liability for negligence under a drover's pass. Bissett v. N. Y. Cent. R. Co., 25, 442. Drover's pass. Poucher v. N. Y. Cent. R. Co., 49, 263 ; 10 Am. Rep. 364. Railroad admitting passengers to freight trains and taking fare liable as if on ordi- nary car. Edgerton y.N.Y.&H. R. Co., 39, 227. When one riding on freight train is not a passenger. Eaton v. Delaware, etc., R. Co., 57, 382; 15 Am. Rep. 513. When railroad company liable as to pas- senger to one riding in stage coach hired by it and run in connection with its trains. Buffett v. Troy & Boston R. Co., 40, 168. One who enters carriage for transporta- tion is passenger before payment of fare. Cleveland v. New Jersey Steamboat Co. , 68, 306. When railroad liable for negligent kill- ing of express messenger — contract of ex- emption. Blair v. Erie Ry. Co., 66, 313; 23 Am. Rep. 55. Railroad employee traveling on its cars to and from his work is not a passenger, and the company is not liable for an injury to him by negligence of a co-employee. Viclc v. N. Y. Cent., etc., R. Co., 95, 267. Railroad liable for negligent killing of government mail agent . in postal car. Seybott v. New York, etc., R. Co., 95, 2. Duties of carrier to passengers. Burden of proof is on party alleging — fact of injury to passenger in railroad car does not shift — but circumstances may shift it. Holbrook v. Utica & S. R. Co., 12, 236. Liable for injury to passenger by break- ing of axle if defect was discoverable in manufacture by any known test. Sege- man v. Western R. Corporation, 13, 9. Bound to utmost care and prudence of very cautious persons. Bowen v. N. Y. C. R. Co., 18, 408. A passenger injured by negligence ' of two railroads may recover against either. Chapman v. New Haven R. Co., 19, 341. Absolutely bound to provide road- worthy vehicles. Alden v. New York Cent. R. Co., 26, 102. Of ferry company letting down chains before landing. Ferris v. Union Ferry Co., 36, 312. When ferry company liable. Hazman v. Moboken Land and Improvement Co., 50, 53. Negligence in taking passenger on street car. ^Maverick v. Eighth Ave. R. Co., 36, 378. Not insurer against inevitable accident — rail broken by axtreme cold. McPad- den v. New York Cent. R. Co., 44, 478 ; 4 Am. Rep. 705. Responsibility for injury from unsafe machinery. Caldwell v. New Jersey Steam- boat Co., 47, 282. Passenger may get off train at accus- tomed place other than station. Keating v. New York Cent. R. Co., 49, 673. When ferry company not chargeable with negligence in construction of floating bridge in slip. Loftus v. Union Ferry Co. of Brooklyn, 84, 455 ; 38 Am. Rep. 533, note. Street railway company bound to employ only such appliances as are safe and in 80 CARRIERS, II. 3 — 4. general use. linger v. Forty-second St., etc., B. Co., 51, 497. Starting street car before passenger has time to alight is negligence. PouMn v. Broadway, etc., B. Co., 61, 621. Negligence of driver of horse car in not stopping car. Drew v. Sixth Ave. B. Co., 1 Abb. 556. Liability of owner of steamboat for in- jury by defective boiler — inspector's certi- ficate — United States statute. CarroU v. Staten Island B. Co., 58, 126 ; 17 Am. Rep. 221. Backward jerking of railroad train is negligence. Saitter v. N. Y. Cent., etc., B. Co., 66, 50; 23 Am. Rep. 18 ; MUliman v. N. Y. Cent., etc., B. Co., 66, 642. Duty to drunken man. MUliman v. N Y. Cent., etc., B. Co., 66, 642. When steamboat owner not chargeable with negligence in fencing gangway. Cleveland v. New Jersey Stmbt.Co., 68, 806. Overshooting platform — questions of fact. Taber v. Delaware, etc., B. Co., 71, 489. Injury by fall of berth in vessel — re- mote cause. Smith v. British, eta. , Steam Packet Co., 86, 408. Railroad company responsible for de- fective carriages borrowed. Jetter v. New York & Harlem B. Co., 2 Keyes, 154. Liable for negligence of servants in helping passengers off cars. Drew v. Sixth Ave. B. Co., 3 Keyes, 439 ; 1 Abb. 566 ; 2 Trans. App. 246. 3. Bules as to tickets and ejection of Passenger bound to exhibit ticket when- ever requested. Hibbard v. N. Y. & Erie B. Co., 15, 455. The question of reasonableness of a regu- lation of a railroad company for surrender of tickets is one of law. Vedder v. fel- lows, 20, 126. May not eject passenger from car in mo- tion. Sanford v. Eighth Ave. B. Co., 23, 343. Liable for servant's wrongful ejection of passenger. Biggins v. Watervliet Turn- ike Co., 46, 23 ; 7 Am. Rep. 293. May provide that ticket shall be used on day of issue. Elmore v. Sands, 54, 512 ; 13 Am. Rep. 617. Not liable in exemplary damages for ejection of passenger for refusing to pay fare when his ticket has been wrongfully taken up by conductor of another train. Townsend v. New York Cent., etc., B. Co., 56, 295 ; 15 Am. Rep. 419. Rights of passenger on limited ticket — waiver — evidence. Httl v. Syracuse, etc., B. Co., 63, 101. Limited ticket used> when accepted for fare and traveler may continue on train to end of journey after limit expired. Auerbach v. New York Gent. B. Co-., 89, 281 ; 42 Am. Rep. 290. Passenger may recover for injury in- curred in resistance to unlawful ejec- tion. English v. Delaware & Mud- son Canal Co.', 66, 454 ; 23 Am. Rep. 69. Where a company has a circuitous double road over part of its route, a pas- senger on a through ticket is only entitled to pursue the direct route — if takes other, and refuses to pay additional fare, may be ejected from train. Bennett v. New York Cent, etc., B. Co., 69, 594 ; 25 Am. Rep. 250. May set apart cars for women and ex- clude men therefrom. Peck v. New York Cent., etc., B. Co., 70, 587. Liability for ejection of passenger from drawing-room car — no seats in other cars. Thorpe v. New York Cent., etc., B. Co., 76, 402 ; 32 Am. Rep. 325. May not eject passenger at regular star tion for refusal to pay fare, if his fare is offered before ejection — otherwise where train stopped for sole purpose of putting off. O'Brien v. New York Cent., etc., B. Co., 80, 236. 4. IAabitity for assault on passengers. When not liable for assault by servant. Isaacs v. Third Ave. B. Co., 47, 122; 7 Am. Rep. 418. When liable for assault by servant. Jackson v. Second Ave. B. Co., 47, 274; 1 Am. Rep. 448. CAKKIEKS, II 5 — 6. 81 When not liable for assault by one pas- senger on another. Putnam v. Broad- way, etc., B. Co., 55, 108 ; 14 Am. Rep. 190. Under no duty to protect passenger against robbery of extraordinary sum of money. Weeks v. New York, etc., B. Co., 72, 50 ; 28 Am. Rep. 104, note. . Railroad company liable for willful act of conductor injuring passenger. Schvltz v. Third Ave. B. Co., 89, 242. Detention of passenger who has lost ticket for failure to pay fare is false im- prisonment. Lynch v. Metropolitan, etc., B. Co., 90, 77; 43 Am. Rep. 141. Liable for malicious injury to passenger by employee. Stewart v. Brooklyn, etc., B. Co., 90, 588 ; 43 Am. Rep. 185. 5. Baggage. Where several railroads run connecting trains over a continuous route an action will lie against one for baggage lost by another. Hart v. Bensselaer & Saratoga B. Co., 8, 37. Money — opinions of value — assigna- bility of claim. Merrill v. GrinneU, 30, 594. Not liable for baggage left over night at destination and burned. Both v. Buf- falo and State Line B. Co. , 34, 548. Liable for clothes and dress materials for passenger and his family, but not for articles belonging to others. Dexter v. Syracuse, etc., B. Co., 42, 326 ; 1 Am. Rep. 527. After arrival. Burnell v. New York Cent. B. Co., 45, 184 ; 6 Am.. Rep. 61. Notice of limitation of liability for bag- gage on face of ticket — effect of. Bawson v. Pennsylvania B. Co., 48, 212 ; 8 Am. Rep. 543. When not liable for conversion of bag- gage. McCormick v. Pennsylvania Cent. B. Co., 49, 303. Liability continues after arrival in ab- sence of baggage master for a reasonable time to deliver. Dininny v. New York & New Haven B. Co., 49, 546. Receiving pay for extra baggage, is lia- ble for loss of merchandise as well as bag- gage in absence of fraud or concealment. Stoneman v. Erie By. Co., 52, 429, . 11 Charging for baggage knowing it con- tains merchandise, liable for the merchan- dise. Perley v. New York Cent., etc., B. Co., 65, 374. Is liable for merchandise not baggage when it receives it and charges for it as extra baggage. Sloman v. Great Western, By. Co., 67, 208. When first of two connecting carriers not liable on separate "tickets for through passage for loss of baggage by second. Milnor v. New York & New Haven B. Co., 53, 363. A stipulation in a passage ticket by ocean steamer limiting liability for bag- gage is binding. Steers w. Liverpool, etc., Steamship Co., 57, 1 ; 15 Am. Rep. 453. Not liable for wrong delivery of bag- gage left with .agent after arrival, surren- der of check, and notification that he will not be responsible. Mattison v. New York Cent. B. Co.., 57, 552. Connecting railroads — last company cannot be ield for loss of baggage with- out proof of possession. Kessler v. New York Gent., etc., B. Co., 61, .538. When responsible for baggage as ware- houseman. Fairfax v. New York Cent-, etc., B. Co., 67, 11. When liable as warehouseman formoney in baggage — damages. Fairfax v. New York Gent., etc., B. Go., 73, 167; 29 Am. Rep. 119. Conflict of laws — paraphernalia. Cur- tis v. Delaware, etc., B. Co., 74, 116; 30 Am. Rep. 271. Burden of proof -of delivery is on carrier — when delivery is question of fact. Mat- teson v. New York Cent., etc.,, B. Co., 76, 381. When liable for conversion of baggage — damages. McCormick v. Penn. Cent. B. Go.., 80, 353. Liable for acts of servant in respect to baggage — duty of passenger as to care. Isaacson v. New York Cent., etc., B. Co., 94, 278. 6. Miscellaneous. Evidence in action for failure to carry passenger — damages — act of God. Wil- liarns. v. Yqndefb$t, 2g, 217. 82 CASE — CASES OVERRULED. Contract of passage, how shown — dam- ages for delay. Van Buskirk v. Roberts, 31, 661. May confer license on one baggage ex- pressman to exclusion of others. Ba/rney v. Oyster Bay, etc., Steamboat Co., 67, 301; 23 Am. Rep. 115. See Damages ; Ship and Shipping. CASH. In case for injury to real estate plaintiff must show title or actual possession in himself at the time of the injury.. Gard- ner v. Heart, 1, 528. CASES OVERRULED. Abels v. Westervelt, 15 Abb. 230. 42, 132. Adams v. Sar. & Wash. R. Co., 11 Barb. 414. 14, 518. Adriance v. N. Y., 1 Barb. 19. 18, 159. Adsit v. Brady, 4 Hill, 630. 16, 168, n. Alden «. N. Y. Cent., 26 102. 44, 481. Aldrich v. Manton, 13 Wend. 458. 7, 305, 312. Andrews v. Dieterich, 14 Wend. 36. 23, 252. Anonymous, 1 Wend. 90. 21, 150; 5, 517. Arnold «. Tallmadge, 19 Wend. 527. 2, 388. Attorney-General v. Mayor of New York, 3 Duer, 119. 14, 506. Bakewell i>. Ellsworth, 6 Hill, 484. 1, 38. Baldwin v. N. Y. Life Ins. Co., 3 Bosw. 530. 82, 552. Baldwin v. U. S. Tel. Co., 6 Abb. (N. S.) 405. 45, 744. Bancroft v. White, 1 Cai. 185. 1, 255. Bangs «. Mcintosh, 23 B. 591. 18,592. Barbour v. DeForest, 28 Hun, 615. 92, 519. Barger v. Duryea, 22 Barb. 68. 34, 178. Barker*. Matthews, 1 Denio, 335. 9, 174. Barnes v. Roberts, 5 Bosw. 73. 46, 598. Beattie v. Niagara Sav. Bk., 41 How. 137. 54. 147. Beecher u. Allen, 5 Barb. 169. 12, 593. Benjamin v. Arnold, 5 T. & C. 54. 64, 461. Bennett v. Am. Art Union, 5 Sandf . 614. 7, 240. Bennett v. Judson, 21, 238. 23 Hun, 208. Bentley v. Goodwin, 15 Abb. 82. 28, 49. Benton v. Martin, 31, 382. 40, 345. Bowen v. Bradley, 9 Abb. (N. S.) 395. 77, 580. Bowne». Potter, 17 Wend. 164. 1, 242. Bradt «. Tousley, 13 Wend. 253. 17, 63. Brown i>. Buffalo and St. Louis R. Co., 22, 191. 64, 531. Brown v. Cattaraugus Co. Mut. Ins. Co., 18, 385. 18, 392. Brown v. Delafield, 1 Den. 445. 18, 567 ; 22, 472. Brown v. Mott, 7 Johns. 361. 41, 287. Brown v. Orvis, 6 How. Pr. 376. 11, 347. Brownson v. Gifford, 8 How. Pr. 389. 28, 242. Bush «. Lathrop, 22, 535. 55, 41. Campbell v. Tate, 7 Lans. 370. 64, 457. Carter v. People, 2 Hill, 317. 7, 378. Chadwick v. Lamb, 29 Barb. 518. 35, 277 ; 42, 322. Christopher v. New York, 13 Barb. 567. 18, 155. City of Utica v. ChurchiU, 33, 161. 48, 524. Clark «. Luce, 15 Wend. 480. 4, 254. Cockey ®. Hurd, 4 J. & S. 42. 58, 383. Cooke «. Nat. State Bk., 52, 96. 74, 53. Corbett v. Ward, 3 Bosw. 632. 56, 50. Costello v. Mead, 55 How. Pr. 356. 82, 39. Crapo v. King, 45, 86. 77, 547. Croswell v. Crane, 7 Barb. 192. 5, 463. Cropsey v. Ogden, 11, 228. 27 Hun, 70. Croton Turnpike Co. i>. Ryder, 1 Johns. Ch. 611. 9, 444. Cunningham ■». Freeborn, 11 Wend. 240. 17, 9. Danks v. Quackenbush, 3 Den. 594 ; 1, 129. 11, 281. Darby v. Condit, 1 Duer, 599. 92, 358. Dillon v. Horn, 5 How. Pr. 35. 13, 161. Dohring v. People, 2 T. & C. 458. 59, 374. Dolson v. Kerr, 52 How. Pr. 481 . 66, 597. Duanesburgh «. Jenkins, 46 Barb. 294. 57, 177. Elwood v. Smith, 9 How. Pr. 528. 23, 262. CASES OVERETJLED. 83 Erwin ». Neversink Steamboat Co., 23 Hun, 578. 86, 401. Farmers' Bank of Fayetteville v. Hale, 59, 53. 64, 212. Faulkner v. Del. & R. Canal Co., 1 Den. 441. 20, 210. Fay e. Bell, Hill & Denio, 251. 21, 412. Feeley v. Buckley, 28 Hun, 451. 92, 162. Fenby v. Pritchard, 2 Sandf. 151. 58, 73. First Nat. Bk. of Whitehall «. Lamb, 50, 95. 64, 212. Fish v. Dodge, 38 Barb. 163. 34, 389. Fisher v. Marvin, 47 Barb. 159. 76, 521. Fisk u. Chicago & Pacific R. Co., 3 Abb. Pr. (N. S.) 430. 58, 383. Flanagan v. Irwin, 53 Barb. 587. 64, 188. Fleming n. Hollenback, 7 Barb. 271. 20, 134. Foy i). Troy & Boston E. Co., 24 Barb. 382. 45, 524. Fuller b. Fenner, 16 Barb. 333. 17, 63. Gardner, Matter of, 6 Hun, 67. 69, 452. Gates, Matter of, 2 Eedf. 144. 70, 481. German i>. Machin, 6 Paige, 288. 14, 32. Gile v. Libby, 36 Barb. 70. 54, 262. Gillet v. Moody, 3, 479. 17, 521. Gillet v. Phillips, 13, 114. 17, 521. Goodrich v. Downs, 6 Hill, 438. 15, 9. Gould v. Town of Venice, 29 Barb. 442. 23, 439. Gouverneur v. Lynch, 2 Paige, 300. 87, 457 ; 61, 88. Graham v. Stone, 6 How. Pr. 15. 11, 347. Grant ». Ellicott, 7 Wend. 227. 41, 287. Greenfield v. People, 13 Hun, 242. 74, 277. Greenleaf v. Mumford, 19 Abb. Pr. 469. 41, 210. Griffin v. Griffith, 6 How. Pr. 428. 17, 316. Hann v. Van Voorhis, 15 Abb. Pr. (N. S.) 79. 70, 270. Herrick «. Manly, 1 Caines, 253. 2, 517. Hews v. Hollister, 7 N. Y. Leg. Obs. 11. 20, 9. Hoagland v. Miller, 16 Abb. Pr. 103. 38, 182. Horton «. Thompson, 71, 513. 103 U. S. 806. Howard Ins. Co. v. Scribner, 5 Hill, 298. 50, 388. Howlett v. Wood, 7 Alb. L. J. 414. 70, 481. Hudson City Savings Institution, 5 Hun, 612. 77, 342. Huntingdon v. Mather, 2 Barb. 538. 2, 443. Jackson v. Phillips, 9 Cow. 94. 75, 288. Jackson «. Sheldon, 9 Abb. 127. 25, 492. Johnson v. Beardslee, 15 Johns. 3. 2, 523. Johnson v. Rich, 9 Barb. 680. 8, 483. Kamp v. Kamp, 44 How. 505 ; 46 id. 143. 59, 212. Keutgen «. Parks, 2 Sandf. 60. 36, 319 ; 35, 68. King v. Stow, 6 Johns. Ch. 323. 3, 396. King v. Whitely, 10 Paige, 465. 85, 39-40. Kniskern t>. Luth. Church, 1 Sandf. Ch. 439. 11, 253. Kortz v. Carpenter, 5 Johns. 120. 65, 500. Lawrences. Elliott, 3Redf. 235. 92, 433. Markham «. Jaudon, 41, 235. 53, 211. Marshall e. Guion, 4 Den. 581. 11, 461. Marshall «. Marshall, 2 Hun, 238. 86, 18. Matteson v. Matteson, 51 How. Pf . 276. 63, 221. McCann v. Bradley, 15 How. Pr. 79. 27, 225. McDermotti). Palmer, 11 Barb. 9. 9,435. McPherson v. Clark, 3 Bradf. 92. 88, 377. Mercer Street, Matter of, 4 Cow. 542. 23, 61. Meserole v. Meserole, 1 Hun, 66. 92, 508. Meyer v. Schultz, 4 Sandf. 664. 11, 347. Miller t>. Gaston, 2 Hill, 188. 2, 225. Moore, Matter of, 8 Hun, 513. 85, 536. Morange v. Mudge, 6 Abb. Pr. 243. 63, 245. Morris «. Floyd, 5 Barb. 130. 6, 347. Murphy v. Bell, 8 How. Pr. 468. 32, 219. 84 CASES OVERRULED. Mut. Life Ins. Co., Matter of, 27 Hun, | 22. 89, 530. F&t. Bank of Whitehall v. Lamb, 50, 95. 64, 213. Newell v. Cutler, 19 Hun, 74. 93, 79. Nitchie v. Townsend, 2 Sandf. 299. 44, 244. Olmsted ». Elder, 5, 144 ; 1 Keyes, 316, 18, 139. Patterson v. Choate, 7, Wend. 441. 2, 523. Penfield v. Goodrich, 10 Hun, 41. 94,611. People «. Batchellor, 22, 138. 52, 374. People v. Cline, 23 Barb. 197. 63, 391. People v. Davis, 61 Barb. 456. 49, 132. People v. Hovey, 5 Barb. 117. 92, 149. People d. Jansen, 7 Johns. 332. 62, 88. People «. Judges of Dutchess, 23 Wend. 360. 24, 399. People 1>. Kennedy, 2 Park. 312. 13, 378. People v. Mayor of Brooklyn, 6 Barb. 209.. 4, 419. People v. Quant, 2 Park. 410. 13, 378. People v. Rector, 19 Wend. 569. 7, 378. People «. Rando, 3 Park. 335. 84, 485. People «. Spooner, 1 Den. 343. 75, 288. People a. Tweed, 13 Abb. Pr. (N. S.) 25. 58, 1. People v. White, 11 Barb. 26. 11, 308. People, ex rel. Baldwin, v. Haws, 37 Barb. 440 ; 24 How. Pr. 148. 31, 203. People, ex rel. Booth, «. Fisher, 2 Park. 402 ; 20 Barb. 652. 13, 378; 20, 363. Philips v. Peters, 21 Barb. 352. 9, 85. Phoenix Fire Ins. Co. v. Phillips, 13 Wend. 81. 75, 288. Pike i). Lent, 4 Sandf. 650. 70, 492. Pitkin v. Cooley, 5 Hun, 48. 68, 221. Plummer «. Murray, 51 Barb. 201. 40, 405. Post v. Campbell, 18 Hun, 51. 83, 280. Potter v. Kitchin, 5 Bosw. 566. 87, 605. Public Adm'r i>. Peters, 1 Bradf. 100. 24, 417. Purchase v. Matteson, 25, 211. 38, 182. Quinn t>. Power, 17 Hun, 102. 87, 535. Quinn v. Skinner, 49 Barb. 28. 43, 99 ; 41, 289. Bamsdell v. Morgan, 16 Wend. 574. 36, 319. Randall v. Smith, 1 Den. 214. 58, 89. Reed, Matter of, 4 Hill, 572. 4, 173 ; 43, 514. Reed v. N. Y. Cent. R., 56 Barb. 493, 45, 574. Bich v. Milk, 20 Barb. 616. 35, 277. Richardson *. Abendroth, 43 Barb. 162. 37, 640. Roberts v. Randel, 3 Sandf. 707. 70,492. Rogers v. Smith, 5 Hun, 475. 71, 513. Rose v. Bell, 38 Barb. 25. 27, 277. Sanford «. Eighth Ave. R. Co., 23, 343. 3 Keyes, 271. Saunders, Matter of, 10 W. Dig. 351. 85, 538. Schlichting v. Wintgen, 25 Hun, 626. 89, 30. ' Scofield a. Van Syckle, 23 How. Pr. 97. 13, 322. Seixas e. Woods, 2 Caines, 48. 71, 129 ; 51, 203. Shakespeare v. Markham, 10 Hun, 311. 67, 400. Sherlock v. Sherlock, 7 Abb. Pr. (N. S.) 22. 70, 492. Sherwood ■». Vanderburgh, 2 Hill, 303. 1, 242. Shotwell «. Mott, 2 Sandf. Ch. 46. 34, 584. Smith v. Ludlow, 6 Johns. 267. 2, 523. Starr i>. Peck, 1 Hill, 270. 15, 345. Stebbins v. E. Society Meth. Church, Roch., 12 How. Pr. 410. 1 Abb. 1. Sterling v. Jaudon, 48 Barb. 459. 41, 235. Stevens «. Rowe, 3 Den. 327. 7, 550. Stevens v. Veriane, 2 Lans. 90. 63, 261. Stewart v. Doughty, 9 Johns. 108. 39, 129. Stud well «. Charter Oak Ins. Co., 19 Hun, 127. 88, 428. Swett i>. Colgate, 20 Johns. 196. 17, 129. Talmage v. Pell, 7, 328. 17, 521. Thorp ». Thorp, 23 Alb. L. J. 213. 86, 27. Thurman v. Wells, 18 Barb. 500. 12, 622. Tillou «. Kingston M. Ins. Co., 5, 406. 17, 391 ; id. 401. Towner v. Church, 2 Abb. Pr. 299. 68, 370. Tracy*. Rathbun, 3 Barb. 543. 2, 523* Traders' Ins. Co. ■». Robert, 9 Wend. 404. 17, 391. CASES OVERRULED — CERTIORARI, I. 85 Tueker v. Rankin, 15 Barb. 471. 36, 441. Tylee «. Yates, 3 Barb. 222. 67, 162. Van Bergen v. Bradley, 36, 316. 47, 244. Van Bensselaer v. Platner, 1 Johns. 275. 2, 135. Wait v. Day, 4 Den. 439. 15, 475. Wait v. Wait, 4, 95. 27 Hun, 70. Watson v. McGuire, 33 How. Pr. 87. 70, 492. Wayne Co. Savings Bank «. Low, 6 Abb. N. C. 76. 77, 584. West v. Mapes, 4 Redf. 496. 89, 403. Wheeler v. Roch. & Syr. R. Co. , 12 Barb. 227. 51, 568. White v. Geraerdt, 1 Edw. Ch. 336. 63, 253. Whitehall, Bank of, t>. Lamb, 50, 95. Reversed, 91 U. S. 29. Wilgus v. Bloodgood, 33 How. 289. 64, 188. Williams «. Weaver, 75, 30. 100 TJ. S. 539. Williams v. Williams, 8, 525. 34, 584. Wills v. People, 3 Park. 473. 84, 485. Wilson v. Green, 30 Wend. 189. 6, 309. WohKahrt «•. Beckert, 27 Hun, 74. 92, 490. Wood-burn v. Hosier, 9 Barb. 255. 32, 219, 227. Woodbury v. Sackrider, 2 Abb. Pr. 402. 88, 40. Wright s. Equitable Life, 50 How. 367. 59, 557. Wright v. Wright, 1 Cowen, 598. 3, 93. Toung v. Remer, 4 Barb. 442. 14, 16. Zinku. Atterburg, 18 How. Pr. 108. 56,50. Cause of Action. See Action. CEMETERY ASSOCIATION. May not condemn lands. Matter of Pe- tition of Beansville Cemetery Association, 66, 569 ; 23 Am. Rep. 86. When bonds of trustees invalid. Gamp- bell v. Cypress Hill Cemetery, 41, 34. Lands assessable for local improvements. Buffalo City Cemetery v. City of Buffalo, 46, 503. Not exempt. Id., 46, 506. CERTIFICATE. Where legislature appropriate a sum to be paid upon the certificate of three designated persons, the certificate of two, showing that the third met but refused to coincide, is valid. People v. Nichols, 52, 478 ; 11 Am. Rep. 734. See Bank ; Contract ; Evidence ; Deed ; Negotiable Instrument. CERTIORARI. I. When a certiorari lies. II. When a certiorari does not lie. III. Practice. IV. Costs. I. When a certiorari lies. Is proper remedy in case of illegal assessment. Mut. Ben. Life Ins. Co. v. Supervisors of New York, 3 Abb. 344. In summary proceedings against tenant — office of. People v. Hamilton, 39, 107. Applicable to criminal cases. Cancemi v. People, 18, 128. To review proceedings of highway com- missioners — power of Supreme Court thereon. People v. Ferris, 36, 218. Office of. People v. Board of Assessors, 39, 81. Proper mode of reviewing decision of supervisors on reviewing assessment of United States securities. People v. Su- pervisors of Madison Co., 51, 442. Proper mode to review summary pro- ceedings by grantee of tax title in Brook- lyn — power of court on. People v. An- drews, 52, 445. Is proper remedy to correct error of as- sessors in determining what property is benefited by improvement. Kennedy v. City of Troy, 77, 493. 86 CEKTIOEAEI, II.— IV. Prosecution may remove indictment from Oyer and Terminer to Supreme Court. Jones v. People, 79, 45. Proceedings to remove officers reviewa- ble by. People v. Nichols, 79, 582. II. When a certiorari does not lie. To correct wrong estimate by tax asses- sors after roll is delivered. People v. Delaney, 49, 655. Barred by statute prescribing that de- termination of inferior tribunal shall be conclusive — second appraisal by high- way commissioners. People v. Betts, 55, 600. Where subject-matter is functus officii. People v. Phillips, 67, 582. To town-bonding commissioners — nor to assessors after delivery of bonds for stock. People v. Walter, 68, 403. L Should be quashed where it appears by return that warrant of tax collector has been issued and a levy made. People v. Supervisors of Queens Co., 82, 275. When corporation not confined to, where personal property assessed in wrong county — may maintain action to recover. Union Steamboat Co. v. Buffalo, 82, 351. To review decision of tribunal, which had jurisdiction, violated no rule of law, and the evidence tended to support. Peo- ple v. Board of Mre Oomm'rs, 82, 358. III. Practice. Jurisdiction may be reviewed on, but decision of all other questions of fact be- low is conclusive. People v. Q-oodwin, 5, 568. To drainage commissioners — brings up only question of regularity of assessment. People v. Wearing, 27, 306. Proceedings on, to review order of commissioners of highways to remove ob- struction. People v. Commissioners of Highways, 30, 72. Court may examine evidence. People v. Board of Police, 39, 506. To a justice's court to review summary proceedings to dispossess a tenant is ap- pealable to this court. People v. Board- man, 3 Abb. 483. On common-law certiorari court may look into the merits. People v. Board of Police, 72, 415. When issued under 2 E. S. 49, § 47, court may examine and correct any erro- neous legal decision of the officer. More- wood v. Hottister, 6, 309. To review criminal conviction by justice of peace sitting as special sessions — court may review facts. Barringer v. People, 14, 593. To review summary conviction under penal statute brings up question of suffi- ciency of evidence. Mullins v. People, 24, 399. Court may review merits. Freeman v. Ogden, 40, 105. To review proceedings of assessors brings up merits. People v. Assessors, 40, 154. Questions of fact on conflicting evidence not reviewable. People v. Board of Police and Excise, 69, 408. Eequiring return of proceedings to tax to pay interest on bonds — regularity of bonds cannot come in question. People v. Common Council of Long Island City, 76, 20. Quashing writ, or remanding case dis- cretionary. Jones v. People, 79, 45. Bringing on for hearing at Special Term where made returnable, proper. People v. Nichols, 79, 582. IV. Costs. Referee may enforce collection of fees even during pendency of certiorari to re- view proceedings. Disosway v. Winant, 1 Abb. 508. May be awarded on appeal from the de- cision of highway commissioners. People v. Van Alstyne, 3 Abb. 575. When not awardable. People v. Board of Police, 39, 506. Challenge. See Criminal Law ; Jtcry ; Teial. CHAMPERTY — CLAIM AND DELIVERY, I. 87 CHAMPERTY. Deed of laud held adversely by bank- rupt to assignee, valid. Colemom v. Man- hattan, etc., Co., 94, 229. Where there is doubt as to possession, deed of land claimed adversely is not void. Writing v. Edmunds, 94, 809. Possession of grantee of tenant for life, claiming fee after grantor's death, is ad- verse to that of remainderman or rever- sioner, and the latter's conveyance is void. Christie v. Gage, 71, 189. Contract to procure lands from State for part of lands, not void. Sedgwick v. Stan- ton, 14, 289. See Adverse Possession. Charitable Devises and Bequests. See Will. Chamberlain v. Chamber- lain, 43, 424 ; Adams v. Perry, 43, 487. CHARTER. By king in 1684 to Dutch Church. At- torney-General v. Minister, etc., 36j»452. See Constitutional Law ; Municipal Corporation. Chattel Mortgage. See Evidence ; Mortgage. Check. See Bank ; Negotiable Instrument ; Payment. Child. See Advancement ; Guardian and Ward ; Infant ; Negligence ; Parent and Child ; Will. Church. See Religious Society. Citizen. See Alienage ; Domicile ; Conflict of Laws ; Constitutional Law ; Removal of Cause. City. See Municipal Corporation. CIVIL DAMAGE ACT. Is constitutional as to landlord letting premises for sale of liquors. Bertholf v. O'Reilly, 74, 509 ; 30 Am. Rep. 323. Wife may maintain action for loss of means of support by intoxication of hus- band. Rill v. Berry, 75, 229. Action lies for death — married woman liable as owner of building where liquors sold by her husband — proximate cause — possession before passage of act. Mead v. Stratton, 87, 493 ; 41 Am. Rep. 386. Injury to plaintiff's minor son not pre- sumed injury to "means of support." Volans v. Owen, 74, 526 ; 30 Am. Rep. 337. Action lies by dependent child whose father killed his wife and himself — ex- emplary damages allowable. New v. Ma- Kechnie, 95. CLAIM AND DELIVERY. I. When action lies. II. Practice. ID. Affidavit. IV. Bond. V. I. When action lies. Against one who has had and has parted with possession. Latimer v. Wheeler, 1 Keyes, 468. Actual possession and equitable interest, when sufficient to maintain. Johnson v. Carnley, 10, 570. In cepit only lies for injury to land. StockweU v. Phelps, 34, 363. Does not lie to recover property seized for tax. Eudler v. Golden, 36, 446. 88 CLAIM AND DELIVERY, IL— CLOUD UPON TITLE. When does not lie for money — bar. Soger v. Blain, 44, 445. Does not lie for check, by maker, after payment. Barnett v. Selling, 70, 492. In action by mortgagee against owner, judgment should be for return, or amount due on mortgage with damages for deten- tion. Alien v. Judson, 71, 77. Does not lie for property taken for tax, by warrant regular on its face, although tax is erroneous. Troy & Lansingburgh B. Co. v. Kane, 72, 614. When defendant gives bond and retakes, he is estopped from denying that he had possession. Diossy v. Morgan, 74, 11. Seizure of chattels of one on lands as- sessed to another, when not " taken for a tax." Lake Shore, etc., By. Co. v. Boach, 80, 339. Claim of title is waiver of lien — action by tenant in common against vendee of co-tenant. Hudson v. Swan, 83, 552. Will not lie for owner to recover stolen property detained by police authorities. Simpson v. St. John, 93, 363. II. Practice. On death of plaintiff in replevin from sheriff, the sheriff may retake. BurMe v. Luce, 1, 163. Demand of director of railroad, suffi- cient — detinue lies although possession has been parted with. Dunham v. Troy Union B. Co., 3 Keyes, 543 Offer to return — damages. Brewster v. SiUiman, 38, 423. When requisition protects officer — evi- dence of declarations. Bullis v. Mont- gomery, 50, 352. Confusion of goods by defendant does not relieve him. Samson v. Bose, 65, 411. Sheriff may not take goods of defend- ant's wife. Otis v. Williams, 70, 208. Action against officer for conversion under — indemnity — demand — history of remedy in this State. Manning v. Kee- nan, 73, 45. III. Affidavit. In justice's court — sufficiency, Dennis v. Crittenden, 42, 542. IV. Bond. With one surety may be good. Shaw v. Tobias, 3, 188. Delivery to sheriff may be waived by parties, and sureties are estopped. Har- rison v. Wilkin, 69, 412. Action on undertaking — irregularity in execution — estoppel — that property can- not be reachedv no defense.. Harrison v. Wilkin. 78, 390. V. Judgment. Judgment must be in alternative. Dwight v. Unas, 9, 470; Mtzhugh v. Wiman, 9, 559. Judgment limited to amount of lien held sufficient. Fowler v. Haynes, 91, 346. Clerk. See County. Clekk. Client. See Attorney and Client. CLOUD UPON TITLE. Prima facie record title not essential to constitute. Fonda v. Sage, 48, 173. Action not maintainable when title not legally affected. Farnhamv. Campbell, 34,480. Action to remove", does not lie where defect necessarily appears in proceedings to enforce lien — assessment. Marsh v. City of Brooklyn, 59, 280. Action does not lie to set aside receiver's deed not on its face conveying hostile title. Bockes v. Lansing, 74, 437. Bill to remove, not entertained where it is apparent from inspection that no danger is to be apprehended — as a deed on sale under mortgage to the State, including land not included in advertisement. Cox v. Clift, 2, 118. When action will not lie to set aside assessment sale. Guest v. City of Brook- i, 69, 506. CLOUD UPON TITLE — COLLEOTOES. 89 Action lies to set aside invalid tax sale ■where certificate is a lien. Crooke v. Andrews, 40, 547. When consummation of tax sale will not be enjoined. Howell v. City of Buffalo, 2 Abb. 412. Apparent unconstitutionality of assess- ment, no ground for setting aside. Wells v. City of Buffalo, 80, 253 ; Stuart v. Pal- mer, 74, 183 ; 30 Am. Rep. 289. Unconstitutionality of tax no ground for setting aside. Townsend v. Mayor,, etc., 77, 542. Forged deed — paid judgment or mort- gage — when execution purchaser may have it canceled. Remington Paper Go. v. O'Dougherty, 81, 474. Mortgage by tenant in common of whole farm, and judgment of foreclosure, are not. Ward v. Dewey, 16, 519. When suit of parties in possession of land under paper title to restrain sale under mechanic's lien against a third party is not maintainable. Lehman, v. Roberts, 86, 232. Merely speculative daager will not justify action to remove — irregular assess- ment. Sanders v. Village of Tonkers, 63, 489. Owner of land may restrain a city from executing a deed on sale under an alleged assessment never made, the statute declar- ing such conveyances prima facie evidence of a valid assessment. Scott v. Onderdonk, 14,9. Action quia timet lies for irregular assessment when certificate of sale under it is prima facie evidence of title. Allen v. City of Buffalo, 39, 386. Assessment under act of 1871, chap- ter 670, section 12, where not — allega- tions of fraud. Dederer v. Voorhies, 81, 153. One in possession under void foreclosure may maintain action against stranger to equity with paper title apparently good but really bad. Craft v. Merrill, 14, 456. Action to set aside United States inter- nal revenue collector's deed on tax sale — lis pendens — evidence. Brown v. Good- win, 75; 409. 12 Sheriff 's certificate of sale* under judg- ment. Lounsbury v. Purdy, 18, 515. Action does not lie to set aside sheriff's certificate of execution sale in favor of owner under unrecorded deed older than judgment. Schroeder v. Owrney, 73, 430. Spurious certificates of railroad stock, when. New York & N. H. R. Co. v. Schuyler, 17, 592. Recorded executory contract for sale of land executed by unauthorized agent is not. Washburn v. Burnham, 63, 132. Assessment adjudged void by this court for want of power to make, is not. Cliase v. Cliase, 95, 373. Comptroller's certificate of sale of land on tax illegally laid is not. Clark v. Davenport, 95, 477. Code. See Action; Pleading- Statute, and various specific titles. Codicil. See Will. COLLECTORS. Town — term of office of those to be elected may be extended by legislature — oath may be taken at any time before for- feiture — entitled to notice to file bond. People v. McEinney, 52, 374. See Office and Officer; Taxation. Colleges. See Subscription; Trusts; Wills. Collision. See Highway; Negligence; Railroad; Ship and Shipping. 90 COMMISSION — COMPTEOLLEE. COMMISSION. To take testimony — cannot issue after judgment and appeal and pending appeal. McCollv. Sun Mitt. Ins. Co., 50, 332. See Evidence ; Trial. Commission Merchant. See Agency. Commissions. See Executor and Administrator; Surrogate; Trusts. Communications. Privileged. See Attorney and Client ; Evidence; Libel and Slander. Complaint. See Pleading. COMPOUNDING FELONY. "What constitutes — mortgage. Bo/rlv. Clute, 2 Abb. 1. COMPROMISE. If fairly entered into, is conclusive. Wehrum v. Kuhn, 61, 623. When binding. Baxter v. Bell, 86, 195. Ineffectual unless signed. Bliss v. Shwarts, 65, 444. When note valid, although there was a good defense to original claim. Feeter v. Weber, 78, 334. Of claim without consideration is not binding. Bunge v. Koop, 48, 225; 8 Am. Bep. 486. Withdrawal of legal proceedings, suffi- cient consideration to support agreement for division of property in suit. Downer v. Church, 44, 647. When operates as satisfaction. Babeock v. Bonnell, 80, 244. . Of part of entire demand does not nec- essarily merge the whole. O'Beirne v. Lloyd, 43, 248. May be made by parol with- each creditor — tender need not be kept good. Chem- ical Nat. Bank of New York v. Kohner, 85, 189. When transaction is purchase and sale and not compromise. Goldenberg v. Hoff- man, 69, 322. See Debtor and Creditor. COMPTROLLER. May foreclose mortgage assigned by bank for redemption of its notes. Flagg v. Munger, 9, 483. May not transfer a mortgage held by him as security for circulating bank notes, to a third person. Mitchell v. Cook, 1, 538. Deed for taxes — presumptive evidence — notice to redeem. Hand v. Ballou, 12, 541. Omission to publish notice for redemp- tion invalidates — mistake in notice fatal. Thompson v. Burhans, 61, 52. His deed may be shown void for in- sufficiency of affidavit to assessment-rolls. Johnson v. Elwood, 53, 431. Void for reciting sale for non-resident taxes when taxes were against a former owner. Bitter v. Worth, 58, 627. When presumption of regularity not overcome — publication — time of sale. Colman v. Shattuck, 62, 348. Constructive possession under void comptroller's deed. Thompson v. Bur- hans, 61, 52. Of New York city may vacate judgment against the city obtained by collusion or fraud. Baldwin v. New York City, 1 Abb. 75. Effect of deed for taxes. Tallman v. White, 2, 66. Deed of tideway in New York — re quisites. Mayoi; etc., v. Hart, 95, 442. CONFISCATION — CONFLICT OF LAWS. 91 Condonation. See Makriage — Divorce. Confession. See Criminal Law — Evidence. Confession of Judgment See Judgment. CONFISCATION. When not valid to protect bank in re- fusing to pay check to payee. Sisley v. Phoenix Bank of City of New York, 83, 318; 38 Am. Rep. 431, note; affirmed, 30 Alb. L. J. 30. When proceedings void for not properly describing owner — denial of petition in Federal court to set aside, no bar. Chap- man v. Phmnix Nat. Bank of New York, 85, 437. CONSANGUINITY. Judge disqualified by, cannot sit even by consent. Oakley v. Aspinwall, 3, 547. Judge is disqualified by consanguinity to a party who is a mere surety or indem- nified. Id. CONFLICT OF LAWS. Personal property in New Jersey does not pass under assignment here if it is in- valid there. OuiUander v. Howell, 35, 657. Process of this State superior to assign- ment in another State. Kelly v. Crapo, 45, 86; 6 Am. Rep. 35; reversed, 16 Wall. 610. Assignment for benefit of creditors by non-resident, conveys property here. Ockerman v. Cross, 54, 29. Assignment to creditors — foreign attach- ment. Van Buskvrk v. Warren, 2 Keyes, 119; reversed, 7 Wall. 139; 38 How. Pr. 52. Assignment for creditors in another State — when creditors here may question validity — presumption as to creditor's knowledge of recording of assignment in Pennsylvania. Stedman v. Davis, 93, 32. As to check — jurisdiction — attachment — foreign assignment. Hibemia Nat. Bk. v. Lacombe, 84, 367 ; 38 Am. Rep. 518.' Situs of debt created by arbitrators' award here, is here. Williams v. Ingersoll, 89, 508. Payment of dividends by foreign bank, determined by law of place , of bank. Graham v. First Nat. Bk. of Norfolk, 84, 393; 38 Am. Rep. 528. Circulation here of bills of bank of another State under five dollars, when not unlawful. Merchants' Bank v. Spalding, 9, 53. A foreign corporation may make and enforce in this State contracts legal here though not legal where it resides. Bard v. Poole, 12, 495. Counter-claim litigated in action in another State cannot be set up in action here on judgment rendered there. Patrick v. Shaffer, 94, 423. As to measure of damages — lex loci contractus. Dike v. Erie By. Co., 45, 113; 6 Am. Rep. 43. As to factors' act. First Nat. Bk. of Toledo v. Shaw, 61, 283. Contract of indorsement — governed by lex loci. Cook v. Litchfield, 9, 279. Contract between indorser and drawer of bill drawn and indorsed abroad but payable here, regulated by our law — otherwise as between indorser and indorsee. Everett v. Vendryes, 19, 436. A citizen of one State suing in another State may still object to discharge of his debtor under insolvent law of the latter. Donnelly v. Corbett, 7, 500. Assignment of insurance policy here to citizen of Maryland controlled by law of this State. Barry v. Equitable Life Ass. Society, 59, 587. Interest governed by laws of State where action accrues. Brown v. Knapp, 79, 136. Bonds — usury. Curtis v. Leavitt, 15, 9. 92 CONFLICT OF LAWS — CONSIDERATION. On note made, dated and payable here but negotiated in another State, our law of usury applies. Jewell v. Wright, 30, 259. Note made and delivered in Ohio, but dated and payable at place in this State, draws interest at rate allowed here. Cron- mger v. Crocker, 62, 151. Drafts drawn and discounted in Canada, naming no place of payment — Canada contract and usury no defense. Merchants' Bk. v. Oriswold, 72, 472; 28 Am. Rep. 159. Note made and payable here, void if negotiated in another State at rate of in- terest unlawful here. Dickinson v. Ed- wards, 77, 573 ; 33 Am. Rep. 671. Loan negotiated in another State, at in- terest lawful there but usurious here, not void because obligation executed here and payable here. Wayne Co. Sav. Bk. v. Low, 81, 566 ; 37 Am. Rep. 533. Decree of another State as to executor. Rice v. Harbeson, 63, 493. Effect of judgment against one of sev- eral joint debtors. Swydam v. Barber, 18, 468. Decisions of court of sister State on commercial law not obligatory here — when will not control though contract to be performed in another State. Faulk- ner v. Hart, 82, 413 ; 37 Am. Rep. 574. Plea of statute of limitations of another State, where contract was made, no bar to action here. Miller v. BrenJiam, 68, 83. Marriage in another State of party pro- hibited here, by divorce decree from remar- rying, valid. VanVoorhis v. Brintnall, 86, 18 ; 40 Am. Rep. 505. Marriage in another State by divorced person valid. Moore v. Hegeman, 92, 521; 44 Am. Rep. 408. Legitimacy of child dependent on law of domicile of parents when married. Miller v. Miller, 91, 315; 43 Am. Rep. 669. Married woman living in another State, and owning separate property, may sue here in her own name for injury to it here. Stoneman v. Erie By. Co., 52, 429. Rights of wife, married in Prance, as creditor of husband under French law, continue here. Bortati v. Welseh, 24, 157. When chattel mortgagee may main- tain action of conversion against one who purchased the mortgaged property in Canada in good faith. EdgerVy v. Bush, 81, 199. Chattel mortgage on property and by parties in Pennsylvania, and void there, void here. Wattson v. Campbell, 38, 153. Contract of partnership in Cuba gov- erned by laws of Spain. King v. Sarria, 69, 24 ; 25 Am. Rep. 128. In absence of proof, lex loci presumed to be same as lex fori. Chopin v. Bob- son, 78, 74 ; 34 Am. Rep. 512. Where no proof of Russian law our law made the test. Savage v. O'NeU, 44, 298. Presumption that law of another State was complied with — validity of mortgage of chattels. Nichols v- Mase, 94, 160. Presumption is that Court of Common Pleas of another State is of general juris- diction — presumption in favor of judg- ment. Pringle v. Woolworth, 90, 503. Construction of statute of another State by courts of that State generally conclu- sive here. Jessup v. Carnegie, 80, 441; 36 Am. Rep. 643 ; Hunt v. Hunt, 72, 217; 28 Am. Rep. 129. Charitable trusts under will, when void. Levy v. Levy, 33, 97. Will of personalty, made in California, valid there but void here — our courts will remit to California for distribution. Despard v. Churchill, 53, 192. Double administration of estate — bur- den of proof — presumption. Matter of Accounting of Hughes, 95, 55. See Assignment fob Creditors ; Con- tract ; Corporation ; Executor and Administrator ; Marriage ; Usubif ; Will. CONSIDERATION. Suspension of prosecution of suit valid to uphold note. Meltzer v. Boll, 91, 365. New note in ignorance of payment of original debt is without consideration, Pratt v. Foote, 9, 463. CONSIGNOK AND CONSIGNEE — CONSTITUT'AL LAW. 93 What is not valuable, as against credit- ors of an insolvent vendor. Seymour v. Wilson, 19, 417. Release of claim under contract ultra vires held valid to sustain agreement to pay for benefit secured therefrom. Wile v. Wilson, 93, 255. Finding of referee that party executed instrument reciting, conclusive in this court. Cody v. Allen, 18, 573. See Assignment ; Compromise ; Con- tract; Deed; Evidence; Fraud; Ne- gotiable Instrument ; Mortgage. CONSIGNOR AND CONSIGNEE. Consignor may impose conditions, and consignee can acquire title only by per- forming. Cayuga Oi>. Nat. Bk. v: Dan- iels, 47, 631. When intermediate consignee not liable for freight. Bart v. Ensign, 47, 619. See Agency ; Bill of Lading ; Car- rier ; Ship and Shipping ; Ware- houseman. CONSPIRACY. When action for conspiracy to defraud is maintainable — evidence of declarations. Place v. Minster, 65, 89. Action lies for, fraudulently to use le- gal proceedings to injure another. Ver- planck v. Van Buren, 76, 347. See Criminal Law. Constable. See Office and Officer; Sheriff. CONSTITUTIONAL LAW. I. In i 1. What constitutional. 2. What unconstitutional. II. Municipal corporations. III. Legislative power. 1. Generally. 2. Excise statutes. 8. Jurisdiction of State statutes. 4. Public health. 5. Maritime laws. 6. Ex post facto laws. '7. Police regulations. 8. New counties. 9. Corporate franchises. 10. Local statutes. 11. Public education. 12. Agricultural leases. IV. Judicial department. 1. Courts. 2. Construction of statutes. 3. Due process of law. 4. Practice and evidence. 5. Jury. 6. Challenges. 7. Judiciary. 8. Reference and referee. V. Executive power. VI. Taxation and assessment. VII. Obligation of contracts. VIII. Eminent domain. I. In general. 1. What constitutional. A law authorizing transfer of property by owner to another with owner's con- sent. Embury v. Conner, 3, 511. Chapter 194, Laws of 1849, for protec- tion of shell-fish. State v. Levinus, 8, 472. Act of 1842, exempting certain property from execution. Morse v. Ooold, 11, 281. The enactment that claims for canal damages must be presented within a year. Bexford v. Knight, 11, 308. Act concerning intrusion on Indian lands. People v. Dibble, 16, 203 ; affirmed, 21 How. (IT. S.) 366. Provisions of act of 1849 concerning insolvent banks. U. S. Trust Co. v. II. S. Fire Ins. Co., 18, 199. Statute authorizing release of escheated lands. Englishbe v. Hehnuth, 3, 294. Act of 1805 concerning grants in fee re- serving rent. Van Rensselaer v. Hays, 19, 68; Van Rensselaer v. BaU, 19, 100. 94 CONSTITUTIONAL LAW, I. 1. Statute freeing slaves voluntarily brought to this State by master. Lemmon v. People, 20, 562. Married women's acts of 1848 and 1849 not unconstitutional because they defeat curtesy in wife's subsequently acquired lands. Thurber v. Townsend, 22, 517. Law repealing law imposing tolls on railroad freight. People v. New York Gent. B. Co., 24, 485. Act to secure payment of debts of manufacturing companies without pref- erence. Story v. Furman, 25, 214. Act authorizing electors of incorporated village to determine what sections of gen- eral village act shall apply to them ; re- newal of tax warrant. Bank of Chenango v. Brown, 26, 467. Drainage law — how far constitutional. People v. Nearing, 27, 306. Federal legal tender act; refusal of bank to redeem its bills in specie authorizes superintendent to sell its securities de- posited with him. Metropolitan Bank v. Van Dyck, 27, 400. Act to compensate sufferers from riots (April 13, 1855). Darlington v. Mayor, 31, 164. Estray law (1862, chapter 459, as amended, 1867, chapter 814). Campbell v. Evans, 45, 356 ; Cook v. Gregg, 46, 439. Act as to bounties valid. Powers v. Sliepard, 48, 540. Militia courts-martial — imprisonment to enforce judgment of. People v. Dan- iell, 50, 274. Act of 1872, chapter 580, as to local im- provements in New York city. Matter of Delancey, 52, 80. Act of 1861, chapter 308, making board of revision of assessments. Petition of Volkening, 52, 650. Act of 1869, chapter 272, as to improve- ment of highways in Yonkers and East Chester. Odell v. Be Witt, 53, 643. Act of 1861, chapter 333, section 3, as to forfeited recognizances. People v. Quigg, 59, 83. Game law, act of 1871, chapter 721, sec- tions 7, 8, 33. Phelps v. Bacey, 60, 10 ; 19 Am. Rep. 140. Drainage act of 1872, chapter 639. People v. WiUsea, 60, 507. Appointment of Central park commis- sioners. Astor v. Mayor, etc., 62, 567. Act of 1860, chapter 509. Devlin v. Mayor, etc., 63, 8. Act to perpetuate testimony respecting Pulteney estate valid. Howard v. Moot, 64, 262. Act of 1873, chapter 531 — Greenwood and Coney Island R. Co. — act of 1874, chapter 448, Park Avenue R. Co. Mat- ter of Application of Prospect Park, etc., B. Co., 67, 371. Act of 1876, chapter 439, relating to judicial sales in Kings county — title of act — increasing fees. Kerrigan v. Force, 68, 381. Provision of act of 1873, chapter 335, section 114, as to city officers holding county office. Billings v. Mayor, etc., 68, 413. Drainage act, 1869, chapter 888 ; 1871 chapter 303. Matter of Application of Byers, 72, 1; 28 Am. Rep. 88. Act of 1877, chapter 165, concerning Brooklyn bridge. Matter of Petition of Trustees of New York and Brooklyn Bridge, 72, 527. Act of 1874, chapter 209, authorizing supervisors to agree with county having penitenitary, for receiving prisoners, and authorizing sentence direct. Brown v. People, 75, 437. Act of 1866, chapter 576, authorizing deposit of fund for security of registered policy-holders, not in conflict with article 8, section 1, of Constitution — does not create but regulates — such fund not a loan, but deposit — loaning credit of State constitutional, article 7, section 9. Attor- ney -General v. North Amer. Life, 82, 172. Statutes (Laws 1866, chapter 633 ; 1867, chapter 962; 1870, chapter 297; 1877, chapter 64 ; 1879, chapter 89) requiring payment of percentage on insurance pre- miums in New York to exempt firemen's fund and not repealed by Laws 1880, chap- ter 542, etc. Trustees of Exempt Fire- men's Fund v. Boome, 93, 313 ; 45 Am. I Rep. 217. . CONSTITUTIONAL LAW, I. 2— II. 95 Provision as to street railway legislation prospective — Laws 1876, chapter 187, as to Brooklyn railways. People"?. Brooklyn, etc., R. Co., 89, 75. Statute allowing bondsmen to be sub- stituted for sheriff in action for chattel levied on. Hessberg v. Riley, 91, 377. Laws 1875, chapter 482, section 1, sub- division 9, amended by Laws 1880, chapter 365, and 1881, chapter 554, as to assess- ments by supervisors for improvements in counties containing city of 100,000 inhabit- ants — appropriation of property for im- provement and compensation.' Matter of Church, 92, 1. State statute forbidding lottery. People v. Noelke, 94, 137. Act of 1878, chapter 410, as to laying out highways. Matter of Application of Woolsey, 95, 135. 2. What unconstitutional. Act of April 11, 1842, extending exemp- tion of personal property. Danks v. Quack- enbush, 1, 129. Act for completion of Erie canal en- largement, July 10, 1851. Newell v. Peo- ple, 7, 9. A statute dependent on popular vote for adoption. Barto v. Him/rod, 8, 483. Act requiring oath of non-participation in rebellion as condition of voting. Oreen v. Shumway, 39, 418. Laws of 1871, chapter 383, section 49, as to Court of Special Sessions in New York city. Huber v. People, 49, 132. Acts of 1872, chapter 700, and 1872, chap- ter 734, for creation of debt. People v. Board of Supervisors of Kings Co. , 52, 556. Act of 1868, chapter 776, as to vesting State lands in Marlborough, because it did not appear from statute book on original to have received two-third vote. People v. Commrs. of Highways of Marl- borough, 54, 276; 13 Am. Rep. 581. Act of 1871, chapter 385, section 1, ex- tending term of office of Newtown col- lector under name of receiver of taxes. People v. Brooks, 53, 648. Act providing that commissioners to ap- praise damages for land to be taken for streets shall be drawn from a larger num- ber of names. Menges v. City of Albany, 56, 374. Lease of agricultural land for more than twelve years, although leased for other than agricultural purposes. Odell v. Du- rant, 62,' 524. Agricultural lease — two leases at same time for an aggregate of more than twelve years, void — when prior lease not rein- stated. Clark v. Barnes, 76, 301; 32 Am. Kep. 306. Act of 1844, chapter 86, as to appoint- ment of commissioners to assess land dam- ages. Hilton v. Bender, 69, 75. Unconstitutionality of statute under which officer acts no defense for violation of duty. Hall v. People, 90, 498. Election of justices of peace — act of 1881, chapter 564, sections 1, 2, unconsti- tutional. Peoples. Schiellein, 95, 124. II. Municipal corporations. Laws 1880, chapter 59, section 4, dis- charging the city of Yonkers from liability on original negotiable bonds upon issuing duplicates unconstitutional. People v. Otis, 90, 48. Legislative powers as to elections in cities — Laws 1881, chapter76, as to charter of Troy valid. People v. Crissey, 91, 616. Alteration of boundary of city involv- ing alteration of assembly district — when cannot be made. Kinne v. City of Syra- cuse, 3 Keyes, 110. Port warden act for New York city (1857) constitutional. Tinkham v. Tap- scott, 17, 141. An act confining powers on the author- ities of a municipal corporation subject to the approval of the inhabitants by vote is constitutional. Bank of Rome v. Village of Rome, 18, 38. Act of 1875, chapter 2, as to Hamburgh turnpike in Buffalo valid — legalization of illegal acts of municipality. Tifft v. City of Buffalo, 82, 204. Creation of office of commissioner of records in New York city, act 1855, chapter 407, constitutional. People v. Palmer, 52,83. 96 CONSTITUTIONAL LAW, IIL 1. Act of 1859, providing for closing tun- nel of Long Island railroad in Atlantic street, Brooklyn, and that of 1860, rela- tive to assessments in Brooklyn, valid. Litchfield v. Vernon, 41, 123. Act of 1872, chapter 771, amending acts in relation to city of Rochester, valid. People v. Briggs, 50. 553. Act of 1860, chapter 501, to prohibit dramatic performances in city of New York on Sunday, is valid. Neuendorffv. Duryea, 69, 557 ; 25 Am. Rep. 235, note. Rapid transit act, 1875, chapter 606, valid. Matter of Petition of New York Elevated R. Co., 70, 327.; Matter of Peti- tion of Gilbert Elevated By. Co., 70, 361 Act of 1875, chapter 300, authorizing Brooklyn bridge, valid — "city purpose." People v. Kelly, 76, 475. Act of 1876, chapter 445, as to Western avenue, Albany^ valid. People v. Banks, 67, 568. Actof 1873, chapter 335. vesting appoint- ment of commissioner of juries in com- mon council of New York, valid. Peo- ple v. Dunlap, 66, 162. Act of 1874, chapter 604, for laying out portions of New York city, valid. ' Matter of Application of Dept. of Pub, Parks, 86, 437. Act of 1874, chapter 638, ratifying town bonding proceedings, valid. Sogers v. Stephens, 86, 623. Act of 1869, chapter 876, section 11, pro- hibiting New York common council from creating new officers, valid. Sullivan v. Mayor, etc., 53, 652. Laws of 1872, chapter 872, relating to New York city, constitutional. Matter of Upson, 89, 67. Charter of village of Corning, constitu- tional. SiU v. Village of Corning, 15, 297. Charter of Watertown, 1871, chapter 810, section 38, invalid. City of Water- town v. Fairbanks, 65, 588. Law compelling municipal corporation to become stockholder in railroad against its will is invalid. People v. Batchellor, 53, 128; 13 Am. Rep. 480. Chapter 93, Laws of 1883, as to manu- facture of tobacco in tenement-houses in New York city. Matter of Paid, 94, 497. III. Legislative power. 1. Legislature may enact that a city shall not be liable in damages for act or omission of officers. Or ay v/City of Brooklyn, 2 Abb. 267. Statute altering boundary of assem- bly district by altering boundary of city, unconstitutional. Kinne v. City of Syra- cuse, 2 Abb. 534. When legislature may change salary of city officer. Conner v. Mayor, etc. , 5, 285. The legislature has no power to order a sale of lands devised in trust and the invest- ment of the proceeds, none of the bene- ficiaries being minors, insane or otherwise incompetent. /Powers v. Bergen, 6, 358. The legislature cannot deprive husband of his interest in a legacy to wife before 1848. Westervelt v. Gregg, 12, 202. Grant of public lands contiguous to Salt Springs oonveys no inheritable inter- est. Newcomib v. Newcomb, 12, 603. Legislature may authorize joinder of legal and equitable causes of action. Phil- lips v. Gorham, 17, 270. The legislature may authorize a muni- cipality to subscribe for railroad stock and levy tax therefor. Bank of Pome v. Vil- lage of Borne, 18, 38. Legislature may provide for selling real estate of infants in esse or to be born. Leggett v. Hunter, 19, 445. Legislature may authorize a special county judge to take bail. People v. Main, 20, 434. Personal liability of stockholderaof banks — legislative power to modify. Matter of Oliver Lee & Co.'s Bank, 21, 9. The legislature may determine qualifica- tions of attorneys. Matter of Cooper, 22, 67. Legislature may extend term of officers of city by repeal or modification of act providing for election of successors. Peo- pie v. BatcJtelor, 22, 128. Legislature may fix time of payment of State loan. People v. Denniston, 23, 247. Legislature may enact a law regulating the traffic in intoxicating liquors in certain CONSTITUTIONAL LAW, III. 2 — 6. 97 counties. Metropolitan Board of Excise v. Barrie, 34, 657. Where legislature may direct whether office is to be filled by election or by ap- pointment, it may in directing election declare one holding another office ineligi- ble. People v. Glute, 50, 451 ; 10 Am. Rep. 508. Legislature may extend term of town collector to be elected. People v. McKin- ney, 52, 374. Legislature may make a reassessment for municipal improvement where first was irregular. Matter of Van Antwerp, 58, 261. Legislature may ap'point commissioners for widening a particular highway and cure defects in form of execution. People v. McDonald, 69, 362. Legislature may require railroad to bridge over a turnpike. People v. Boston & Albany B. Co., 70, 569.' Legislature may abolish board and office of assistant aldermen of city. Demaresi v. Mayor, etc., 74, 16i. Legislature may restrict power of courts to modify municipal assessment for local improvements. Matter of Petition of M'ead, 74, 2i6. Legislature cannot establish court in local district not bounded by town, county of city lines — Niagara police district act of 1881 unconstitutional. People v. Por- ter, 90, 68. The legislature may authorize the re- moval of one holding an office created by it without notice. People v. Whitloclc, 92, 191. 2. Excise- statutes. Prohibitory liquor law of 1855 is un- constitutional, because it destroys prop- erty in liquors possessed at time of enact- ment, and denies trial by jury. Wyne- hamer v. People, 13, 378. Excise act of 1873, chapter 549, section 8, valid. People v. Commissioner of Police, 59, 92. <~ . . , .'--•■ Excise law — title — local option. Vil- lage of Glover smile v. Howell, 70, 287, Civil damage act valid as to landlord letting premises for sale of liquors, Bert- 13 holf v. &EeiUy, 74, 509 ; 30 Am'. Rep. 323. 3. Jurisdiction of State statutes. State insolvent law invalid as to citizens of other States. Donnelly v. Corbett, 7, 500. Authorizing discharge from imprison- ment and from debt, void only as to latter. Id. Organization of one railroad company under statutes of several $tat'es. Board- man v. Lake Shore, etc., m. Co., 84, 1571 4. Public health. Metropolitan sanitary district, act, 1866, chapter 74, constitutional. Metropolitan Board of Health v. Heister, 37,661; 6 Trans. App! 170. 5. Mamtime laws. State law conferring jurisdiction on State court in proceedings in rem against vessel, unconstitutional. In re Steamboat Jose- phine, 89, 19. Act of 1862, giving lien on ships arid vessels, is constitutional. Sheppard' v. Steele, 43, 52 ; 3 Am. Rep. 660. State statute giving lien on sea-going vessel is void; Brookman v. Haniill, 43, 554 ; 3 Am. Rep. 731. Act as to election of commissioners of pilots not unconstitutional. Sturgis v. Spofford, 45^ 446. Act of 1862, chapter 482, as to collecting demands against ships and vessels valid. Happ)jw. Mosher, 48, 313. Act of 1862, chapter 482, giving lien for supplies to vessels engaged in foreign com- merce, is invalid. Poole v. Kermit, 59, 554. 6. Ex post facto laws. Statute taking away right of appeal in pending action not unconstitutional. Gro- wer v. Coon, 1, 536, Act adding preliminary imprisonment to capital sentence ex post facto as to persons under conviction at time of passage. 98 CONSTITUTIONAL LAW, III. 7 — 11. Hartung v. People, 22, 95 ; Shepherd v. People, 25, 406. Laws of 1860, chapter 410, ex post facto as to subsequent convictions for previous crimes. Hartung v. People, 26, 167. 7. Police regulations. Capital police district act of 1865, valid . McMuUen v. Shepard, 3 Trans. App. 354. Erection of police district in New York city valid. People v. Draper, 15, 532. Jurisdiction of police justice may be de- fined by reference to that of a justice of peace in same place. Brandon v. Avery, 22, 469. Metropolitan fire district act valid. People v. Pinckney, 32, 377. Capital police district may be established embracing portions of certain counties. People v. Shepard, 36, 285. Metropolitan police board act — power to appoint police court clerks void. Devoy v. Mayor, etc., 36, 449. Act of 1873, chapter 638, constituting Rensselaer police district invalid. People v. Albertson, 55, 50. Act of 1873, chapter 538, for appoint- ment of police justices in New York city is valid. Wensler v. People, 58, 516. Act of 1881, chapter 415, establishing Niagara police district unconstitutional. People v. Porter, 90, 68. 8. New counties. Formation of new county — act to or- ganize Schuyler county (chapter 386, Laws of 1854) unconstitutional. Lanning v. Carpenter, 20, 447. See Ramsey v. Peo- ple, 19, 41. 9. Corporate franchise. Authority to a safe deposit company to issue certificates for money deposits is not a special charter for banking — act of 1868, chapter 816. Pardee v. Fish, 60, 265 ; 19 Am. Rep. 176. Legislature may authorize one street railway company to use tracks of another upon mailing compensation. Sixth Ave. R. Co. v. Kerr, 72, 330. Act of 1878, chapter 206. invalid, as granting right to a corporation to lay down railroad track. Matter of Application of Brooklyn, etc., B. Co., 75, 335. 10. Local statutes. Title of statute — private or local law. Conner v. Mofyor, etc., 5, 285. Statute — double subject — (1855, chap- ter 337). People v. McCann, 16, 58. Title of private act, what sufficient. Brewster v. City of Syracuse, 19, 116. Special act of incorporation not void be- cause of general act for same general pur- pose. People v. Bowen, 21, 517. Amendment of New York city charter is local act — title not embracing purpose. People v. O'Brien, 38, 193. Title of act, Laws of 1869, chapter 569, as to fees of sheriff of New York. Gaskin v. Meek, 42, 186. Act for improving Boquet river is local and requires two-thirds vote. People v. AUen, 42, 378. Act for bridge over Cattaraugus creek is local. ' People v. Supervisors of Chautau- qua, 43, 10. Local bill — act of 1872, chapter 580, valid. Matter of Petition of Mayer, 50, 504. Act of 1872, chapter 219, sections 3, 4, valid — taking private property — local act. People v. City of Rochester, 50, 525. Private or local bill — one subject ex- pressed in title. People v. Livingston, 79, 279 ; Sweet v. Buffalo, etc., 79, 293. Exclusive right to bridge company. Chenango Bridge Co. v. Paige, 83, 178 ; 38 Am. Eep. 407. 11. Public education. Appropriation of common school fund to building of astronomical observatory is void. People v. AUen, 42, 404. Taxation — acts in regard to normal schools, 1866, chapter 466 ; 1867, chapter 96, construed. Gordon v. Comes, 47, 608. CONSTITUTIONAL LAW, III. 13 — IV. 2. 99 •The establishment of separate schools for colored children is not in violation of the Federal Constitution. People v. Gal- lagher, 93, 438 ; 45 Am. Rep. 232, note. 12. Agricultural leases. Lease for life of agricultural lands and personal property, with agreement to de- vise, in consideration of support for life, is not void as an agricultural lease for more than twelve years, reserving rent or service. Stephens v. Reynolds, 6, 454. Lease not reserving rent, not within prohibition. Parsell v. Stryker, 41, 480. Lease for other purposes, but without restriction, subject to prohibition. Odell v. Durant, 62, 524. Two leases, one for eight, and other for twelve years, made at same time and for same consideration, both void. Clark v. Barnes, 76, 301 ; 32 Am. Rep. 306. IV. Judicial department. 1. Courts. Statute giving jurisdiction to County Courts in assault and battery is void. Kundolfv. Thalhevmer, 12, 593. Statute giving County Courts jurisdic- tion in partition is constitutional. Double- day v. Heath, 16, 80. Act vesting recorder of Troy with pow- ers of Supreme Court justice at chambers is constitutional. Hayner v. James, 17, 316. Act conferring on County Courts juris- diction in foreclosure is constitutional, if premises situated within county. Ar- nold v. Bees, 18, 57. Act establishing Superior Court of Buf- falo is constitutional. International Bank v. Bradley, 19, 245. Legislature may provide for designa- tion of justices of peace to sit in sessions. Nelson v. People, 23, 293. Deed of land in this State not invalid for want of a stamp. Moore v. Moore, 47, 467 ; 7 Am. Rep. 466 ; People v. Gates, 43,40. City Court of Brooklyn can have no ju- risdiction in action of negligence against corporation situated outside the city. Landers v. Staten Island B. Co., 53, 450. Legislature may deprive courts of power to remove lien of void assessments, Lennon v. Mayor, etc., 55, 361. Act of 1870 to amend Code, not invalid because extending jurisdiction of justices of District Courts in New York city. People v. Dudley, 58, 323. Legislature may limit jurisdiction of this court. Butterfleld v. Budde, 58, 489. Act of 1874, chapter 545, section 4, au- thorizing any court to transfer actions to Marine Court, is unconstitutional. Alexan- der v. Bennett, 60, 204. Legislature may invest Marine Court with jurisdiction of assault and battery, without limit as to amount of recovery. Anderson v. Reilly, 66, 189. Court of Special Sessions in New York valid. People v. Justices of Court of Special Sessions, 74, 406. Special Sessions may have exclusive ju- risdiction of petit larceny. People v. Butcher, 83, 240. 2 Construction of statutes. Vested right of landlord not taken away by statute abolishing distress for rent. Conley v. Palmer, 2, 182. Act abolishing distress for rent is valid as to leases in force at the time of its pas- sage. Van Bensselaer v. Snyder, 13, 299 ; Conkey v. Sort, 14, 22. Construction of statute authorizing town railway aid bonds. Stwrin v. Town of Genoa, 23, 439 ; Gould v. Town of Ster- ling, 23, 456. Action is "pending" so long as judg- ment is unsatisfied — Constitution of 1846, article 14, section 5. Wegman v. Ghilds, 41, 159. When senate not deemed "in session." People v. Fancher, 50, 288. Act of 1868, chapter 631, as to widen- ing streets in Brooklyn, construction of. Matter of Sackett, etc., Streets, 74, 95. If part of act unconstitutional, that does not invalidate remainder. Matter of Middleton, 82, 198. 100 CONSTITUTIONAL LAW, IV. 3— VL 3. Due process of law. Seizure and sale of estrays without ju- dicial process is void. Rockwell v. Near- ing, 35, 302. Arresting business of corporation under act of 1869, chapter 902, not depriving of property witliout " due process of law." Attorney-General v. North Amer. Life, 82, 172. See in, 2 ; VI. 4. Practice and evidence. Witness not relieved from testifying' against another in a criminal proceeding on the ground of self -implication if he is protected by statute against such use of his testimony. People v. Hockley, 24, 74. State statute providing for surrender of foreign fugitives from justice is unconsti- tutional. People v. Curtis, 50, 321 ; 10 Am. Rep. 483. Legislature may provide mode of com- mencing action against foreign corpora- tion. Siller v. Burlington, ete.,M<- Co., 70, 223. Act allowing husband and wife to tes- tify applies to actions pending when it took effect. Southwick v. Southwick, 49, 510. One prosecuted before court-martial is entitled to counsel. People v. Van Allen, 55, 31 5. Jury. Trial by jury in action of nuisance is a right. Hudson v. Caryl, 4A, 553. Defendants in quo warranto entitled to jury. People v. Albany & Susquehanna B. Co., 57, 161. Albany county jury law unconstitutional as to grand jurors, but indictment by jury valid to uphold conviction. People v. Petrea, 92, 128. Defendant not entitled to jury in action for foreclosure of mortgage. Carroll v. Beimel, 95, 252 See III, 2, Criminal Law. 6. Challenges. Statute giving people peremptory chal- lenges is valid. Walter v. People, 32, 147. . Act of 1872, chapter 475, as to challenges in criminal cases, valid. Stokes v. People, 53, 164 ; 13 Am. Rep. 492. See Criminal Law. 7. Judiciary. Right of judge to sit on review of his own decision., Pierce v. Delamater, 1, 17. Provision that a court shall consist of eight judges is subject to the contingency of disqualification of judges by consan- guinity. Oakley v. AspinwaM, 3, 547. Legislature may enact that less than eight shall constitute a quorum. Id: Vacancy in office of Supreme Court jus- tice must be supplied at next election, although vacancy occurs too late to give notice. People v. Cowles, 13, 350. Filling vacancy in office of judge caused by resignation, the day before November election, 1871. People v. Potter, 47, 375. Court may appoint special surrogate where other officers disqualified: Matter of Will of Hathaway, 71, 238. County judge cannot act after seventy years of age. People v. Brundage, 78, 403. 8. Reference and referee. Reference of long accounts is valid. Van Marter v. Hotchkiss, 1 Keyes,585. Law providing for reference of contro- versy between receiver of insolvent mutual insurance company and the members is constitutional. Sands v. Kimiark, 27, 147, Sands v. Harvey, 4 Abb. 147. Commissioner of appeals may act as referee. Settle v. Van Ewea, 49, 280. V. Executive power. Governor may sign bill after adjourn- ment of legislature, and within ten days after presentment to him. People v. Bowen, 21, 517. VI. Taxation and assessment. Assessment for street improvements in proportion to benefit is constitutional. People v, Mayor, etc., 4, 419. CONSTITUTIONAL LAW, VII. 101 Taxation of sales of foreign merchandise by brokers — to what extent unconstitu- tional. People v. Maring, 3 Keyes, 374. A commutation militia tax is not a tax within the article requiring passage by •three-fifths of the legislature. People v. ■Supervisors of Chenango, 8, 317. Requisites to passage of bill — certifi- cate — yeas and nays. Id. Legislature may enact that comptroller's deed for taxes shall be presumptive evi dence of regularity of proceedings. Hand v. BqZIou, 12, 541. Legislature may levy a tax on town to pay a claim by an individual against the town, although the claim is not recover able by action, and has been rejected by ■the electors under a legislative submission conditioned to be conclusive. Town of Guilford v. Supervisors, 13, 143. Act (1855, chapter 327) for apportion- ment of taxes is constitutional. Jackson v. Babcock, 16, 246. Requirement that taxing laws shall state object of application, how fulfilled. Peo- ple v. Supervisors, 17, 235. Congress may not exempt from State taxation Federal securities previously is- sued. People v. Commissioners of Taxes, 26, 163. Legislature may enact to sell in fee for taxes — may apportion tax territorially — may tax lands devised in trust for charity school, vesting remainder. Matter of Trustees of New York Protestant Episcopal Public School, 31, 574. State may repeal exemption from taxa- tion, etc. , for militia service. People v. Soper, 35, 629. Lands benefited by street improvements may be assessed therefor. Howell v. City of Buffalo, 37, 267.. Act vesting appointment of tax commis- sioners in New York city in governor js unconstitutional. People v. Raymond, 37, 428. Legislature may authorize town bonds and tax to pay them for construction of highways. People v. Flagg, 46, 401. Exemption of New York hospital from taxation is valid. People v. Commission- ers of Taxes, 47, 501. Tax levy acts of 1863, 1867 and 1868, providing for designation of official news- papers in New York city, valid. Petition of Astor, 50, 863. Legislature may not authorize sale of lands of competent adults except for taxes or assessments. Brevoort v. Qrace, 53, 245. Legislature may not authorize munici- pal corporation to lay tax to pay railroad aid bonds. Weismer v. Village of Doug- las, 64, 91; 21 Am. Rep. 586. Law imposing assessment without no- tice or hearing is unconstitutional — acts 1869, chapter 217, section 4; 1870, chap- ter 619 — " due process of law. '' Stuart v. Palmer, 74, 183 ; 30 Am. Rep. 289. Act of 1867, chapter 360 (Rhinebeck charter), not in violation of article 8, sec- tion 9 — legislature to restrict power of taxation and assessment — appointment of commissioners without notice, not depri-' vation of property without due process of law. Matter of Livingston Street, 82, 621. Remitting owner of lands taken for city improvement to assessment fund illegal, and city liable for compensation. Sage v. City of Brooklyn, 89, 189. Statutes of 1865 and 1875, imposing taxes upon insurance companies of other States to an amount equal to those im- posed by such States on New York com- panies, constitutional. People v. Fire As- ' sociation, etc., 92, 311 ; 44 Am. Rep. 380, note. Taxation of corporations, under Laws of 1880, chapter 542, valid, though Federal bonds not deducted. People v. Home Ins. Co., 92, 328. Laws 1865, chapter 453, for assessment of omitted property without notice, consti- tutional. People v. Assessors of Brooklyn, 92, 430. VII. Obligation of contracts. Act authorizing addition to contract price for municipal improvement beyond what municipality authorized to pay, con- stitutional. Brewster v. City of Syracuse, 19, 116. Alteration of bank charter. Matter of Reciprocity Bank, 22, 9. 102 CONSTITUTIONAL LAW, VIII. — CONTEMPT. Legislature may grant a bridge franchise impairing the value of a previous one, un- less the former was expressly exclusive. Fort Plain Bridge Co. v. Smith, 30, 44. Bonds having been issued for lands taken for a city park, an act of the legis- lature authorizing a sale of any part of the lands free from liens is void, as im- pairing their lien. Brooklyn Park Go. v. Armstrong, 45, 234 ; 6 Am. Rep. 70. Act extending term of actual incum- bents of office unconstitutional. People v. Bull, 46, 57 ; 7 Am. Rep. 302. Legislature may increase price or make additional allowance under contracts for canal work. People v. Dayton, 55, 367. Act of 1871, chapter 460, revising char- ter of Long Island City valid. Harris v. People, 59, 599. State may discontinue work which it has contracted for. Lord v. Thomas, 64, 107. Legislature may shorten term of alder- men in office. Long v. Mayor, etc., 81, 425. State may not impair obligation of con- tracts with it. Danolds v. State, 89, 36; 42 Am. Rep. 277. Limitation of duration of term of office. Berger v. Powell, 94, 591. VIII. Eminent domain. Legislature cannot authorize railroad in highway without compensation to owners of fee. Williams v. N. Y. Cent. R. Co., 16, 97. Highways may cross railways without compensation. Albany Northern B. Co. v. Brovmell, 24, 345. Act of legislature authorizing appraise- ment of damages tor lands taken for pub- lic use without authority is void. Matter of Tovmsend, 39, 17i. When act not void for authorizing com- missioners to condemn lands to sell again. Matter of Comm'rs of Washington Park, 52, 132. Legislature may provide for reassess- ment of damages for land condemned. Clark v. Miller, 54, 538 Legislature may close streets in New York city without compensating owners for loss of right of way if another street be left giving access. Fearing v. Irwiit, 55, 486. Order of confirmation of report of com- missioners directing payment of moriey awarded for lands acquired by railroad into bank subject to order of court in- stead of to owner is valid. Matter of New York Cent., ete., B. Co., 60, 116. Commissioners to assess damages for property taken for public use need not concur — provision that nothing but fraud shall suffice to vacate assessment is valid. Astor v. Mayor, 62, 580. Taking lands for cemetery, invalid. Matt&r of Petition of Deansville Cemetery Assoc., 66, 569 ; 23 Am. Rep. 86. Acts of 1866, chapter 347; 1879, chapter 85 — contemplate public use not private or local — additional powers of commission of appraisal — not prohibited — effort to agree on damages condition precedent, notice of appointment need not be given — only of hearing — legislature deter- mines as to notice. Matter of Middleton, 82, 196. Interest of abutting land-owner in street property, for taking of which com- pensation must be paid. Story v. New York El. B. Co., 90, 122; 43 Am. Rep. 146. CONSUL. Foreign, residing in United States, not liable to be sued in State court, although impleaded with a citizen on a joint con- tract. Valarnio v. Thompson, 7, 576. CONTEMPT. Supreme Court may punish for disobe- dience of order of county j udge in sup- plementary proceedings on Supreme Court judgment. Tremain v. Bichardson, 68, 617. Surrogate's power to punish for. Mat- ter of Watson v. Nelson, 69, 536. A party may not be punished for, in not obeying order to repay moneys col- CONTEMPT — CONTRACT, I. 1. 103 lected on a judgment which has been re- versed. O'Gara v. Kearney, 77, 433. Party not punishable for disobeying order to pay referee's fees, unless other party injured thereby. Fischer v. Raab, 81, 235. When party may be punished for dis- obedience of order to pay alimony. Park v. Park, 80, 156. When attorney not guilty of, in abuse of confidence of court. People v. Randall, 73, 416. Order punishing for, appealable — com- mon council of city liable — practice in proceedings for. People v. Dwyer, 90, 402. Proceedings for, against referee in fore- closure — appeal — suspension of order People v. Bergen, 53, 404. Drawing money from bank in disobedi- ence of injunction is, although " in trust." People v. Kingsland, 1 Trans. App. 270 ; 3 Keyes, 325. When railroad company liable for, in disobeying mandamus to fence. People v. Rochester, etc., R. Co., 76, 294. Refusal to leave books with referee or allow witness to examine — fine — amount how to be ascertained. Sudlow v. Knox, 4 Abb. 326. Remedy for, in supplementary proceed- ings — fine — imprisonment — practice. Brush v. Lee, 1 Abb. 238 ; 2 Trans. App. 95. Refusal of witness to answer before grand jury punishable. People v. Kelly, 24, 74. When party in, court may refuse to hear him. Walker v. Walker, 82, 260. Requisites of warrant after indictment for contempt issued previous to Code of Criminal Procedure. People v. Mead, 92, 415., When party enjoined from prosecution not guilty of, for collecting costs. Ger- man Savings Bank v. Habel, 80, 273. On vacating attachment for, court may not impose condition of not suing for false imprisonment — -costs of appeal. Matter of Bradner, 87, 171. Order to show cause, how served. Pitt v. Davison, 37, 235. Attachment, how issued. Kelly v. Mc- Oormick, 28, 318. CONTRACT. I. What constitutes. 1. In general. 2. Particular subjects. 1 (a.) Sale. (b.) Carrying on trade. («.) Loaning money, (d.) Miscellaneous. II. Consideration. III. Construction and effect. 1. General principles. 2. Particular subjects. TV. Validity. 1. As affected by pubUcpoUcy. 2. When in restraint of trade. 3. Special grounds. 4. Wagering contracts. 5. Effect of illegality. V. Performance and liability. 1. General matters. 2. Part performance. 3. Excuses for performance. 4. Condition precedent. 5. Actions for breach. VI. Rescission. VII. General matters. I. What constitutes. 1. In On sale of newspaper route by one carrier to another, no contract is implied that the publisher shall continue to furnish him papers, although he has recognized him as carrier. Hathaway v. Bennett, 10, 108. A broken contract is superseded by a new one covering the same matters, and left in escrow, to be delivered conditionally, and if the condition is not performed neither can be enforced. Price v. Mc Go wn, 10, 465. Proposal by letter becomes binding upon deposit of acceptance in post-office. Vas- sa/r v. Camp, 11, 441. Letter referring to oral prbposition and accepting it, and requesting acknowledg- 104 CONTRACT, I. 1. ment, is not a contract. Sough v. Brown, 19, 111. By letter and telegraph — what con- stitutes. Trevor v. Wood, 36, 307. By letter — when not complete. Brown v. New York Cent. B. Co., 44, 79. what is not acceptance of offer. Wliite v. Corliss, 46, 467. when parol evidence not competent to modify. Van Keller v. Schulting, 50, 108. repudiation — tender — remedy. Howard v. Daly, 61, 362; 19 Am. Rep. 285. When superseded by and merged in subsequent. Benard v. Sampson, 12, 561. Vendor of stocks to a banking corpora- tion, taking notes therefor which the corporation was prohibited under penalty from making, may still recover the value of stocks on implied undertaking. Tracy v. Talmage, 14, 162. Two instruments, to constitute one con- tract, must be between same parties and not merely to same party. Draper v. Snow, 20, 331. Not executed by all named as parties, when binds others — execution when not to be deemed individual. Chouteau v. Suydam, 21, 179. When proposition equivalent to con- tract. Pratt v. Hudson B. B. Co., 21, 305. What is mere receipt. JFUkins v. Why- land, 24, 338. When implied to pay for use of property delivered in prospect of sale. Bider v. Union India Rubber Co., 28, 379. What is a deposit and not a loan. Payne v. Gardiner, 29, 146. Modification as to time of payment by acceptance of note — offset of damages for lireach, not allowed. Walker, v. Millard, 29,375. What amounts to acceptance of order for delivery of goods. Briggs v. Sizer, 30, 647. When note may be deemed mere receipt for money advanced. Smith v. Bowley, 34, 367. Between A. and B. that A. should sell to B. for notes of C, does not bind C. even if he knew of agreement, ffltch v. Dedrick, 37, 225. Particular, for purchase of land — when minds did not meet. McCotter v. Mayor, etc., 37, 325. Between debtor and creditor that former shall pay to a third is revocable until third knows and assents. Kelly v. Boberts, 40, 432. Acceptance of offer — tender. O'NeM v. James, 43, 84. Offer to transport merchandise and mere assent to proposal do not constitute — acceptance. Chicago, etc. , B. Co. v. Dane, 43, 240. To payor reassign — option— time of exercise. Manvel V. Holdredge, 45, 151. In two contemporaneous papers — must be read together. Sogers v. Smith, 47, 324. Entire — delivery condition precedent — no demand or tender of payment necessary. Mount y. Lyon, 49, 552. When not implied, by father of married child, to pay for services of physician to child. Crane y. Bandouime, 55, 257. When party estopped from asserting that he did not understand it — question of performance. PMIMp v. Gallant, 62, 256. Want of privity — implied agreement to indemnify — release from liability. Gla/rk v. Dickinson, 74, 47. ' When no agreement implied to pay for mutual service. Potter v. Carpenter, 76, 157. Agreement to Day for goods, where other party does not agree to sell, revocable before performance — revocation, question for jury — when seller delivers he may sue for price. Quick v. Wheeler, 78, 300. When promise to pay what services worth does not apply. Boss v. Hardin, 79, 84. Services rendered after employer's death — compensation presumed to be same as before. Id. Papers to be submitted to counsel for approval — no contract till delivery — no delivery till approved. Not entitled to spe- cific performance. Dieta v. Farish, 79, 520. Executory — assignment — when vest- ing no title — lien. Hart v. Taylor, 82, 373. CONTRACT, I. 2, *.T-b. 105 When grantor ,pf deed r,emains principal; debtor assumption clause is contract be- tween parties to deed alone. Pardee v. Treat, 82, 385. Offer pi reward — acceptance of, creates! yalid — on compliance entitled to recover, i Pierson y. March, 82, ,503. A mortgage to a trustee by a father for the benefit of a child is an executed con- tract. Bucklin y. Bucklin, 1 Abb. 242. Tlie acceptance of a cargo of goods by a .consignee is an adoption of the contract of shipment. Morse v. Pesant, 3 Abb. 321. Subscription to stock, signed as execu- tor, js distinct f rpm one signed individu- ally. Erie <&N. Y.CityR. Go. v. Patrick, 2 Keyes, 25.6. 2. Particular subjects, (a.) Sale. Sale of letters-patent — privilege of re- assignment after £rial — waiver of trial — seller preventing performance of cpndition. Young v. Hunter, 6, 203. Executory, for sale of stock, transfer and payment to be concurrent — tender requisite. Lester v. Jewett, 11, 453. For sale of stock in manufacturing com- pany partly executed — insolvency of com- pany — rescission — statute of limitations. Stover y. Mack, 30, 64. Sale of railroad bonds with guaranty and conditional agreement for return and refunding — when return may not be com- pelled. Litchfield v. Irvin, 51, 51. To sell goods as low as to others — on breaph of, action maintainable for differ- ence. Holte v. Schmidt, 59, 253. To dpliver poal — provision against dama- ges for nondelivery occasioned by strikes. Delaware, etc., B. Go. v. Bourns, 58, 573. Sale of coal to be taken away at a cer- tain time — when time of essence. Hig- gins v. Delaware, etc., B- Co., 60, 553. Of purchase of bonds subject to right tp return — waiver — laches. Woosfer y. Sage, 67, 67. To supply certain goods not exceeding a certain amount to a certain time if called for — binding to that amount if so called 14 for. Highlands Chemical and Mining Co. v. Matthews, 76, 145. Of sale of goods partly on hand and partly to be manufactured — recovery for former in absence of compliance with con- dition for delivery of latter. Pattridge v. Qildermeister, 1 Keyes, 93. To deliver goods subject to government inspection — failure to pass inspection — when buyer deemed to have waived de- fense. Belafleld v. DeGrauw, 3 Keyes, 467. To sell stock for half proceeds — keep- ing instead of selling, entitled to retain half. Wright v. Wood, 85, 402. (6.) Carrying on trade. For public work — reservation of power to make alterations — measure of recovery. Clark v. Mayor, etc., 4, 338. For building — in accordance with specifications — subject to architect's ap- proval — his acceptance of work or mate- rials not so in accordance will, not bind owner. Glacius.v. Black, 50, 145; 10 Am. Rep. 449. To carry on dairy farm and cheese fac- tory — ownership of products. Wither v. Sisson, 54, 121. Tp manufacture and deliver goods like sample — yendee not bound to return de- fective goods. Ghirney v. Atlantic & Gt. West. By. Co., 58, 358. For construction of railroad — assign- ment to president of company and com- pletion by him by assent of company — equitable assignment. Bisley v. Indian- apolis, etc., B. Go., 62, 240. For work to be certified — refusal of certificate owing to interference of third party when not justified. Bowery Mat. Bank v. Mayor, etc., 63, 336. Tq allow cutting of bark — limitation of time is of essence. Kellam v. McKinstry, 69, 264. For manufacture of articles — shipping G. O. D. at buyer's request — statute of frauds — loss on route — connecting car- rier. Higgins v. Murray, 73, 252. To pay for work certified by engineer — certificate a condition precedent to lia- bility. Wangler v. Swift, 90, 38. 106 CONTEACT, I. 2, c. — III. 1. For cutting of timber — deviation from conditions — waiver by acceptance — no insurance against destruction by casualty. Pike v. Nash, 1 Keyes, 335. To do work on house — building de- stroyed by fire before completion — re- covery quantum meruit. Niblo v. Binsse, 1 Keyes, 476. For building — owner does not neces- sarily waive defective performance by taking possession. Reed v. Board of Education, 3 Keyes, 105. (c.) Loaning money. To advance money on mortgage secu- rity — when mortgagor cannot insist on payment of money as condition precedent to delivering mortgage. Rider v. Pond, 19, 262. To pay money on condition — dependent on promisor's will. Lorillard v. Silver, 36, 578. To loan note on promise of a third to carry it — action against third. Brisbane v. Beebe, 48, 631. To pay mortgage — not enforceable by subsequent grantee of promisor. Miller v. Winchell, 70, 437. For reimbursement of money advanced for business — securities — interest. Beach v. Colles, 85, 511. (d.) Miscellaneous. Subscription to stock — contract to trans- fer — action for breach. Orr v. Bigelow, 14, 556. For division of freights between car- riers — when owner of goods cannot recoup damages to other goods against claim for entire freight. Merrick v. Gordon, 20, 93. "Obey and perform the judgment of the court " — what is breach. Olaflin v. Ball, 43, 481. Parol agreement that lien of judgment shall extend to and cover personal property not enforceable. Lanning v. Carpenter, 48, 408. Guaranty of sub-lease — when not af- fected by surrender. Boscher v. Shaw, 52, 602. To compensate for services by will — compensation only in part — action lies against representative for balance* Rey- nolds v. Robinson, 64, 589. For exchange of insurance policy — parol evidence — note of third person in payment — tender of performance. Shaw v. Republic Ins. Co., 69, 286. To convey land, vendee to erect build- ing thereon, vendor to have privilege to mortgage and convey subject to, in lieu of purchase-money — conveyed subject to no incumbrances — vendee not liable in dam- ages for failure to perform — not material that grantee reconveys. James v. Burchell, 82, 108. Contract to convey real estate — incum- brances. Mann v. Palmer, 3 Abb. 162. II. Consideration. Subscription for religious society binds subscriber when expense has been incurred on the faith of it. Barnes v. Ferine, 12, 18. Subscription, when valid without ex- pressing consideration. Trustees of First Baptist Society v. Robinson, 21, 234. Creditor's promise to extend time of pay- ment of overdue debt in consideration of future interest is not binding. Kellogg v. Olmsted, 25, 189. Oral, for trading venture — considera- tion — mutuality — statute of frauds. Cole- man v. Eyre, 45, 38. To discontinue suit and extend time in consideration of payment of costs, not binding. Parmelee v. Thompson, 45, 58 ; 6 Am. Rep, 33. Consideration — mutuality. Sands v. Orooke, 46, 564. Compromise of doubtful claim is valid consideration. White v. Moyt, 73, 505. til. Construction and effect. 1. General principles. Construction of two on same subject, on different days. Coddington v. Davis, 1, 186. When papers must be construed to- gether. Flagg v. Munger, 9, 483. CONTRACT, III. 2. 107 When provisions distributive and inde- pendent. Tipton v. Feitner, 20, 423. Construction — evidence to vary. Por- ter v. Spence, 38, 119. Time of payment — formation of cor- poration — when formed. C hilds v. Smith, 46,34. Two instruments when construed to- gether — when performance by one is to precede that of the other, action lies against him although the latter has done nothing. Meriden BHttannia Co. v. Zingsen, 48, 247 ; 8 Am. Rep. 549. Construed with reference to well-known state of the law — legal tender decisions in Federal Supreme Court. Woodruffs. Woodruff, 52, 53. Rule of determination of ambiguous sense. White v. Hoyt, 73, 505. Erovince of court to construe — when question for jury. Pwst Nat. Bank v. Dana, 79, 108. Construction where partly in writing and partly in print. Miller v. Hannibal & St. Jo. R. Co., 90, 430 ; 43 Am. Rep. 179. Written matter prevails over printed. Hill v. Miller, 76, 32. 2. Particular subjects. For labor, price fixed by, controls. Sherman v. Mayor, 1, 316. Towing as far as the ice would permit. Vanderslice v. Newton, 4, 130. For purchase of cotton, deliverable in ' future, but not weighed nor ready for de- livery, is executory, and title does not pass. Joyce v. Adams, 8, 291. To keep twenty cows during dairy sea- son and sell the butter to the other party, means so many cows producing milk through the season. Oakley v. Morton, 11, 25. To build a vessel to be paid for at speci- fied stages and subject to final approval — no property passes till completion. An- drews v. Durant, 11, 35. Covenant to transport goods within a given time, and to deduct so much from freight for delay, not alternative. Har- mony v. Bingham, 12, 99. For sale of vessel — construction of — when executory. Decker v. Purniss, 14, 611. To pay debt in merchandise out of debt- or's store on demand. Buck v. Burk, 18, 337. For construction of railroad — measure- ments to be made by engineer — provision for payment in stock — interest. McMa- hon v. N. T. & Erie R. Co., 20, 463. Of consignment — when more than pledge. Milliken v. Dehon, 27, 364. " Fixtures " in contract for sale of " fix- tures belonging to fulling mill and card- ing machine." Martin v. Cope, 28, 180. ' ' General opposition " — subscription — implied condition. Dodge v. Gardiner, 31, 239. Bond to administrator to pay all debts due or to grow due from A. B. (a deceased person), includes costs of settlement of es- tate. Springsteen v. Samson, 32, 703. Architect — when not responsible for builder's faults. Petersen v. Rawson, 34, 370. Mortgage made in 1851, payable in 1857, in gold or silver coin, may be paid in U. S. legal tender notes. Bodes v. Bronson, 24, 649 ; reversed, 7 Wall. 229. Transfer of patent for cleaning coffee. Newell v. Wheeler, 36, 244. Parol evidence admissible to show that an order on a third person for $500 was to be paid in merchandise. Hinnemann v. Rosenback, 39, 98. To deliver merchandise for term of years, so much a year — evidence. Cur- tiss v. Howett, 39, 211. For delivery of gold — how delivery made — gold check. Kinne v. Pord, 43, 587. To deliver vouchers of a public officer, on purchase of goods, does not imply war- ranty of vouchers. Wise v. Chase, 44, 337. For repairs — limitation of amount. Carll v. Spofford, 45, 61. To allow one to dig sand at place to be designated — refusal to designate. Hurd v. Gill, 45, 341. By several, to pay cost of counsel in proposed actions — does not authorize ac- tion by less than entire number. Smith v. Duchardt, 45, 597. 108 CONTRACT, III. 2. Addition of "per agreement " to bill of particulars for services, does not preclude showing value. Bobinson v. Weil, 45, 810. To grade and pave street — to provide and keep in order for a year — if street sinks, contractor bound to restore it with- out compensation. Riley v. City of Brook- lyn, 46, 444. To manufacture — condition that goods must suit purchaser's customers — evi- dence — term of credit. Seltenreich j, Jliemenz, 46, 677. To deliver particular goods of different qualities, known in market and designated by numbers — quantity immaterial — rati- fication. Beck v. Sheldon, 48, 365. Written instrument under seal, when ineffectual to pass legal title to lands — in duplicate — variance between — con- strued together. Moras v. Salisbury, 48, 636. To farm on shares — when owner has exclusive title to crops. Tanner v. HiUs, 48, 662. For cutting timber — when title does not pass. Stephens v. Sautee, 49, 35. Addition of " special committee " does not change individual agreement to one as agent. Orchard v. Binninger, 51, 652. Money generally deemed payable in or- dinary currency. Fabri v. Kalbfleisch, 52, 28. When within act of congress of June 30, 1864, section 97, providing for adding duties — sale of iron ore payable in pig iron. ' Hudson Iron (Jo. v. Alger, 54, 173. For street excavation — when collat- eral work not covered by. Voorhis v. Mayor, etc., 62, 498. Between judgment creditors for main- taining liens on land at joint expense — construction as to rents. Belmont v. Ponvert. 63, 547. As to setting houses back from street. Clark v. New York Life Ins. and Trust Co., 64, 33. To deliver stone during season as fast as vessels could be obtained — breach. Isaacs v. New York Plaster Works, 67, 124. As to counter-claim by action of third person. Bead v. Decker, 67, 182. Where sale of land deemed to be by acre and not by piece — evidence, con- tract and deed. Wilson v. Bandall, 67, 338. To elect between securities — waiver. Wood v. SheMn, 68, 365. For purchase of bonds, with option to other bondholders to accept -r- option must be exercised through the party to the con- tract. Johnson v. Morgan, 68, 494. "Full supply," "laid up," in ice con- tract — fraud or mistake — damages — for- feiture. Kemp v. Knickerbocker Ice Co., 69, 45. For towing—" at risk of master and owner'' — liability of tow-boat owner for negligence of those in charge of tow. Arctic Fvre Ins. Co. v. Austin, 69, 470; 25 Am. Rep. 221. Ante-nuptial agreement of wife to re- lease claims upon husband's estate, rig- idly scrutinized in favor of the wife. Pierce v. Pierce, 71, 154 ; 27 Am. Rep. 22, note. License to manufacture under patent — When provisions are covenants and not conditions — evidence— joint contractors — opinion — comparison of quality — state- ments of vice-president of company. Booth v. Cleveland Boiling Mill Co., 74, 15. When reference to prior inventory does not impliedly embrace all the property de- scribed therein. Leering v. Metealf, 74, 5Q1. To receive goods on exhibition — right to reject goods — return of entrance fee. Denneth v. American Institute, 75, 502. For freight — sufficiency of complaint. Tugman v. National Steamship Co., 76, 207. For commissions to agent effecting life insurances — when they adhere to renew- als of policies after termination of con- tract. Hercules Mut. Life Assur. Soe. v. Brinker, 77, 435. To pay for advertisement in book to be sold by subscription — condition prece- dent. Burr v. American Spiral Spring Butt Co., 81, 175. For furnishing materials — ' ' more or less" — when no definite quantity caJled for. Callmeyer v. Mayor, etc., 83, 116. CONTEACT, IV. 1. 109 For publishing decisions of this c6urt. Little v. Banks, 85, 258. Lease with agreement to work mines f oi royalty — bond. Gilmore v. Ontario Iron Co., 86, 455. Shipping — memorandum receipts not to vary. Fowler v. Liverpool <& Great West. St. Co., 87, 190. For extension of time of payment — when action deemed commenced — collat- eral security. FoxeU v. Fletcher, 87, 476. For sale and shipment of sugar. Welsh v. Gossler, 89, 540. Building contract — as to damages for de- lay — contractor not liable for delay caused by owner. Weeks v. Little, 89, 566, For cleaning all city paved streets at stipulated price held to apply to hew streets. Crocker v. City of 'Buffalo, 90, 351. Contract for serviced payable out of profits. Jennery v. Olmstead, 90, 363. Where wages a share of profits, inter- est on capital not an e'xpense. Paine v. HoweUst, 90, 660. Between railroads as to fares, rates, etc. B. & C. B. Co. v. Tioga' B'. Co., 1 Abb. 149. Guaranty that land shall sell for a given price " within a year," and if not, to pay deficiency, does not bind the party guar- anteed to wait a year. Hakes v. Peck, 2 Abb. 287; 1 Keyes, 505. "Merchantable order" means 1 "mer- chantable quality;" in contract to deliver corn. Hamilton v. Gwrtyard, 2 Abb. 314; 3 Keyes, 45. For sawing — "spoiled lumber" — evi- dence to explain — recoupment — payment — performance — condition precedent. Ha/rris v. Bathbun, 2 Abb. 326 ; 2 Keyes, 312. When authorizing alterations in " form, dimensions or materials" of work, the work may be discontinued at a certain point. Clark v. Mayor, etc., 1 Keyes, 9. For uniform rates of charges by rail- roads. Blossburg, etc., B. Co. v. Tioga B. Co., 1 Keyes, 486. For transportation of materials for building railroad — construction — dam- ages. Wilson v. New York Cejlt. B. Co., 3 Keyes, 381; IV. Validity. 1. As affected by public policy.. A sealed' agreement between competitors for office that one shall withdraw and aid the Other, in consideration of a division of the fees, is void, and so is every new agreement to effectuate it. Gray v. Hook, |4, 449. ! That purchaser of dam'ag'ed raisins shall have return duties, if any recovered by the seller is valid. Allen v. Aguirrc, 7, 543. To procure lands' from the State for a portion of the lands not void. Sedgwick v. Stanton, 14, 289. Conditional subscription to stock, when void! Fort Fdward, etc., Plankroad Co. v. Payne, 15, 583. Of members of voluntary association conferring judicial powers in respect to commoif property void. Austin v. Sear- ing, 16, 112. For waiver of exemption void. Kneettle v. NeweoWb, 22, 249. College may agree to give for a subscrip- tion a free scholarship in another college. Genesee College v. Dodge, 26, 213. A note given for an extra amount to in- dued the payee to sign a composition with other creditors of the maker is void in his hands. Lawrence v. Clark, 36, 128. In selecting an agent to sell property to government the principal may have refer- ence to the fact that the agent is of the same political party as those administer- ing the government. Lyon v. Mitchell, 36, 235. Provision that questions arising under contract shall be adjusted by a certain person void. Hurst v. Litchfield, 39, 377. To procure legislation is void. Mills v. Mills, 40, 543. To devise land is valid and enforceable against heirs. Parsell v. Stryker, 41, 480. To restrain competition in building for public work is void. Atcheson v. Motion, 43, 147 ; 3 Am. Eep. 6>78. With citizen of State in rebellion against government void, and partnership dis- solved. Woods v. Wilder, 43, 1,64 ; 3 Am. Rep. 684. 110 CONTEACT, IV. 2 — 3. When not void as preventing competi- tion at public sale. Bradley v. Kingsley, 43, 534 With director to influence others to prejudice of company is void. Bliss v. Matteson, 45, 22. Of charter of vessel to government not avoided by employment of agent related to government agent to effect the charter. Southard v. Boyd, 51, 177. Manufacturer may lawfully agree to pay a commission for introducing custom- ers to him. Richard v. Quintard, 51, 636. To deliver current funds of United States at certain valuation per dollar means legal tender notes for so much coin, and is valid. Cooke v. Dwis, 53, 318. To settle litigation, not avoided by stip- ulations to turn State's evidence, and rec- ommend nolle prosequi. Nickelson v. Wilson, 60, 362. In respect to furnishing recruits — when valid. Marsh v. BusseU, 66, 288. To indemnify another for refusing to put up margins or appear before arbitra- tion committee of stock board, is valid. White v. Baxter, 71, 254. For public work must be let in manner prescribed by statute — otherwise, no re- covery quantum meruit. Dickinson v. City of Poughkeepsie, 75, 65. Undertaking by father of bastard to pay mother for support, not unlawful. Hook ■v. Pratt, 78, 371 ; 34 Am. Bep. 539. Public officers meeting and agreeing as to terms and details of letting — when let, one absent and one of others signed ab- sentees' names — valid. Boots v. Wash- hum, 79, 207. To deliver stock in consideration of res- ignation of directors of corporation when valid. Barries v. Brown, 80, 527. Of sale, when void — buyer cannot maintain trover unless he has had actual possession. Clements v. Tturria, 81, 285. Not presumed illegal — if capable of lawful construction — made in this State to advertise lottery in other States — in absence of proof of violation of their laws, not illegal. Ormes v. Dauchy, 82, 443 ; 37 Am. Rep. 583, note. To convey railroad if contractor should buy in on foreclosure sale — validity — misjoinder of parties — collusion to pre- vent bidding. Marie v. Garrison, 83, 14. To furnish papers and evidence to sus- tain defense — when not unlawful. Wel- lington v. Kelly, 84, 543. To pay percentages upon payments under contract with county held not void on its face. Wile v. Wilson, 93, 255. To share profits of government contract — when not presumed to be against public policy — defense must be pleaded. Cum- mins v. Barkalow, 4 Keyes, 514. 2. When in restraint of trade. Construction of contract not to run steamboat — continuance — parties — dam- ages. Dunlop v. Gregory, 10, 241. Wholly void if illegal covenant enters into entire consideration, Saratoga Co. Bank v. King, 44, 87. By retiring partner on dissolution. Cur- tis v. Gokey, 68, 300. In restraint of trade. Arnot v. Pitts- town & Blmira Coal Co., 68, 558 ; 23 Am. Bep. 190. 3. Special grounds. Bestricting liability of tow-boat owners valid. Wells v. Steam Nav. Co., 2, 204. For sale of land — when not void for uncertainty — parol evidence to identify. Waring v. Ayres, 40, 357. Execution by promisee, of agreement void for want of mutuality binds prom- isor. WHletts v. Sun Mut. Ins. Co., 45, 45; 6 Am. Bep. 31. Between two next of kin for settlement, when void for concealment from others. Adams v. Outhouse, 45, 318. Between indorsers, for payment of note, when valid. Sanders v. Gillespie, 59, 250. Void for uncertainty as to terms and parties. Shakespeare v. Markham, 72, 400. For log-driving on river, when not un- lawful. Town of Pierrepont v. Loveless, 72, 211. To renew commercial paper at maturity, when invalid — not within powers con, CONTRACT, IV. 4 — V. 2. Ill ferred by charter. N. Y State Loan and Trust Co. v. Heimer, 77, 64. For formation of corporation — when not deemed illegal — parties — value of capital — vesting of management. Loril- lard v. Clyde,. 86, 384. 4. Wagering contracts. Stock-jobbing illegal, and will not sup- port action. Staples v. Gould, 9, 520. Statute repealed, act 1858, chapter 134. To buy gold coin in future, not void as wager. Bigelow v. Benedict, 70, 202 ; 26 Am. Rep. 573. Contract for sale of goods void as wager if property not to be delivered but only differences paid. Kingsbury v. Kirwan, 77, 613. 5. Effect of illegality. When rescinded for illegality, when partly performed, no recovery can be had for labor under it. Peck v. Burr, 10, 394. Partly void — when recovery may be had — pledge of bonds. Curtis v. Leavitt, 15, 9. Party in pari delicto cannot recover money paid on. Knowlton v. Congress and Empire Spring Co., 57, 518. When innocent, though void by statute, and fully performed, will not be undone. Dunn v. Horribeck, 73, 80. When stranger cannot set up illegality in defense of action for moneys received for use of another — if contract executed, court will refuse to aid either party. Mer- ritt v. Millard, 4 Keyes, 208. y. Performance and liability. 1. General matters. Indemnity, broken on failure to do specific act, or when charge or liability is incurred. Gilbert v. Wiman, 1, 550. But a contract of indemnity against damage or molestation by acts or omis- sions of another is not broken until Actual damage is sustained. Id. When administrator with will annexed must join with heir in executing testa- tor's contract. Roome v. Phillips, 37, 357. Entire — breach — rescission. Husted v. Craig, 36, 221. When not rendered impossible by act of law — that law renders performance more burdensome and expensive no de- fense. Baker v. Johnson, 42, 126. Architect's certificate, when conclusive — sufficiency of. Wyckoffr. Meyers, 44, 143. Breach of, when tortious. Rich v. New York Cent., etc., R. Co., 87, 382. One party cannot charge the other with expense of removing obstacle to perform- ance which latter was bound to remove — voluntary payment. Thorp v. Ross, 4 Keyes, 546. 2. Part performance. On contract for building in a good and workmanlike manner, for an entire price, there can be no recovery where the work was not well done, had not been accepted, and performance was not waived. Pull- man v. Corning, 9, 93. On contract for building house on land of another, when performance is to pre- cede payment, there can be no recovery for part performance although owner oc- cupies — waiver depends upon all the circumstances. Smith v. Brady, 17, 173. No recovery on entire contract part per- formance of which is prevented by other party. Butler v. Butler, 77, 472 , 33 Am. Rep. 648. To publish advertisement — what not substantial performance — evidence. Dau- chey v. Brake, 85, 407. Substantial performance all that is re- quired in building contract — procuring architect's certificate — refusal to give may entitle to recovery. Nolan v. Whitney, 88, 648. To transfer stock, not performed by transfer of half- paid stock — fraud — inquiry — merger. Jofrnsonv. Mathorn,] 3 Keyes, 126. 112 CONTKACT, V. 3—4. 3. Excuse? for performance. On an entire contract for work, com- plete performance becoming impossible by act of law, the contractor may recover pro tan to the contract price. Jones v. Judd, 4, 411. Action does not lie for labor and mate- rials lost by fire while in plaintiff's posses- sion — contract uncompleted by defend- ant's fault. McConihe v. N. T. & Erie It. Co., 20, 495. Where an agent is prevented from com- pleting his contract of service by Sickness and death, recovery is to be measured by the contract. Olark v. Gifoert, 2.6, 279.' Hindrance by one, excuses delay by other — new contract. Stewart v. Keteltas, 36, 388. What does not constitute prevention of performance. WaZlman v. Society of Con- cord, 45, 485. Extension of time waives forfeiture — party rendering performance 1 impossible cannot insist on it — assignment. Gal- lagher v. Nichols, 60, 438. One agreeing to deliver manufactures within a specified time may not postpone to last moment and then excuse non-per- formance on plea of accident. Booth v. Spuyten Duyvil Mill Co., 60, 487. For building — when performance pre- vented by order of public authorities' re- covery may be had pro tanto ' — evidence — counter-claim. Heine v. Meyer, 61, 171. On conditional extension of time for performance, condition must be complied with, to render extension available. Levy v. Burgess, 64, 390. To furnish opeTa troupe — compliance excused by sickness of principal singer. Spalding v. Rosa, 71, 40 ; 27 Am. Rep. 7. Requirement of architect's certificate — ■when waived. Haden v. Coleman, 73, 567. If condition cannot be performed, ex- cused — insanity no excuse for non-pay- ment of premium. Wheeler v. Conn. Mut. Life, 82, 543; 37 Am. Rep. 594, note. When employer prevents performance, other party need not show readiness and ability. HoweU v. Gould, 2 Abb. 418. Party preventing performance cannot take advantage. NtblO v. Binsse, 3 Abb. 375. Knowingly acquiescirig in a deviation from a contract is a waiver — accepting timber of smaller sitfe and poorer qualityv Pike v. Nash, 3 Abb. 610. 4. Conditions precedent. A note being payable in specific articles' to be timely selected, but no selection being made for two /ears, trie maker fail- ing to comply on demand then, is liable in" money. Gilbert v. Danforth, 6, 585. When Waived! Viele' v. Troy & Boston B. Co., 20, 184; Crane r. Kimhel, 61, 645. Performance is cOnditioti rjreced&it oil contract in general terms to erect a house " by day's work." Cunninghams. Jones, 20, 486. Where architect's certificate is required, and refused in bad faith, builder may re- cover on other proof of performance. Thomas v. Fleury, 26, 26. Tender, when excused by request of party entitled — when conditions may ac- company. Wheelock v. Tanner, 39, 48i. When seller of stock refuses to deliver from inability, buyer need not tender money before bringing suit. Wheeler V. Garcia, 40, 584. On positive refusal to perform prdmise to marry, siction for breach Will lie, al- though time for performance not arrived. Curtis v. Thompson, 42, • 246 ; 1 Am. Rep. 516. When time is -not of- essence, notice re- quiring performance must be given to work forfeiture. Myers v. DeMier, 52, 6471 For breach of absolute contract to de- liver merchandise, action lies although title may not have passed. Bigler v Sail, 54, 167. ! No action for breach without tender of performance or proof of willingness and ability. Nelson v. Plimpttih Fireproof Elevating Co., 55, 480. . Offer of performance and absolute refu- sal to accept excuses tender of perform- ance of condition precedent. Blewitt v. Baker, 59, 611; 17 Am. Rep. 394. CONTKACT, V. 5 — VI. 113 Building contract — builder cannot re- cover on quantum meruit unless owner after notice fails to perform. Lawson v. Hogan, 93, 39. Where defendants by insolvency were unable to perform and declined to do so, plaintiff entitled to damages without ten- der of performance on his part. Woolner v. Hill, 93, 576. Tender excused when performance re fused — cause of action assignable. Sears v. Conover, 3 Keyes, 113 ; 4 Abb. 179. When a contract liquidating u debt and fixing time of payment may be en- forced at once. Lee v. Decker, 3 Abb. 53. For breach of, to let land on shares, action lies without awaiting expiration of term. Taylor v. Bradley, 4 Abb. 363. 5. Actions for breach. On a contract to pay a sum in land there can be no recovery in money. Cattle v. Rochester City Bank, 3, 88. When an indorser agrees for a certain sum to pay the notes, when due, and pays them, he may recover that sum. L'Amor- eux v. Gould, 7, 349. Recovery may be had for work and ma- terials although more were done and fur- nished than called for by contract, unless excess detrimental. Turner v. Haight, 16, 465. Action by C. lies on promise made by A. to B. upon valid consideration for bene- fit of C. without C.'s privity. Lawrence v. Vox, 20, 268. Receipt for money to be indorsed on contract of sale by receiver to third party, upon assignment thereof to payor, does not prevent payor's recovery of the money from receiver. Phelps v. Bostioick, 22, 242. ' Where one agrees to build house on another's land and it is destroyed by fire before completion, he is liable for money advanced and damages for non-completion. Tompkins v. Dudley, 25, 272. Where A. transfers property toB., sub ject to certain claims of C, the latter may maintain action against B. therefor. Dingeldein v. Third Ave. R. Co., 37, 575. 15 When entire, unimportant breach de- feats right of recovery. Brown v. Weber, 38, 187. When action lies for recovery of money in hands of mere depositary received un- der executed illegal contract. Woodworth v. Bennett, 43, 273 ; 3 Am. Rep. 706. Of subscription — when not enforceable. Van Rensselaer v. Aikin, 44, 126. No action lies against A. for inducing B. to break his contract to sell to C. , and sell to A. instead, although A; had con- tracted to buy the property from C. Ashley v. Dixon, 48, 430 ; 8 Am. Rep. 559. Damages for breach, not limited to pen- alty — word "forfeit" not conclusive on question. Noyes v. Phillips, 60, 408. When contractor files certificate re- quired by contract, that payment is in full, this estops him from claiming damages by delay. Coulter v. Board of Educa- tion, 63, 365. To convey stock — action to recover money paid — demand. Wetter v. Tut- hill, 66, 347. For exchange of goods — when action for excess does not lie. Long Island R. Co. v. Verree, 69, 486. For sale of land — where voluntarily surrendered and canceled, no action lies for money paid on it. Tice v. Zinsser, 76, 549. When one may recover of insane person for money loaned. Mut. Life Ins. Go. v. Hunt, 79, 541. Agreement between individuals to sub- scribe for stock of railroad — when not enforceable by railroad. Lake Ontario Shore B. Co. v. Curtiss, 80, 219. For building — when builder may re- cover price less damages for defects.. Woodward v. FuUer, 80, 312. By agent — descriptio personae — when principal not entitled to recover under. Buffalo Catholic Inst. v. Bitter, 87, 250. VI. Rescission. Fraud waived by acceptance of benefit after knowledge — ratification. Cobb v. Hatfield, 46, 533. 114 CONTRACT, VII. City not bound to pay contractor for materials left by him on abandonment of contract, and used by it to his knowledge without objection Hog an v. City of Brooklyn, 52, 282. In case of partial failure of title on sale of personal property, vendee need not rescind in toto — may recoup or sue — when not defeated by assignment — evi- dence. McKnight v. Devlin, 52, 399 ; 11 Am. Eep. 715. Alteration of one of several instruments forming, avoids. Meyer v. Muneke, 55, 412. When may not be rescinded without paying for service rendered under it. Briggs v. Boyd, 56, 289. Rescission for fraud. Hammond v. Pen- nock, 61, 145. With insane person, when may be re- scinded. Biggs v. American Tract So- ciety, 84, 330. Mutually rescinded, cannot be invoked by either — exchange of lands — eject- ment. Graves v. White, 87, 463. Of corporation, not abrogated by insol- vency or dissolution. New Eng. Iron Co. v. Gilbert, etc., R. Co., 91, 153. A fraudulent contract must be dis- affirmed as soon as the fraud is discovered. Bruce v. Davenport, 1 Abb. 233. Owner taking possession of building does not waive defect in construction. Meed v. Board of Education of Brooklyn, 4 Abb. 24. Nor does it waive strict per- formance. Smith v. Brady, 17, 173. VII. General matters. One under commission as an' habitual drunkard may not waive protest. Wads- worth v. Sharpsteen, 8, 388. Action for reformation not barred by delay short of statutory limit. BidweU v. Astor Mut. Ins. Co., 16, 263. Parol evidence to show purpose — merger — guaranty — revocation of power of attorney — pledgee's interest — estop- pel. Eutchins v. Eebbard, 34, 24. Not reformable for misunderstanding of facts unless fraud or mutual mistake. Story v. Conger, 36, 673. Entire, may be divided by eonsent. Winne v. McDonald, 39, 233. Adding "trustee" to signature does not relieve contractor from individual liability. PumpeWy v. Phelps, 40, 59. Naming third party not joining in exe- cution — evidence of intention — rescission — notice to agent — damages. Dillon v. Anderson, 43, 231. Lex loci contractus — comity of States — measure of damages. Dike v. Erie By. Co., 45, 113 ; 6 Am. Eep. 43. Insurance on life of one held by another for benefit of a third — power of insured over — third may enforce although he did not know of it originally. Mutchings v. Miner, 46, 456 ; 7 Am. Rep. 369. United States statute as to adding du- ties. Bdbbett v. Young, 51, 238. As to equities of mortgagees — rescis- sion,, Kidd v. McCormick, 83, 391. When action to reform contract for fraud or mistake is assignable — rights of assignee. Benttey v. Smith, 1 Abb. 126. Contractor cannot hold employer for ex- pense of license from public authorities to allow work — parol evidence of consent not admissible to contradict. Thorp v. Boss, 4 Abb. 416. Effect of stipulation pending suit to set aside — limitation. Mann v. Palmer, 2 Keyes, 177. Contractor. See Master and Servant; Mechanics' Lien ; Municipal Corporation ; Negli- gence. Contribution. See Executor and Administrator; Insurance ; Negligence ; Surety ; Ten- ants in Common. Contributory Negligence. See Negligence. CONVEESION. 115 CONVERSION. Action for conversion may be maintained against wrong- doer by one having equit- able interest. Frost v. Mott, 34, 253. Accidental loss or destruction of article in lawful possession is not conversion. Salt Springs Nat. Bank v. Wheeler, 48, 492 ; 8 Am. Rep. 564. Negligence as to security for money taken to invest does not constitute. King v. MaokeUar, 94, 317. Where action does not lie against as- signees in trust for creditors of pur- chaser of goods sold on condition unful- filled — demand. Jessop v. Miller, 1 Keyes, 321. Assignees for creditors not liable with- out demand — demand of one — effect of refusal. Id.; 2 Abb. 449. Shipping as his own property which he knows belongs to another, is. Boyce v. Brockwwy, 31, 490. Maintainable against postmaster for wrongfully detaining newspaper. Teal v. Felton, 1, 537. When lies for unauthorized use of hired property independent of negligence. Beach v. Raritan, etc., B. Co., 37, 457. One having delivered goods as security for a loan, and the receiver failing to ad- vance the money or return the goods, the owner may sell them, and the purchaser may maintain trover after demand and re fusal. Hall v. Robinson, 2, 293. Lies against consignees to sell goods for owner, selling them as goods of another. Covell v. Hill, 6, 374 Impossibility of compliance with de- mand excuses refusal. Hill v. Covell, 1, 522. If at time of demand property not in existence demand and refusal do not es- tablish. Salt Springs Nat. Bk. v. Wheeler, 48, 492 ; 8 Am. Rep. 564. Demand and refusal merely evidence of. Jessop v. Miller, 1 Keyes, 321. One who receives money in good faith, in usual course of business and for valu- able consideration, not liable to one from whom money has been stolen. Stephens v. Board, 79, 183; 35 Am, Eep. 511. When change in title not affected by wrongful taking. Wright v. Ames, 2 Keyes, 221. Of drafts belonging to State wrongfully transferred by agent — agency — estoppel — damages. People v. Bank of North America, 75, 547. By general owner as against special owner under bill of lading — estoppel — demand. Marine Bank of Buffalo v. Mske, 71, 353. Action for stolen goods lies, although defendant never was in possession and has sold to a, third — evidence — negligence. Pease v. Smith, 61, 477. Action against coroner for goods taken under claim and delivery proceedings — ratification — conditional sale — agency. Manning v. Keenan, 73, 45. Bona fide purchaser not liable until de- mand, and a refusal indicating determina- tion to withhold — when words consti- tute. GUlett v. Roberts, 57, 28. Lies by maker of note wrongfully con- verted — negotiated before inception. Decker v. Matthews, 12, 313. Of notes — when payee liable to indorser. Develin v. Coleman, 50, 531. when action will lie. Powell v. Powell, 71, 71. defendant may be permitted to can- cel and return note in satisfaction of damages. Thayer v. Manley, 73, 305. evidence of alteration to reduce damages. Booth v. Powers, 56, 22. when action lies for — tender. Hynes v. Patterson, 95, 1. Purchaser of collaterals by pledge at auction is not. Bryan v. Bald win, 52, 232. Owner of property wrongfully sold not required to make immediate effort to re- gain — silence — when will not bar claim — statute of limitations — does not confirm sale. Hamlin v. Sears, 82, 327. Action against railroad company for con- verting ties — demand how made. Dun- ham v. Troy Union R. R. Co., 1 Abb. 565. Possession by agent is attributable to defendant — demand of agent is of prin- cipal. Chambers v. Lewis, 28, 454. A purchaser at a wrongful sale on exe- cution, sued for the conversion, when 116 CONVICT — CORPORATION, I. estopped from saying that he acted as an agent. Baltes v. Repp, 1 Abb. 78. When evidence of demand and refusal justifies submission to jury. Tuttle v. Hazard, 86, 628. Complaint -need not show how plaintiff's title was acquired. Malcom v. O'Beilly, 89, 156. See Bailment ; Carrier ; Damages. Equitable. See Will. CONVICT. May be sued in prison. Davis v. Duffie, 3 Keyes, 606. Penitentiary contractor not liable for negligence of — prison authorities retain- ing control. Cunningham v Shoe and Leather Co., 93, 481. COPYRIGHT. Remedy for infringement purely statu- tory when conferred by statute, but when not, any appropriate action may be main- tained. Dudley v. Mayhew, 3, 9. Of alien in unpublished dramatic compo- sition — assignment — dedication to public — jurisdiction. Palmer v. DeWitt, 47, 53* ; 7 Am. Eep. 480. CORONER. In action for conversion under proceed- ings for claim and delivery, like sheriff protected by process. Manning v. Kee- nan, 73, 45. See Sheriff. CORPORATION. I. General matters. II. Stockholders and stock. 1. Stockholders' general rights and liabilities. 2. Liability for debts. 3. Subscriptions for and of stock. 4. Dividends. III. Officers. 1. Powers. 2. Liabilities. 3. Miscellaneous. TV. Powers. V. Liabilities. VI. Insolvency. VII. Dissolution. VIII. Taxation. I. General matters. Duration of charter — power to make loans, express or by implication — usury. Farmers' Loan and Trust Go. v. Clowes, 3, 470. Individual banker, under a,ct of 1838, is not. Codd v. Bathbone, 19, 37. Evidence of corporation de facto is availa- ble to a foreign corporation suing here. Bank of Toledo v. International Bank, 21, 542. Incorporation of several corporations in to one — member of old not constituted member of new until he assents. Ga/rdner v. Hamilton Ins. Co., 33, 421. When bound by sale by officer. Phittips v. Campbell, 43, 271. When creditor excluded from sharing in assets under 2 E. S. 466, although he has filed claim under 2 It. S. 471, § 71. Matter of Harmony F. and M. Ins. Co., 45, 310. Bound by satisfaction of judgment exe- cuted by president officially, although not in name or under seal of corporation — effect of giving satisfaction-piece. Booth v. Farmers and Mechanics' Nat. Bank, 50, 396. Foreign, doing business here regarded as domiciled here. Martine v. Interna- tional Life Ins. So., 53, 339 ; 13 Am, Kep. 529. When persons assuming to act in cor- porate capacity not liable personally, but as partners, the corporation not legally existing. Fuller v. Bowe, 57, 23. Seal on resolution not necessary to con- tract of — debt of, may be proved by dec- COEPOKATION", II. 1 — 2. 117 larations of president. Hoag v. Lamont, 60, 96. Joint-stock company suable in name of president — an associate may sue the com- pany. Wescott v. Fargo, 61, 543 ; 19 Am. Eep. 300. Easement in land liable to sale on exe- cution. Evangelical Lutheran St. John's Orphan Some v. Buffalo Hydraulic Ass'n, 64, 561. When judgment against, without con- sideration and collusive — may be set aside in suit by receiver. Whittlesey v. Delaney, 73, 571. Action to charge — property in hands of directors and stockholders — judgment against corporation prima facie evidence — fictitious sale to another corporation — sale of stock subject to claims. Hastings v. Drew, 76, 9. Devise to, subject to laws passed subse- quently. Kerr v. Dougherty, 79, 327. Under special act may be subject to general act of 1848, chapter 319 ; act 1870, chapter 51. Id. Commercial paper discounted without lawful authority void — money may be recovered — without sanctioning illegality . Pratt v. Short, 79, 437 ; 35 Am. Eep. 531. Sale of franchises — formation of new company — when old stockholder not en- titled to new stock — foreclosure. Thorn- ton v. Wabash By. Go., 81, 462. Assignment of patent to, before organi- zation — bound by adoption after organi- zation. Bommer v. Am. Spiral Spring, etc., Go., 81, 468. Foreign, when may invoke jurisdiction of State courts. Direct TT. S. Gable Go. v. Dominion Tel. Go., 84, 153. When cannot show that money loaned was not used by — no resolution author- izing borrowing of money. Kraft v. Freeman Printing, etc., Ass'n, 87, 628. Estopped to deny acts of agents where ratified. Sheldon, etc., Co. v. Mckemeyer, etc., Go., 90, 607. Action to restrain unlawful use of fran- chise not submissible. People v. Mutual Endowment Association, 92, 622. In action by, existence averred and not denied need not be proved — building asso- ciation membership not confined to origi- nal subscribers — premiums on loans on shares of such association not usurious — validity of mortgage to. Concordia Sav- ings Ass. v. Bead, 93, 474. Irregularity in organization cured by act of legislature changing its name. White v. Boss, 4 Abb. 589. Building association — articles of organi- zation to be filed, need not name trustees Second Manhattan Building Assoc'n v. Hayes, 2 Keyes, 192. II. Stockholders. 1. Stockholders' general rights and lia- Eight to inspect books and take memo- randums (E. S., pt. 1, tit. 4, ch. 18). Gotheal v. Brouwer, 5, 562. When estate of decedent not a stock- holder. Diven v. Zee, 36, 302. When stockholder does not acquire lien of building stock certificate holder. Butter v. Kilpatrick, 63, 604. When stockholder may sue officer for conversion of corporate stock — corpora- tion must be made defendant if refuses to bring suit. Greaves v. Gouge, 69, 154. Subscriber to stock deemed consenting to change in charter where right to change reserved by legislature. Union, etc. v. Hersee, 79, 454 ; 35 Am. Eep. 536. Eef usal to transfer stock on books does not defeat assignee's title — demand of payment or transfer not necessary — form of action. Bobinson v. Nat. Bk. of New Berne, 95, 2. liability for debts. When stockholders individually liable for debts of, liability is original and pri- mary. Corning v. McCuUough, 1, 47. Eemedy for enforcement. Bogardus v. Bosendale Manuf Co., 7, 147. How stockholders may defeat action. Garrison v. Howe, 17, 458. Not evaded by defect in organization. Eaton v. AspmwaU, 19, 119. 118 COKPOKATTON", II. 3. Stockholder holds subject to individual liability from extension or renewal of charter by legislature. Bailey v. Hollister, 26, 112. Stockholders liable individually without reference to solvency of other stockholders. Matter of Hollister Bank, 27, 393. Members of foreign, not individually liable elsewhere — comity. Merrick v. Van Santvoord, 34, 208. Stockholder under ocean steamboat act of 1852, chapter 228, having been made liable for failure to record certificate of pay- ment of capital, may compel contribution from other stockholders — defense. As- pinwall v. Saccha, 57, 331. Creditors may pursue stockholders re- ceiving assets before payment of debts. Bartlett v. Brew, 57, 587. In action by creditor against stockholder who has paid for stock, stockholder may show a secured loan to the company to an equal amount. Agate v. Sands, 73, 620. Action by creditor for himself and other creditors against stockholders — when proper — division of recovery. Pfohl v. Simpson, 74, 137. Foreign — action against stockholder — when proceedings against corporation con- dition precedent. Jessup v. Carnegie, 80, 441 ; 36 Am. Eep. 643. One apparently a stockholder liable to creditors as such. Wakefield v. forgo, 90, 213. In corporations formed under Laws 1863, chapter 63, stockholders are liable to labor- ers, servants, etc. — book-keeper and man- ager not laborer. Wakefield v. Fargo, 90, 213. Evidence establishing liability as stock- holder — disallowance of offset. Wheeler v. Miller, 90, 353. Judgment against stockholders for debts — county clerk's commissions not chargeable as disbursements. Veeder v. Judson, 91, 374. 3. Subscriptions for and transfer of stock. After a corporation has forfeited stock of a subscriber for non-payment, it can- not recover for any part of the subscrip- tion. Small v. Herkimer Mfg. Co., 2, 330. And where the stock is of greater value than the amount due, the subscriber cannot recover the surplus. Id. Subscription for stock — form of — al- lotment — remedy by forfeiture cumula- tive — subscriber not discharged by change of name and increase of capital, nor by unauthorized fraudulent represen- tations by officer at public meeting. Buf- falo & N. T. City B. Co. v. Dudley, 14, 336. Conditional subscription to stock, when void. Fort Edward, etc., Plankroad Co. v. Payne, 15, 583. Signature to stock subscription reciting incorporation is conclusive evidence of in- corporation against subscriber. Black Biver & TTtica B. Co. v. Clarke, 25, 208. Defectively organized may still on any proof of user recover against subscriber to stock. Buffalo & Allegany B. Co. v. Cory, 26, 75. Construction of Laws of 1845, chapter 234, in respect to foreign corporations — effect of certificate of stock subject to further assessments. Seymour v. Stur- gess, 26, 134. Liability of subscriber for stock may be enforced for creditors. Dayton v. Borst, 31, 435. Stockholder not liable for unpaid calls, when he has transferred his stock, but the transfer was imperfectly made on the company's books. Isham v. Buckingham, 49, 216. Effect of stock certificate — assignment — evidence — pendency of action in an- other State to determine title to stock. Holbrook v. 2few Jersey Zinc Co., 57, 616. Action for balance of capital subscrip- tion — validity — receiver — abandonment — agreement to accept notes of another. Phcenix Warehousing Co. v. Badger, 67, 294. Blank transfer of certificate with irrev- ocable power of attorney does not confer authority to pledge as collateral. Mer- chants' Bank of Canada v. Limngston, 74, 223. Action to compel delivery of stock — when complaint insufficient. BurraU v. Bushwick B. Co., 75, 211. CORPORATION, II. 4 — III. I. 119 ^ Issue of preferred stock, when unlaw- ful. Kent v. Quicksilver Mining Co., 78, 159. Liability of stockholder on subscription — signing firm name when none such, individually liable. Union Hotel, etc. v. Hersee, 79, 454 ; 35 Am. Rep. 536. Owner sold stock — not transferred on books but dividends paid to assignee — receiver of the corporation sued original owner for unpaid stock — action not maintainable — stands in same position as Corporation. Gutting v. Damerel, 88, 410. Injunction to restrain voting on corporate shares refused. McHenry v. Jewett, 90, 58. " Capital stock" under 1 R. S. 601, § 2, means all property of corporation required by charter. The excess is surplus and may be divided. Dividend in form of shares is valid. Purchase by directors of telegraph company of parallel line is Valid. Williams v. Western Union Tel. [Co., 93, 162. Reduction of stock under act of 1878, chapter 264. Distribution to stockhold- ers to extent of surplus over reduced capital allowed. Strong v. Brooklyn Cross ,TovmB. Co., 93, 426. Shares of non-resident in foreign, do- ing business here, not liable to attach- ment. Plimpton v. Bigelow, 93, 592. fc What is not notice to corporation of own- ership of stock. Brisbane v. Delaware, etc., B. Co., 94, 204. Transfer of stock in manufacturing company releases one transferring from unpaid assessments, Billings v. Bobin- son, 94, 415. When right to stock not cut off by no- tice on provisional certificate — limitation of time for exchange after issue of certifi- cate. Van Alen v. Illinois Cent. B. Co., 2 Keyes, 673 ; 4 Abb. 443. Assignee of stock from foreign execu- tor may require transfer on books. Mid- dlebrook v. Merchants' Bank, 3 Keyes, 135. 4. Dividends. Contract by stockholder for ownership of future dividends, ineffectual. Hyatt v. Allen, 56, 553 ; 15 Am. Rep. 449. Directors may not limit dividend to a certain portion of prior stockholders. Jones v. Terre Haute & Bichmond B. Co., 57, 196. Stockholder who has sued corporation for conversion of his shares, cannot claim dividends pending suit to establish right to shares. Hughes v. Vermont Copper Mining Co., 72, 207. Stockholder cannot, in first instance, recover from another stockholder a share in dividends paid him. Peekham v. Van Wagenen, 83, 40 ; 38 Am. Rep. 392. When guaranteed stockholders pre- ferred to common stockholders in divi- dends — when action maintainable to com- pel payment. Boardman v. Lake Shore, etc., B. Co., 84, 157. Dividend when declared belongs to stockholders — rights of holders of pre- ferred stock. Jermain v. Lake Shore, etc., B. Co., 91, 483. Dividend of surplus not taxable under act of 1880, chapter 542. People v. Al- bany Ins. Co., 92, 458. Payment of dividends to one appearing on books as stockholder valid — transfer of stock without production of certificate — notice. Brisbane v. Delaware, etc., B. Co., 94, 204^ m. Officers. 1. Powers. Delegation of' directors' authority — "ordinary business" — assignments of assets — ratification of agent's acts — con- flict of laws. Hoyt v. Thompson's Exr., 19, 207. Powers of less than full board of direct- ors at adjourned meeting. Smith v. Law, 21, 296. President's authority to contract — rati- fication — evidence — ultra vires. Olcott v. Tioga B. Co., 27, 546. Director may not purchase its property on execution — but when trustees may not avoid. Hoyle v. Plattsburgh, etc., B. Co., 54, 314 ; 13 Am. Rep. 595. Authority of trustees of manufacturing company to purchase property and issue 120 COEPOKATION, III. 2 — IV. stock — error of judgment not vital. Sclienck v. Andrews, 57, 133. Right of president to secure himself for advances — waiver — estoppel — divi- dends. Duncomb v. New York, etc., B. Co., 88, 1. President taking property from insol- vent company for antecedent debt may confer good title on buyer in good faith. Seroy v. Kerr, 2 Abb. 359. 2. Liabilities. When director not liable for misrepre- sentations of active managers. Arthur v. Griswold, 55, 400. When directors not liable for fraudu- lent issue of stock under act of 1852, chap- ter 228, for formation of navigation com- panies. Nelson v. Luling, 62, 645. Action against trustees for not filing re- port — when debt not established — evi- dence — admissions of treasurer. Alexan- der v. CauldweU, 83, 480. Officers executing contract for, not per- sonally liable. Whitford v. Laidler, 94, 145. 3. Miscellaneous. Not bound by notice to director while not engaged in its business. President, etc. v. Oornen, 37, 320. Individual contract of officer when not void as against public policy. Carnes v. Brown, 80, 527. Election of directors — one not a stock- holder cannot compel new election. Matter of Syracuse, etc., B. Co., 91, 1. IV. Powers. When authorized to hold and convey land under some circumstances, convey- ance deemed prima facie lawful. Farm- ers' Loan and Trust Co. v. Cwrtis, 7, 466. Power to purchase property not needed for its business — evidence — liability of stockholders — estoppel. Moss v. Averell, 10, 449. Incorporated for limited term may ac- quire a fee necessary for its use. Condition subsequent — how title divested — rig of grantee under. Nieott v. N. T. & Erie B. Co., 12, 121. May purchase and reissue its own stock. City Bank of Columbus v. Bruce, 17, 507. Power to take assignment of sheriff's certificate of sale of land under execution. Chautauque Co. Bank v. Bisley, 19, 369. Cannot defeat, title of a mortgagee of its chattels by plea of ultra vires, and e con- verso. Parish v. Wheeler, 22, 494. Ultra vires. Ormsby v. Vermont Cop- per Mining Co., 56, 623. Where not authorized to discount com- mercial paper. New York State Loan and Trust Co. v. Kelmer, 77, 64. Mortgage " securing indebtedness on commercial paper " — no power under charter to loan on personal security, act of 1868, chapter 816 — statute prohibiting discounting, 1 E. & 712, §§ 3 and 6 — char- ter authorized to invest in bond and mort- gages — maybe enforced. Pratt v. Baton, 79, 449. May make necessary contracts unless forbidden. Legrand v. Manhattan Mer- cantile Association, 80, 638. Contract to pay for building railroad in stock of company — paid-up stock — as- signment to president. Van Cott v. Van Brunt, 82, 535. Whether purchase of property and issue of stock therefor was in good faith, ques- tion for the jury. Lake Superior Iron Co. v. Brexel, 90, 87. Mortgage by and execution of. Trus- tees Can. Acad. v. McKechnie, 90, 618. Construction and validity of contract by — insolvency or dissolution does not abrogate contract. New England Iron Go. v. Gil- bert, etc., B. Co., 91, 153. Purchase by directors of telegraph com- pany of parallel line and issue of addi- tional stock therefor held valid. Williams v. Western Union Tel. Co., 93, 162. Validity of lease by railroad company not questionable in action for rent by les- see. Woodruff v. Erie B. Co., 93, 609. Note of more than $1,000, payable to corporation, transferred without authority of directors — transferee must show good faith and valuable consideration to recover CORPORATION, V. — VI. 121 of maker. Houghton v. MeAuliff, 2 Abb. 409. A foreign corporation cannot avail itself of the statute of limitation in the courts of this State. Mattory v. Tioga R. Go., 3 Abb. 139. A foreign corporation may take person- alty in this State by will — but not an un- incorporated association. Sherwood v. American Bible Society, 4 Abb. 227 ; 1 Keyes, 561. Prohibition of transfer of property ex- ceeding $1,000 'without resolution of di- rectors does not apply to bona fide pur- chaser. Ogden v. Raymond, 1 Keyes, 42. V. Liabilities. Not liable for willful trespass of serv- ant although authorized and sanctioned by the president and general agent. Van- derbilt v. Richmond Turnpike Co., 2, 479. When not liable on fraudulent stock certificates issued by its agent — holder takes subject to equities. Mechanics' Bank v. N. Y. & N H. R. Co., 13, 599. Two corporations, of different States, uniting in transporting passengers in a third State, jointly liable for negligence. Bissell v. Michigan Southern & Northern Indiana R. Cos., 22, 258. To charge a corporation for services it is not necessary to show a formal employ- ment or ratification by directors — officers may employ. Hooker v. Eagle Bank of Rochester, 30, 83. Liability for fraud of agent — spurious stock. New York & N. H. R. Co. v, Schuyler, 34, 30. When liable to pledge of spurious stock pledged by its treasurer and purporting to be owned by him. Titus v. Pres., etc., of Or. Westn. Turnpike Co., 61, 237. Bound by its accommodation indorse- ment. Mechanics' Banking Assn. v. New York & Saugerties White Lead Co., 35, 505. May be fined for violating injunction. People v. Pendleton, 64, 622. When liable in action to set aside sale of stockholder's stock for non-payment 16 of assessment — tender. Mitchell v. Ver- mont Copper Mining Co., 67, 280. Liability of railroad corporations to laborers employed by contractors. Atcher- son v. Troy & Boston R. Co., 1 Abb. 13. A corporation cannot evade liability on negotiable paper indorsed by its agent where his previous similar act had been ratified. Bank of Auburn -v. Putnam, 1 Abb. 80. Liable to firm for fraud although one of the firm was director of the corporation. New York, etc., R. Co. v. Ketchum, 3 Keyes, 363. VI. Insolvency. Assignment by receiver of insolvent — effect and form — conflict of laws. Hoyt v. Thompson, 5, 320. Payment by insolvent, with intent to prefer, is void although receiver is not cognizant of the insolvency. Brouwer v. Harbeck, 9, 589. Where charter provides that an act of insolvency shall vest its property in re- ceivers for specified distribution, this is not a voluntary conveyance. WUlitts v. Waite, 25, 577. Receiver may include in assessment » reasonable sum for making and collecting. Sands v Boutwell, 26, 233. Requisites of assessment and notice. Sands v. Sanders, 26, 239. When receiver properly appointed on pleadings. People v. Northern R. Co., 42, 217. Agreement of creditors to purchase its property and organize new — equities of other creditors. Vose v. Cowdrey, 49, 336. Right of creditor to share in assets of insolvent corporation must be determined in court and district where receiver was appointed. Rinn v. Astor Mre Ins. Co., 59, 143. Receiver may be appointed in stock- holders' action — notes made by a citizen of another State but payable here pass to receiver. Osgood v. Maguire, 61, 524 May confer jurisdiction for appointment of receiver by appearing by attorney. 122 CORPORATION, VII. — COSTS, I. 1. Attorney General v. Guardian Mutual Life Ins. Co., 77, 272. Chattel mortgage by insolvent corpora- tion in pursuance of previous agreement for loan, not void under statute. Pauld- ing v. Chrome Steel Co., 94, 334. Purchaser bona fide from president, of property of insolvent company, gets title, although the president's purchase was void as against creditors. Seroy v. Kerr, 2 Keyes, 582. Eights of creditors subject to prior tax levy. In Matter of Columbian Ins. Co., 3 Keyes, 123. VII. Dissolution. Mere insolvency and suspension does not work dissolution, Bradt v. Benedict, 17, 93. How forfeiture of charter enforced. People v. Albany & Vermont B. Co., 24, 261. Not dissolved until judgment of disso- lution — until then, creditors may pro- ceed against. Kincaid v. Dwinelle, 59, 548. When dissolution abates action against unless continued by order of court under act 1832, chapter 295 — requisites of order. McCulloch v. Norwood, 58, 562. " Transfers " declared void when made by corporations seeking voluntary disso- lution, means sales and not payments. Sands v. Sill, 55, 18. Dissolution by expiration of term of charter — when not continued as cestui que trust under law of another State — director selling his stock and ceasing to take part in management need not for- mally resign — general creditor cannot reach funds paid to stockholders. Slurges v. Vanderbilt, 73, 384. Lease to, not terminated by its dissolu- tion — covenant to pay rent does not cease on — assets fund for payment of all debts — receiver of dissolved, may reserve suf- ficient to cancel and discharge them. Peo- ple v. Jfat. Trust Co., 82, 283. VIII. Taxation. Rule of taxation of . People v. Board of Assessors, 39, 81. Taxation law of 1880 does not relieve from local taxation. People v. Davenport, 91, 574. Taxable under Laws 1880, chapter 542, in January, 1881, though then not exist- ing for a year. People v. Spring Valley, etc., Co., 92, 383. A foreign corporation is liable to tax- ation on securities deposited by it with State comptroller. British Com. L. Ins. Co. v. Commrs of Taxes and Ass., 1 Abb. 199. See various specific heads. COSTS. I. When recoverable. 1. On certiorari. 2. On quo warranto. 3. Actions affecting real estate. 4. Generally. II. Practice regarding. HI. For or against whom allowed. 1. Corporations. 2. Attorneys. 3. On reference. 4. Defendants. 5. Assignee of cause of action. 6. Generally. IV. In equity cases. V. When discretionary. VI. For or against representative parties. 1. Executors, etc. 2. Trustees. 3. Generally. VII. Extra allowance. 1. Basis of. 2. Where made. 3. Generally. Vlil, On appeal. 1. When not allowed. 2. When allowed as of course. 3. When discretionary. IX. Double costs. X. In probate practice L When costs are recoverable. 1. On certiorari, May be awarded to prevailing party on common-law certiorari. People v. Van Alstyne, 3 Keyes, 35. COSTS, I. 2 — III. 3. 123 Not awardable on common-law certio- rari. People v. Board of Police, 39, 506 ; People, ex rel. Smith, v. Nelleston, 79, 638. 2. On quo warranto. Recoverable on quo warranto. People V. ante, 52, 576. 3. In actions affecting real estate. When properly imposed on bill to re- deem. Calkins v. Isbell, 20, 147. When claim of title does not arise on pleadings so as to entitle to. Bathbonev. McOonneU, 21, 466. Charge for printing case on appeal prima facie correct. Salter v. Utica, etc., B. Co., 86, 401. When allowed in proceeding to vacate assessment in New York city — no pre- sentment of claim to fiscal officer neces- sary. Matter of Petition of Jetter, 78, 601. Not allowable against land-owners in eminent domain proceedings. Matter of New York, etc., B. Co., 94, 287. 4. Generally. In action for repeal of royal letters- patent. People v. Clarke, 9, 349. In action to enjoin violation of trade- mark in discretion of court. Low v. Hart, 90, 457. II. Practice regarding. Court may impose payment of counsel fees as condition of setting aside default. Slade v. Warren, 1, 431. In pending action affected by enactment of Code of Procedure. Lyme v. Ward, 1, 531. Imprisonment for. Miller v. Scherder, 2, 262. Judge may instruct jury as to effect of verdict on. Waffle v. Dillenoack, 38, 53. Question under Code of Procedure, § 54, subd. 4, determined by facts found by referee. Fuller v. Conde, 47, 89. Under Code of Procedure, § 61, plea of title — action begun in justice's court. Morssv. Salisbury, 48, 636. Court may stay proceedings until costs of a former action for same cause are paid. Barton v. Speis, 73, 133. When may be collected although prose- cution enjoined. German Savings Bank v. Habel, 80, 273. Sheriff's fees on execution how adjusted — not entitled to allowance for ' ' auc- tioner's fees, etc.," unless court so directs — Code, § 3307, subd. 7. McEeon v. Hors- fall, 88, 429. Attorney-general employing special counsel — allowance out of fund unau- thorized. Atty.-Gen. v. Cont. Life Ins. Co., 88, 571. ' ' To abide the event " — who entitled to. Murtha v. Gurley, 92, 359. m. For or against whom allowed. 1. Corporations. Court cannot allow to policy-holders intervening in suit to dissolve insur- ance company. Matter of Atty.-Gen. v. North Am. Ins. Co., 91, 57 ; 43 Am. Rep. 648. Disbursements in action against stock- holders of corporation for debts — county treasurer's commissions, and printing. Veeder v. Judson, 91, 374. 2. Attorneys. May be imposed on attorney for im- properly instituting disbarment proceed- ings and he may be imprisoned for non- payment. Matter of Kelly, 62, 198. When attorney liable for. Voor7*ees v. McCartney, 51, 387. 3. On reference. Clerk has nothing to do with regularity of obtaining referee's report. Ballou v. Parsons, 55, 673. On reference of question of fact on motion, disbursements cannot be allowed. Concklin v. Taylor, 68, 221. 124 COSTS, III. 4— V. Fees of sheriffs and referees on fore- closure sales in city of New York. Bcher- merhorn v. Prouty, 80, 317. Fees of referee in proceedings to compel special guardian to account for sale of infant's land may be allowed. Matter of Petition of SpeVman v. Terry, 74, 448. Referee'sfees — stipulation — sums paid for plans and measurements and for extra compensation to experts not taxable — agreement as to stenographer's fees. Mark v. City of Buffalo, 87, 184. 4. Defendants. One entitled to be substituted for or joined with defendant in ejectment, but not made a party, is liable for costs after execution against defendant unsatisfied. Farmers' Loan and Trust Co. v. Kwsch, 5, 558. When prevailing defendant, in action of tort against several, entitled to. Dan- iels v. Lyon, 9, 549. In action in Supreme Court for conver- sion, where $500 was demanded, and only $35 recovered, defendants entitled to costs. Powers v. Gross, 66, 646. Against municipal corporation — omis- sion to present claim before suit — certi- ficate of judge — when defendant not en- titled. Paine v. City of Rochester, 85, 523. 5. Assignee of cause of action. One prosecuting suit in name of another, under agreement to do so ' at his own ex- pense, and to have part of recovery, is liable for costs, although fhe agreement is void. Giles v. LTalbert, 12, 32. Assignee of demand in suit as collateral security not liable for. Woleott v. Mol- comb, 31, 125. Assignee subsequent to suit not liable for, when assignment was collateral. Matter of Lien of Dowling v. Premises of Bucking, 52, 658. Assignee of cause of action in suit liable for costs before as well as after. Genet v. Davenport, 58, 607. Assignment of cause of action as mere security does not make assignee liable for costs. Peck v. Yorks, 75, 421. 6. Bight of plaintiff to, when offer of judgment not accepted. Tompkins v. Ives, 36, 75. When school officers not liable for. Clarke v. Tunnicliff, 38, 58. When judgment creditor, instigating action of receiver through attorney, liable for. Ward v. Boy, 69, 96. Allowed on application to enforce lia- bility for costs of person beneficially in. terested in recovery. Marvin v. Marvin, 78, 541. When action deemed brought in name of another by person beneficially inter- ested — question not precluded by previ- ous denial of motion for substitution. Slauson v. Watkins, 95, 369. In trespass on lands, where title is al- leged and denied, and less than $50 re- covered, no certificate that question of title arose on trial is necessary to entitle plaintiff to costs. Kelly v. Manhattan Beach B. Co., 81, 233. IV. In equity cases. Defendants in equity action, not jointly interested, and separately answering, may each have costs. Hauselt v. VUmar, 76, 630. In equity cases discretionary in trial court. Staiger v. Schultz, 3 Trans. App. 4 ; 3 Keyes, 614 ; Barker v. White, 3 Trans. App. 86; 3 Keyes, 617. V. When discretionary. In action by assignor of collateral against assignee for surplus, and surren- der of principal security, discretionary. Calioon v. Bank of Utica, 7, 486. In equity, even against executors, dis- cretionary. Biperv. Poppenhausen, 43, 68. When discretionary in action for dam- ages and injunction. Parker v. Laney, 58, 469. COSTS, VI. 1 — VIII. 1. 125 When discretionary, discretion may be exercised on appeal here. Chipman v. Montgomery, 63, 221. On discontinuance of action by receiver. Matter of Crosby v. Day, 81, 242. Of special proceeding, discretionary in Supreme Court. Matter of Petition of Prot. Epis. Pub. School, 86, 396. Of appeal, discretionary on vacating at- tachment for contempt. Matter of Brad- tier, 87, 171. VI. For or against representative parties. 1. Executors, etc. Statute prohibiting recovery of, against executors and administrators, does not apply to suits commenced against testa- tor or intestate in his life. Merritt v. Thompson, 27, 225. Against executor — claim may be pre- sented before publication of notice to cred- itors — on question of offer to refer, find- ing below generally adopted here. Meld v. Meld, 77, 294. Security for, may be required from exec- utor. Tolman v. Syracuse, etc., B. Co., 92, 353. 2. Trustees. Not personally liable for, unless or- dered. Slocum v. Barry, 38, 46 ; 5 Trans. App. 173. Defendant entitled to, on recovery against receiver of insurance company. Columbia Ins. Co. v. Stevens, 37, 536. Assignee in bankruptcy not liable for, accruing before assignment, unless he has mismanaged. Meade v. Waterhouse, 52, 587. VII. Extra allowance. 1. Basis of extra allowance. Extra allowance — basis for. Atlantic Bock Co. v. Libby, 45, 499. Value of firm lease. Struthersr. Pearce, 51, 365. Lease of railroad. Ogdensburgh, etc., B. Co. v. Vermont, etc., B. Co., 63, 176. In action for nuisance computed upon amount of damage and not upon value of land — disbursements for surveys not al- lowed. Botheryv. NewYork Bubber Co., 90, 30. Not permitted in litigation not involving money value. Conaughty v. Saratoga Co. Bank, 92, 401. 2. Where made. Can only be made by court of original jurisdiction. Wolfe v. Van Nostrand, 2, 570. Motion for extra allowance in case in first district must be made there. Sun v. Salter, 92, 651. 3. Generally. Extra expenses and counsel fees may be allowed in action to declare marriage void. Griffin v. Griffin, 47, 134. In proceedings under general railroad act for acquiring lands, costs when allowed should be as in actions, but not including extra allowances. ' Bensselaer & Saratoga B. Co. v. Davis, 55, 145. When extra allowance to a several defendant proper. Allis v. Wheeler, 56, 50. Extra allowance of five per cent not authorized in foreclosure, in 1870. Blunt v. Chapman, 62, 333. When defendant gets judgment on counter-claim, extra allowance not limited to that, but based on plaintiff's claim. ViVmar v. Schall, 61, 564. When extra allowance improper, in action for accounting of executors and trustees. Weaver v. Ely, 83, 89. VIII. On i 1. When not allowed. General Term reversing Special Term order punishing contempt has no authority to impose. People v. Gilmore, 88, 626. 126 COSTS, VIII. 2 — COUNTER-CLAIM. Of appeal to Supreme Court cannot be added to remittitur from this court. Mc- Gregor v. Buell, 1 Keyes, 153. This court may affirm and order abso- lute judgment in equity cases without costs to other party. Patten v.Stitt, 50, 591. 2. When allowed as of course. Order of General Term regarding costs not appealable. McClure v. Supervisors of Niagara, 3 Abb. 83. On reversal as to one and affirmance as to another, appellant has costs. Montgom- ery County Bank v. Albany City Bank, 7, 459. On dismissal of any appeal to this court general costs follow. White v. Anthony, 23, 164. Of appeal to this court from interlocu- tory order. Brown v. Leigh, 50, 427. Judgment not set aside for error in — defense successful in part — referee's fees — motion. Watson v. Gardiner, 50, 671. Full, on appeal. Brown v. Leigh, 52, 78. When defendant entitled to, on appeal from justice's court. Bigsoy v. Warden, 62, 27. On one petition of railroad company to acquire lands of different owners, and one hearing, costs of only one appeal are proper. Matter of Application of Prospect Park, etc., B. Co., 67, 371. When this court reverses, with costs to abide the event, respondent if successful takes costs of appeal. First Nat. Bank of Meadmlle v. Fourth Nat. Bank of New York, 84, 469. On affirmance of order for new trial, sureties on appeal here only liable for costs to this court. Burdett v. Lowe, 85, 241. 3. When discretionary. On appeal here discretionary. Bou- chaud v. Bias, 1, 201. Of appeal to County Court. Tounghanse v. Fingar, 47, 99. On appeal, discretionary only when re- versed or affirmed in part or new trial granted. Ayres v. Western R. Co., 49, 660. Of appeal by trustee from order of ac- counting may be imposed on trustee per- sonally. Matter of McCarter, 94, 558. IX. Double costs. When allowed to public officer. Burkle v. Luce, 1, 239. Not repealed by Code. Bartle v. Oilman, 18, 260. X. In probate practice. Surrogate may award, but not counsel fees. Devin v. Patchin, 26, 441. Defendants entitled only to taxable, in action by executor for construction of will. Rose v. Rose Association, 28, 184. On contest of will — when costs of both parties charged upon estate. Clapp v. FuUerton, 34, 190. In adjudication on will — extra allow- ances — power of review. Downing v. Marshall, 37, 380. In action for construction of will Special Term may make allowance for counsel fees for executors. Wetmore v. Parker, 52, 450. On appeal from decree of surrogate, dis- cretionary. Lawrence v. Lindsay, 70, 566. Court no right to be liberal to suitors in matter of, against estate McLean v. Freeman, 70, 81. Repeal of act of 1870, as to surrogate of New York, held not to affect pending proceedings — limit of, under Codes. Matter of Weston, 91, 502. When not payable as claim against dece- dent's estate. Matter of Fox, 92, 93. Upon executor for refusal to refer — ab- sence of certificate under Code of Civil Pro- cedure, § 1836. Meltzer v. Doll, 91, 365. COUNTER-CLAIM. I When allowable. II. When not allowable. III. In favor of whom. IV. Matter arising subsequent to suit. V. When need not be set up. VI. Fraud. COUNTER-CLAIM, L — VI. 127 I. When allowable. In action for accounting, a judgment in tort. Taylor v. Boot, 4 Keyes, 335; af- firmed, 6 Alb. L. J. 99. In action for injury to vessel by efforts of owner of cargo to preserve it, damages for injury to the cargo by delay. Starbwd v. Bavrrows, 43, 200. One indebted to estate in hands of re- ceiver may counter-claim for services to estate. Davis v. Stover, 58, 473. In trade-mark case. Glenn & Ball Mfg. Co. v. Hall, 61, 226 ; 19 Am. Eep. 278. In action on contract, counter-claim on another contract may be set up. Parsons v. Sutton, 66, 92. That wood was cut by plaintiff in pos- session on lands mortgaged to defendant, impairing the security, proper in action for conversion of wood, under Code of Civil Procedure, § 501, as connected with subject of action. Carpenter v. Manhat- tan L. Ins. Co., 93, 552. In action to foreclose mortgage given to secure bond with a surety, mortgagor may counter-claim a debt due him from obligee. Bathgate v. Haskin, 59, 533. II. When not allowable. In action of conversion of bonds by offi- cer of bank. Mshkill Sam. Inst. v. Nat. Bank of FishkUl, 80, 162. Without notice, defendant having ex- pended money improving an elevator, can- not counter-claim such sums in action on another contract. Mansfield v. Beard, 82, 60. Injury from nuisance permitted on premises, not causing eviction, not counter- claim in action for rent. Boreel v. La/wton, 90, 293 ; 43 Am. Rep. 170. Vendee from factor may not set off claim against principal in action by factor. Young v. Thurber, 91, 388. III. In f amor of whom. What proper, in action of accounting ; by defendants against one of several plaintiffs — judgment is "contract," al- though on tort. Taylor v. Root, 4 Abb. 382. When tenant is entitled to abatement of rent for partial eviction he may counter- claim it, and is not driven to cross action. Blair v. Claxton, 18, 529. What is a payment by administrator of share of personalty, precluding setting it up as a counter-claim against claim for rents and profits. Wright v. Wright, 72, 149. In favor of three jointly, not available to one alone — in action on note, cannot set up breach of warranty in sale. Sop- kins v. Lane, 87, 501. None affirmatively allowable in favor of personal representatives on reference of claim against decedent — reference is spec- ial proceeding. Mowry v. Peet, 88, 453. When valid in favor of executor on reference of disputed claim. Schmite v. Langhaar, 88, 503. IV. Matter arising subsequent to suit. Proper subject of — allowing amend- ment to answer — setting it up in effect supplemental answer. Howard v. John- ston, 82, 271. V. When need not be set up. Defendant not bound to set up, for in- dependent cause of action — former ac- tion. Brown v. Oallaudet, 80, 413. VI. Fraud. When available in action to close part- nership — fraud connected with contract. More v. Band, 60, 208. In action by State for fraud — when not proper against State. People v. Denni- son, 84, 272. See Appeal ; Pleading ; JnoaMENT ; Set- Off. Counterfeiting. See Criminal Law ; Tbade-Mabk. 128 COUNTY — COUETS, H. COUNTY. Action does not lie against county after claim has been fixed and allowed by su- pervisors, on ground that their decision was erroneous. Martin v. Supervisors of Greene Co., 29, 645. Not liable for services of counsel as- signed to defend prisoner. People v. Board of Supervisors of Niagara Co., 78, 622. When not liable for money wrongfully assessed and paid to drainage commis- sioners. Dewey v. Supervisors of Niagara Co., 62, 294. Court cannot, in absence of statute, order county treasurer to pay stenographer's fees. Matter of Tinsley, 90, 231. See Bridge ; Highway ; Municipal Corporation ; Supervisors ; Taxation. COUNTY CIJERK. Governor may supply vacancy on death, and deputy's right to act ceases on such appointment. People v. Snedeker, 14, 52. Duty to index records cannot be trans- ferred to another by supervisors. People v. Nash, 62, 484. Not bound to note assignment in mar- gin of record of mortgage. Viele v Jud- son, 82, 32. Not liable to owner of premises for omission to put in search a judgment on which premises were subsequently sold. Kimball v. Connolly, 2 Abb. 504. Fees for searches for foreclosure. Cur- tis v. McNair, 68, 198. See Negligence. County Court. See Courts. County Judge. See Courts ; Constitutional Law ; Supplementary Proceedings. COUNTY TREASURER. Increased duties imposed on, by super- visors, do not discharge bondsmen. Su- peroisors of Monroe v. Clark, 92, 391. County not entitled to fees allowed him by comptroller for receiving and paying over State tax. Board of Supervisors v. Otis, 62, 88. Coupons. See Bond ; Negotiable Instrument. COURTS. I. Supreme Court. II. Oyer and Terminer. m. City Courts. IV. County Court. v. Sessions. I. Supreme Court. Decision of General Term must be con- curred in by at least two justices person- ally present or in writing. Matter of Kings Co. El. R. Co., 78, 383. Its jurisdiction under the Constitution, article 6, section 6, cannot be limited by legislature. People v. Nichols, 79, 582. Powers of General Term — may attach conditions to discretionary order. (Syra- cuse Savings Bank v Syracuse, etc., 88, 110. Clothed with powers of board of audit by act of 1881, chapter 211. Danolds v. State, 89, 36 ; 42 Am. Rep. 277. When has no authority to fix unsettled damages on appeal. Andrews v. Tyng, 94,16. II. Oyer and Terminer. Is permanent and continuous. Quirribo Appo v. People, 20, 531. Cannot grant new trial on merits in felony after conviction. Id. Place to which adjourned may not be changed. Northrup v. People, 37, 203. Statute as to, in New York city, con- strued. Smith v. People, 47, 330. COURTS, III. —COVENANT. 129 Has jurisdiction of misdemeanors in New York city. Gardner v. People, 62, 299. Must consist of same members through- out trial and they must be present throughout. People v. Shaw, 63, 36. Power of sheriff to appoint attendants in county of New York. Day v. Mayor, etc., 66, 592. III. City Courts. Appeal lies to New York Common Pleas from General Term of New York Marine Court. People v. Clerk of Marine Court, 3 Abb. 491. Judges of Superior Court may issue at- tachments. Renard v. Hargous, 13, 259. Superior Court of city of New York has jurisdiction of divorce suits. Forrest v. Forrest, 25, 501. has jurisdiction in divorce. For- rest v. Havens, 38, 469. justice may issue attachment on lien against a vessel. Delaney v. Brett, 51, 78. Court of General Sessions in New York may grant new trials on merits. Laner- gan v. People, 39, 39. Court of Common Pleas in New York city — power to issue mandamus to comp- troller of city. People v. Green, 58, 295. how may appoint attendants — evi- dence — pay-rolls. Brennan v. Mayor, etc, 62, 365. City Court of Brooklyn cannot acquire jurisdiction of non-resident joint defend- ant. Hoag v. Lamont, 60, 96. District Court in New York city — re- quisites of jurisdiction to issue attachment. Van Loon v. Lyons, 61, 22. power to appoint and remove clerks. People v. Flynn, 62, 375. Marine Court — legislature may invest with jurisdiction of assault and battery, without limit as to amount of recovery. Anderson v. Reilly, 66, 189. can get no jurisdiction of action against city of New York. Callahan v. Mayor, etc., 66, 656. on death of defendant may substi- tute executor, and retain jurisdiction. 17 People v. Justices of Marine Court, 81, 500. Marins Court — prior to Code of Civil Procedure had jurisdiction on attachment against non-resident of county with regu- lar place of business therein. Fielding v. Lucas, 87, 197. appointment of attendants. Holley v. Mayor, etc., 59. 166. IV. County Court. Has jurisdiction in partition. Double- day v. Heath, 16, 80. Jurisdiction to sell infants' real estate and compel account from guardian. Brown v. Snell, 57, 286. "V. Sessions. Court of General Sessions of New York city — extension of term — irregularity in drawing jury of New York city. Ferris v. People, 35, 125. Bail to Special Sessions does not oust, nor transfer to General Sessions in New York city — voluntary appearance renders trial valid. People v. Justices of Court of Special Sessions, 74, 406. Court of Special Sessions — act 1879, chapter 390, giving exclusive jurisdiction — pending indictments in Sessions — ju- risdiction not ousted. Ryan v. People, 79, 593. May have exclusive jurisdiction of petit larceny. People v. Dutcher, 83, 240. See Judge ; Judgment ; Jurisdiction. COURT-MARTIAL. Defendant entitled to counsel. People v. Van Allen, 55, 31. COVENANT. Acceptance of conveyance with right of entry for breach of condition binds to per- formance of condition. Chamberlain v. Parker. 45, 569. 130 COVENANT — CliEDITOK'S ACTION. When additional, implied from express one, and when not. Bruce v. Nat. Bank, 79, 154 ; 35 Am. Rep. 505. To assign purchase- money mortgage by A. and wife satisfied by assignment by A. alone — when mortgage lost. Clement v. Cash, 21, 253. Owners of adjoining lands in cities may agree upon mutual restrictions of use. Trustees of Columbia College v. Lynch, 70, 440 ; 26 Am. Rep. 615. Not to engage in business — what is evasion of. Sander v. Hoffman, 64, 248. One may recover on, running to himself although he did not sign and seal. Smith v. Kerr, 3, 144. Not to permit grist-mill, does not run with land. Harslia v. Meid, 45, 415. To repair gate across way is continuing. Beach v. Crain, 2, 86. With penalty for non-performance — when may be enforced — running with land. Phmnix Ins. Co. v. Continental Ins. Co., 87, 400. Construction of guaranty of mortgage. Mahaiwe Bank v. Culver, 30, 313. As to value of land covered by mort- gage — acceptance of assignment contain- ing no covenant as to value, not satis- faction of covenant — action for breach maintainable. Smith v. Holbrook, 82, 562. ' ' To assume, pay off and discharge " — right of action accrues when mortgage is due and payable. Hume v. Hendrickson, 79, 117. To assume mortgage in deed poll en- forceable against grantee. Bowen v. Beck, 94, 86. By liquidating partner in firm name in assignment of judgment binds him alone in accordance with its terms — previous release of joint judgment debtor — dam- ages. Bennett v. Buclian, 61, 222. To pay taxes — when not merged in deed. Sage v. Truslow, 88, 240. Charge of married woman's separate es- tate in her mortgage is not an express covenant to pay. Mack v. Austin, 95, 513. See Agency ; Deed ; Landlord and Tenant ; Mortgage. Creditor. See Creditor's Action ; Debtor and Creditor. CREDITOR'S ACTION. General creditor cannot sue to reach equitable assets. Briggs v. Oliver, 68, 336. Sheriff cannot institute. Lawrence v. Bank of Republic, 35, 320. Parol trust superior in equity to judg ment lien — evidence. Norton v. Mallory, 63, 434. Not maintainable until exhaustion of usual remedies at law. Beardsley Scythe Co. v. Foster, 36, 561. Judgment in favor of receiver must be docketed. Geery v. Oeery, 63, 252. Not maintainable to reach assets of in- solvent corporation until execution un- satisfied. Adee v. Bigler, 81, 349. Against several joint debtors — legal remedy must first be exhausted against all, including estates of those deceased. Voor- hees v. Howard, 4 Abb. 503 ; 4 Keyes, 371. Action against three, service on two — execution sufficient to found suit to reach joint property. Produce Bank v. Morton, 67, 199. Requisites of creditor's bill — justice's execution insufficient — execution must be returned against reai estate — specific lien essential — insolvent copartnership. Crip- pen v. Hudson, 13, 161. Complaint must allege return of execu- tion unsatisfied. Adsit v. Butler, 87, 585. Maintainable upon return of execution at plaintiff's request. Forbes v. Waller, 25, 430. Outstanding execution need not be shown. Haswell v. Lincks, 87, 637. Return of execution does not give lien on mere equities. Dunlevy v. TaUmadge, 32, 457. May be maintained on return of execu- tion, although within the sixty days. Renaud v. O'Brien, 35, 99. When creditor's right of action on guar- anty not extinguished. Claflin v. Ostrom, 54, 581. CREDITOR'S ACTION — CRIMINAL LAW. 131 When subsequent judgment creditor may set aside debtor's conveyance — when receiver may be appointed — when lien extinguished by receiver's sale. Shawl v. Eanley, 71, 319. Judgment creditor, when may maintain to cancel prior paid judgments — issuing execution. Shaw v. Dwight, 27, 244. May be maintained to reach purchase- money due from purchaser to mortgage — creditor foreclosing a paid mortgage — may follow proceeds — may reach in- creased value. Warner v. Blakeman, 4 Abb. 530 ; 4 Keyes, 487. Judgment creditor may maintain to reach excess of personalty held in trust for sup- port over what is necessary for support. Williams v. Thorn, 70, 270. Transfer without consideration in trust, when void as to creditors — contingent lia- bility constituting creditor — death of transferor pending suit. Young v. Seer- mans, 66, 374. To set aside conveyance by husband to wife — wife dying after suit — failing to show fraud, the plaintiff cannot reach hus- band's interest. Curtis v. Fox, 47, 299. Attaching creditor cannot maintain to set aside debtor's fraudulent assignment of property attached in his behalf. Thurber v. Planck, 50, 80. Establishes no preference over junior judgment as to personal property until re- ceiver is appointed. Davenport v. Kelly, 42, 193. Jurisdiction of Chancery — title of pur- chaser — effect of appointment of receiver — assignment — sale by receiver — his de- clarations — estoppel. Chautauque County Bank v. White, 6, 236. Conveyance being shown to have been in good faith, grantee may still be com- pelled to pay his mortgage to receiver. Durand v. Hankcrson, 39, 287. In creditor's action to reach property fraudulently transferred, it is no defense that debtor has made general assignment. Fort Stanwix v. Liggett, 51, 552. Lien does not relate back to supplement- ary proceedings, no receiver having been appointed — payment to judgment debtor's wife. Edmondston v. HaLoud., 1Q, 543. When defeated by laches and absence of evidence of fraud. Trenton Banking Co. v. Duncan 86, 221. See Assignment fob. Creditors ; Cow- tract ; Corporation ; Deed ; Damages; Landlord and Tenant ; Mortgage ; Receiver ; Supplementary Proceed- ings ; Trusts. CRIMINAL LAW. I. II. Jurisdiction. or crime. III. rv. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. 2. Intoxication. Indictment. 1. Particular averments. 2. General requisites. 3. Removal of. Practice, arrest and bail. Trial. 1. 2. 3. Formation of jury. 4. Cliarge of judge. Evidence. 1. Generally. 2. Prisoner's testimony. 3. Circumstantial evidence. 4. Premeditation. 5. Character. 6. Motive. 7. Cross-examination. 8. Husband and wife. 9. Confessions. 10. Accomplice. Courts. Ex post facto laws. Appeal. Verdict. Sentence. Execution. Capital punishment. Abortion. Arson. Assault. Bawdy-house. Bigamy. Burglary. Conspiracy. Counterfeiting. 132 CEIMINAL LAW, L— III. 1. xxn. Election laws. XXIII. Embezzlement. XXIV. Excise. XXV. False pretenses. XXVI. Forgery. XXVII. Gambling. XXVIII. Homicide. XXIX. Kidnapping and seduction XXX. Larceny. XXXI. Lottery. XXXII. Mayhem. XXXIII. Nuisance. XXXIV. Perjury. XXXV. Rape. XXXVI. Receiving stolen goods. XXXVII. Robbery. XXXVIII. Selling unwholesome provis XXXIX. Usury. I. Jurisdiction. Principal residing in another State and committing crime in this State by inno- cent agent. Adams v. People, 1, 173. Indictment will not lie in county of New York for offense on vessel bound thence to Norwich, Conn., when close to Long Island, Suffolk county. Manley v. People, 7, 295. Offense within five hundred yards of county boundary. People v. Davis, 36, 77 ; also, People v. Davis, 56, 95. Property bought by superintendent of poor for their support, if stolen, may be laid as that of superintendent or of county. People v. Bennett, 37, 117. On conviction of crime in one county, and carrying fruits of into another, may be indicted in latter. Mack v. People, 82, 235. II. Responsibility for crime. 1. Burden of proof of sanity is on people. People v. McCann, 16, 58. Test of sanity is knowledge of right and wrong. Willis v. People, 32, 715. at time of and with respect to act. Flanagan v. People, 52, 467 ; 11 Am. Rep. 731 ; Wagner v. People, 4 Abb. 509 ; Brotherton v. People, 75, 159. Presumption of sanity — reasonable doubt of. O'Gonnell v. People, 87, 377; 41 Am. Rep. 379. Test of sanity is knowledge of right and wrong — control of mental faculties sufficient to form criminal intent — burden of proof. Walker v. People, 88, 81. On question of, doubt of expert not admissible. Sanchez v. People, 22, 147. 2. Intoxication. Evidence of the prisoner's intoxication is admissible to characterize the act. Peo- ple v. Rogers, 18, 9. Insanity produced by intoxication is a defense. Id. One accused of being publicly intoxi- cated is entitled to j ury trial and not tria- ble before justice of peace. Sill v. Peo- ple, 20, 363. Voluntary intoxication no defense. Kenny v. People, 31, 330 ; Flanigan v. People, 86, 554 ; 40 Am. Rep. 556. III. Indictment. 1. Particular averments. Variance between indictment and ver- dict — larceny from person — evidence — of value of bank bill. Fallon v. People, 2 Keyes, 145. Too late to object on appeal to omission to prove exact year and place of offense — caption no part of indictment, v. People, 2 Keyes, 684. Caption no part of indictment, v. Bennett, 37, 117. Indictment for shooting A. — proof of shooting at B. and hitting A. by mistake — conviction right. Hollywood v. People, 3 Keyes, 55. When clerical omission of ' ' with " in indictment disregarded. Shay v. People, 22, 317. Description in indictment of company defrauded by forgery. Noakes v. People, 25, 380. Indictment for selling spirituous liquors — charging distinct offenses — naming CRIMINAL LAW, III. 2 — IV. 133 purchaser — election. Osgood v. People, 39, 449. Corporate name of owner in arson must be exactly laid in indictment. MeOary v. People, 45, 153. 2. General requisites. Indictment defective for felony may be good for misdemeanor. Loliman v. Peo- ple, 1, 379. For murder — "upon the body," suffi- cient. Sanchez v. People, 22, 147. On indictment for first degree of arson, there can be no conviction for third de- gree. Dedieu v. People, 22, 178. Indictment for assault " with intent to do bodily harm "and with "intent to kill " — duplicity — surplusage. Dawson v. People, 25, 399. Caption not stating names or numbers of jurors good after judgment. Id. Requirement to file is directory. Id. On indictment of several for assault and battery some may be convicted of that, and some of simple assault — per- son unknown. White v. People, 32, 465. Assault and battery — on woman, none, where she subsequently consents to con nection. People v. Bransby, 32, 525. One indicted as accessory before fact to several principals, only one of whom has been convicted, can be tried as accessory only to that one. Btarin v. People, 45, 333. Indictment for second offense of fel ony — discharge is material. Wood v. People, 53, 511. Defective count — election — remedy — charging means. People v. Davis, 56, 95. Duplicity — homicide in commission of felony. Dolan v. People, 64, 485. Indictment on statute, charging same offense in different ways in separate counts, valid, although charging different grades differently punishable. Hawker v. People, 75, 487. , Husband and wife may be indicted if both guilty, and no coercion. Goldstein v. People, 82, 231. Count jn indictment for assault with intent to kill, alleging intent ' ' to com- mit murder " good if it states substance and informs defendant. Pontius v. Peo- ple," %2, 339. Surplusage — averment of corporation. Who is principal. Evidence — decoy letter — order of proof — objection to tel- egram not offered in evidence. McCarney v. People, 83, 408 ; 38 Am. Rep. 456. Sufficiency of evidence before grand jury cannot be raised by plea — general verdict not vitiated because some counts bad. Robbery of bank keys — evidence. Hope v. People, 83, 418; 38 Am. Rep. 460. Cruelty to children — care and custody — neglect of child in benevolent institu- tion — lack of means — continuous offense — evidence — photographs — hypothetical questions. Cowley v. People, 83, 464 ; 38 Am. Rep. 464. Duplicity in indictment — "to and for " — lottery ticket. Bead v. People, 86, 381. 3. Removal of. Indictment sent to Oyer need not be tried at first term. Meal v. People, 42, 270. Indictment may be removed from Oyer and Terminer to Supreme Court on ap- plication of prosecution — certiorari. Jones v. People, 79, 45. Removing indictment from General Sessions to Oyer and Terminer — notice to accused unnecessary. Leighton v. Peo- ple, 88, 117. IV. Practice, arrest and bail. When deposition in criminal case com- petent. Barron v. People, 1, 386. Harmless errors will be disregarded. Shorter v. People, 2, 193. Warrant in proceedings to preserve peace need not be sealed — what is not discharge on examination. Gano v. Hall, 42,67. Settlement of bill of exceptions. Wood v. People, 59, 117. Facts cannot be reviewed by this court in the absence of exceptions. People v. Hovey, 92, 554; also People v. Boas, 92, 560. 134 CRIMINAL LAW, V. 1—3. This court cannot review reversal of conviction on the facts. People v. Boas, 92, 560. Practice upon motion for new trial — arrest of judgment. People v. Kelly, 94, 526. When private person may arrest. Burns v. Erben, 40, 463. Prisoner may waive examination, and recognizance without is valid, and need not show probable cause. Ghamplain v. People, 2, 82. In debt on, no defense that no indict- ment was found. Id. Justice of Supreme Court may not take hail during sitting of court having power to try. People v. Mead, 92, 415. When court not sitting, justice of Su- preme Court of county of arrest, though not of venue, may take bail. People v. Clews, 77, 39. V. Trial. 1. Generally. Presence of prisoner — separation of jury — evidence of motive — testimony hefore coroner, when competent. Ste- phens v. People, 19, 549. Prisoner stepping into ante-room — when immaterial. People v. Bragle, 88, 586 ; 42 Am. Rep. 269. Prisoner must be present when jury come in for and receive further instruc- tion. Maurer v. People, 43, 1. Temporary absence of one judge, quo- rum being left, immaterial. Tuttle v. People, 36, 431. Allocution essential. Messner v. People, 45, 1. Corpus delicti must be proved in homi- cide — question of fact — motion to dis- charge equivalent to request to direct acquittal. People v. Bennett, 49, 137. Talesmen, how summoned in Buffalo Superior Court. Gaffney v. People, 50, 416. After summing up court may refuse to open case for prisoner. Wilke v. Peo- ple, 53, 535. Omission to instruct as to degree of murder not error, in absence of request — new trial cannot he granted for error not excepted to — authority of Courts of Ses- sions in Sew York to grant new trials when verdict is against weight of evidence does not extend to other counties. Buel v. People, 78, 492 ; 34 Am. Rep. 555. No exception lies to refusal to postpone for absence of witness — discretionary with court to compel district attorney to fur- nish evidence taken before grand jury. Mglimy v. People, 79, 546. Arson — trial of accessory hefore fact — conviction of principal — character — ' ' dwelling-house " — evidence. Levy v. People, 80, 327. Sufficiency and effect of objections and exceptions at. People v. Dunn, 90, 104. 2. Challenges. Challenge to array — what is not cause for — peremptory challenge waives chal- lenge for principal cause. Friery v. People, 2 Keyes, 424 ; 2 Abb. 215. Challenge for conscientious scruples proper. Walter v. People, 32, 147. Construction of act of 1855, chapter 337 — j uror — conscientious scruples — opin- ion from newspapers — court may act as triers of challenge to favor if not objected to — witnesses, professional and non-pro- fessional. O'Brien v. People, 36, 276. Allowing special plea — motion to ar- rest — challenge to favor — opinion as to prisoner's character. People v. Allen, 43, 28. Trial of challenges — appeal — opin- ions from newspapers. Greenfield v. People, 74, 277. Challenge to array — withdrawn — jury impaneled — irregularity waived. Pierson v. People, 79, 424 ; 35 Am. Rep. 524. Challenge of j uror for opinion. Thomas v. People, 67, 218 ; Balbo v. People, 80, 484 ; Cox v. People, 80, 500. Challenge to array, when deemed waived. Cox v. People, 80, 500. 3. Formation of jury. Defendant in capital case not bound by consent to he tried by less than twelve jurors. Cancemi v. People, 18, 128. OEIMINAL LAW, V. 4 — VI. % 135 Plea in abatement, as to formation of grand jury. Dolan v. People, 64, 485. 4. Charge of judge. Jury bound by instructions of court as in civil cases. Duffy v. People, 26, 588. Error in charge, how cured. Ruloff v. People, 45, 213. Hypothetical charge rightly refused — request without ruling on exception un- availing. Slatterley v. People, 58, 354. Court questioning prisoner — charge. Arnold v. People, 75, 603. Error to advise conviction if jury believe people's evidence. McKenna v. People, 81, 360. Error cured by subsequent instruction. Greenfield v. People, 85, 75 ; 39 Am. Rep. 636, note. ' ' Falsus in uno " — test of mental ca- pacity — evidence — respite — fresh sen- tence. Moett v. People, 85, 373 VI. Evidence. 1. Generally. Certificate of conviction by Court of Special Sessions is conclusive of facts stated. People v. Powers, 6, 50. Variance. Noakes v. People, 25, 380. Statement in presence of prisoner pre- sumed to have been in his hearing — act in presence of prisoner admissible as dec- laration — specific objection. Hochreiter v. People, 2 Abb. 363 ; 1 Keyes, 66. Evidence — whether cries were of joy or grief, incompetent — so of declarations of deceased shortly before death. Messner v. People, 45, 1. Dying declarations must be part of res geste — not admissible in abortion. People v. Davis, 56, 95. Homicide — opinion of surgeon as to which wound fatal, competent — proof of particular instances of violent temper of deceased, incompetent. Egglerv. People, 56, 642. Where intent is essential element to crime, defendant may testify as to his intent. Kerr aim v. People, 60, 221 ; 19 Am. Rep. 158. Record of conviction of witness in another State may be rebutted. Sims v. Sims, 75, 466. What deceased told physician not privileged within section 834 of Code of Civil Procedure. Pierson v. People, 79, 424 ; 35 Am. Rep. 524. Prosecution may show improbabilities of prisoner's statements as to obtaining money. Pontius v. People, 82, 339. Hearsay evidence part of conversa- tion — objection. People v. Beach, 87, 508. Evidence of prisoner's temper or that he was subject to fits of passion — wben incompetent in murder case — declarations before homicide — comments of court im- material if facts left to jury. Sindram v. People, 88, 196 ; Thomas v. People, 67, 218 ; Abbott v. People, 86, 460. Upon trial of assault to kill — evi- dence of similar offense inadmissible. People v Gibbs, 93, 470. Photographs admissible as evidence. Walsh v. People, 88, 458. Person convicted of crime competent witness, under Code of Civil Procedure, section 832. People v. McGloin, 91, 241. 2. Prisoner's testimony. Prisoner may show provocation. People v. Lewis, 3 Trans. App. 1. On trial for murder, the prisoner's testi- mony at the coroner's inquest, before he was charged, is admissible against him. Hendrickson v People, 10, 12 ; Teachout v. People, 41, 7. Effect of prisoner's failure to account for his whereabouts. Gordon v. People, 33, 501. Defendant in criminal trial testifying may be questioned as to other offenses. People v. Noelke, 94, 137. Previous statements at coroner's inquest admissible against him. Teachout v. Pea- pie, 41, 7. Evidence of prisoner under arrest at coroner's inquest is not admissible on his trial. People v, McMahon, 15, 384. 136 CEIMINAL LAW, VI. 3 — 7. Prisoner may testify to any material facts occurring after crime. Donohue v. People, 56, 208. Presumption from failure to rebut a fact tending to show guilt. Stover v. People, 56, 315. Person sentenced for felony incompetent as witness on criminal trial — objection must be taken wlien evidence is offered. Perry v. People, 86, 353. Privilege to decline answering degrad- ing questions. People v. Brown, 72, 571; 28 Am. Eep. 183. Prisoner jointly indicted may be wit- ness for co defendant. People v. Bowling, 84, 478. See infra, 6. 3. Circumstantial evidence. When proper. People v. Kennedy, 32, 141. Evidence of information to prisoner of wife's adultery, when admissible. Sanchez v. People, 22, 147. Evidence as to blood stains on clothing. People v. Gonzalez, 35, 49. All that happened in presence and hear- ing of prisoner at time of homicide is com- petent in evidence. McKee v. People, 36, 113. Evidence of drunkenness — impeaching — opinions of non-experts. Seal v. Peo- ple, 42, 270. That prisoner eluded officer competent on question of guilt — slight evidence. Ryan v. People, 79, 593. Opinion as to blood stains — indifference of prisoner — letters and conversations of third persons admitting commission of crime. Greenfield v. People, 85, 75 ; 39 Am. Rep. 636. That prisoner procured knife to be sharpened, asked where heart located, if pepper thrown in eyes would blind, justi- fies inference meditating injury. Walsh v. People, 88, 458. 4. Premeditation. Premeditation of an instant constitutes murder. People v. Clark, 7, 385. Passion does not excuse murder, when there has been cooling time. People v Sullivan, 7, 396. The right of self-defense does not arise until after every effort to avoid attack. Id. Premeditation for appreciable time, though brief, makes crime murder in first degree. People v. Mqjone, 91, 211. 5. Character. Evidence of good character is to be con- sidered in any case. JSemsen v. People, 43, 6. Omission to prove good character cannot be considered against prisoner. Ormsby v. People, 53, 473. Evidence of good character. Stover v. People, 56, 315. A party may not show the good charac- ter of his witness, when evidence has been given of his committal for perjury. Peo- ple v. Gay, 7, 378. Evidence as to good character — weight of, in criminal case. Cancemi v People, 16, 501. 6. Motive. Evidence tending to show motive ad- missible though tends to prove commis- sion of another offense. Pontius v. Peo- ple, 82, 339. On trial for wife murder, the people may show that the wife's father had willed his estate in a way to disappoint the prisoner's expectations. Hendriekson v. People, 10, 12. On question of motive, that prisoner married wife of deceased may be shown though it may tend to prove a crime not charged in the indictment. Pierson v. People, 79, 424 ; 35 Am. Eep. 524. 7. Cross-examination. Evidence of threats — cross-examina- tion. LaBeau v. People, 34, 223. Error to admit evidence when prisoner had no opportunity to cross-examine. People v. Cole, 43, 508. CRIMINAL LAW, VI. 8 — VIII. 137 On cross-examination of prisoner — in trial for burglary lie may not be asked if he had been arrested for bigamy — expla- nation of his statements. People v. Orapo, 76, 288 ; 32 Am. Rep. 302. Prisoner testifying for himself on trial for assault, may be asked on cross-examina- tion if he had not committed an assault on another, as bearing on his credibility. People v. Irving, 95, When may be asked if he has been in- dicted before. Ryan v. People, 79, 593. 8. Husband and wife. Eelations of husband and wife cannot be proved by reputation or declarations. Walter v. People, 32, 147. Wife not competent witness against husband. Wilke v. People, 53, 525. Woman indicted as single, and plead- ing, prima facie evidence that she is un- married. Seiler v People, 77, 411. Coercion of wife is only presumed — husband must be present. Id. Conversation between witness and pris- oner's wife, when competent against him. Lanergan v. People, 39, 39. 9. Confessions. A voluntary confession is admissible in evidence although the prisoner was under arrest. People v. Sogers, 18, 9. Evidence is admissible of facts ascer- tained by means of an extorted confession. Duffy v. People, 26, 588. Voluntary confession to policeman. People v. Wentz, 37, 303. Confession under arrest and false hopes, incompetent — new trial or discharge. People v. PHUips, 42, 200. Impeachment by writings — evidence that confession was free. Gaffney v. People, 50, 416. Confession to officer while in custody. Balbo v. People, 80, 484 , Cox v. People, 80, 500. Confession held not made under influ- ence of fear, and sustained by additional proof — not within provisions of Code of Civil Procedure as to statements by ac- 18 cused persons, People v. MeOloin, 91, 241. Silence of one charged with murder at coroner's inquest as to allegations made not admissible as admission. People v. Willett, 92, 29. 10. Accomplice. Omission of prisoner to contradict testi- mony of accomplice when practicable may be considered. People v. Dyle, 21, 578. Victim of abortion not accomplice. Dunn v. People, 29, 523. Accomplice as witness — nol. pros. — corroboration — evidence — -age of fracture — identity — blood stains — committing witness for perjury. Lindsay v. People, 63, 143. Evidence — of accomplice — impeach- ment — declarations. Stape v. People, 85, 390. Where accomplice and his wife are witnesses against prisoner, wife's testimony may be considered as corroborative. Has- kins v. People, 16, 344. VII. Courts. Session of New York city General Ses- sions — Laws of 1860, chapter 410, con- strued — opinion of juror — fixing day for execution — sentence partly void, how cured. Lowenberg v. People, 27, 336. Act of 1855, chapter 337, amended in 1858, chapter 330, dispensing with excep- tions, does not apply to Oyer and Termi- ner. McKee v. People, 36, 113. Same justices of Court of Sessions must sit through trial. Blend v. People, 41, 604. VIII Me post facto laws. Statute adding previous imprisonment to capital sentence ex post facto as to per- sons under conviction at time of passage. Hartung v. People, 22, 95. Laws of 1860, chapter 410, ex post facto as to subsequent convictions for pre- vious crimes, Hartung v. People, 26, 167. 138 IX. CKIMINAL LAW, IX. — XL X. Verdict. Writ of error does not lie in behalf of people. People v. Corning, 2, 1. Writ of error to reverse conviction does not lie until after sentence, which must appear of record, but certiorari lies before. Sill v. People, 10, 463. An escaped prisoner cannot maintain an appeal. People v. Genet, 59, 80 ; 17 Am. Rep. 315. Writ of error does not lie here from re- versal of General Term for irregularity and remission for re-sentence. Pratt v. People, 67, 606. What writ of error brings up — indict ment — charge — evidence — prisoner as witness. People v. Casey, 72, 393. Dismissal of writ of error reviewable here — what is proper record of conviction — certiorari to bring up errors not shown. Manke v. People, 74, 415. Writ of error does not bring up motion to arrest judgment on ground of disquali fication of judge. Hunt v. People, 76, 89. Writ of error does not lie to review order of General Term affirming judgment of conviction of Court of Sessions. Eighmy v. People, 78, 330. Writ of error does not lie from order of General Term reversing conviction of Oyer and Terminer, and discharging pris- oner before judgment. People v. Bork, 78, 346. Writ of error only brings up exceptions taken on trial — motion in arrest not pre- sented by. Pontius v. People, 82, 339. Writ of error lies to review final judg- ment only. Tabor v. People, 90, 248. Appeal does not lie here to review re- versal of conviction on the facts. People v. Boas, 93, 560. Power of Supreme Court by Code Crim. Proa, § 537, to grant new trial where judgment is against evidence or law, or where justice requires it, although no ex- ceptions were taken in the court below, is discretionary, and where it does not appear that the discretion has been abused, it is not reviewable here. People v. B'Argen- cour, 95, 624. Once in jeopardy — acquittal on invalid indictment no bar. Canter v. People, 2 Trans. App. 1. Conviction in local court — proof of place and year waived by not objecting — caption unnecessary. Wagner v. People, 4 Abb. 509. Judgment must be signed by judge — need not specify prison. Weed v. People, 31, 465. Verdict of "guilty of embezzlement" on indictment for embezzlements and for larcenies is an acquittal of the larcenies. Guenther v. People, 24, 100. Judgment not essential to plea of former conviction. Shepherd v. People, 25, 406. Conviction for less degree than that charged — when proper. Keefe v. People, 40, 348. Conviction may be had although it is not impossible that another may have com- mitted the crime. Poole v. People, 80, 645. General verdict sustained where some counts good and others bad. Pontius v. People, 82, 339. Verdict of guilty on one count is ac- quittal on others — reversal does not dis- turb acquittal. People v. Bowling, 84, 478. XI. Sentence. Proper form under law of 1862 for mur- der in 1860 — court will remit for proper sentence. McKeev. People, 32, 239. When sentence not executed. Supreme Court may re-sentence. Matter of Appli- cation of Ferris, 35, 262. This court may affirm and remand for proper sentence. Harris v. People, 59, 599. Cumulative sentences under one indict- ment only valid to extent of legal punish- ment for one offense. People v. Liscomb, 60,559; 19 Am. Rep. 211. Imprisonment before sentence does not count on term of sentence. People v. Warden of State Prison, 66, 342. On general verdict of guilty of several offenses differently punishable, sentence may be for highest charge. Hawker v. People, 75, 487. CHIMIN AL LAW, XII. — XIX. 139 Eights of prisoner confined on excessive sentence. People v. Baker, 89, 460. XII. Execution. Escape of prisoner before expiration of term does not necessitate new award of execution. Hagerty v. People, 53, 476. Convict committing murder may be tanged before expiration of sentence. Thomas v. People, 67, 218. XIII. Capital punishment. Construction of law of 1860 in relation to capital punishment, and act of April 17, 1861. Hartung v. People, 28, 400. Construction of Laws of 1861, chapter 303 ; 1862, chapter 197 ; and 1863, chapter 226, in regard to capital punishment. Rateky v. People, 29, 124. XIV. Abortion. Indictment — venue — variance — sur- plusage. Crichton v. People, 1 Keyes, 341. "Woman with child" equivalent to "pregnant woman." Eckhardt v. People. 83, 462 ; 38 Am. Rep. 462. Evidence — circulars — minutes of con- viction of -perjury. Weed v. People, 56, 628. XV. Arson. Burning one's own dwelling-house — description — evidence. Shepherd v. Peo- ple, 19, 537. Ownership — indictment — duplicity — presence of human being — confession. Woodford v. People, 62, 117 ; 20 Am. Rep. 464. XVI. Assault. Assault with intent to kill — shooting at one and wounding another. Holly wood v. People, 2 Abb. 376. Assault with " sharp, dangerous wea- pon" — pitchfork not, when used as club — evidence of defense of property. Fit- kins v. People, 69, 101 ; 25 Am. Rep. 143. Burden of proof on accused for assault with weapon. Sawyer v. People, 91, 667. Evidence in trial for assault to kill — another similar offense not admissible. People v. Gibbs, 93, 470. Evidence on trial for assault with intent to kill. People v. Kelly, 94, 526. XVII. Bawdy-house. Evidence of arrest of prostitutes and harboring after conviction competent. Harwood v. People, 26, 190. Disorderly house — need not be noisy — bawdy-house, what is — gambling-house. King v. People, 83, 587. Taking woman to defile her — personal force not essential — act of 1848, chapter 105, not applicable — joint indictment of prisoner and keeper of house — proof of conspiracy not essential. Beyer v. People, 86, 369. XVIII. Bigamy. Indictment lies although defendant procured ceremony by a pretended clergy- man. Hayes v. People, 25, 390. Proof of manner of subsequent inter- course is competent to corroborate prose- cutrix. Id. Indictment — unnecessary to negative the exceptions. Fleming v. People, 27, 329. When assent to marriage ceremony im- plied. Id. When divorce in another State no de- fense — charge as to intent. People v Baker. 76, 78 ; 32 Am. Rep. 274. One against whom divorce obtained here for adultery remarrying here guilty of bigamy. People v. Faber, 92, 146 ; 44 Am. Rep. 357. XIX. Burglary. Tools used in burglary may be exhibited to jury. People v. Lamed, 7, 445 ; Foster v. People, 63, 619. Conviction of burglary or larceny may be had in any county where goods are carried. Haslcins v. People, 16, 344. 140 OEIMINAL LAW, XX. — XXV. Indictment — outer door of room in tenement house. Mason v. People, 26, 200. Outer door — breaking — intent to com- mit crime — mere trespass. MeCourt v. People, 64, 583. Evidence — of taking of articles not specified in indictment — calling for bur- glar's tools — breaking. Foster v. People, 63, 619. Ownership — " dwelling-bouse " — au- thorities collated. Quinn v. People, 71, 561 ; 27 Am. Rep. 87. Guest's room at inn must be charged as house of innkeeper. Rodgers v. People, 86, 360 ; 40 Am. Rep. 548. XX. Conspiracy. When acts and declarations of part not admissible. Ormsby v. People, 53, 472. Implied acquiescence in prosecutor's statements — conspiracy may be proved by circumstances, and declarations of con- spirators are competent against one an- other. Kelley v. People, 55, 566 ; 14 Am. Rep. 342. There must be criminal intent although act is prohibited by statute. People v. Powell, 63, 88. XXI. Counterfeiting. Certification of check — indictment. People v. Clements, 26, 193. XXII. Election laws. Sufficiency of indictment against elec- tion inspectors for violating law. Hall v. People, 90, 498. Defense of unconstitutionality of law unavailable. Id. XXIII. Embezzlement. Keeper of county poor house is not " agent or servant " within statute of em- bezzlement. Coats v. People, 22, 245. By officer — evidence must show that money came to his hands by virtue of office. Bartow v. People, 78, 377. Treasurer of city converting city bonds placed with him for sale, indictable under Laws 1875, chapter 19, for embezzlement. Bork v. People, 91, 5. XXIV. Excise. Sale of intoxicants, when indictable. Behan v. People, 17, 516. Offenses against act of 1857, chapter 628, sections 13, 29. Foote v. People, 56, 321. Selling lager beer on Sunday — question whether it is intoxicating is one of fact. Rau v. People, 63, 277. XXV. False pretenses. What is not false pretense — promise to give employment. Ranney v. People, 22, 413. Sufficient to state, negative and prove one false pretense. Thomas v. People, 34, 351. Object of statute against — whom pro- tects — indictment not sustained. McCord v. People, 46, 470. Indictment — evidence — request to charge as to sufficiency of indictment. Smith v. People, 47, 303. Post-dated check as » false pretense. Lesser v. People, 73, 78. Evidence — schedules in bankruptcy competent. Indictment in State court lies after bankruptcy proceedings instituted against prisoner. Abbott v. People, 75, 602. Obtaining goods on credit — evidence of other frauds — cross-examination of pris- oner. Mayer v. People, 80, 364. Obtaining signature to written instru- ment — what evidence must show to j us- tify conviction for false pretense — proof need not be direct — whether prosecutor influenced by representation, distinct from pretense of fraudulent intent of prisoner. Therasson v. People, 82, 238. Obtaining signature to warrant on city chamberlain — indictment — evidence — challenge — cross-examination. People v. Court of Oyer and Terminer, 83, 436. On sale of horse. Watson v. People, 87, 561 ; 41 Am. Rep. 397. CRIMINAL LAW, XXVI. — XXVIII. 141 Procurement of property by post-dated check or false promise not false pretenses. People v. Blanchard, 90, 314. Sufficiency of indictment — conviction as to one pretense sufficient — variance. Webster v. People, 92, 422. Obtaining money by false pretense not larceny under statute previous to Penal Code. Thome v. Turck, 94, 90. XXVI. Forgery. Counterfeiting order for delivery of property. Noakes v. People, 25, 380. Of check — indictment need not set forth indorsements or stamp. Miller v. People, 52, 304 ; 11 Am. Rep. 706. Upon trial for forgery admissions of other forgeries inadmissible on question of intent. People v. Corbin, 56, 363 ; 15 Am. Rep. 427. False entries in books of State treas- urer — indictment — variance. Phelps v. People, 72, 365. County treasurer executing in his own name, as treasurer, an unauthorized in- strument purporting to be obligation of county, not forgery. People v. Mann, 75, 484 ; 31 Am. Rep. 482. Of notes of bank of another country — evidence — of incorporation — making and engraving plate — indictment — "centaros" — intent to defraud. People IfArgeneour, 95, XXVII. Gambling. Permitting gambling occasionally is sufficient under act 1851, chapter 504. Hitchins v. People, 39, 454. XXVIII. Homicide. Threats. Friery v. People, 2 Abb. 215. In self-defense cannot be justified where the combat could have been avoided or the assailed could have retreated. Shorter v. People, 2, 193. Evidence of character of deceased and of accused. People v. Lamb, 2 Keyes, 360 ; Abbott v. People, 86, 460. Without premeditation by dangerous act — construction of 2 R. S. 657, £ 5. Barry v. People, 10, 120. The body must be found or its disap- pearance accounted for. Buloff v. People, 18, 179. Corpus delicti must be proved beyond reasonable doubt. People v. Sehryver, 42, 1 ; 1 Am. Rep. 480. Of officer — knowledge of official charac- ter, how shown. Yates v. People, 32, 509. Construction of law of 1862. Fitzgerald, v. People, 37, 413. Indictment — "alias " — declarations of deceased — opinion of experts as to prob- able position of body at time of killing. Kennedy v. People, 39, 245. Under indictment for murder in first degree conviction of second degree may be upheld — there can be no reversal in absence of proper exceptions. People v. Thompson, 41, 1. Justification for homicide not to be proved beyond reasonable doubt. People v. Schryver, 42, 1 ; 1 Am. Rep. 480. Joint actors jointly guilty — rights of one opposing felony. Buloff v. People, 45, 213. Manslaughter, killing unborn child — child must be averred and proved to have been quick. Evans v. People, 49, 86. See Eckhardt v. People, 83, 462 ; 38 Am. Rep. 462. Murder in second degree — what is. Foster v. People, 50, 598. Evidence of uncommunicated threats by deceased competent — minutes of ground — burden of proof. Stokes v. Peo- ple, 53, 164 ; 13 Am. Rep. 492. Of wife taken in adultery, by hus- band — when murder. Shufflin v. People, 62, 229 ; 20 Am. Rep. 483. Evidence — motive — footsteps — meas- urements — confessions. Murphy v. Peo- ple, 63, 590. Evidence — dying declarations — indict- ment — indorsement not essential. Broth erton v. People, 75, 159. Unintentional killing in commission of rape is murder in first degree. Buel V. People, 78, 492 ; 34 Am. Rep. 555. 142 CEIMINAL LAW, XXIX. — XXXII. During commission of felony — indict- ment — death from fright. Gox v. People, 80, 502. Character of weapon, question of fact. Abbott v. People, 86, 460. Act of 1873, chapter 644 — deliberation and premeditation, what sufficient to characterize. Leighton v. People, 88, 117. Facts constituting murder in first de- gree. People v. Cornetli, 92, 85. Plea of manslaughter may be accepted upon indictment for murder. People v. McDonnell, 92, 657. XXIX. Kidnapping and seduction. Kidnapping — getting sailor drunk to ship him — parol evidence of destination of ship. Badden v. People, 25, 373. Seduction — promise to marry — evi- dence of want of chastity — corroboration — evidence. Kenyon v. People, 26, 203. conditional promise to marry — evidence — corroboration. Boyce v. Peo- ple, 55, 644. evidence of prosecutrix — corrobo- ration — opportunities — privileged com- munication — promise may be sometime before intercourse. Armstrong v. People, 70, 38. XXX. Larceny. From person — indictment need not aver that it was in night-time — verdict — variance. Fallon v. People, 2 Abb. 83. Petit, second offense — indictment not showing jurisdiction on former trial, ob- jection must be made in court below. People v. Bowers, 6, 50. Evidence in grand larceny of taking of property insufficiently described, when competent. Haskins v. People, 16, 344. Carrier's conversion of goods intrusted for carriage is larceny and not embezzle- ment. Nicliols v. People, 17, 114. On indictment for larceny of several sums amounting to more than $25, pris- oner entitled to finding as to amount. WUUams v. People, 24, 405. On joint indictment for larceny there may be convictions for larceny and for attempt to commit. Klein v. People, 31, 229. Felonious intent must exist at time of taking. Wilson v. People, 39, 459. From agent — constructive possession. People v. McDonald, 43, 61. Raising money from bottom of pocket constitutes larceny. Harrison v. People, 50, 518 ; 10 Am. Rep. 517. Second offense — evidence — objection. Johnson v. People, 55, 512. Effect of recent possession of stolen property. Stover v. People, 56, 315. Of bill delivered to be changed. Hilde- brand v. People, 56, 394 ; 15 Am. Rep. 435 ; Justices of Sessions v. People, 90, 12. By conspiracy to convert. Loomis v. People, 67, 322 ; 23 Am. Rep. 123. Of drafts, by employee of State treas- urer — requisites of indictment — challenge. Phelps v. People, 72, 334. Distinguished from false pretenses — no larceny where owner intended to part with title. Zink v. People, 77, 114 ; 33 Am. Rep. 589. See Smith v. People, 53, 111 ; 13 Am. Rep. 474. Stealing dog is larceny — " personal property." Mullaly v. People, 86, 365. By trick — sending pretended express- man for goods C. O. D. — proof of similar transactions. SAipply v. People, 86, 375 ; 40 Am. Rep. 551, note. Petit larceny not a felony — jurisdiction of Special Sessions. People v. Finn, 87, 533. Police authorities may temporarily de- tain articles stolen. Simpson v. St. John, 93, 363. XXXI. Lottery. Indictment for publishing lottery scheme, requisites of. Charles v. People, 1, 180. Lottery to be drawn in another State where lawful unlawfully published in this State. Id. XXXII. Mayhem. Premeditation essential to mayhem, Godfrey v. People, 63, 207. CRIMINAL LAW, XXXIII. — XXXVII. 143 Blow on head is not assault with intent to maim. Foster v. People, 50, 598. Indictment need not state circumstances of premeditation — design must be averred — ''destroy" answers for " disabled." Tally v. People, 67, 15. XXXIII. Nuisance. When railroad guilty of nuisance in bridging highway. People v. New York Cent, etc., S. Co., 74, 302. XXXIV. Perjury. Perjury committed although witness incompetent. Chamberlain v. People, 23, 85. As to execution of will — advice of counsel. Tuttle v. People, 36, 431. What constitutes perjury — indictment. Wood v. People, 59, 117. On investigation before fire marshal of New York city — jurisdiction — vari- ance — verdict. Harris v. People, 64, 148. Indictment — when should negative in- formation and belief — declarations of third person referred to by prisoner — false oath here before officer residing out of State, not perjury. Lambert v. People, 76, 220 ; 32 Am. Rep. 293. Not predicable where affiant did not personally appear before officer certify- ing affidavit. Case v. People, 76, 242. Sufficient to charge in indictment that court had authority to administer oath. Mghmy v. People, 79, 546. Writ of error — brings up only question of law raised by exception. Id. Offer of valuable consideration to pro- cure — indictment. Stratton v. People, 81, 629. Mere delivery of signed affidavit to officer is not taking oath. O'Beiley v. People, 86, 154 ; 40 Am. Rep, 525. Subornation — oath on arrest for lar- ceny — indictment. Elkin v. People, 28, 177. Conviction cannot be had on uncorrobo- rated evidence of perjurer. People v. Evans, 40, 1. XXXV. Rape. Particulars of prosecutrix's complaints not admissible. Baccio v. People, 41, 265. Evidence of unchastity of prosecutrix competent. Woods v. People, 55, 515 ; 14 Am. Rep. 309. Evidence of chastity confined to those amo,ng whom she dwells. Conkey v„ People, 1 Abb. 418. Delay in making complaint, effect on credibility. Higgins v. People, 58, 377. Prosecutrix must appear to have re- sisted to extent of her ability — female under ten years of age. People v. Dohr- ing, 59, 374 ; 17 Am. Rep. 349. Compelling woman to be defiled by force, menace or duress — going to house of prostitution as domestic not knowing its character — evidence justifying con- viction — what said in room part of res gestae. Schnicker v. People, 88, 192. The conduct of the prisoner accused of rape when in the presence of tbe prosecu- trix is competent evidence. Conkey v. People, 1 Abb. 418. XXXVI. Receiving stolen goods. Evidence — possession of stolen property — effect of. Knickerbocker v. People, 43, 177. Possession of stolen goods after larceny, unless explained, justifies conviction. Goldstein v. People, 82, 231. On indictment for receiving stolen goods, prosecution to prove scienter may not show that prisoner has received other stolen property from others. Coleman v. People, 55, 81. Evidence of other like acts, when com- petent. Coleman v. People, 58, 555. Evidence of other purchases by pawn- broker — conversations. Copperman v. People, 56, 591. Act of 1877, chapter 167, embraces re- ceiving goods stolen from railroads. Peo- ple v. Bowling, 84, 478. XXXVII. Circumstantial evidence — case for j ury. Bloomer v. People, 3 Keyes, 9. 144 CKIMINAL LAW, XXXVIII. — DAMAGES, I. Custodian need not be actual owner of property. Brooks v . People, 49, 436 ; 10 Am. Rep. 398. What evidence sufficient to establish the " corpus delicti " of a robbery — in toxication of person robbed — its effect. Bloomer v. People, 1 Abb. 146. XXXVIII. Selling unwholesome provis- ions. Indictment — evidence — guilty knowl- edge may be inferred from circumstances. Goodrich v. People, 19, 574. Selling unwholesome beef as merchan- dise generally is criminal. People v. Par- ker, 38, 85. Selling adulterated milk — validity of ordinance — indictment — joinder — du- plicity. Polinsky v. People, 73, 65. XXXIX. Usury. When indictment will not lie. Sumner v. People, 29, 337. CROPS. Carried by devise — go first to pay debts. Bradner v. Faulkner, 34, 347. One in possession of land, claiming ad- versely, may sell the hay cut during the occupancy. Stoekwell v. Phelps, 34, 363. When sub-lessee not entitled to crops sowed pending action of ejectment. Sam- son v. Rose, 65, 411. Mortgagor not entitled to ungathered crop sowed after default. Sherman v. Wil- lett, 43, 146. Owner of equity of redemption may sell crops as against purchaser on foreclosure. Van Etten v. Currier, 4 Abb. 475. Curtesy. See Marriage ; Will. CUSTOM. When does not give cause of action. KeUey v. Downing, 42, 71. See Contract ; Evidence. D. DAMAGES. I. Mitigation of. II. What recoverable as. III. What not recoverable as. IV. Measure of. 1. Actions ex contractu. 2. Actions against carriers. 3. Breach of warranty. 4. Contracts for sale of lands. 5. Breach of promise of marriage. 6. Quantum meruit. 7. Prospective damages. 8. Special damages. 9. Nominal damages. 10. Generally. V. Liquidated damages. VI. Actions ex delicto. 1. 2. Conversion. 3. Exemplary damages. 4. Fraud. 5. Trespass. 6. Actions against sheriff. VII. Practice. 1. What court to fix. 2. Waiver of right of action for. 3. Competent proof of. I. Mitigation of. Where article sold is entirely worthless for purpose, vendor must still be allowed for intrinsic value. Hoe v. Sanborn, 36, 93. Mortgage given to secure notes — maker becoming insolvent — value of note at time of trial allowed in diminution — offer to re- DAMAGES, II. — Ill, 145 turn note unnecessary. Smith v. BoUwook, 83, 562. Where stored property stolen from ware- houseman — recovery of part of property — expense of recovery and repair allowed. Jonesv.Morgan.QO.i; 43 Am, Rep. 181. In action by receiver against officer of bank for illegal loans actual loss only re- coverable — payments by joint tortfeasor to be credited. Knapp v, Iioche, 94, 329. II. What recoverable as. Funeral expenses proper item in action causing death. Act of 1870, chapter 78. Murphy v. New York Gent. R. Co., 88, 445. In action for personal injury, bodily pain, as well as medical expenses and pecuniary loss, is a proper element of damage. Ransom v. N Y- 9 and 1871 constitutional — appointment of commissioners by inter- ested judge. Matter of Application of Ryers; 72, 1 ; 28 Am. Eep. 88. Compensation must be made for lands appropriated. Matter of Petition of C7ieesebrougfl; 78, 232. Petition to acquire easement must state reason why commissioners cannot agree with owner — act of 1869, chapter 888. Matter of Application of Marsh, 71, 315. , License — can be granted only by deed — when revocable. Wiseman v. Luck- singer, 84, 31 ;. 3*8 Am. Rep. 479. Easement of underground drainage, not created by sale of 1 one tenement as against another of same owner. Butierworth v. Crawford, 46, 349 ; 7 Am. Rep. 352. County Court may set aside assessment by Commissioners based on acreage rather than on benefit!. People v. County Court of Jeferson Co., 55, 604. Resignation of commissioner : — assess; ment — license from owners — statement of expense. Olmsted v. Dennis, 77, 378. See Constitutional Law; Deed; Easement. DRUGGIST. Who warns purchaser of nature of drug, not liable for injury from overdose be- cause omjtting to label. Woldfahrt v. Beckert, 92, 490 r 44 Am. Rep. 406. See Negligence. DRUNKARD. Habitual, not necessarily incompetent" to execute deed. Van Wyck v. Brasher, 81,260. One under commission as an habitual drunkard cannot waive protest. Wads- worth V. S7iarpsteen, 8, 388. 162 DURESS — EASEMENT. DURESS. Note obtained by, void. Osborn v. Bob- bins, 36, 365. Money illegally exacted as a condition of delivering property to tbe owner may be recovered — what is involuntary pay- ment. Sclwley v. Mumford, 60, 498. Threats of imprisonment or suicide of son, not duress of mother. Metropolitan. Life Ins. Co. v. Meeker, 85, 614. Threatening a woman to prosecute her husband for embezzlement may be. Eadie v. Slimmon, 26, 9. Note of married woman obtained by, of husband, void in hands of innocent holder. Loomis v. Ruck, 56, 462. Release obtained by threat to continue imprisonment of one unlawfully arrested void. Guitteaume v. Howe. 94, 268. Surrender of insurance policy — where not procured by coercion — evidence of declaration. Stillwell v. Mutual Life Ins. Co., 72, 385. Creditor exacting money as condition to signing composition ■ — relation by marriage paying under duress — cannot recover back — only debtor or blood relation Solinger v. Em-Is, 82, 393. When action lies against carrier for ex- action of illegal compensation. Bald- win v. Liverpool, etc., Steamship Co., 74, 125 ; 30 Am. Rep. 277. Of goods — what constitutes. Briggs v. Boyd, 56, 279. By stockbroker, of customer. White v. Baxter, 71, 254. See Contract ; Criminal Law ; Nego- tiable Instrument ; Payment : Ship and Shipping; Taxation. DUTIES. Consignee not accepting the goods, not liable for the duties. DuBeirat v. Wolfe, 29, 436. U. S. statute as to adding, on contracts of sale or manufacture. Babbett v. Young, 51, 238. Adding to price. Hudson Iron Co. v. 54, 173. See Contract. DYING DECLARATIONS. See Criminal Law; Evidence. E. EASEMENT. Actual knowledge of servient easement not necessary to constitute, by prescrip- tion — where user open, notice and acqui- escence implied — knowledge of agent attributed to principal. Ward v. Warren, 82, 265. Restrictive covenant for benefit of other grantees — injunction — violation by other grantees — extinguishment. Lattimer v. Livermore, 72, 174. Effect of severance of ownership upon easement charged by common owner on one portion of his land for benefit of an- other. Lampman v. Milks, 21, 505. Of light, cut off by foreclosure sale un- der mortgage prior to grant of easement. Rector of Christ Church v. Mack, 93, 488 ; 45 Am. Rep. 260. Right to maintain railroad embank- ment — release of liability for injury. Van Rensselaer v. Albany & West Stock- bridge R. Co., 62, 65. Mere convenience not sufficient to create. Ogden v. Jennings, 62, 526. In street not effectually dedicated — award to owners of adjacent lots on open- ing street. Matter of Eleventh Avenue, 81, 436. In soil of street — - change of street lines. White's Bank of Buffalo v. NiclwU, 64, 65. EASEMENT — EJECTMENT. 163 Acquired by grantee in alley laid out by grantor and referred to as boundary. Wig- gins v. McCleary, 49, 346. Servitude may be imposed by parol by common owner of land on both sides of city street in respect to manner of occupation. Tal'.madge v. East River Bank, 26, 105. Where adjacent owner does not own fee of street he has no remedy for inconven- ience of access caused by a railway in the street. Kellinger v. Forty-second Street, etc., R. Go., 50, 206. Owner may subject land to servitude of a ditch, with right to enter and repair, on severance of title. Roberts v. Roberts, 55, 275. Grant of right to construct dam and take necessary lands — specific description not necessary — location of dam cannot be changed. Evangelical Lutheran St. John's Orphan Home v. Buffalo Hydraulic Association, 64, 561. Eight to flow presumed from twenty years' continuous injurious use. Hammon v. Zehner, 21, 118. Of drainage can be granted only by deed — license, when revocable — adverse possession. Wiseman v. Lucksinger, 84, 31 ; 38 Am. Bep. 479. Of underground drainage, not created by sale of one tenement as against another of same owner. Butterworth v. Crawford, 46, 349 ; 7 Am. Eep. 352. To enter on lands and lay water pipe, once exercised, fixes the size of the pipe so that it cannot be increased. Outhank v. Lake Shore, etc., R. Co., 71, 194 ; 27 Am. Eep. 35^ To draw water through pipe of specified size — pipe must be of uniform size throughout. Markham v. Stowe, 66, 574. In reservoir and flume — when does not pass as appurtenant to deed. Simmons v. Cloonan, 47, 3. To dig specified spring — does not pre- vent grantor from digging another al- though it renders former useless. Bliss v. Greeley, 45, 671 ; 6 Am. Eep. 157. Agreement for consideration to furnish surplus water from spring through pipes to another, held only license and revoca- ble. Oronkhite v. CronkhUe, 94, 323. When right of way does not pass as appurtenance. Parsons v. Johnson, 68, 62 ; 23 Am. Kep. 149. No extinguishment by mere non-user. Wiggins v. McCleary, 49, 346 ; White's Bank of Buffalo v. Nichols, 64, 65. Permission to build structures on land " inconsistent with easement works extin- guishment. Cartwright v. Maplesden, 53, 622. On lease, in yard, of light and air — when not waived by closing of access. Doyle v. Lord, 64, 432 ; 21 Am. Eep. 629. See Covenant ; Dedication ; Deed ; Drainage ; Highway ; License ; Water and Water-Course ; Way, and other specific titles. EJECTMENT. Mere probability not enough to sup- port claim against one having deed from same grantor. Curtis v. Butts, 3 Keyes, 626 ; 4 Trans. App. 404. Defendant may showi equitable title. Crary v. Goodman, 12, 266. Deed in fact mortgage — grantee cannot maintain. Carr v. Carr, 52, 251. Plaintiff cannot recover on strength of after-acquired title — new action neces- sary — evidence in second suit not sus- taining first. Dawley v. Brown, 79, 390. Actual not constructive possession necessary to maintain, under void deed. Thompson v. Burhans, 79, 93. Where custody and possession of prop- erty is shown to be equally consistent with an outstanding title in a third person as with the title in one having possession, no presumption of ownership arises simply from such possession. Rawley v. Brown, 71, 85. Evidence of possession and title. Ste- vens v. Hauser, 39, 302. Evidence of divestiture — estoppel — boundary. Sherman v. McKeon, 38, 266. Under grant in fee reserving rent — evidence of possession — no demand of rent necessary. Hosford v. Ballard, 39, 147. 164 EJECTMENT — ELECTION", Plaintiff cannot recover on proof of prior possession except adverse. Drew v. Swift, 46, 204. Inaccessible premises — mesne profits. Woodhull v. Rosenthal, 61, 382. Lies against city for lands taken for pub- lic use. Strong v. City of Brooklyn, 68, 1, Title of bona fide purchaser from heirs at law, 1 H. S. 749, g 3 — concealment of will — what sufficient to divest title. Cole v. Gourlay, 79, 527. When defendant is not a creditor cannot impeach grant as in fraud of creditors. Moseley v. Moseley, 15, 334. When wife may maintain against hus- band. Wood v. Wood, 83, 575. Not maintainable against town under act of 1875, chapter 49, authorizing peo- ple to recover money, etc., from public corporations. People v. New York, etc., By. Co.. 84, 565. That plaintiff conveyed the lands while held adversely no defense to action. Chamberlain v. Taylor, 92, 348. For dower — proceedings to admeasure, after recovery — notice to owner not necessary. Stewart v. Smith, 1 Keyes, 59. Evidence — former judgment — lease in fee, right of entry for non-payment of rent — parties — infants — mesne profits. Cagger v. Lansing, 64, 417. When presumed to be for re-entry on lease. Samson v. Hose, 65, 411. For non-payment of rent does not lie unless right of re-entry is expressly re- served in the lease. Van Rensselaer v. Jewett, 2, 141. When maintainable for undivided in- terest by virtue of rent charge. Cruger v. McLaury, 41, 219. In action to recover real estate with damages for withholding, there can be no recovery for value of use and occupation. Lamed v. Hudson, 57, 151. Purchaser at foreclosure sale under mortgage assumed by evicted tenant is "assignee" entitled to apply to vacate ejectment judgment. Howell v. Leaviit, 90, 238. Does not lie for easement of wharfage in common with others. Child v. Chap- pell, 9, 246. Is proper remedy for owner of land sub- ject to public easement against party ap- propriating it to private purposes. Car- penter v. Oswego & Syracuse R. Co., 24, 655. Plaintiff's possession limited upon trust estate, legal estate in trustees — plaintiff cannot maintain. Bennett v. Oarlock, 79, 302 ; 35 Am. Rep. 517. Defendant may allege mistake in de- scription as defense, but must concede, the same right to plaintiff. Hoppough v. Struble, 60, 430. Facts insufficient to sustain judgment^ for plaintiff. Ca/rleton v. Darcy, 90, 566. Writ of possession, when and how exe- cuted. Witbeck v. Van. Rensselaer, 64, 27. Judgment by default not conclusive, against claimants under defendants, unless it has been docketed three years. Sheridan, v. Linden, 81, 182. Docketing judgment, under Laws of 1840, chapter 38, not essential in — acqui- sition of subsequent title from lis pendens. Sheridan v. Andrews, 49, 478. When new trial, of course. Chautauqua Co. Bank v. White, 23, 347; Howell v. Leamtt, 90, 238. Provision for new trial, of course, not applicable to any other action. Shumway v. Shumway, 42, 143. Application for new trial in, denied, where from papers, facts uncertain. Sacia, v. O'Connor, 79, 260. Mesne profits distinct cause of action. Larned v. Hudson, 57, 151. Judgment not conclusive nor evidence against third person, Sheridan v. An- drews, 49, 478. Judgment in, only conclusive as to title, litigated and established. Dawley v. Brown, 79, 390. ELECTION Construction of registry act of 1872, chapter 570. People v. Wilson, 62, 186. Where majority vote for ineligible can- didate, the next highest qualified is not elected. People v. Clute, 50, 451 ; 10 Am. Rep. 508. ELECTION — EMINENT DOMAIN, I. 105 Where three officer's t6 be elected and statute prohibits voting for more than' two — ballots not invalid because statute unconstitutional. People V. Petley, 80, 624. When voter's intention open to inquiry, a>nd how. Writing prevails over print in ballot. People v. Saxton, 22, 309. Powers Of inspectors — not judicial offi- cers — evidence of intent of voters — poll- list admissible — burden of proof of alien- age — presumption. People v. Pedse, 27, 45. Board of canvassers to deposit ballot' boxes in police department — delivery to officers sufficient compliance. People v. Livingston, 79, 279. What not sufficient compliance as to " securely " sealing boxes' — statute merely directory. Id. Inspectors liable for rejecting vote of person challenged as deserter and refuging to answer under oath. Ooetclvius v. Mat- thewson, 61, 420. See also Green v. Slium- way, 39, 418. Removal of inspector in New York city. Gardner v. People, 62, 299. Of justice of tenth judicial district — act annexing towns in Westchester county to New York. People v. Flanagan, 66, 237. Of justices of peace — constitution- ality — regularity — mandamus — joinder. People v. Sehiellein, 95, 124. See Constitutional Law ; Criminal Law : Office and Officer. ELECTION OF REMEDIES. Party bound by. Bodermund v. Clark, 46, 354 ; Bteinbach v. Belief Fire Ins. Co., 77; 498 ; 33 Am. Rep. 655. Threat not carried out is not an elec- tion. Litchfield v. Irvin, 51, 51. Omission to ■ defend. Giles v.' Austin, 62, 486. See Pleading Emancipation. See Parent and Child. EMBEZZLEMENT. Action lies to recover the amount with- out proving specific property taken. Gor- don v. Hostetter, 37, 99. See Criminal Law. Emblements. See Crops ■;■ Landlord and Tenant ; Mortgage. EMIGRATION. Commissioners not responsible for emi- grant's loss of baggage. Baggage and passenger solicitors licensed by them are not their agents. Murphy v. Commrs. of Emigration, 28, 134. EMINENT DOMAIN. L' WJio may exercise power. II. Compensation. III. Practice in proceedings ' to condemn. IV. Acquiring lands dedicated to one pub- lic use. V. Railways in streets. VI. Title acquired. VII. Miscellaneous. I. Who may exercise power. Railroad companies may be authorized to acquire private property for their use. Buffalo & N. T. B. Co. v. Brainard, 9. 100. Right maybe delegated — decision of delegate as to necessity not reviewable. Matter of Fowler, 53, 60. Persons delegated to exercise right of, may discontinue proceedings before title is acquired — Albany park commission. Matter of Commissioners of Washington Park, 56, 144. Cemetery association may not condemn lands. Matter of Petition of Beansville Cemetery Assoc, 66, 569; 23 Am. Rep. 166 EMINENT DOMAIN, II.— V. II. Compensation. Legislature cannot transfer turnpike to railroad company without compensation to owners of fee. Mahon v . New York Cent. B. Go., 24, 658. Compensation must be made for lands used for ditches. People v. Haines, 49, 587. Compensation awarded not liable for in- valid assessment on land. Matter of New York Gent., etc., B. Go., 90, 343. Compensation sufficiently secured by authority to town to issue bonds to be paid by taxation. Matter of Church, 92, 1. Eight granted by State cannot be im- paired except upon compensation. Lang- don v. Mayor of New York, 93, 129. III. Practice in proceedings to condemn. Requisites of proceedings to acquire lands held in common — Laws of 1834, chapter 256. Dyckman v. Mayor, etc. , 5, 434. Trial by jury not essential to determina- tion of question of necessity for public use. People v. Smith, 21, 595. Necessity for taking must be shown to court — - decision of board of directors not enough. Bensselaer, etc., B. Co. v. Davis, 43, 137. Schedule referred to in and annexed to petition is part of petition. Matter of Comm'rs of Washington Park, 52, 131. Commissioners to appraise damages may not be drawn by lot. Menges v. City of Albany, 56, 374. Decision of commissioners inoperative until confirmation by General Term — power and duty to review and pass on facts — discretion as to confirming. Kings Go. Elevated B., 82,95. Control of court as to payment of award for lands taken. Matter of Mayor of New York, 90, 390. Court may open default of owner on motion to confirm report of commissioners. Matter of New York.. Lackawanna, etc., B. Co., 93, 385. Costs in proceedings cannot be awarded against land-owners. Matter of New York, etc., B. Co., 94, 287. IV. Acquiring lands dedicated to one pub- lic use. Right to construct highway on railway lands. Albany Northern B. Co. v. BrowneU, 24, 345. Power of city to condemn railroad lands for public improvement — charter of Buffalo. Matter of City of Buffalo, 64, 547. One corporation may acquire easement in lands of another for public use. Matter of Application ofBochester Water Commis- sioners, 66, 413. Power to condemn land of one corpora- tion for another. Matter of City of Buffalo, 68, 167. Legislature may authorize one street railway company to use tracks of another upon making compensation. Sixth Ave. B. Co. v. Kerr, 72, 330. One railroad crossing another — defect- ive petition — not j urisdictional — how waived. Matter of Boston & Hoosac, etc., 79, 64. Land taken for public use cannot be afterward taken for another without legis- lative authority. Prospect Park, etc., B. Co. v. Williamson, 91, 552. V. Bailways and streets. Legislature cannot authorize railroad in highway without compensation to owners of fee. Williams v. N. Y. Cent. B. Co., 16, 97. Street cannot be taken for steam rail- road without compensation to adjoining owners. Wager v. Troy Union B. Co., 25, 526. Horse railway in New York city streets may be authorized by legislature without compensation to adjacent owners. People v. Kerr, 27, 188. Establishing horse railroad in city streets is additional burden. Craig v. Bochester, etc., B. Co., 39, 404. Abutting land-owner entitled to com- pensation for injury to interest in street by elevated railroad therein. Story v. New York El. B. Co., 90, 122 ; 43 Am. Rep. 146. EMINENT DOMAIN, VI. — ESCHEAT. 167 VI. Title acquired. No reversionary estate remains in lands acquired in fee-simple for public uses, and they may be converted to other nec- essary uses. Hey ward v. Mayor, etc., 7, 314 " Exercise of power of eminent domain divests inchoate dower. Moore v. Mayor, etc., 8, 110. Estate of city in lands acquired for park. Brooklyn Park Co. v. Armstrong, 45, 234 ; 6 Am. Rep. 70. Intent to take fee will not be implied when easement sufficient. Washington Cemetery v. Prospect Park, etc., B. Co., 68, 591. Title does not vest until appraisement — death of owner — dower — subsequent death of heir. Ballon v. Ballon, 78, 325. Acquiring lessee's interests does not af- fect rights of reversioner. Matter of Boston & Hoosac, etc., R. Co., 79, 69. Fee may be condemned for public use although use special and not permanent. Sweet v. Buffalo, etc., B. Co., 79, 293. VII. Miscellaneous. When appraisers are to assess the value of lands for a railroad without deduction for benefit, an appraisement on condition of reservation of certain easements is un- authorized. Sill v. Moliawh & H. B. B. Co., 7, 152. Unauthorized taking cannot be con- firmed by legislation. Matter of Town- send, 39, 171. Award for park lands — when sustained. Matter of Ninth Avenue and Fifteenth Street, 45, 729. Construction of act of 1871, chapter 579, on laying out Ocean avenue in Kings county — map must be filed. Bider v. Stryker, 63, 136. When municipality may be compelled to complete proceeding to acquire land. People v. Common Council of Syracuse, 78, 56. When action lies against city for dam ages for land taken, although assessments not collected — amendment of charter. Ganson v. City of Buffalo, 2 Abb. 236. See Assessments ; Constitutional Law ; Damages ; Municipal Corpora- tion ; New York City ; Railroad ; Taxation. ESCAPE. Action — when deemed to be for es- cape — if debtor insolvent plaintiff can- not recover whole amount of judgment. Smith v. Knapp, 30, 581. Removal of prisoner on jail liberties by warrant of congress to testify, not an es- cape. Wilckens v. Willet, 4 Abb. 596 ; 1 Keyes, 521. No action lies for escape of a debtor where process on which he was arrested was void. Carpentier v. Willet, 1 Abb. 312 ; 1 Keyes, 510. County judge with jurisdiction having ordered discharge is defense to sheriff — order reciting jurisdictional facts — proof aliunde — that arrest was unauthorized is defense. Goodwin v. Griffis, 88, 629. Liability of sheriff on voidable process — negligence — insolvency of debtor no defense. JDunford v. Weaver, 84, 445. Defense that execution was set aside. Pinckney v. Hegeman, 53, 31. When sheriff not estopped from con- testing action for, by prosecution of limit bond. Lawrence v. Campbell, 32, 455. See Execution; Sheriff. ESCHEAT. A purchaser at sheriff's sale dying be- fore time for redemption expires is " seised " within the statute of escheats. MngUshbe v. Heknuth, 3, 294. See Alienage. Escrow. See Deed. Ip8 ESTATE — ESTOPPEL, H. ESTATE. By deed to one for life and after his death to his heirs, forever, his children take an immediate vested estate. Sheri- dan v. Souse, 4 Keyes, 569 ; 4 Abb. 218. When contingent remainder in fee-tail becomes vested — act of 1786 — conver- sion into fee-simple — stock of descent. Wendell v. Orandall, 1, 491. See Deed ; Landlord and Tenant ; Marriage: Tenancy; Trusts;, Will. Pi -, i . ■. i i * i ■ i . ■ ■ ■. < ■■ ■-■ ■ > ESTOPPEL. I. By record. II. By deed. III. In pais. IV. General matters. I. By record. A defendant is collaterally estopped, by a judgment against himself although he was led to suffer it by the plaintiff's fraudulent statements. WJiite v. Merritt, 7, 352. Sheriff is not estopped by return of nulla bona canceled, by order of . court. Barker v. Binninger, 14, 270. Mortgagee not estopped, by judgment between mortgagor and prior mortgagee as to amount due on prior mortgage. Campbell v. SaU, 16, 575. Sheriff having taken receipt for levy andgot judgment for the value is estopped from denying judgment debtor's title to goods. People v. Reeder, 25, 302. Estoppel of judgment creditor in fore- closure. Frost v. Koon, 30, 428. When wife not precluded by judgment from asserting dower. Malloney v. Mo- nth, 49, 111 ; 10 Am. Eep. S35. Reversal of judgment destroys its force as an estoppel. Smith v. Frahkfield, 77, 414. " '' When defendants in action on under- taking in claim and delivery not estopped by stipulation in original action. Morri- son v. Wilkin, 78, 390. When estoppel by judgment in former action arises. Smith, v. Smith, 79, 634. When does. not. ColtqeU y, Bleakley, 1 Abb. 400. Party who has elected to take judgment as for goods, sold cannot maintain order of arrest for conversion. Fields v. Bland, 81,239. Judgment in another State conclusive as to defenses litigated in action. Patrick v. Shaffer, 94, 423. ' II. By deed. Municipal corporation estopped to im- peach its records. Buel v. Trustees of Village of, Lockport, 8, 55, When mortgagor estopped from deny- ing validity of assignment by his mort- gagee. Palmer v. Smith, 10, 303. Defendant in ejectment cannot impeach grant from common source of title as in fraud of creditors, he not being a creditor nor claiming under. Moseley v. Moseley, 15, 334. Subtenant not estopped from showing that assignment by lessee was for security for. a debt that had been paid. Despard v. WaOmdge, 15, 374. What does not amount, to estoppel ill lease respecting State right — when agent of State estopped. Walrath v. Bedfield, 18, 457. Guarantor a,nd assignor of bond, may not impeach its validity. Bemsen i v,, Graves, 41, 471. Grantee not estopped from showing that provision in deed was inserted by mistake. Pope v. O'Hara, 48, 446. When party executing power of attor- ney is not estopped by its statements of his residence. Bank of New Orleans v.. Matthews,, 49, 12, When one sued as trustee of corporation not estopped from denying incorporation, Be Witt v. Mastings, Brooklyn, People v. Comm'rs of Police, 59, 92. Commissioners cannot license non : resi.- dent. People v.. Davis, 36, 77. 194 EXECUTION, L — II. 2. a. Commissioners cannot delegate author- ity. Board of Excise v. Sackrider, 35, 154. Commissioners may employ an attorney at county charge to prosecute for penal- ties. People v. Supervisors of Delaware Co., 45, 196. Offense of selling liquor to intoxicated persons, Laws of 1857, chapter 628, section 18, not indictable. People v. Hislop, 77, 331. Treasurer of Inebriates' Home, Kings county, entitled to percentage of excise money — mandamus. People v. Board of Police, etc., 63, 623. Conviction of bar-tender of licensee for offense against act of 1873, annuls license. People v. Myers, 95, 223. See Civil Damage Act ; Constitu- tional Law ; Criminal Law. EXECUTION. I. Against tlie person. II. Against property. 1. Issue. 2. Levy. (a.) Property leviable. (6.) Wliat constitutes. (c.) Sale. (d.) Sale of lands. (e.) Exemption. (/.) Miscellaneous. Lien of. Redemption. General matters. 3. 4. 5. I. Against the person. Requisites of. Hutchinson v. Brand, 9, 208. Remedy for illegal arrest, how waived. Smith v. Knapp, 30, 581. To authorize arrest tinder in New York city District Court, the right must be stated in judgment. Carpenter v. Willett, 31, 90. Authorized by judgment for conversion. Bichtmeyer v. Remsen, 38, 206. When cannot issue. Wood v. Henry, 40, 124 ; Elwood v. Gardner, 45, 349. Order setting aside, justifies release. Pinckney v. Hegeman, 53, 31. A justice cannot on a subsequent day order, unless the right to arrest has al- ready been passed upon. Carpentier v. Willett, 1 Abb. 312 ; 1 Keyes, 510. Cannot issue against defeated plaintiff on judgment for costs in action to recover real property. Merritt v. Carpenter, 2 Keyes, 462. Cannot issue in action to recover real property. Merritt v. Carpenter, 3 Keyes, 142. II. Against property. 1. Issue. On motion, by assignee of judgment for leave to issue, it is no answer that judg- ment debtor is assignee of greater amount in judgments against moving party — practice. Betts v. Garr, 26, 383. Party issuing may bind sheriff by direc- tion as to which of several defendants the collection shall be made from. Root v. Wagner, 30, 9 Against estate — when leave improperly granted by surrogate — his leave neces- sary. Marine Bank of Chicago v. Van Brunt, 49. 160. Not signed by clerk, as required, by section 64, Code of Procedure, still pro- tects sheriff in making levy. Hill v. Haynes, 54, 153. Surety on undertaking in claim and de- livery cannot object to irregularity in is- suing. Harrison v. Wilkin, 78, 390. Not directing collection of interest, none can be collected on it or subsequent exe- cution Todd- v. Botchford, 86, 517. Omision of teste is mere irregularity. Douglas v. Haberstro, 88, 611. 2. Levy. (a.) Property leviable. When levied on goods liable to distress, and landlord has claimed them, court may order payment of monsy into court. Acker v. Ledyard, 8, 62. EXECUTION, II. 2. b. — f. 195 ' As against assignee of B. sheriff cannot levy on moneys in his hands collected upon execution in favor of B. Baker v. Ken- worthy, 41, 215. Property consigned, title not to pass until payment, not liable to sale on exe- cution against consignee. Cole v. Mann, 62, 1. Where a seller was authorized, under a contract to retain goods sufficient to pay notes or drafts unpaid, vendee has no leviable interest therein. TuthUl v. Bogart, 79, 215. (5.) What constitutes. Manual interference with chattels not necessary to a levy. Barker v. Bininger, 14, 270; Slias v. Farley, 3 Keyes, 398; 2 Abb. 11. Manual seizure not essential to levy — stay does not constitute abandonment. Bond v. WUlett, 31, 102; 1 Keyes, 377 ; 1 Abb. 165. What is valid levy on goods — when sheriff may take goods substituted by debtor for others levied on. Roth v. Wells, 29, 471. Ratification of illegal levy. Brainerd v. Dunning, 30, 211. Levy after return day invalid. Smith v. Smith, 60, 161. Officer may not remove property from possession of lienor. Truslow v. Putnam, 1 Keyes, 568. (c.) Sale. Notice by purchaser to sheriff not to pay over amount of bid does not impair his title. Spraker v. Cook, 16, 567. Purchaser does not get title to goods of A. wrongfully sold as those of B. , the j udg- ment debtor. Chambers v. Lewis, 28, 454. Purchaser under void — when can re- cover purchase-money. Scliwinger v. Hkkok, 53, 280. Sheriff accepting check on sale liable to creditor for amount thereof. Robinson v. Brennan, 90, 208. The purchaser at a wrongful sale on execution is estopped from setting up when sued that he was merely an agent in the purchase. Baltes v. Ripp, 1 Abb. 78. (d.) Sale of lands. Against grantee by quit-claim deed of one in possession under contract of pur- chase gives no title. Sage v. Cartwright, 9, 49. Sale of several lots in gross is voidable and not void. Gunningham v. Cassidy, 17, 276. Sufficiency of notice of sale of lands. Olcott v. Robinson, 21, 150. Death of debtor — notice of sale of real estate — requisites and omission — redemption — assignment of certificate. Wood v. Morehouse, 45, 368. (e.) Exemption. Under Laws of 1842, chapter 157, sec- tion 2, appraisers may set off specific arti- cles of furniture. Kain v. Fisher, 6, 597. A man having a wife and relatives and servants, living with him, although no children, has a "family." Id. Householder cannot waive prospective exemption. Kneettle v. Neweomb, 22, 249. ' ' Team " — evidence. Wilcox v. Mawley, 31, 648. Extends to partnership property. Steward v. Brown, 37, 350. Plaintiff liable, in an execution wrong- fully levied on property exempt from execution, if present at the levy. Arm- strong v. Dubois, 1 Abb. 8. Of property from process — debtor not bound to point out — officer may not claim for one creditor waiver in favor of another. Frost v. Mott, 34, 253. (/.) Miscellaneous. When levy is satisfaction — rules as to senior and junior. Peck v. Tiffany, 2, 451. Receiptor — covenant to return property or pay debt is valid — cannot show that property did not belong to debtor — nor that it was worth less than sum. agreed. Cornell v. Dakin, 38, 253. 196 EXECUTION, II. 3 — 5. Release of damages for levy on one execution no bar as to other levies. Noble v: Kelly, 40, 415. Judgment debtor remains owner, not- withstanding levy, and can convey subject to. Mumper v. Rushmore, 79, 19. 3. Lien of. Tender of amount discharges lien — re- fusal to accept and sale is conversion. ■ Tiffany v. St. John, 65, 314 ; 22 Am. Eep. 612. When dormant as to bona fide purchas- ers. Sage v. Woodin, 66, 578. When delivered with orders to merely hold for further orders, no lien attaches. Smith v. Erwin, 77, 466. No lien on personalty after return-day without previous levy. Walker v. Henry, 85, 130, Issued on judgment filed on Saturday when clerk's office not open for business — levy does not attach until judgment be- comes operative on Monday. Hathaway v. Howell, 70, 610. 4. Redemption. Sheriff's deed under, executed after time for redemption, relates back. Wright v. Douglass, 2, 373. Of lands — various principles. People v. Fleming, 2, 484 ; People v. Ransom, 2, 490. Satisfaction of judgment — mortgagee in possession. Ten Eyck v. Craig, 62, 406. Equity will not permit after time ex- pired, on ground of mistake as to legal rights. Weed v. Weed, 94, 243. Effect on junior judgment, on which sale was also had but not reached on ap- plication of proceeds. Bodine v. Moore, 18, 347. Of land acquired under collateral pledge of contract for sale — charges by pledgee. Kelly v. Falconer, 45, 42. Affidavit of mortgagee must state sum due so positively that perjury might be assigned. People v. Becker, 20, 354. Must be made to officer who made sale, if present, at sheriff's office. People v. Lynch, 68, 473. By creditor, must be made at office of sheriff of county where sale took place — last day. Morss v. Purvis, 68, 225 ; Gil- christ v. Comfort, 34, 235. County clerk may not receive redemp- tion money unless specially deputed. People v. Rathbun, 15, 528. To whom made — evidence — when cer- tificate sufficient. Livingston v. Arnoux, 56, 507. 5. General matters. Liability of indemnifying creditor on. Herring v. Hoppock, 15, 409. Rights under, as between receiver under creditor's bill and prior judgment creditor not party. Chautauque Co. Bank v. Risley, 19, 369. Receiver in supplementary proceedings is bound by his promise to sell subject to a prior levy. Becker v. Torrance, 31, 631. Requisites of return. Hutchinson v. Brand, 9, 208. Return amendable. People v. Ames, 35, 482. Where judgment reversed after levy, but before collection, sheriff not entitled to poundage. Campbell v. Cothran, 56, 279. Death of judgment debtor in custody does not entitle sheriff to poundage. Flack v. State, 95, 460. Fees of sheriff on j udgment of Marine Court filed in county clerk's office. Crofut v. Brandt, 58, 106 ; 17 Am. Rep. 213. Attachment against plaintiff does not excuse want of return. Wehle v. Conner, 63, 258. Against land after death of defendant — when invalid. Wallace v. Swinton, 64, 188. Superseding, by opening of judgment. Phillips v. Wheeler, 67, 104. Right of action for concealment of property exists in favor of creditor — facts essential to relief. Scott v. Morgan, 94, 508. Satisfaction, not impeachable collat- erally. People v Lansing, 5 Trans. App. 96. EXECUTOR AND ADMINISTRATOR, I. 1 — II. 1. 197 As between judgment debtor's grantee and a purchaser for bis benefit of tbe premises on execution. Carnes v. Piatt, 59, 405. See Creditor's Action ; Judicial Sale ; Judgment ; Sheriff ; Supple- mentary Proceedings. EXECUTOR AND ADMINIS- TRATOR. I. Appointment and qualifications. 1. In general. 2. Bonds of. II. Powers of. 1. In general. 2. A dministrator with will annexed. 3. Suits by. 4. Dealings with estate. III. Liabilities of. 1. To third persons for contracts and' acts. 2. To estate for negligence. 3. Generally. IV. Accounting. V. Compensation. VI. Actions and proceedings against. I. Appointment and qualifications. 1. In general. Professional gambler incompetent as ad- ministrator. McMahon v. Harrison, 6, 443. Illiteracy, poverty and mismanage- ment do not- constitute " improvidence " to remove. Emerson v. Bowers, 14, 449. Surrogate on affidavit of intention to object to letters testamentary to one of several, must suspend tbe grant to all. McGregor v. Buel, 24, 166. Relatives entitled to administer even though not entitled to share in distribu- tion. Lathrop v. Smith, 24, 417. Appointment of administrator by cleTk's filling up and sealing blank in his possession, void, unless surrogate has beard application and authorized appoint- ment. Roderigas v. East River Sav. 'Inst., 76, 316 ; 32 Am. Kep. 309. Statute giving unmarried woman pref- erence as to letters, not repealed by Laws of 1837, chapter 782, and notice need not be given to married one. Matter of Gurser, 89, 401. Non-resident citizen may be executor — bad temper no disqualification. McGregor v. McGregor, 1 Keyes, 133. 2. Bonds of. Bond of administrator with will an- nexed may be in ordinary form — insertion of words, "with the will annexed," after execution, immaterial. Casoni v. Jerome, 58, 315. Where creditor appoints bis debtor ex- ecutor, liens for tbe debt still subsist. Soverhill v. Suydam, 59, 140. Bond on removal of executor from State is retroactive — evidence — conclusive- ness of decree. Scofield v. Ohurchill, 72, 565. Mistake in administrator's bond — revo- cation — accounting — decree binding on sureties. Gerould v. Wilson, 81, 573. II. Powers of. 1. In general. Act of 1847, chapter 80, authorizing compromises, not restrictive but amplifi- cative. Chouteau v. Suydam, 21, 179. Administrator of insolvent estate may insure buildings for benefit of creditors. Herkimer v. Rice, 27, 163. Assignment by foreign executor to citi- zen of this State valid. Peterson v. Cliemical Bank, 32, 21. One executor cannot demand deposit of securities by co-executor with a third per- son. Burt v. Burt, 41, 46. Contract with executor does not bind estate. Austin, v. Munro, 47, 360. Action, in form against executor as such cannot be converted into one against him individually on demurrer. Id. May employ an agent if necessary. O'Gara v. Clearkin, 58, 663. Executor under act of 1871, chapter 603, pending appeal, may be sued and 198 EXECUTOR AND ADMINISTRATOR, II. 2 — 4. may pay debts — act general — powers do not cease till revocation of probate and notice thereof. Thompson v. Tracy, 60, 175. Payment to administrator formally ap- pointed valid although the alleged de- cedent is living. Boderigas v. East River Savings Inst., 63, 460 ; 20 Am. Eep. 555. When settlement by administrator of deceased partner with survivors conclu- sive on creditors of deceased. Sage v. Woodin, 66, 578. Executors may submit to arbitration — effect of award as to other creditors. Wood v. Tunnicliff, 74, 38. Executor may not invest in mining stocks — ratification by cestui que trust — debt of executor to estate — accounting of several — credits — liability of one for act of others. Adair v. Brimmer, 74, 539. One of several executors cannot bind es- tate for loan for its benefit. Bryan v. Stew- art, 83, 270. When executor may take foreign secu- rity to save investment by co-executor. Ormiston v. Oleolt, 84, 339. When executor here gets no title to as- sets in another State. Sherman v. Page, 85, 123. Surrogate may limit powers of, in let- ters of administration. Martin v. Dry Dock, etc., B. Co., 92, 70. Land bought by executor on foreclosure, is personalty — he may confer title. Lock- man v. Beilly, 95, 64. Power of two executors to sell land can- not be executed by one alone. Wilder v. Banney, 95, 7. 2. Administrator with will annexed. Takes power of the executor named annexed to office unless confidence in dis- cretion of the person named is expressed or implied. Bain v. Matteson, 54, 663. Cannot execute a personal trust. Dun- ning v. Ocean Nat. Bk., 61, 497 ; 19 Am. Rep. 293. When power of sale passes to adminis- trator with will annexed. Mott v. Ack- erman, 92, 539. 3. Suits by. Assignee of foreign executor may sue here. Petersen v. Chemical Bank, 32, 21. Executor cannot maintain action to con- strue will unless invested with trust — expenses incurred, adjusted on account- ing. Dill v. Wisner, 88, 153. Executor may sue to recover property of estate wrongfully converted with his consent. Wetmore v. Porter, 92, 76. Husband, as administrator of wife, may recover bond executed by him to a third person for her benefit. Malsted v. Mc- Chesney, 2 Abb. 310. Administrator de bonis non may sue ex- ecutor of executor for assets — complaint need not allege the defendant ever got the assets. Walton v. Walton, 4 Abb. 512. Administrator de bonis non can main- tain action against representatives of de- ceased executor for assets — when judg- ment against executor for legacy is not satisfaction. Clapp v. Meserole, 1 Keyes, 281. 4. Dealings with estate. May convey land in another State. Newton v. Bronson, 13, 587. Executor empowered to sell lands must act personally, but the sale by an agent may be ratified. Id. Executor indebted to estate assigning insurance policy to himself as executor and depositing proceeds in bank to his creditor as executor, thus pays the debt. Scrantonv. Farmers and Mechanics' Bank, 24, 424. Administrator may not purchase intes- tate's real estate on sale to pay debts. Forbes v. Ealsey, 26, 53. May not become interested in decedent's real estate after sale and before confirma- tion. Termlliger v. Brown, 44, 237. Administrator may purchase his intes- tate's land on foreclosure. Holhngsworth v. Spaulding, 54, 636. Executor may not buy testator's lands on execution. Lytle v. Beveridge, 58, 592. EXECUTOR AND ADMINISTRATOR, III. 1 — 3. 199 Sale of decedent's lands by administra- tor to pay debts is void unless proceedings begun within three years after original grant of letters. Slocumv. English, 62, 494. Rule as to reasonable time in which executor must sell realty — conclusiveness of accounting. Matter of Weston, 91, 502. Conveyance by executor to another who conveys to him individually, held invalid. People v. Open Board, etc., Co., 92, 98. A foreign executor can dispose of per- sonal assets in this State. Middlebrook v. Mer. Bank of N. Y, 3 Abb. 295. III. Liabilities of. 1. To third persons for contracts and acts. Administrator personally and not estate liable for all contracts made by him for funeral expenses. Ferrin v. Myrich, 41, 315. Public administrator when personally liable to chattel mortgagee for conversion. Levin v. Russell, 42, 251. Personally liable to attorney retained by , them on final accounting — liability joint. Mygatt v. Wilcox, 45, 306 ; 6 Am. Rep. 90. Liable for rent reserved in lease to de- cedent, to amount of rent received by him — landlord may resort to him or to estate. Miller v. Knox, 48, 232. Executor personally liable for his coun- sel fees, and may charge to estate. Sea- man v. Whitehead, 78, 306. Administrator personally liable for au- ditor's fees — subject to attachment — pay- ment of claims against, what is not. Dunford v. Weaver, 84, 445. 2. To estate for negligence. Administrator not protected against wrong payment by surrogate's decree. President, etc. v. Hasbrouck, 6, 216. Executors conveying land, under a power of sale, of which their testator was in equity a mere trustee, are liable to the holder of the equitable title for the pur- chase-money as damages. Wall v. Kel- hgg's Ex'rs, 16, 385. Administrator selling on credit must account for the price although greater than value and not realized. Sasbrouck v. Hasbrouck, 27, 182. When executor not liable for negligence in loss of securities by conversion by agent. McCabe v. Fowler, 84, 314. Liable for loss of funds, if he delivers to co-executors — if passive not liable unless he assents, or having knowledge and mean of preventing neglects to do so — both sold real estate, payment to one in pres- ence of other — misapp ropriation — other not liable — negligence which did not contribute to loss. Croft v. Williams, 88, 384. Liable to estate for debt lost by neglect to collect — statute runs from time of loss. Harrington v. Keteltas, 92, 40. Not liable for mistake when no bad faith or want of prudence in investments — judgment in action by beneficiary pre- cludes after inquiry. Crabb v. Young, 92, 56. Where executors sell property at an in- adequate price, they are personally liable. Matter of Sallus, 3 Abb. 243. Executor's liability to legatee not dis- charged by written receipt of nominal sum in full, nor by her conveyance to him of all her estate on passive trust under ante-nuptial settlement. Surrogate may compel accounting. Harris v. Ely, 25, 138. Bound to account for loaD to him by testator although usurious note subse- quently given for it. Liable for debt of his firm to testator. Matter of Account- ing of Consaulus, 95, 340. Executor must include assets in another State. Matter of Estate of Butler, 38, 397. Six months' notice to creditors exempts executor from liability to creditors not proving. Erwin v. Loper, 43, 521.' Wife, administratrix, not chargeable with moneys of husband invested by her in land in her own name in his life-time. Shuttleworth v. Winter, 55, 624. When not chargeable with interest. Id. 200 EXECUTOK AND ADMINISTRATOR IV. — V. When executor chargeable ■with, com- pound interest — counsel fee in discretion of surrogate — charging beneficiaries for use of his property. Hannahs v. Hannahs, 68, 610. Double charge against executor for taxes disallowed. BeraUmes v. Berais- mes, 72, 154. Administrator not liable to action to reach proceeds of sale of intestate's lands to pay debts. StUlwell v. Swartliout, 81, 109. Executor, though insolvent, is liable for debt due from him to testator for money. Baueus v. Stover, 89, 1. Cannot be charged in equity for gift to him in will admitted to probate. Post v. Mason, 91, 539 ; 43 Am. Rep. 689. Three joined in conveyance — check made payable to order of M., in good faith indorsed to G., and he obtained money — on accounting after G.'s death, others not liable for the amount received by G. Paulding v. Sharkey, 88, 432. IV. Accounting. When executor compellable to account for rents, profits and proceeds of real es- tate as personalty. Stagg v. Jackson, 1, 206. Executor may set up statute of limita- tions on citation to account. Martin v. Gage, 9, 398. Administrator when not bound to ac- count for rents and profits. Hittman v. Stephens, 16, 278. When foreign administrator not liable to account here. Parsons v. Lyman, 20, 103. When one executor may call his co-ex- ecutor to account. Wood v. Brown, 34, 337. Petition to compel account — proceedings on. Peck v. Sherwood, 56, 615. When executor liable to account as for equitable conversion — liability of sure- ties of non-resident — equitable action to establish devastavit — assignment by lega- tees — parties. Hood v. Hood, 85, 561. Executor whose letters were revoked and who takes no part in the management of estate is not necessary party to final ac- counting — executors are responsible for acts of their agents — how far executor liable for acts of co-executor — contribu- tion between executors. Earle v. Earle, 93, 104. Successors of a removed administrator cannot petition the former administrator for an accounting, legatees must do so — effect of lapse of time. Clark v. Ford, 1 Abb. 359. When executors may be compelled to account — all sums unpaid in executor's hands are undistributed assets. Clapp v. Meserole, 1 Abb. 362. V. Compensation. On investing at interest and paying over interest under will are entitled only to executors' commissions. Drake v. Price, 5, 430. Compensation of administrator on sale of lands to pay debts. Higbie v. Westlake, 14, 281. Executor not entitled to commissions on transfer of corporate stock specifically be- queathed. Schcnck v. Bart, 22, 420. Under will devising land in another State, executor must prove the will there, and the decree there giving him the costs thereof will be recognized here. Young v. Brush, 28, 667. Executor cannot receive any compensa- tion beyond statutory commissions. Col- lier v. Munn, 41, 143. Provision for executor's commission on " moneys collected " does not mean all moneys received. Ireland v. Corse, 67, 343. Executor, when not entitled to commis- sions as trustee. Hall v. Hall, 78, 535. Money separated from estate by — dis- tinct account as trustee — entitled to sepa- rate commissions — legatees accepting payment when precluded. Hurlburt v. Burant, 88, 121. Executor entitled to compensation for services to estate outside of his duties. Lent v. Howard, 89, 169. Co-executors share commissions equally without regard to labor performed. White v. Bullock, 4 Abb. 578. EXECUTOR AND ADMINIST'R, VI.— EXTRADITION. 201 Devastavit — interest — commissions. Cook v. Lowry, 95, 103. Executor and trustee — commissions. Johnson v. Lawrence, 95, 154. Executor and trustee may deduct com- missions on paying over annuity, without waiting till accounting. Hancox v. Meeker, 95, 528. VI. Actions and proceedings against. Where a declaration describes plaintiff as executor, but sets forth a cause of ac- tion in his individual right, on a debt due his testator, defendant cannot set off a demand against the testator. Merritt v. Seaman, 6, 168. A creditor may maintain, against fraud- ulent vendee of decedent, and his admin- istrator refusing to take proceedings to set aside sale. Bate v. Graliam, 11, 237. Judgment for costs against executor as such, collectible only from estate of tes- tator. Dodge v. Crandall, 30, 294. Agreement for reference of claims — waives short statute of limitations, al- though no referee is chosen. Nat. Bk. of Fishkill v. Speight, 47, 668. What constitutes rejection of claim. Eoyt v. Bonnett, 50, 538. Action lies to prevent administrators wasting the estate — receiver may be ap- pointed. Haddow v. Lundy, 59, 320. Right of widow to damages for with- holding dower. Kyle v. Kyle, 67, 400. Claims against deceased to be presented to, including contingent — deceased and plaintiff co - sureties — contribution — limitation. Oornes v. Wilkin, 79, 129. In action on undertaking on appeal against executor, want of assets no de- fense. Yates v. Bureh, 87, 409. Proceedings to compel payment of judg- ment for deficiency on foreclosure — joint account — admission of liability — power in trust to sell — accounting for rents. Glacius v. Fogel, 88, 434. Equity has jurisdiction as to executor. Wager v. Wager, 89, 161. Service of attachment on, while special administrator acting, does not bind estate. Matter of Flandrow, 92, 256. 26 Court may require security for costs in suit by executor. Tolman v. Syracuse, etc., R. Go., 92, 353. Service of citation personally on execu- tor in another State equivalent to publi- cation, and six weeks need not intervene. Matter of Macaulay, 94, 574. Practice as to petition to compel pay- ment of legacy — denial of claim. Id. Action by administrator to recover un- administered assets of testator — when maintainable against executor of executor. Walton v. Walton, 1 Keyes, lo. See Conflict of Laws ; Costs ; Sub- rogate ; Trusts ; Will. Exemption. See Execution. Ex. Post Facto. See Constitutional Law : Criminal Law. Express Company. See Carrier. EXTRADITION. Affidavits must show criminal offense — conspiracy to cheat — habeas corpus — refusal to discharge does not bar a new writ — question of guilt or innocence im- material. People v. Brady, 56, 182. Provisions of United States Revised Statutes embrace all criminal offenses punishable by law of demanding State — warrant conclusive on court. People v. Donohue, 84, 438. Warrant need not state facts of crime. Id. Extradited person may be detained by arrest on civil process. Adriance v. La- grave, 59, 110 ; 17 Am. Rep. 317. Recitals in warrant are prima facie true. People v. Pinkerton, 77, 245. when alone sufficient to authorize. People v. Donohue, 84, 438. 202 FACTOR, I. 1 — 2. F. FACTOR. I. Factor. ' 1. Construction of factors' act. 2. Generally. I. Factor. 1. Construction of factors' act. Construction of factors' act, Laws of 1830, chapter 179. CartwrigM v. WU- merding, 24, 521 ; Hazard v. Fiske, 83, 287 ; Kinsey v. Leggett, 71, 387. Constructive possession not sufficient under. Howland v. Woodruff, 60, 73. Applies only to consignees named in bill of lading. Meclianics and Traders' Bank v. Farmers and Mechanics' Nat. Bank, 60, 40. Intermediate consignee issuing new bill of lading — conflict of laws — laches. First Nat. Bank of Toledo v. Slum, 61, 283. When does not apply. Kinsey v. Leg- gett, 71, 387. Act of 1858, chapter 326 — weigher's return not " receipt." West Trans. Co. v. Bwber,m, 544. 2. Generally. Who is — when liable to arrest. Stand- ard Sugar Refinery Co. v. Dayton, 70, 486. Instructed to sell on a certain day, may not make offer to be accepted on next day — damages. Scott v. Rogers, 4 Abb. 157. Eight of factor to sell contrary to in- structions. Maifield v. Goodhue, 3, 62 ; Blot v. Boiceau, 3, 78. One consigned goods to a factor for sale, assigning the forwarder's receipt to a bank as security for the acceptance of his draft on the factor, discounted by the bank. The factor receiving the goods and con- verting them, with notice of the trans- action, held liable in trover to the bank. Bank of Rocliester v. Jones, 4, 497. Instructed to sell consignment upon arrival is bound to strict conformity, and liable for damages by failure. Ehans v. Root, 7, 186. Receiving bill of lading of property shipped for sale, with directions to insure and notice of draft, gets no lien until acceptance of consignment on those terms. Winter v. Coit, 7, 288. When merchandise is consigned for sale, the factor may dispose of it as his own, and apply the ownership to other goods of the same kind in his possession. Seymour v. Wyckoff, 10, 213. Directed to wait effect of act of parlia- ment on market before selling — when may sell. Mttbank v. Dennistoun, 21, 386. Can only transfer goods in usual course of trade. Faston v. Clark, 35, 225. May sell principal goods for reimburse- ments for advances and maintain action for deficiency. Blackmar v. Thomas, 28, 67. Must recognize principal's title. Bar- nard v. Kobbe, 54, 516. Not obeying instructions, guilty of con- version — damages. Scott v. Rogers, 31, 676. Does not get title unless by force of ad- vances or agreement. Beebe v. Mead, 33, 587. May waive fraud and ratify sale so as to bind principal. Joslin v. Cowee, 52, 90. When factor accepts principal's bills against consignments, and pays them to holders by goods of less value than face of bills, the principal is entitled to benefit. Hidden v. Waldo, 55, 294. Unauthorized sale — evidence of market price. Harrison v. Glover, 72, 451. Bound to follow instruction as to terms of sale — right as to advances. Hilton v. Vanderbttt, 82, 591. Sale by owner, when does not affect factor's rights. Matthews v. Coe, 70, 239 ; 26 Am. Rep. 583. FALSE IMPRISONMENT — FERRY. 203 In action by, for goods, vendee cannot set off claim against principal. Young v. Thurber, 91, 388. See Agency. FALSE IMPRISONMENT. Procuring arrest of wrong person with- out warrant for misdemeanor is. Thome v. Turck, 94, 90. Detention of railroad passenger for fail- ure to produce lost ticket or pay fare con- stitutes. LyncJi v. Metropolitan, etc., B. Co., 90, 77 ; 43 Am. Rep. 131. Plaintiff liable for, under void attach- ment. Miller v. Adams, 52, 409. Defendant being discharged on giving bail and rearrested for bail failing to justify, sheriff being advised that he was not liable to be, because of stipulation between attorneys — he and his sureties liable. Arteaga v. Conner, 88, 403. Voluntary appearance not constructive imprisonment. Dusenoury v. Kettey, 85, 383. Justices of peace committing for con- tempt without authority liable for. Rutherford v. Holmes, 66, 368. Action lies only where imprisonment was immediate result of defendant's ac- tion. Farnam v. Feeley, 56, 451. Committee of board of supervisors, when liable for — witness — on vacating attachment for contempt, court may not impose condition not to sue for false im- prisonment. Matter of Bradner, 87, 171. Conclusiveness of judgment of justice of the peace on penalty. MaUeck v. Dom- imy, 69, 238. See Malicious Prosecution. FALSE PRETENSE. Obtaining money by, under statute pre- vious to Penal Code, not larceny. Thorne v. Turck, 94, 90. See Criminal Law. Fees. See Costs ; Executor and Adminis- trator ; Office and Officer ; Sheriff; Trust and Trustee. FENCES. Where a boundary fence has been main- tained by division by consent, no prescrip- tion is established. Adams v. Van Al- 25, 232. See Boundary ; Railroad. FERRY. Under chapter 111 of Laws of 1840, Western Railroad Company has no right to transport gratuitously any but passen- gers or employees across Hudson river at Albany. Aikin v. Western B. Co., 20, 370. Ordinary rules of negligence apply to — burden of proof. Wyckoff v. Queens County Ferry Co., 52, 32; 11 Am. Rep. 650, note. When liable for negligence to passen- ger. Has/man v. Hoooken Land and Im- provement Co., 50, 53. Negligence — letting down chains be- fore landing. Ferris v. Union Ferry Co., 36, 312. When proprietor not chargeable with negligence as to floating bridge in slip. Loflus v. Union Ferry Co. of Brooklyn, 84, 455; 38 Am. Rep. 533, note. It is not negligent to take a young and timid horse on a ferry boat — company liable if horse injured. Clark v. Union Ferry Co., 35, 485. Fines. See Criminal Law Fires. See Insurance; Negligence; Rail- road, 204 FISHERY— FORGERY. FISHERY. When right of, granted by colonial patent, presumptively free. Trustees of Brookhaven v. Strong, 60, 56. Grant of right to oyster fishing to town and rights of lessee of town. Robins v. Aekerley, 91, 98. Lease of oyster fishery by town having title to land under water. Hand v. New- ton, 92, 88. FIXTURES. A building erected upon land of an- other is part of the realty in absence of different agreement. Mitchmyer v. Morss, 3 Keyes, 349. Portable grist-mill, when realty. Pot- ter v. Cromwell, 40, 287. Hop-poles are, although taken down and piled. Bishop v. Bishop, 11, 123. Mirror frames, when — evidence. Ward v. Zilpatrick, 85, 413 ; 39 Am. Eep. 674. An out-door statue and sun dial are. Snedeker v Warring, 12, 170. A removable building erected by tenant for trade, not — ball-room resting on stone posts. Ombony v. Jones, 19, 234. Elevator and boiler held part of leased building as between landlord and tenant. Finkelmeier v. Bates, 92, 172. Rails put into fence by tenant under agreement for removal are personalty as to the landlord. Mott v. Palmer, 1, 564. Eule as 1 between mortgagor and mort- gagee. Voorhees v. McOinnis, 48, 278. Engine and boiler as between chattel mortgagee and mortgagee of land. Tifft v. Hoi-ton, 53, 377 ; 13 Am. Rep. 537. Gas fixtures and mirrors not within mortgage of land — declaration by owner that they go with the land, ineffectual — but they pass by bargain and delivery — estoppel — assignment. McKeagev. Hano- ver Fire Ins. Co., 81, 38 ; 37 Am. Rep. 471, note. Looms, as between mortgagor and mort- gagee. Murdoek v. Oifford, 18, 28. Machinery, as between mortgagee and grantee. McRea v. Cent. Nat. Bk., 66, .489. Salt kettles not, as between chattel mortgagee and grantee. Ford v. Cobb, 20, 344. Engine and boiler, as between chattel mortgagee and judgment creditor. Sisson v. Hibbard, 75, 542. As between purchaser under lessor's mortgage subsequent to lease, and lessee — merger. Globe Marble Mills Co. v. Quinn, 76, 23 ; 32 Am. Rep. 259. Action may lie for conversion although recovery of property barred. MeEntee v. Harrison, 58, 654. FORCIBLE ENTRY AND DE- TAINER. Owner regaining possession peaceably, may resist attempts to retake, without being liable. Bliss v. Johnson, 73, 529. Foreclosure. See Mortgage. FORGERY. One paying instrument with forged in- dorsement may recover back. Corn Ex- cliange Bk. v. Nassau Bk., 91, 74 ; 43 Am. Rep. 655. When several parties to a forgery are liable in action for money had and re- ceived — wife aiding husband. National Trust Co. v. Gleason, 77, 400; 33 Am. Rep. 632, note. Action to recover moneys obtained by forgery by conspiracy — evidence — con- necting party with transaction. New York Guardian and Indemnity Co. v. Gleason, 78, 503. Delay in discovering forgery does not re- lease liability to refund money paid. Bank of Brit. N. Amer. v. Merchants' Nat. Bk., 91, 106 ; also Frank v. Lanier, 91, 112. See Bakks ; Criminal Law ; Negotia- ble Instrument. FORMER ADJUDICATION, I. — II. 205 FORMER ACTION FENDING. It must appear that first action is for same cause — that same property in contro- versy is not enough. Dawley v. Browri, 79, 390. Where plaintiffs claim in ejectment as heirs of R., a former action by them and B.'s widow abates second action. Bitter v. Worth, 58, 627. On plea of, in ejectment — unless same title predicated in both trials, no bar. Dawley v. Browri, 79, 390. For goods sold at one date, no defense in suit for goods subsequently sold, all on like term of credit, though one account rendered of all. Zimmerman v. JEh'Jiard, 83, 74 ; 38 Am. Eep. 396. When not defense, in replevin. Witty v. Campbell, 44, 410. When is no defense to third person. Welch v. Sage, 47, 143 ; 7 Am. Eep. 433. Unsatisfied judgment does not support plea of former action pending — appeal in former action has no retroactive effect. Porter v. Kingsbury, 77, 164. When stay on account of, may be re- fused. Lacustrine, etc., Co. v. Lake Oimno, etc., Co., 82, 476. See Mechanics' Lien ; Notice ov Pendency. FORMER ADJUDICATION. I. What constitutes. II. Wlien former judgment a bar. III. WJien former judgment not a bar. IV. Effect of former judgment. V. Practice. I. Wliat constitutes. To sustain plea of " autrefois acquit " it must appear that the party was put in jeopardy. Canter v. People, 1 Abb. 305. Conclusive upon parties as to all mat- ters which actually were or might have been determined under the issue. Em- bury v. Conner, 3, 511. Where nonsuit is reversed the plaintiff's right to recover on the facts stated in their pleading is established by the judg- ment. Buell v. Trustees of Village of Lockport, 8, 55. Nonsuit no bar to second action. Audu- bon v. Excelsior Ins. Co., 27, 216 ; Wheeler v. Ruckman, 51, 391. Judgment against plaintiff in action for value of property as on sale, no bar to action for its use. Bider v. Union India Rubber Co., 28, 379. . To constitute bar, the identical question involved must have been passed upon. Kerr v. Mayes, 35, 331. Must be between parties or privies. Booth v. Powers, 56, 22. Former action is bar where same relief could have been had, although different in form. Draper v. Stouvenel, 38, 219. On mandamus — when not bar. People v. Lynch, 68, 473. On default in summary proceedings — effect on damages in action for rent. Jar- vis v. Driggs, 69, 143. Bankruptcy proceedings not an adjudi- cation of a fact against one not legally a party. Meltzer v. Boll, 91, 365. II. When former judgment a bar. In replevin, in favor of seller without notice to holder of bill of lading does not bar the latter. Raids v. Deshler, 4 Abb. 12. Adjudication that the plaintiff had per- formed an agreement is a bar to subse- quent action by the defendant for damages for non-performance, although that ques- tion was withdrawn from first trial. Davis v. Tallcot, 12, 184. Decree of specific performance bar to action to rescind. Tompkins v. Hyatt, 28, 347. Although only for damages is bar as to all issues. Cosier v. Shipman, 35, 533. For damage by flooding — when estops defendants. Plate v. New York Cent. R. Co., 37, 472. On contract is bar as to all claims then due. O'Bevrne v. Lloyd, 43, 248. In action by assignee in bankruptcy when bar to action to recover property. Tuska v. O'Brien, 68, 446. 206 FORMER ADJUDICATION, III.— IV. Against a corporation for debt is bar to action for fraud in respect to same mat- ter. Oaylus v. New York, Kingston & Syracuse R^ Co., 76, 609. Carrier's judgment for freight is bar to snipper's action for loss of property by carrier's failure to transport. Dunham v. Bower, 77, 76 ; 33 Am. Rep. 570. When conclusive in action to construe a will. Leamtt v. Woleott, 95, 212. In favor of physician, injustice's court, in action for services, after answer but without trial, is bar to action for mal- practice as to same services. Blair v. Bartlett, 75, 150 ; 31 Am. Rep. 455. III. W7ien former judgment not a bar. As between same parties. Colwell v. BleaMey, 1 Abb. 400. On part of claim — not bar, when action so brought at debtor's request. Mills v. Garrison, 3 Keyes, 40. In action to set aside contract of rein- surance, no bar to action on policy by in- sured against reinsurer. Fischer v. Mope Mut. Life Ins. Co., 69, 161. When judgment for accounting not a bar to action for fraud — different receiv- ers representing same interest in the two actions. Verplanek v. Van Buren, 76, 247. In action by general assignee, when not conclusive against creditor alleging fraud in assignment. Raymond v. Richmond, 78, 351. Foreclosure for lien of collateral holder, when no bar to foreclosure by mortgagee. 0' Dougherty v. Remington Paper Co., 81, 496. In action for wrongful dismissal from employment no bar to action for wages. Perry v. Diekerson, 85, 345 ; 39 Am. Rep. 663. For loss of baggage, when not bar to action for loss of merchandise therein. Millard v. Missouri, etc., R. Co., 86, 441. In action for wages for part of term — no bar to prove subsequent dismissal. Weed v. Burt, 87, 191. In action of damages for fraudulently inducing purchase of bond, a judgment recovered by the plaintiff for interest on the bond, in an action upon a guaranty of payment thereof, is no bar. Bowen v. MandemUe, 95, 237. When judgment no bar to defense of usury. Moses v. McDimtt, 88, 62. Of usury does not conclude one not a party. Bissell v. Kellogg, 65, 432. IV. Effect of. In action by tenant against trespasser — conclusiveness in action by landlord for waste. Freer v. Stotenbur, 2 Abb. 189. Decree of Chancery dismissing bill by default, after order closing proofs, is a bar to a subsequent suit, although no proofs were taken. Ogsbury v. La Farge, 2, 113. In former action, on question directly involved, is conclusive in a second suit between the same parties although the subject-matter is different — what is not splitting cause of action. Doty v. Brown, 4, 71. A forwarder, receiving property for transportation, and employing a, carrier, is estopped by a judgment in favor of the owner in his suit against the carrier for non-delivery. Green v. Clark, 12, 343. When not conclusive as to amount due. Campbell v. Consalus, 25, 613. Not conclusive as to a fact immaterial to the issue, although expressly adjudged. People v. Johnson, 38, 63. In replevin — effect of. Angel v. Kol- lister, 38, 378. Effect of, as to statute of limitations — contract for stock. Johnson v. Albany & Susquehanna R. Co., 54, 416 ; 13 Am. Rep. 607. Recovery on one of several past due notes against same parties, no bar to others. Nathans v. Rope, 77, 420. In action on contract, is bar to action to reform the contract. Steiiibaeh v. Relief Fire Ins. Co., 77, 498 ; 33 Am. Rep. 655. When not estoppel. Remington Paper Co. v. ffDougherty, 81, 474. When establishes relation of landlord and tenant — recovery on undertaking for part of rent, when not bar. Ackley v. Westervelt, 86, 448. FORMEK ADJUDICATION, V. — FEAUD, I. 2. 207 When finding as to " fiduciary capacity " does not necessarily imply fraud. Palmer v. Hussey, 87, 303. In action by beneficiary against executor, estops as to further claim on prior facts. Crabb v. Young, 92, 56. When order to receiver to deliver and sell property does not include good-will. Boon v. Moss, 70, 465. In partition and for construction of will — when not conclusive as to subse- quently born beneficiaries. Monarque v. Monarque, 80, 320. Judgment in action by executor for con- struction of will not bar to action for legacy by legatee. Scott v. Stebbins, 91, 605. V. Practice. Decree on libel in rem for supplies to ship not competent evidence of ownership of supplies in subsequent action. Van VecMen v. Griffiths, 4 Abb. 487. On plea of former recovery, the record must show the same matter, and cannot be waived by parol. Campbell v. Butts, 3, 173. To operate as estoppel, grounds should be made to appear. Colwett v. Bleakley, 1 Keyes, 62. When not bar although evidence was given competent on subsequent trial. East New York, etc., B. Go. v. Elmore, 53, 624. Parol evidence is competent to show what questions were controverted and grounds of decision in first action. Doty v. Brown, 4, 71. See Estoppel ; Judgment ; Pleading. FORWARDER. Contracting to forward by particular vessel, liable for loss if forwarded by an- other — owner's receiving insurance, no ratification. Goodrich v. Thompson, 44, 324. When not liable as common carrier. Stannard v. Prince, 64, 300. Having lien for advances may sue for possession of goods — carrier is agent of. ffitzJwgh v. Wyman, 9, 559. See CAMtEEB. FRAUD. I. In general. 1. Undue influence. 2. Representations to obtain 3. In respect to corporate dealings. 4. Upon sales by vendors. 5. Miscellaneous matters. II. Fraudulent conveyances. 1. Wlio may attack. 2. When fraudulent. 3. Notice to affect grantee. 4. Effect of. 5. Evidence as to. III. Evidence of fraud. IV. Effect of fraud in general. V. Belief, I. In general. 1. Undue influence. Deed by a feeble widow shortly before death to her brothers without considera- tion set aside. Sears v. Shafer, 6, 268. Constructive — when not established as to gift from client to attorney's clerk. Nesbit v. Lockman, 34, 167. Ante-nuptial agreement of wife to re- lease claims upon husband's estate rigidly scrutinized in favor of the wife. Pierce v. Pierce, 71, 154 ; 27 Am. Rep. 22, note. Grandfather employing grandchild does not impose burden of proving fairness of compensation on grandchild. Cowee v. Cornell, 75, 91 ; 31 Am. Rep. 428. Finding of undue influence justified — evidence — commission of lunacy — opin- ions as to irrationality of certain acts. Rider v. Miller, 86, 507. 2. Bepresentations to obtain credit. Omission of purchaser to disclose in- solvency, not. Nichols v. Pinner, 18, 295. 208 FRAUD, I. 3 — 4. In obtaining credit may consist in con- cealing insolvency. Devoe v. Brandt, 53, 462 ; Johnson v. Morrell, 2 Abb. 470 ; 2 Keves, 655. Fraudulent representation, to avoid sale, need not be false pretense. Nichols v. Michael, 23, 264. Purchase with preconceived design not to pay is fraudulent, and the design may be inferred from contemporaneous transactions. Hennequin v. Naylor, 24, 139 ; Van Kleek v. LeBoy, 4 Abb. 479. Purchase with design not to pay — when question of fact — evidence. Byrd v. Hall, 2 Keyes, 646 ; 1 Abb. 285 ; Johnson v. Morrell, 2 Keyes, 655. One purchasing from fraudulent vendee cannot hold as against vendor when he received the goods in performance of an executory contract of sale. Barnard v. Campbell, 58, 73 ; 17 Am. Eep. 208. Where sale induced by, seller may retake from any one except bona fide pur- chaser. Stevens v. Brennan, 79, 254. Where credit on sale was procured by fraud, seller may sue on the contract and avoid the credit. Weigand v. Sichel, 4 Abb. 592 ; 3 Keyes, 120. When reference by dormant partner of intending purchaser to statement by the other partners is not fraudulent. Chamberlin v. Prior, 2 Keyes, 539. 3. In respect to corporate dealings. Evidence of unsoundness of bank — copy of proceedings on petition for re- establishment. Lefever v. Lefever, 30, 27. Action lies for fraudulently inducing to subscribe to stock of insolvent bank and give mortgage as security, although sub- scription not paid. Hubbard v. Briggs, 31, 518. In formation of corporation — evidence — effect of, as to creditors. Booth v. Bunce, 33, 139. Requisites of proof in action for selling stock fraudulently overissued — burden of proof. Brufiy. Mali, 36, 200. Cannot be imputed to director of cor- poration in making published reports without proof of knowledge or suspicion or intent to convey impression that he had knowledge. Wakeman v. Dalley, 51, 27 ; 10 Am. Eep. 551. By means of fictitious subscriptions for formation of business company by asso- ciates. Getty v. Devlin, 54, 403. Fictitious subscriptions for organization of corporation — promoters liable to bona fide subscribers — accounting — parties. Getty v. Devlin, 70, 504. When director of corporation not liable for misrepresentations of active managers. Arthur v. Griswold, 55, 400. When agreement not in fraud of cor- poration. Graves v. Waite, 59, 156. When director of corporation liable for false prospectus. Morgan v. Skiddy, 62, 319. Action for imposing spurious stock un- der contract for full-paid stock. Barnes v. Brown, 80, 527 ; Johnson v. Hathorn, 2 Abb. 465 ; 2 Keyes, 476. 4. Upon sales by vendor. Action lies against grantor or lessor for fraudulent representation as to territorial extent of his right. Whitney v. Allaire, 1, 305. And is not waived by lessee's taking possession at commencement of term and after discovery of fraud. Id. Action for fraudulently misrepresent- ing boundaries of land may lie. Clark v. Baird, 9, 183. Representation that there is no incum- brance on a house, not shown to be false by proof of filing of claim of homestead exemption. Robinson v. Wiley, 15, 489. Action against vendor of land for fraudu- lent representations, when lies. Haight v. Hayt, 19, 464. Sale of check avoided by suppression > of fact that check had been protested. Brown v. Montgomery, 20, 287. -False recommendation of trader, when actionable. Marsh v. Walker, 40, 562. For what fraudulent representations an action may be maintained — findings — presumptions in aid of. Meyer v. Ami- don, 45, 169 ; Oberlander v. Spiess, 45, 175. FRAUD, I. 5. 209 Implies knowledge — measure of dam- ages — evidence. Hubbellv. Meigs, 50, 480. Wlien opinions as to value are fraudu- lent. Simar v. Ganaday, 53, 298 ; 13 Am. Rep. 523. Mere false statement as to value is not fraudulent. Ellis v. Andrews, 56, 83 ; 15 Am. Rep. 379. Cannot be set up in avoidance of pay- ment of consideration after acceptance of deed. Vernol v. Vernol, 63, 45. Action for fraudulent representations on sale of legacy. Buffany v. Ferguson, 66, 482. Action for fraudulent representations — when plaintiff bound to return property — opinion of value accompanied by state- ment of facts putting buyer off guard — evidence of representation to others — damages. Miller v. Barber, 66, 558, False representation that there is no quack grass on land immaterial when purchaser sees land. Long v. Wa/rren, 68, 426. When vendee of land may maintain ac- tion for fraud- in sale. Beardsley v. Bunt- ley, 69, 577. Buyer seeking to avoid sale for fraud, not bound to reimburse vendee for gov- ernment tax paid by him. Ghickenheimer v. Angemne, 81, 394. In sale of land — misrepresentation as to quantity — question of fact — charge — change of theory after trial. Salisbury v. Howe, 87, 128. False statements as to value of property sold, in absence of artifice or vendee's ig- norance, not fraud. Chrysler v. Canaday, 90, 272 ; 43 Am. Rep. 166. 5. Miscellaneous matters. A false, fraudulent and injurious repre- sentation is a good cause of action, al- though no benefit accrued to the party making it. White v. Merritt, 7, 352. Action for fraudulent recommendation of solvency — complaint — variance — scope of credit given — assignability — non-joinder. Zabriskie v. Smith, 13, 322. Bank may set up fraud of customer in getting discounts, although it has paid the 27 money, in defense or counter-claim in his action for subsequent deposit — evidence. Andrews v. Artisans' Bank, 26, 298. Compromise of cause of action for fraudulent representations, binding though induced by repetition of same — estoppel. Adams v. Sage, 28, 103. When principal cannot maintain charge of, against agent in sales. Price v. Keyes, 62, 378. When principal liable for agent's false representations. Indianapolis, etc., By. do. v. Tyng, 63, 653. Action maintainable for fraudulent pre- vention of contract void under statute of frauds, if it would, nevertheless, have been performed. Bice v. Manley, 66, 82 ; 23 Am. Rep. 30. Equitable action does not lie to set aside judgment for perjury. Boss v. Wood, 70, 8. Liability of one becoming party to and aiding fraudulent combination. More- house v. Yeager, 71, 594. When release not voidable for fraud. Dambmann v. Schulting, 75, 55. When settlement for less than amount due is not fraudulent — compromise can- not be set aside as fraudulent without put- ting parties in statu quo. McMichael v. Kilmer, 76, 36. When action lies against insurance com- pany for fraudulently inducing one to insure. Bohrschneider v. Knickerbocker Life Ins. Co., 76, 216 ; 32 Am. Rep. 290. Action for, not maintainable upon rep- resentations in a letter as to another's ability to pay, coupled with disclaimer of knowledge except as therein stated and suggesting inquiry of the party — state- ment must be intentionally false — if not, subsequent false statement to others im- material. Bahcock v. Libbey, 82, 144. When action lies against person making false report of his financial standing to mercantile agency. Eaton, Cole & Burn- liam Co. v. Avery, 83, 31 ; 38 Am. Rep. 389. Providing for payment of one obligation in preference to another not fraudulent. Juilliard v. Chaffee, 92, 529. Fraud on the part of a debtor in induc- ing sureties to sign an undertaking is no 210 FEAUD, II. 1 — 2. defense to a suit against sureties. Cole- man v. Bean, 1 Abb. 394. Deceptive conduct in obtaining payment of part of just debt, no defense to action for balance. Thompson v. Menek, 4 Abb. 400. Action for inducing formation of part- nership — dissolution no release — evi- dence. Thorn v. Helmer, 4 Abb. 408; 2 Keyes, 27. II. Fraudulent conveyances. 1. Who may attack. In fraud of creditors — creditor at large — subrogation of grantee for inade- quate consideration — paying grantor's debts. Robinson v. Stewart, 10, 189. Creditors of husband at time of fraudu- lent transfer to wife have equity superior to subsequent creditor secured by mort- gage of the property by wife. Wood v. Robinson, 22, 564. One sued for attachment may show that prior sale by defendant in attachment to claimant was in fraud of creditors. Mall v. Stryker, 27, 596. Grantor to wife cannot assert fraud against himself as creditor of husband. Phillips v. Wooster, 36, 412. Creditors without lien cannot attack. Spring v. Short, 90, 538. See Creditor's Action. 2. When fraudulent. A mortgage is not rendered fraudulent as against creditors by including equitable but uncollectible interest. Spencer v. Ayrault, 10, 202. Conveyance may be void as against creditors, even if debtor believed himself solvent, if his solvency is contingent upon the stability of the market. Carpenter v. Roe, 10, 227. When deed not void as in trust for grantor or to defraud creditors. Curtis v. Leamitt, 15, 9. When transfer by husband to wife not voluntary and reasonable. Babcock v. Eckler, 24, 623. Sale by embarrassed, firm to infant, partly on credit, not fraud in law. Mat- tliews v. Rice, 31, 457. Fair sale on payment by failing debtor is valid. BedeU v. Case, 34, 386. Conveyance without change in posses- sion — when fraudulent. Savage -v. Mur- phy, 34, 508. Conveyance when void as to subsequent creditors. Case v. Phelps, 39, 164. Sale by failing debtor is not necessarily fraudulent — finding. Loeschigkv. Bridge, 42, 421. When general assignment to an indorser not presumed fraudulent. Clark v. Wise, 46, 612. Husband out of debt may pay for land and take title to his wife in good faith. Curtis v. Fox, 47, 299. Sale of entire effects of insolvent co- partnership on credit at fair price — not per se fraudulent — honest purchaser gets title. Buhl v. Phillips, 48, 125 ; 8 Am. Rep. 522. Retaining ample fund to pay debts is only effectual where conveyance was made in good faith. Fox v. Moyer, 54, 125. Creditor may purchase debtor's prop- erty to pay his honest debts, although he knew it was debtor's intent to hinder and delay his creditors. Dudley v. Dan- forth, 61, 626. Voluntary conveyance not necessarily void — finding of consideration. Solden v. Burnham, 63, 74. When conveyance fraudulent as to cred- itors. Cole v. Tyler, 65, 73. Lease need not be accompanied by im- mediate change of possession. Booth v. Kehoe, 71, 341. Case of fraudulent sale by an insolvent — evidence. Blaut v. Qabler, 77, 461. When conveyance by husband for bene- fit of wife not fraudulent as to subsequent creditor. Carr v. Breese, 81, 584. Canceling old account against insolvent without consideration — not disposition of property with intent to defraud within statute. Boyt v. Godfrey, 88, 669. Mortgage by fraudulent grantee to in- nocent mortgagee for antecedent debt, valid. Murphy v. Briggs, 89, 446. FEAUD, II. 3 — III. 211 That assignment is without considera- tion does not make it fraudulent. Oenesee Riv., etc., Bank v. Mead, 92, 637. Conveyance by husband in consideration of wife's services fraudulent as to cred- itors. Coleman v. Burr, 93, 17 ; 45 Am. Eep. 160. Not fraud for a son of an insolvent to purchase insolvent's stock in trade and furnish means for him to carry on busi- ness as agent. McClune v. Cain, 3 Abb. 76. 3. Notice to affect grantee. What is constructive notice to purchaser of land. Baker v. Bliss, 39, 70. Vendee not chargeable with construct- ive notice of vendor's intent to defraud. Stearns v. Gage, 79, 102. Vendee must have knowledge or belief of fraud to render void, and owes no duty of diligence to creditors. Proof essential to establish notice. Par- ker v. Conner, 93, 118 ; 45 Am. Rep. 178, note. 4. Effect of. A sale of personal property, fraudulent as to creditors, binds the parties. Water- bury v. Westervelt, 9, 598. Fraudulent transfer cannot be assailed unless something remains of the prop- erty. Cramer v. Blood, 48, 684. May be impeached on reference as to surplus on foreclosure. Bergen v. Gar- man, 79, 146. Fraudulent deed cannot stand as secu- rity. Davis v. Leopold, 87, 620. Lien of unrecorded chattel mortgage. Lane v. Lets, 3 Abb. 19. Remedy of judgment creditor fraudu- lently deprived of his lien — equities be- tween him and bona fide purchaser — legal and equitable title to land — receiver — accounting- Warner v. Blakeman, 4 Keyes, 487. Taking in payment or as security for antecedent debt does not constitute bona fide purchaser. Stevens v. Brennan, 79, 254. 5. Evidence as to. Evidence of fraud on question of agency in creditor's action. McGabe v. Brayton, 38, 196. Continuance of grantor's possession of real estate not conclusive evidence. Clute v. Newkirk, 46, 684. When buyer must be implicated — in- adequacy of price does not establish. Jaeger v. Kelley, 52, 274. In sale by insolvent, question of fact. May v. Walter, 56, 8. Question of fact — declarations of ven- dor after regaining possession of chattels sold not competent against vendee. TUson v. TerwUliger, 56, 273. Presumption against one paying con- sideration for grant to another, how rebutted. JDunlap v. Hawkins, 59, 342. In action to set aside fraudulent deed, the judgment being for property sold after delivery of the deed, grantor may show that he was not carrying on business for himself. Teed v. Valentine, 65, 471. Sufficient to show fraudulent intent of vendor — if purchaser paid value either knowledge of vendor's intent or actual participation in fraud must be shown. Starin v. Kelly, 88, 418. Evidence held insufficient to establish fraud in conveyance by husband to wife. Phasnix Bank v. Stafford, 89, 405. Proof required of notice of fraud to vendee — doctrine of constructive notice considered. Parker v. Conner, 93, il8 ; 45 Am. Rep. 178, note. III. Evidence as to fraud. In chattel mortgage whether question for jury. Butler v. Miller, 1, 496. When proof of other similar frauds competent — vendor not bound to dis- affirm until maturity of purchase — notes — nor to offer to return notes before trial. Hathorne v Hodges, 28, 486. When question of fact. Kelsey v. Northern Light Oil Co., 45, 505 ; Stitt v. Little, 63, 427. 212 FEAUD, IV.— V. Burden of proof of bona fide purchase of goods fraudulently obtained is on pur- chaser — execution creditor is not bona fide purchaser on sale upon his execution. Bevoe v. Brandt, 53, 462. In transfer of note — when title not shown in plaintiff, evidence of fraudu- lent payment immaterial. Terry v. Wait, 56, 91. That contract is drawn for one party by attorney of opposite party does not invali- date contract in absence of fraud. Joslin v. Cowee, 56, 626. Party alleging, must show that he was influenced by fraudulent representations. Taylor v. Quest, 58, 262. In obtaining bond and mortgage — may be shown by parol — payment to assignor valid. Sail v. Brwin, 66, 649. What sufficient finding of. Hardt v. Schulting, 85, 624. Facts not establishing existence of. Humphrey v. Hayes, 94, 594. What evidence admissible in an action for deceit in sale of mortgage. Graig v. Ward, 1 Abb. 454. Evidence to avoid sale — representation long before — reliance on — by agent — estoppel. King v. Fitch, 2 Abb. 508. Evidence of other like contemporaneous frauds competent. VanKleek v. Leroy, 4 Trans. App. 295. IV. Effect of fraud in general. A fraudulent contract must be repudi- ated whenever the fraud is discovered. Bruce v. Davenport, 1 Abb. 233 ; 3 Keyes, 472. When defense may be waived. Sweet- man v. Prince, 26, 224. Waived by retaining benefits. Linds- ley v. Ferguson, 49, 623 ; Cobb v. Hatfield, 46, 533. What waives and ratifies sale. Joslin v. Cowee, 52, 90. When delay to prosecute is not waiver — estoppel. Brooklyn Crosstown B. Co. v. Strong, 75, 591. One not injured cannot complain. Oa/r- vey v. Jarvis, 46, 310 ; 7 Am. Rep. 335. A fraud is a cause of complaint to the person only upon whom it is committed. Comstock v. Ames, 1 Abb. 411. Compromise does not defeat action for, unless made with knowdge. Baker v. Spencer, 47, 562. Rescission of agreement on account of — putting other party in statu quo. Allerton v. Allerton, 50,. 670. Innocent party receiving money obtained by, protected to extent of his interest. Justh v. Nat. Bk. of Commonwealth, 56, 478. Rescission of fraudulent contract — judg- ment — parties — dower. Hammondv. Pen- nock, 61, 145. Want of diligence in discovering, does not defeat right of rescission. Baker v. Lever, 67, 304 ; 23 Am. Rep. 117. Laches — tender — limitation — payment of interest. Gould v. Cayuga Co. Nat. Bank, 86, 75. In action to recover money fraudulently obtained on notes, notes need not be of- fered back before trial — demand. King v. Mtch, 1 Keyes, 432. Recovery by stranger to a transaction for fraud no bar to recovery by party de- frauded. Comstock v. Ames, 3 Keyes, 357. V. Belief. Collusive decree set aside. Wriglti v. MUler, 8, 9. Judgment fraudulently obtained in an- other State may be impeached therefor in action on it here. Dobson v. Pearce, 12, 156. An instrument procured by fraudulent representations may be reformed. Be- Puyster v. Hasbrouck, 11, 582. Fraudulent sale not enforceable — evidence. Smith v. Countryman, 30, 655. Which of two must bear loss for fraud of third where one has title. Ohio & Miss. B. B. Co. v. Kasson, 37, 218. Surrender of instrument fraudulently obtained may be adjudged — cross actions. McHenry v. Hazard, 45, 580. FRAUD -GIFT. 213 Fraudulently procuring release of mort- gage — when lien cannot be restored, re- covery may be had for amount. Stebbins v. Howell, 1 Keyes, 340. Trial by jury not compellable in action to set aside — action by receiver. Wright v. Nostrand, 94, 81. Party fraudulently induced to execute contract may rescind and recover consider- ation paid, or affirm and recover damages for the fraud. Bowen v. MandeviUe, 95, 237. See Assignment for Creditors; Con- tract ; Judgment ; Marriage ; Will. Freight. See Carrier; Railroad; Ship and Shipping. G. GAME. Act of 1871, chapter 721, constitutional. Phelps v.Racey, 60, 10 ; 19 Am. Rep. 140. See Fish and Fishery. Gaming. See Betting and Gaming ; Criminal Law. GAS-LIGHT COMPANY. May not lay pipes in country highway without consent of or compensation to owners of land. Bloomfield, etc., Gas- light Co. v. Calking, 62, 386. Lands of, may be condemned for rail- road purposes. In Matter of Petition of New York Gent., etc., B. Co. v. Metropoli- tan Gas-light Co., 63, 326. Stockholders after incorporation liable for debts until capital stock paid up. Briggs v. Waldron, 83, 582. Taxable as manufacturing company under act of 1880. Nassau Gas-light Co. v. City of Brooklyn, 89, 409. Mains not taxable as real estate. Peo- ple v. Board of Assessors, 89, 81. Injunction will lie to prevent from using pipes of another company in street. Poughkeepsie Gas Co. v. Citizens' Gas Co., 89, 493. See Negligence. GIFT. The law does not presume a gift. Grey v. Grey, 47, 552. Assignment of estate in expectancy, without consideration — when valid. Ham v. Van Orden, 84, 257. There must be delivery with intent to invest donee with title — certificates of stock — trust for benefit of child. Jackson v. Twenty-third St Railway, 88, 520. See Bedell v. Card, 33, 581. Question of fact whether completed by delivery — release. Trow v. Shannon, 78, 446. Check on savings bank, when not. Curry v. Powers, 70, 212 ; 26 Am. Rep. 577. Of deposit in savings bank — when effectual. Martin v. Funk, 75, 134 ; 31 Am. Rep. 446, note. Of bonds — when not executed inter vivos — trust. Young v. Young, 80, 422 ; 36 Am. Rep. 634. When receipt for purchase-money is. Fevry v. Stepltens, 66, 321. May be made, of debt due from donee to donor. Gray v. Ba/rton, 55, 68 ; 14 Am. Eep. 181. A transfer by father to adult son may be sustained as a gift although it purports to be for value. Van Beusen v. Rowley, 8, 358. And may be sustained if the donor has sufficient capacity to do business with his 214 GOOD-WILL — GUAKANTY. family, although not to do business gen- erally. Id. Father held mortgage against son — executed receipt for part, to be indorsed on mortgage — debt extinguished pro tanto. Carpenter v. Soule, 88, 251 ; 42 Am. Rep. 348. Of household furniture to married woman by third person, when valid as against husband's creditors. Allen, v. Cowan, 23, 502. Of insurance policy by husband to wife. Marcus v. St. Louis Mut. Life Ins. Co., 68, 625. When not made out, by husband to wife. Shuttleworth v. Winter, 55, 624. By husband to trustee for wife on sepa- ration is valid. Origin, v. Banks, 37, 621. To prejudice of donor's wife and chil- dren, under insane delusion that they were contriving to injure him, set aside. Riggs v. American Tract Society, 95, 503. Causa mortis — when valid. Qrymes v. Hone, 49, 17 ; 10 Am. Rep. 313 ; Champ- ney v. Blanchard, 39, 111. Donor's draft upon a third party is not valid as a gift causa mortis. Harris v. Clark, 3, 93. Of chose in action causa mortis — recov- ery of, when ownership mistaken. Wes-, terlov. DeWitt, 36, 340. Evidence — memorandum on stub of note. Cowee v. Cornell, 75, 91 ; 31 Am. Rep. 428. Subsequent declaration may determine whether loan or gift. Doty v. Willson, 47, 580. See Advancement ; Fraud ; Marriage. GOOD- WILL. Sale Of — what is not failure of consid- eration. Lewis v. Seabury, 74, 409 ; 30 Am. Rep. 311. Covenant hot to engage in same busi- ness, how evaded. Sander v. Hoffman, 64, 248. Of newspaper route. Hathaway v. Ben- nett, 10, 108. On sale of newspaper good- will passes. Boon v. Moss, 70, 465. See Partnership. Grand Jury. See Criminal Law ; Jury. GRANT. Colonial, to Trinity Church, construed. People i v. Hector, etc., of Trinity Church, 22, 44. See Deed ; Eminent Domain ; Consti- tutional Law. GUARANTY. I. Contract of. II. Consideration. III. Liability of guarantor. IV. Mights of guarantor. V. Action against guarantor. VI. Avoidance of contract of. I. Contract of. Of a note by the payee on transfer for his own debt is not within the statute of frauds. Brown v. Curtiss, 2, 225. On the back of a promissory note is not an indorsement. Id. When is continuing. Rindge v. Jud- son, 24, 64 ; Gates v. McKee, 13, 232 ; White's Bank of Buffalo v. Myles, 73, 335; 29 Am. Rep. 157. When not. Strong v. Lyon, 63, 172. Of mortgage — construction. Mahaiwe Bank v. Culver, 30, 313. Of collection of mortgage — carried by assignment of mortgage — construction of — reasonable diligence — insolvency does not excuse neglect to prosecute. Craig v. Barkis, 40, 181. To pay interest — construction of. Ham- ilton v. Van Rensselaer, 43, 244. To pay mortgage described as of $150 per acre, cannot be held for its real excess over that amount. Skinner v. Valentine, 59, 473. When agreement indorsed on bond to be regarded as guaranty. Brown v. Glwrnpney, 66, 214 When parol evidence competent to ex- plain — when continuing — construction GUARANTY, II. — IV. 215 — notice of termination. White's Bank of Buffalo v. Myles, 73, 335 ; 29 Am. Rep. 157. Construction and effect of guaranty of collection of mortgage. Vanderbilt v. Schreyer, 91, 392. II. Consideration. A guaranty indorsed on a promissory note given for the maker's debt is not within the statute of frauds although it expresses uo consideration. Durliam v. Manrow, 2, 533. Contra: Hall v. Farmer, 2, 553. When continuing and expressing consid- eration. Gates v. McKee, 13, 232. "For value received" sufficiently ex- presses consideration — guarantor of col- lection liable for costs of action to collect. Mosher v. Hotchkiss, 2 Keyes, 589 ; 3 id. 161. " For value received " sufficient expres- sion of consideration. Miller v. Cook, 23, 495. Must express consideration. Draper v. Snow, 20, 331. Written below a, promissory note, and expressing no consideration, is void, and parol evidence is incompetent to prove the consideration. Brewster v. Silence, 8, 207. When consideration sufficiently ex- pressed. Church v. Brown, 21, 315. By corporation, of interest coupons of another — transfer of coupons and guar- anties — statement of consideration im- material. Arnot v. Erie By. Co., 67, 315. Consideration — continuing — notice of acceptance — when by firm, determined by dissolution and notice — limitation — dis- charge by extension. City Nat. Bank of Poughkeepsie v. Plielps, 86, 484. III. Liability of guarantor. A guarantor of payment for goods to be paid for January 1, 1840, is not bound where the plaintiff took a note from the debtor payable December 25, 1839. Wal- worth v. Thompson, 2, 185. General letter of credit creates contract with any one acting on it and without no- tice — consideration — statute of frauds. Union Bank v. Coster's Meecutors, 3, 203. Guarantor not bound unless terms of guaranty are strictly fulfilled — evidence — presumption. Leeds v. Dunn, 10, 469. "All liability" imports a continuing guaranty. Agawam Bank v. Strever, 18, 502. Of mortgage — does not extend beyond maturity. Melick v. Knox, 44, 676. Guarantor that factor shall account for goods of A., not liable for goods of A. and B. Barns v. Barrow, 61, 39 ; 19 Am. Rep. 247. To pay deficiency on mortgage is not guaranty of payment, but of collection, and laches in foreclosure discharges. Mc- Murray v. Noyes, 72, 523 ; 28 Am. Rep. 180. Of chattel note, when construed for payment and not for collection. Cardell v. McNeil, 21, 336. Joint — liability not extinguished by death, when individual benefit secured. Bichardson v. Draper, 87, 337. Liability on, not released by neglect of creditor to institute proceedings to collect after notice. Newcomb v. Hale, 90, 326; 43 Am. Rep. 173. IV. Rights of guarantor. Of lease — surrender — fire insurance. Kingsbury v. Westfall, 61, 356. Of performance of award, when bind- ing. Wood v. Tunnieliff, 74, 38. Of collection — laches — waiver. North- em Ins. Co. v. Wright, 76, 445. Where only against diversion and not of existence of pledge — evidence. Farmers', etc., Nat. Bank v. Lang, 87, 209. Special guaranty gives a right only to the person addressed — its terms must be strictly complied with and it must be sup- ported by a consideration from the princi- pal to the guarantor or by the promisee according to its terms. Fvansville Nat. Bank v. Kaufman, 93, 273 ; 45 Am. Rep. 204. 216 GUARANTY, V. —HABEAS CORPUS. V. Action against guarantor. Goes with principal obligation — when right of action on, not extinguished. Claflin v. Ostrom, 54, 581. Notice of default or demand of payment not condition precedent to bringing action against guarantor. Howe Machine Co. v. Farrington, 82, 121. VI. Avoidance of contract of. Mere neglect of the holder to sue the maker of a note does not discharge guar- antor. Brown v. Uurtiss, 2, 225. Taking collateral with longer time to run does not discharge guarantor. Bemsen v. Graves, 41, 471. Concealment to avoid must be fraudu- lent. Howe Machine-?. Farrington, 82, 121. See Contract ; Negotiable Instru- ment ; Statute of Frauds ; Surety. GUARDIAN AND WARD. Guardian may discharge mortgage be- fore due. Oluipman v. Tibbits, 33, 289. See Swarthout v. Curtis, 5, 301. Guardian in socage may lease for any term within minority, subject to defeat by appointment of another and his election to avoid. Emerson v. Spicer, 46, 594. When guardian's contract will be spe- cifically performed. Sherman v. Wright, 49, 227. Ward not estopped by fraudulent repre- sentations of one assuming without au- thority to act as guardian. Id. Guardian may discharge right of action for trespass on ward's lands for value. Torry v. Black, 58, 185. Mortgage by guardian to himself, when valid. Lyon v. Lyon, 67, 250. Purchase by guardian at surrogate's sale of land devised to ward — affirmance by laches. Bostwick v. Atkins, 3, 53. Right of mother as guardian in socage to maintain ejectment. Cogger v. Lansing, 64, 417. Special guardian selling invalid claim against infant's land, and thus subjecting lawful claimant to expense, liable in damages. Matter of Petition of Spelman v. Terry, 74, 448. Court may take minor from guardian appointed by surrogate on death of father, and intrust to mother. Wilcox v. Wilcox, 14, 575. Loan of ward's funds when guardian receives bonus not usurious. Fellows v. Longyor, 91, 324. Guardian cannot have compensation as attorney — interest — commissions. Mor- gan v. Hannas, 49, 667. See Infancy ; Parent and Child. Gunpowder. See Nuisance. EL HABEAS CORPUS. Does not lie to review amount of fine for contempt. People v. Jacobs, 66, 8. When lies to determine jurisdiction of court to render particular judgment. People v. Liscomb, 60, 559 ; 19 Am. Rep. 211. Refusal to discharge does not bar a new writ. People v. Brady, 56, 182. Order quashing, reviewable only by ap- peal. People v. Conner, 64, 481. Jurisdiction — no power to remand con- ditionally or to jail liberties. People v. Cowles, 4 Keyes, 38. Sufficiency of return to, by keeper of penitentiary — rights of prisoner whose sentence is excessive. People v. Baker, 89, 460. See Contempt ; Criminal Law. HEIRS AND NEXT OF KIN — HIGHWAYS, V. 217 Handwriting. See Evidence. Health. See Nuisance. HEIRS AND NEXT OF BIN. Requisites of suit to charge, in respect to land descended. Mersereau v. Ryerss, 3, 261. Requisites to action to hold for debt of decedent — presenting claim — limitation — rejection. Seloverv. Coe, 63, 438. See Descent ; Executor and Admin- istrator ; Will. HIGHWAYS. I. Highway laws. II. Opening of highways. III. Dedication of. IV. Obstruction of. V. Powers and duties of commissioners. VI. Practice. VII. I. Highway lanes. The statute requiring vehicles on meet- ing to turn to the right does not apply to street railway cars and common vehicles. Hegan v. Eighth Ave. R. Co., 15, 380. Construction of Laws of 1861, chapter 311, as to abandonment. Amsbry v. Hinds, 48, 57. II. Opening of highways. Failure to open to full width for thirty years does not extinguish public rights in unopened part. Walker v. Oaywood, 31, 51. Application for laying out — one or two highways — including old — description. People v. Commissioners, 37, 360. Regularity of proceedings to widen Union avenue in Saratoga Springs. People v. McDonald, 69, 362. 28 Cannot be laid out across railroad depot grounds. Prospect Park, etc., R. Co. v. Williamson, 91, 552. Laying out — constitutionality of act of 1878, chapter 410 — motion to vacate ap- pointment of commissioners — laches — waiver — joinder. Matter of Application of Woolsey, 95, 135. III. Dedication. A road having no outlet or terminating in a private way may be dedicated as a public highway. People v. Van Alstyne, 3 Abb. 575 ; 3 Keyes, 35. Lands dedicated for streets do not be- come such until acceptance by the public authorities. City of Oswego v. Oswego Canal Co., 6, 257. Dedication of land for, does not author- ize railroad company to appropriate, with- out compensation. Williams v. New York Cent. R. Co., 16, 97. Dedication — acceptance — revocation — adverse possession. Bridges v. Wyckoff, 67, 130. Dedication — when properly found by commissioners to appraise compensation. Matter of Application of City of Brook- lyn, 73, 179. When dedicator of street may restrain unauthorized use by railway — damages — depreciation of lots. Henderson v. New York Cent., etc., R. Co., 78, 423. IV. Obstruction of. Action for obstructing — raising ques- tion of title — boundaries. Little v. Denn, 1 Keyes, 235. Estoppel by acts as highway officer — loss of order refusing to lay out — evi- dence — objection — obstruction — com- pensation. Chapman v. Gates, 54, 1 32. Adjoining owner entitled to damages for unreasonable use of street by railroad company. Mahady v. Bushwick R. Co., 91, 148 ; 43 Am. Rep. 661. V. Powers and duties of commissioners. Order of two commissioners void unless it shows notice to third or that there were 218 HIGHWAYS, VI. only two — when two commissioners pre- sumed legal number. Simmons v. Bines, 4 Abb. 246 ; 4 Keyes, 153. Order laying out, through improved lands signed . by only two commissioners and not reciting that the other partici- pated, is void. People v. Hynds, 30, 470. Powers of referees on appeal from com- missioners. People v. Commissioners of Highways, 8, 476. Powers of commissioners in laying out — vacancies, how filled — assessment of damages. People v. Supervisors of Rich- mond Co., 20, 252. Order laying out signed by two com- missioners, when valid — requisites of ap- plication — opening and working — own- er's consent not revocable after buying out. Marble v. Wliilney, 28, 297. Commissioners not bound to repair un- less they have funds — may use funds in their discretion — not liable to private action for neglect or omission. Garling- house v. Jacobs, 29, 297. Order by two commissioners must show participation or notification of third. People v. Williams, 36, 441. Effect on adjoining owner's rights of altering by canal commissioners. Higgins v. Reynolds, 31, 151. Commissioner has no power to borrow money. Van Alstyne v. Freday, 41, 174. Commissioners may discontinue of their own motion any road or portion thereof — referees — bar — burden of proof. People v. Nichols, 51, 470. When commissioners have no authority over bridge to be maintained at public expense. Phelps v. Hawley, 52, 23. Omission of commissioner to file bond does not rendeT him liable as trepasser — may act in laying out over his own land. Foot v. Stiles, 57, 399. Protection of garden — disability of county judge to hear appeal from commis- sioners — judge has no right to designate justice to appoint referees. People v. Commissioners of Highways, 57, 549. Commissioners may summarily remove obstructions. Cook v. Harris, 61, 448. Liability of commissioners of two towns — presumption of continuance of high- way. Beckwith v. Whalen, 65, 322. Commissioners' return on laying out is conclusive as to who is owner and occupant — waiver of notice by approving — order of referees need not show that all meet. People v. Burton, 65, 452. Commissione/s not liable for negligence of predecessors. Gould v. Booth, 66, 62. Appeal from commissioners — notice. Action against referees for false return to certiorari — complaint — appeal. Rector v. Clark, 78, 21. Commissioners have authority to con- tract for rebuilding bridge carried away by flood, act 1865, chapter 442 — to con- tract to pay for on completion although no money — to borrow on credit of town — when that consent of town auditors prop- erly made assumed. Boots v. Wasliburn, 79, 207. Liability for negligence in not protect- ing bridge with railing. Morrell v. Peek, 88, 398. When personally liable for neglect to repair. Hover v. Barkhoof, 44, 113. VI. Practice. Parol" consent to lay out, through a building, is revoked by sale and convey- ance prior to the laying out, although pending appeal. People v. Goodwin, 5, 568. Referees appointed to hear appeal in laying-out proceedings, decide on the facts existing at time of their hearing. Id. Cul de sac may be laid out — appeal to county judge, regular — jurisdiction of referees — freeholder's certificate and order of reference conclusive — costs on certiorari. People v. Van Alstyne, 3 Keyes, 35. May not belaid out over lands acquired by railroad company for engine-house. Albany Northern R. Co. v. Brownell, 24 345. Adjacent piling ground is not part of mill -yard — ditch or canal is not building fixture or erection — cul de sac is high- Hl&HWAYS, Vll. 219 way. People v. Kingman, 24, 559. But see Holdane v. Trustees of Cold /Spring, 21,474. Supervisors can only audit damages for taking land, and no more can be collected of town. People v. Supervisors of Rich- mond, 28, 112. Order for road two rods in width on bed of old road, when may be valid — orchard. Snyder v. Plass, 28, 465. Laying out new road — reaffirming. Id.; Snyder v. Trumpbour, 38, 355. Proceedings of referees to review order for laying out — powers — evidence — notice. People v. Kniskem, 54, 52. When record of laying out invalid for not showing consent of owners to exchange of roads. Miller v. Brown, 56, 383. Reassessment by jury of damages for laying out void when notice not served on town clerk within twenty days of filing of commissioners' assessment. People v. Mott, 60, 649. Referees on appeal from commissioners cannot inquire into jurisdiction. People v. Harris, 63, 391. New road cannot be discontinued as an old one before opening and use. People v. Oriswold, 67, 59. Decision of referees refusing to lay out may be changed within four years — cer- tificate of freeholders not essential where owner consents — alteration when is not laying out. People v. Jones, 63, 306. Proceedings to borrow money for re- pairs. People v. Tompkins, 64, 53. VII. Generally. Penalty for encroaching does not ap- ply to one established by prescription. Doughty v. BrUl, 3 Keyes, 612. In proceedings for encroachment on road not laid out, the boundaries must be de- termined by commissioners by public use — act of February 20, 1830. Talmage v. Huntting, 29, 447. Adjoining owner not entitled to -com- pensation, when land waS reserved by his grantors. Baldwin v. City of Buffalo, 35, 375. Towns equally bound for expense of bridges between. Lapliam v. Mice, 55, 472. Overseer has no right to turn stream of water from his own land on highway to its detriment. Kellogg v. Thompson, 66, 88. Town not liable to reimburse owner for damages recovered against him for remov ing obstructions at direction of commis- sioner. People v. Board of Town Auditors of Esopus, 74, 310. Town not liable for judgment against commissioners of highways for injury by neglect to repair. People v. Board of Town Auditors of Little Valley, 75, 316. Town not liable for contracts by com- missioners of highways without its au- thority. People v. Supervisors of Ulster, 93, 397. See Municipal Corporation ; Negli- gence: Nuisance. Homicide. See Criminal Law. Husband and Wife. See Contract ; Gift ; Insurance; Marriage ; Mortgage ; Trusts ; Will. 220 ICE — INFANCY. I. ICE. Failure to remove from sidewalk does not g've action against lot-owner by one injured. Moore v. Oadsden, 93, 12. See Municipal Corporation ; Negli- gence. IMPRISONMENT. In county penitentiary, does not suspend civil rights. Bowles v. Hubermann, 95, 346. Legislature may direct, for misdemean- ors, to be made in any county. Brown v. People, 75, 437. See False Imprisonment ; Insolvency. IMPROVEMENTS. One who buys and improves lands, knowing of a pending suit to reach a debtor's interest in them, cannot have al- lowance for the improvements as against the decree. Patterson v. Brown, 32, 81. See Fixtures ; Landlord and Ten- ant ; Partition ; Tenancy ; Vendor and Purchaser. Indemnity. See Guaranty ; Sheriff ; Surety. Determination of value of improvements is a condition precedent to extinction of Indian title. Blacksmith v. Fellows, 7, 401. When forcrble prevention of entry of appraisers does not dispense with appraise- ment. Id. In Ogden and Fellows' treaties the United States assumed no obligations McKeon v. TUlotson, 1 Keyes, 161 ; 3 Abb. 110. Requisites of jurisdiction under Laws of 1821, chapter 204. People v. Soper, 7, 428. Cannot dispose of soil except to govern- ment or pre-emptor. Howard v. Moot, 64, 262. Indictment. See Criminal Law. Indorsement. i Negotiable Instrument. INDIANS. Judgment on contract with Indian, without appearance, void. Hastings v. Farmer, 4, 293. Taxation for roads through reservations when valid. Fellows v. Denniston, 23, 420. Concerning intrusion on lands of. Peo- ple v. Dibble, 16, 203. Affirmed, 21 How. (U. S.) 366. INFANCY. Warranty of genuineness of note not broken by infancy of maker of note. Baldwin v. Van Deusen, 37, 487. Assignment for creditors by copartners, one of whom is an infant, is not void. Yates v. Lyon, 61, 344. When infant will be protected against fraudulent judicial sale. HoweU v. Mills, 53, 322. May maintain action for moneys belong- ing to him in hands of defendant. Segel- ken v. Meyer, 94, 473. A promise to pay for necessary support of a minor beyond wages cannot be en- forced without proof of the necessity. Merritt v. Seaman, 6, 168. INFANCY — INJUNCTION. 221 Infant not liable on his contract, al- though he represented himself of age. Studwell v. Shapter, 54, 249. Infant not estopped by signing mother's name to deed at her request. Spencer v. Carr, 45, 406 ; 6 Am. Eep. 112. Ratification of contract made in infancy. Henry v. Boot, 33, 526. Retention of proceeds of sale after ma- jority, not affirmance. Walsh v. Powers, 43, 23 ; 3 Am. Rep. 654. One after majority continuing in pos- session, of and exercising acts of owner- ship over real estate purchased in infancy, ratines purchase. Henry v. Root, 33, 526. Where a minor submitted a claim to ar- bitration and after majority accepted the amount of the award, this affirms the submission. Jones v. Phanix Bank, 8. 228. Bound by judgment of which he accepts the fruits after becoming of age. Mills v Hoffman, 92, 181. Disaffirmance — infant may disaffirm his deed, even after three years after ma- jority, without restoring consideration, if he has no property. Green v. Green, 69, 553 ; 25 Am. Rep. 233. Chattel mortgage executed by a minor is avoided by his executing a bill of sale to another after majority. Chopin v. Shafer, 49, 407. Negligence — infant only bound to use care reasonable for one of his age. Byrne v. New York Cent, etc., B. Co., 83, 620. Running in front of moving train negli- gent. Wendell v. New York Cent., etc., B. Co., 91, 420. When child chargeable with parent's contributory negligence. Morrison v. Erie By. Co., 56, 302. County not liable to, for funds of, de- posited with its treasurer and misappro- priated. Cray v. Supervisors of Tompkins, 93, 603. Transfer of minor's title to lands in vil- lage of Brooklyn can only be made under the Revised Statutes proceedings. Battell v. Burrill, 50, 13. Judgment against infant without guard- ian voidable only. McMurray v. McMur- ray, 66, 175. Appearance of guardian ad litem for infant not served with summons gives no jurisdiction. Ingersoll v. Mangam, 84, 622. Custody of minors is discretionary in court below. Matter of Application of Welch, 74, 299. Mortgage of infant's real estate void un- less confirmed by court. Battell v. Torrey, 65, 294. Power of court over infant's equitable estate. Anderson v. Mather, 44, 249. When legacy to, until twenty-one, car- ries interest from death of testator. Brown v. Knapp, 79, 136. Need not join in petition for sale of real estate — what sufficient execution of deed by special guardian. Cole v. Q-ourlay, 79, 527. Bond and mortgage taken by guardian on sale of minor's real estate become per- sonal property on his settlement with the guardian after majority. Forman v. Marsh, 11, 544. Deed by infants and by their guardian described only in his individual character conveys no title. Hyatt v. Seeley, 11, 52. Infant may rescind partnership and re- cover capital paid. Sparman v. Keim, 83, 245. Rights of infants cannot be waived on sale of decedent's property. Stillwell v. Swarthout, 81, 109. Legislature may specially order sale of infant's real estate. Brewort v. Grace, 53, 245. Infant is ward of court. Matter of Price, 67, 231. See Contract ; Guardian and Ward ; Master and Servant ; Negligence ; Parent and Child ; Marriage. INJUNCTION. May not be granted, revived or con- tinued after judgment against plaintiff, and pending appeal. Spears v. Matthews, 66, 127. Supreme Court may enjoin suit in that court — contempt. Brie By. Go. v. Barn- sey, 45, 637. 222 INJUNCTION. When improper to restrain prosecution of another action. Wood v. Swift, 81, 31. Lies to restrain multiplicity of suits. Third Ave. R. Co. v. Mayor, etc., 54, 159. When does not lie to prevent multiplic- ity of actions based on illegal assessment. EoweU v. City of Buffalo, 2 Abb. 412. When brick burning may be enjoined as nuisance. Campbell v. Seaman, 63, 568 ; 20 Am. Rep. 567. Preliminary, issues to protect mines, quarries and timber. West Point Iron Co. v, Reymert, 45, 703. Will lie to prevent gas-light company from using pipes in street of another company. Poughkeepsie Gas Co. v. Citizens' Gas Co., 89,493. When will issue to restrain enforcement of judgment — costs, New York & Har- lem R. Go. v. Haws, 56, 175. Lies to restrain continuous unlawful use of land by railway. Murdoch v. Prospect Park, etc., R. Co., 73, 579. When dedicator of street may restrain unauthorized use by railway. Henderson v. New York Cent., etc., R. Co., 78, 433. Evasion of — trade-mark. Devlin v. Devlin, 69, 212 ; 25 Am. Rep. 173. To restrain violation of trade-mark. Low v. Hart, 90, 457. Will not issue to stay landlord's pro- ceeding for removal of tenant, unless without jurisdiction or fraudulent. Sher- man v. Wright, 49, 227. Will not issue at suit of theater mana- ger to restrain Society for Reformation of Juvenile Delinquents from suing for penalty for not obtaining license. Wallack v. Society for Reformation of Juvenile Delinquents, 67, 23. When does not lie to restrain action — estoppel. Savage v. Allen, 54, 458. When will not issue to restrain canal board. People v. Canal Board, 55, 390. Tax payer cannot restrain commissioner from paying railroad aid bonds alleged to be void. KUbourne v. St. John, 59, 21 ; 17 Am. Rep. 291. Will not issue to restrain commissioners of highway from removing encroachment. Hyatt v. Bates, 40, 164. Threatened violation of legal right alone will not authorize — complaint must show facts authorizing if it is final relief sought. McHenry v. Jewett, 90, 58. Does not lie to restrain assessment of tax. Western R. Co. v. Nolan, 48, 513. Mandamus or certiorari the proper remedy. Mut. Ben. Life Ins. Co. v. Supervisors of New York, 3 Abb. 344. When does not lie to restrain suit on undertaking to discharge attachment. Kelly v. Christal, 81, 619. Violation by common council — con- tempt. People v. Sturtevant, 9, 263 ; People v, Dwyer, 90, 402. Temporary, abrogated by judgment not providing for continuance, Gardner v. Gardner, 87, 14. Of prosecution, when does not restrain collection of costs. German Savings Bank v. Hahel, 80, 273. Damages — defendant cannot assess pending appeal by plaintiff. Musgrave v. Sherwood, 76, 194. Reference to ascertain damages cannot be granted until plaintiff decided not entitled to injunction. Benedict v. Bene- dict, 76, 600. Ex parte discontinuance of action — when entitles defendant to order of refer- ence to compute damages. Pacific Mail Steamshvp Co. v. Toel, 85, 646. Order of reference as to damages — limit of undertaking — costs. Lawton v. Green, 64, 326. What are proper items of damage on vacating — reference — adopting evidence taken on prior reference. Roberts v. White, 73, 375. Reference to ascertain damages ^im- properly granted where action abates and does not survive. Johnson v. Blwood, 82, 362. Assessment of damages on — notice to sureties — evidence of fraud. Jordan v. Volkenning, 72, 300. Damages on dissolving. Andrews v. Glenville Woolen Co., 50, 282. When question of damages not raised by stipulation on injunction of judgment — deposit does not measure damages. Packer v. Nevin, 67, 550, INNKEEPEK — INSANITY. 223 When counsel fees recoverable as dam- ages. Homy v. Rubber Tip Pencil Co., 50, 335. When leave to discontinue does not give right of action on undertaking. Palmer v. Foley, 71, 106. Order punishing contempt for violation of, how reviewed. Watrous v. Kearney, 79, 496. Abetting disobedience of — review of order — interrogatories. People v. Pendle- ton, 64, 622. See Appeal ; Assessment ; Contempt ; Corporation ; Nuisance ; Taxation ; Trade-Mark. INNKEEPER. Boarding horse and man in charge under contract at special rates does not render innkeeper liable as such. Mowers v. Fethers, 61, 34 ; 19 Am. Rep. 244. Liable for loss of goods of army officer's wife stopping at hotel at agreed terms. Hancock v. Band, 94, 1 ; 46 Am. Rep. 112. Liable for loss of guests' goods by fire. Sulett v. Swift, 33, 571. Not liable for loss by fire of horse of one neither lodger nor guest, unless neg- ligent. Ingallsbee v. Wood, 33, 577. Exemption from liability for loss by fire — evidence of negligence — evidence. Fawceit v. Nichols, 64, 377. Not liable for loss of any valuables not deposited in safe when he has posted notice. Hyatt v. Taylor, 42, 258. Guest bound to deposit all his money, etc. , in safe to impose liability. Rosen- plaenter v. Roessle, 54, 262. Liable for any amount of money depos- ited in safe. Wilkins v. Earle, 44, 172; 4 Am. Rep. 655. Liable for loss of guest's watch not de- posited in safe — not "jewel or orna- ment." Ramaley v. Zealand, 43, 539 ; 3 Am. Rep. 128. Liable for loss of goods not deposited in safe if the failure did not cause the loss. Bendetson y. French, 46, 266. Personal notice of safe to guest e qui va- lent to posting notice in room under statute. Purvis v. Coleman, 21, 111. When guest guilty of negligence after such notice. Id. INSANITY. A mortgage executed by a lunatic is voidable only. Ingraham v. Baldwin, 9, 45. Deed of one non compos mentis void. Van Deusen v. Sweet, 51, 378. Case of, of grantor. Hamland v. Hayes, 37, 25. When money loaned to insane person may be recovered. Mutual Life Ins. Co. v. Hunt, 79, 541. When contract with insane person may be rescinded. Riggs v. American Tract Society, 84, 330. Gift to prejudice of donor's wife and children, under insane delusion that they were contriving to injure him, set aside. Riggs v. American Tract Society, 95, 503. Proceedings to sell land — omission to refer petition is fatal — purchaser may move to have committee amend or refund. Matter of Valentine, 72, 184. Does not warrant discharge from civil arrest or imprisonment. Bush v. Petti- bone, 4, 300. Construction of section 33 of act to or- ganize State lunatic asylum. Id. Estate of, liable to supervisors for ex- pense of maintenance as insane murderer. Supervisors of Onondaga Co. v. Morgan, 2Keyes, 277; 4 Abb. 335. Test of, in regard to testamentary ca- pacity. Seaman's Friend Society v. Hopper, 33, 619. Inquisition only presumptive evidence of prior insanity. Banker v. Banker, 63 409. See Contract ; Criminal Law ; Will, INSOLVENCY. I. Non-imprisonment act. II. Two-thirds act. 224 INSOLVENCY, I. — INSUKANCE. I. Non-imprisonment act. Does not abrogate contract. New Bug. Iron Co. v. Gilbert, etc., R Co., 91, 153. Warrant of arrest cannot issue on judg- ment in tort. People v. Speir, 77, 144. Provisions not superseded by Code of Procedure. People v. O'Brien, 3 Abb. 552. Requisites of petition for discharge. People v. Bancker, 5, 106. Petition for discharge not naming all parties defective — sufficiency of service — action on contract — body execution il- legal — invalidity not waived by remain- ing in custody. Goodwin v. Griffis, 88, 629. Requisites of assignment under 2 R. S. 16 — intent to create statutory trust. Bock- well v. McGovern, 69, 294. Prosecuting attorney may demand as- signment of judgment debtor's choses in action. Steward v. Biddlecum, 2, 103. Demand need not specify the particular choses in action. Id. Where debtor has refused to execute as- signment, he cannot afterward object that no one was present to receive the property. Id. If a plaintiff joins contract and tort and fails he may be imprisoned for the costs. Miller v. ScJierder, 2, 262. Jurisdiction to issue warrant — bond under section 10, subdivision 4, not void as wager. Wheaton v. Fay, 62, 275. Disability of county judge — death of prosecuting creditor. -Cobb v. Harmon, 23, 148. ' ' Successor in office. " Matter of Rob- erts, 70, 5. Moving creditor may appropriate assets to exclusion of others. Hall v. Kellogg, 12, 325. Assignment by debtor is for benefit of pursuing creditor and cannot be defeated by voluntary general assignment. Spear v. War dell, 1, 144. Preferential assignment is a bar to a dis- charge under insolvent law. Morewood v. Hollister, 6, 309. When imprisoned debtor's discharge de- feated by fraudulent disposition. Matter of Brady, 69, 215. Discharge does not affect ci '.zen of an- other State. Pratt v. Chase, 44, 597; 4 Am. Rep. 517. Discharge from imprisonment on execu- tion under 2 R. S. 28 — recitals — proofs — repeal — fraud — presumption. Develin v. Cooper, 84, 410. Non-resident creditor not affected by discharge. Soule v. Chase, 39, 342. Discharge does not protect sheriff un- less it recites jurisdictional facts — what is requisite. Bullymore v. Cooper, 46, 236. A new conditional promise to revive a discharged debt can only be enforced by showing performance of the condition. Wakeman v. Sherman, 9, 85. II. Two-thirds act. In two-third proceedings discharge is rendered void by omission to state amount due to one creditor in schedule. Stanton v. Ellis, 12, 575. "Benefit of myself or family" not equivalent to "and family" — discharge may be impeached by sheriff and judgment creditors. Hale v. Sweet, 40, 97. Sufficiency of affidavit and proceedings. People v. Sutherland, 81, 1. Affidavit to petition not sworn to, fatal error. My v. Cooke, 28, 365 ; 2 Abb. 14. Signing petition of one judgment debtor does not transfer claim against other. Elsworth v. Caldwell, 48, 680. Where schedule annexed to petition shows that the creditors do not own two- thirds of the debts due to citizens of the United States, discharge is void. Morrow v. Freeman, 61, 515. INSURANCE. I. Fire insurance. 1. Insurable interest. 2. Agreement to insure. 3. Conditions of policy. 4. Construction of policy. 5. Premiums. 6. Powers and duties of agent. 7. Rights and liabilities of insured. INSURANCE, I. 1. 225 8. Rights and liabilities of insurer . 9. Statement in policy constituting warranty. 10. What will avoid policy. 11. Ratification and waiver. 12. Action to reform or cancel policy. 13. Actions against companies. 14. Mistakes. 15. Contribution between companies. 16. Other insurance. 17. Change of title. 18. Evidence. 19. Assignment of policy. 20. Zoss. 21. Mutual companies. 22. Foreign companies. 23. Insolvent companies. 24. Renewals. II. Marine insurance. 1. Generally. 2. Construction of policy. 3. Warranty. 4. Deviation. 5. Damage and delay from ice. 6. Zoss. III. £ife insurance. 1. Generally. 2. Construction of policy. 3. Warranties and representa- 4. Premiums. 5. Assignment ofpoUcy. 6. Proof of death. 7. Suicide. 8. Evidence. 9. IFira'wr. 10. Receivers and insolvency. TV. Accident and other insurance. V. General matters. I. .FSre insurance. 1. Insurable interest. Owner of premises sold on execution has insurable interest (luring time for redemption. CWe v. Niagara Falls Ins. Co., 60, 619. Seller of chattels retaining title till pay- ment has insurable interest — mortgage by buyer and other insurance by raort- 29 Tall/mam, v. ^Watmifc JP 7 . tfe M. Ins. Co., 4 Abb. 345 ; 3 Keyes, 87. ' Mortgagor has no insurable interest after foreclosure sale but before enroll- ment of decree and execution of deed. McLaren v. Hartford Fire Ins. Co., 5, 151. Application for consent to assignment is notice that applicant has or is about to acquire interest in property insured. Hooper v. Hudson River F. Ins. Co., 17, 424. Carrier by contract may secure owner's insurance on goods in transit. Mercantile Mut. Ins. Co. v. Calebs, 20, 173. Carrier may insure — measure of dam- ages is value of goods at time and place of loss Savage v. Corn Ex. Ins. Co., 36, 655. And carrier may abandon to insurers thereunder. Id. Sheriff has insurable interest. White v. Madison, 26, 117. On death of insured interest devolves on heirs at law as realty, subject to dower and judgment liens. Wyman v. Wyman, 26, 253. Administrator of insolvent estate has insurable interest in buildings for bene- fit of creditors — when deemed made for administrator and not for heirs. Herki- mer v. Rice, 27, 163. Policy to heirs and representatives in- ures to trustee holding title for their ben- efit. Savage v. Howard Ins. Co., 52, 502 ; 11 Am. Rep. 741. Insurance by lessee — assignment to lessor — other insurance. Hand v. Wil- liamsburgh City Fire Ins. Co., 57, 41. One purchasing in his own name for another may insure in his own name. Bicknell v. Lancaster City and County Fire Ins. Co., 58, 677. One joint owner or owner in common may insure his interest separately. Harvey v. Cherry, 76, 436. Warehousemen have insurable interest in goods in their hands. Richmond v. Niagara Fire Ins. Co., 79, 230. Eight of mortgagee to insurance under contract with owner of fee. Reid v. Mc- Crum, 91, 412. 226 nrSUBANCB, I. 2 — 4. 2. Agreement to insure. Contract may be oral. Trustees of First Baptist Church v. Brooklyn F. Ins. (Jo., 19, 305. When oral complete and valid — evi- dence. Audubon v. Excelsior Ins. Co., 27, 216. Substitution of new parol arrangement as to payment of premiums does away with all incidents of the old. Baptist Church v. Brooklyn Fire Ins. Co., 28, 153. Oral contract valid — where insured mortgagee becomes owner no new con- sideration necessary to agreement to change insurance. Fisli v. Cottenet, 44, 538 ; 4 Am. Rep. 715. Oral agreement for a policy, by agent authorized to issue policies, binds com- pany. Ellis v. Albany City Fire Ins. Co., 50, 402 ; 10 Am. Rep. 495. Parol agreement by town company to issue policy renders it liable for loss. Van Loan v. Farmers', etc., Ins. Assn., 90, 280. 3. Conditions of policy. Conditions annexed to and delivered with policy are prima facie part of it, al- though not referred to. Murdoch v. Che- nango Co. M. Ins. Co., 2, 210. The application is deemed part of the contract when expressly so referred to in the policy. Id. Election to rebuild — effect of — dam- ages. Morrell v. Irving Fire Ins. Co. , 33, 429. Condition against sale does not apply to goods kept for sale — assignment from husband to wife — when insurer estopped to controvert. Wolfe v. Security Fire Ins. Co., 39, 49. When contract unqualified and not to be limited by private instructions to agent. Fried v. Royal Ins. Co., 50, 243. Conditions as to increase of risk. "Wil- liams v. People's Fire Ins. Co., 57, 274. Prohibition of kerosene — sale of prop- erty — consent of insurer. Buchanan v. Exchange Fire Ins. Co., 61, 26, When application not part of policy — diagram, presumption as to drawing of. Vilas v. New York Gent. Ins. Co., 72, 587 ; 28 Am. Rep. 186. Loss payable to mortgagee — insurer exercising option to rebuild — mortgagee cannot recover for loss. Heilmann v. Westchester Fire Ins. Co., 75, 7. 4. Construction of policy. Construction of warranty as to neighbor- ing buildings. Gates v. Madison Co. M. Ins. Co., 2, 43. Reinsurance, construction of policy of. Mutual Safety Ins. Co. v. Hone, 2, 235 ; Blackstone v. Alemannia Fire Ins. Co., 56, 104. What is not reinsurance. Excelsior Fire Ins. Co. v. Royal Ins. Co. of liver- pool, 55, 343 ; 14 Am. Rep. 271. Evidence of local custom not competent to control such contract. Id. Prostration and destruction by light- ning is not a loss by fire. Babcock v. Mont- gomery Co. Mutual Ins. Co. , 4, 326. Loss by fire communicated by explosion is not "loss by explosion." St. John v. American, etc., Ins. Co., 11, 516. Condition against storing or keeping hazardous articles not broken by tempo- rary or casual deposit. Hynds v. Schenec- tady Co. M. Ins. Co., 11, 554. Condition against storing of hazardous articles not broken by use of oil and tur- pentine and repairs. O'Neil v. Buffalo Fire Ins. Co., 3, 122. Prohibition of kerosene — use on single occasion causing loss forfeits policy — upsetting lamp by accident does not ex- cuse. Matson v. Farm Buildings' Ins. Co., 73, 310 ; 29 Am. Rep. 149, Turpentine and alcohol although extra hazardous may be kept as stock in trade of manufacturer of brass clocks. Bryant v. Poughkeepsie Mat. Ins. Co., 17, 200. " Stone dwelling-house " includes wooden kitchen attached. Chase v. Ham- ilton Ins. Co., 20, 52. "For the bursting" construed to mean "on account of." Strong v. Sun Mutual Ins. Co., 31, 103. INSURANCE, I. 4. 227 Stock of goods sucli as is usually kept in country stores may embrace articles generally prohibited except at special rates. Pindar v. Kings Co. Ins. Co., 36, 648. Policy prohibiting extra-hazardous goods cannot be made to cover such, by evidence of prior negotiations. Pindar v Resolute Fire Ins. Co., 47, 114. "Extra-hazardous purposes" means purposes of the same class before speci- fied. Reynolds v. Commerce Fire Ins. Co., 47, 597. Limitation of time for suit — "after loss or damage " means after loss or damage is adj usted or ascertained. Mayor, etc., v. Hamilton Fire Ins. Co., 39, 45. In anticipation of removal of insured goods policy indorsed " transferred to cover similar property in new building " — company liable for destruction the next day before removal. Kunzze v. American Ex. Fire Ins. Co., 41, 412. When property under contract of sale ■ is not held as collateral security. Wood v. North-western Ins. Co., 46, 421. Floating policy — construction of con- ditions as to specific insurances. Fair- child v. Liverpool & London Fire and Life Ins. Co., 51, 65. When "fire- works" prohibited. Jones v. Fireman's Fund Ins. Co., 51, 318. Policy on articles in line of business, with special privilege for fire-crackers, covers fire- works, if in line of business, although classed among prohibited hazards. Stein- bach v. LaFayette Fire Ins. Co., 54, 90. Policy on cabinet ware does not permit the partial manufacture of it on the prem- ises. Appleby v. Astor Fire Ins. Co., 54, 253. Having a small quantity of a prohibited article for use as medicine is not "storing or keeping." Williams v. Fireman's Fund Ins. Co., 54, 569 ; 13 Am. Sep. 620. "Foreclosure proceedings or levy of execution " do not embrace mechanic's lien proceedings or execution thereunder. Colt v. Phmnix Fire Ins. Co., 54, 595. Policy on materials used in business includes such, although they are proh ib- ited by printed clauses. Hall v. Ins. Co. of North America, 58, 292 ; 17 Am. Rep. 255. "Change in the risk" means change increasing the risk. Parker v. Arctic Fire Ins. Co., 59, 1. What are " incidental repairs. " Rann v. Home Ins. Co., 59, 387. Agreement to produce copies of lost bills and invoices is binding. O'Brien v, Commercial Fire Ins. Co., 63, 108. "As interest may appear" — by agent for principal — other insurance to tenant in common — authority of agent to waive condition — transfer of interest. Pitney v. Glens Falls Ins. Co., 65, 6. Construction of "as interest may ap- pear." Dakinv. Liverpool, etc., Ins. Co., 77, 600. "Contiguous" means in actual contact. Arkell v. Commerce Ins. Co., 69, 191. When saw-mill not "vacant or unoccu- pied" — increase of risk. Whitney v. Black River Ins. Co., 72, 117 ; 28 Am. Hep. 116. Vacancy — summer residence — increase of risk by vacancy. Herrman v. Mer- clmmts' Ins. Co., 81, 184 ; 37 Am. Eep. 488. "Vacant or unoccupied " — summer residence — knowledge of insurer — occu- pation of outbuildings. Herman v. Adri- atic Fire Ins. Co., 85, 162 ; 39 Am. Eep. 034. Question of increase one of fact — testi- mony of experts competent. Cornish v. Farm Buildings Fire Ins. Co., 74, 295. Notice of loss — "forthwith'' — when delay a, question of fact. O'Brien v. Phmnix Ins. Co., 76, 459. A judgment is not an " incumbrance. " Baley v. Homestead Fire Ins. Co., 80, 21 ; 36 Am. Eep. 570. Policy on hop-house, while drying hops, between given dates — no recovery for loss after ceasing of drying, although be- tween those dates. Langworthy v. Oswego, etc., Ins. Co., 85, 632. Construction of policy as to limitation of action, vacancy and title conditions — waiver of condition by parol. Steen v. Niagara F. Ins. Co., 89, 315 ; 42 Am. Rep. 297. 228 INSUEANCE, I. 5 — 6. 5. Premiums. Note for premiums valid even for ex- cess. Beraismes v. Merch. M. Ins. Co., 1, 371. Assessment of premium notes by re- ceiver — evidence. Sands v. Shoemaker, 2 Keyes, 268. A company authorized to take premium notes in advance and negotiate them in the course of its business may transfer them in payment for losses. Howland v. Myer, 3, 290. And this may be done by the president, without resolution of the directors, he being authorized by by-laws to make con- tracts and do ordinary business. Id. Where a company authorized to receive notes in advance for premiums, received a note to be paid by procuring policies, and it was thus paid and surrendered, neither the company nor its receiver can repudiate the agreement. Emmet v Reed, 8, 312. Acknowledgment of receipt of premium in fire policy not conclusive. Sheldon v. Atlantic F. and M. Ins. Co., 26, 460. Condition of prepayment of premium may be waived by general agent. Id. Particular charter construed in refer- ence to prernram notes — form of notes. Wood v. Wellington, 30, 218. Evidence of losses making assessment proper must be shown in action on pre- mium note — what sufficient — assess- ment proper for losses to members paying premiums in advance. Jackson v. Rob- erts, 31, 304. What is premium note — statute of limitations suspended during injunction of receiver. Sands v. Campbell, 31, 345. Prepayment of premium — waiver. Howell v. Knickerbocker Life Ins. Co., 4A, 276 ; 4 Am. Eep. 675. When demand of premium note neces- sary. Sands v. Lilienthal, 46, 541. Payment of premiums by agent — ■ mort- gagee's interest, extent and effect of in- surance on. Excelsior Eire Ins. Go. v. Royal Ins. Co. of Liverpool, 55, 343 ; 14 Am. Eep. 271. Assessment of premium notes by mutual company. Sands v. Graves, 58, 94. When liability on advance notes for premiums not discharged by change in company's mode of business. Osgood v. Toole, 60, 475. Eeceipt for premium without issue of policy — implies insurance on usual con- ditions — sufficiency of answer. De Crove v. Metropolitan Ins. Co., 61, 594 ; 19 Am. Eep. 305. Usage to give credit for premiums — cancellation — reviving. Train v. Hol- land Purchase Ins. Co., 62, 598. When credit for premium a question of fact. Church v. La Fayette Fire Ins. Co., 66, 222. 6. Powers and duties of agent. Agent of foreign company must give bond for annual accounting to fire depart- ment and payment of two per cent pre- miums. Fire Department of Troy v. Ba- con, 2 Abb. 127. What is time policy — general agent may extend policy. Leeds v. Mechanics' Ins. Co., 8, 351. Agent to take applications cannot ap- prove of subsequent insurance. Wilson v. Genesee Mut. Ins. Co., 14, 418. General agent may not insure property burned while application was on its way. Bentley v. Columbia Ins. Co., 17, 421. Knowledge of agent of facts not stated is immaterial where policy requires state- ment. Chase v. Hamilton Ins. Co., 20, 52. Agent to take applications — insurer bound by his mistake in filling up blank. Rowley v. Empire Ins. Co., 36, 550. Agent to negotiate and deliver policies may bind company by parol contract for policy — prepayment not essential — dam- ages. Angell v. Hartford Fire Ins. Co., 59, 171. Agent to receive applications and coun- tersign and deliver policies may not waive condition for proofs of loss. Bush v. Westchester Fire Ins. Co., 63, 531. Acts of broker in procuring insurance binding on principal — evidence — custom — entries. Standard Oil Co. v. Triumph Ins. Co., 64, 85. INSURANCE, I. 7 — 9. 229 What not sufficient to constitute a gen- eral agent, competent to waive conditions. Mersereau v. Phcenix Mut. Life Ins. Co., 66, 274. When insurer bound by acts and knowl- edge of sub-agent. Van Schoick v. Niag- ara Fire Ins. Co., 68, 434. What constitutes adoption of agency in procuring risk. Mowry v. Rosendale, 74, 360. 7. Rights and liabilities of insured. When the books and vouchers of the insured are destroyed by the fire he is not bound to furnish particulars of loss from them. Bumstead v. Dividend Mut. Ins. Co., 12, 81. Evidence that insurer liad insured the property for years and knew what it was used for — when competent. Mayor, etc., v. Exchange. Fire Ins. Co., 3 Keyes, 436. Policy assignable after loss. Mellen v. Hamilton Fire lis. Co., 17, 609. Subsequent insurance — delay to notify of — what is notice of. Id. When insured not bound to give notice of neighboring erections subsequent to policy — waiver. Liddle v. Market Ins. Co., 29, 184. Insured need not be named in policy — filing survey — contract of sale, when does not avoid. Clinton v. Mope Ins. Co., 45, 454. 8. Riglits and liabilities of insurer. Company may borrow money and pledge its assets as security. Nelson v. Eaton, 26, 410. Option to rebuild — when may be exer- cised. Reals v. Home Ins. Co., 36, 522. Power to buy and enforce another policy. Excelsior Fire Ins. Co. v. Royal Ins. Co. of Liverpool, 55, 343 ; 14 Am. Rep. 271. Interest under parol agreement to grant a life estate — what is not release of in- surer's liability. Redfield v. Holland Pur- dtase Ins. Co., 56, 354 ; 15 Am. Rep. 424. Company cannot take notes from stock- holders to make up deficiency of stock — transfer without authority of board of directors valid. Blade Rwer Ins. Co. v. New York State Loan and Trust Co., 73, 282. When insurer can recover against wrong- doer causing the loss. Connecticut Fire Ins. Co. v. Erie Ry. Co., 73, 399 ; 29 Am. Rep. 171. Liability of stockholders — payment of capital — when comptroller bound to give certificate — can give but one. Chase v. Lord, 77, 1. When company not liable on contract of one acting as agent for it and others. Sargent v. Nat. Fire Ins. Co., 86, 626. Taxation of ether State insurance com- panies dependent on taxation of New York companies by such State constitu- tional. ' People v. Fire Association, etc., 92, 311 ; 44 Am. Rep. 380, note. 9. Statements in policy constituting war- ranty. Breach of warranty of immaterial facts avoids policy, but not so of suppression of immaterial facts where there is no warranty. Gates v. Madison Co. Mut. Ins. Co., 2, 43. What amounts to warranty that a chim- ney shall be built. Murdock v. CJienango Co. Mut. Ins. Co., 2, 210. Description of occupancy does not war- rant continuance. ONeil v. Buffalo Fire Ins. Co., 3, 122. Description of present use of premises is not warranty of continued use. Smith v. Mechanics and Traders' Ins. Co., 32, 399. Misrepresentation as to situation of premises and neighboring buildings — change of tenants and of use. Cates v. Madison Co. Mut. Ins. Co., 5, 469. Description of premises is warranty. Wall v. East River Mut. Ins. Co., 7, 370. What constitutes warranty as to neigh- boring buildings. Chaffee v. Cattaraugus Co. Mut. Ins. Co., 18, 376 ; Brown v. Same, 18, 385. Survey is warranty when so declared — breach of, avoids policy. Le Roy v. Market Fire Ins. Co., 39, 90. Warranty of keeping watchman — when broken. Ripley v. uStna Ins. Co., 30, 136 ; 230 INSURANCE, I. 10. First Nat. Bk. of Ballston Spa. y. Insur- ance Co. ofN. A., 50, 45. Insured not estopped by statement in proofs of loss from showing that ■warranty- was not broken. Parmelee v. Hoffman Mre Ins. Co., 54, 193. Description of place of deposit of per- sonal property, when warranty. Bryce v. LorUlard Mre Ins. Co., 55, 240 ; 14 Am. Rep. 249. When policy does not adopt application as a warranty. Owens v. Holland Pur- chase Ins. Co., 56, 565. Warranty of ownership — "held by contract." McCulloch v. Norwood, 58, 562. Insurance of equitable lien on land — what not warranty of ownership — knowl- edge of agent. Bohrback v. Oermania Mre Ins. Co., 62, 47 ; 20 Am. Rep. 451. " Occupied as dwelling " is warranty of present occupancy — knowledge of agent immaterial. Alexander v. Oermania Mre Ins. Co., 66, 464 ; 23 Am. Rep. 76, note. Description as "dwelling-house," when not warranty of occupancy — omission to disclose facts not inquired about — decla- rations of owner after loss not competent in action by mortgagee — executory con- tract of sale without change of possession not breach of condition as to transfer. Browning v. Home Ins. Co., 71, 508 ; 27 Am. Rep. 86. "Deed" is not warranty of a freehold — paid mortgage not discharged of record is not an incumbrance — when policy is severable. Merrill v. Agricultural Ins. Co., 73, 452; 29 Am. Rep. 184. Warranty — "dwelling," question of vacancy. Waiver. Opinion of value. Woodruff v. Imperial Mre Ins. Co., 83, 133. Statement in policy that building is de- tached a certain distance is a warranty, but warranty not broken by existence of small office within distance. Burleigh v. Geb- hard Mre Ins. Co., 90, 220. 10. Wliat will avoid policy. When insurance avoided by increase of risk. Murdoch v. Chenango Co. M. Ins. Co., 2, 210. When misstatement as to other build- ings avoids policy on goods. Wilson v. Herkimer Co. Mutual Ins. Co., 6, 53. Where use of camphene is prohibited, and that condition is violated, the policy is avoided, and the removal of the cam- phene will not restore its validity. Mead v. North-western Ins. Co., 7, 530. When use of camphene subject to special rate, its use to light the premises is so subject. West/ally. Hudson R. Mre Ins. Co., 12, 289. Policy avoided by alteration by insurer's agent — insurer adjudged to issue new policy and pay loss. Bunten v. Orient Mut. Ins. Co., 2 Keyes, 667. Use of camphene for cleaning type not violation of condition against use of cam- phene, spirit gas or burning fluid. Harper v. Albany Mut. Ins. Co., 17, 194. In policy on printing office and bindery a condition prohibiting camphene is not broken by its necessary use in printing. Harper v. New York City Ins. Co., 22, 441. Increase of risk by necessary repairs does not avoid policy, unless so provided. Repairing is not a way of "occupying." Townsend v. North-western Ins. Co., 18, 168. When conditioned to be void for subse- quent insurance policy, is avoided by subsequent voidable policy. Bigler v. New York Gent. Ins. Co., 22, 402. Retirement of partner does not vitiate insurance on fluctuating stock of goods as to future acquisitions. Hoffman v. ^Sltna Mre Ins. Go., 32, 405. When policy avoided by failure to pay premium note — waiver. Wall v. Home Ins. Go., 36, 157. A policy covering only "hazardous" goods is avoided by keeping " extra- hazardous " goods. Pindar v. Continental Ins. Co., 38, 364. How insurer may cancel policy. Van Valkenburgh v. Lenox Mre Ins. Co., 51, 465. When survey is made part of policy and is incorrect, it. is fatal, although in. sured did not understand the one in ques- tion to be that mentioned in policy. Le- Boy v. Market F. Ins. Co., 45, 80. LNSUKANCE, I. 11. 231 Temporary vacancy not fatal. Cummins v. Agricultural Ins. Co., 67, 260 ; 23 Am. Rep. 111. "False swearing." Malierv. Eibernia Ins. Co., 67, 283. Wlien policy to vendee in default not void. Peltowv. Westchester Mre Ins. Co., 77, 605. Limitation — when not avoided by for- mer action and company's acceptance of cost or its attorney's extending time for making case therein. Arthur v. Home- stead Fire Ins. Co., 78, 462 ; 34 Am. Rep. 550. Prohibition of use of "refined coal or earth oils " — • use of kerosene for lighting, to agent's knowledge, does not avoid policy. Bennett v. North British, etc., Ins. Co., 81, 273 ; 37 Am. Rep. 501. Condition as to incumbrances — only relates to those created by or with assent of insured — mechanic's lien does not avoid policy. Green v. Somestead Ins. Co. , 82, 517. Condition for avoidance if interest is not truly stated, when broken — "as interest may appear." Lasher v. St. Joseph, etc., Ins. Co., 86, 423. Condition as to vacancy violated by vacancy when policy taken, but waived by knowledge of company. Short v. Some Ins. Co., 90, 16 ; 43 Am. Rep. 138. Over-statement of amount of insurance material misrepresentation. Armour v. Transatlantic Ins. Co., 90, 450. Policy forfeited by change of interest by death of insured — insolvency of com- pany and receivership does not excuse re- quirement of consent to change. Matter of Sine v. Woolworth, 93, 75 ; 45 Am. Rep. 176. 11. Ratification and waiver. Receipt by insurers by a general agent of renewal premiums, when a waiver of conditions of a, policy forbidding other insurance. Carroll v. Charter Oak Co., 1 Abb. 316. Proofs of loss must be timely objected to or objection is waived. Bodle v. Chenango Co. M. Ins. Co., 2, 53. Objection to proofs of loss on specific grounds waives others. O'Neil v. Buffalo Fire Ins. Co., 3, 122. Defects in proofs of loss waived by failure to object. Bumstead v. Dividend Mutual Ins. Co., 12, 81. What does not amount to waiver of war- ranty. Murdoch v. Chenango Co. M. Ins. Co., 2, 210. Insurer estopped by representation of authorized agent that survey and measure- ments were correct. Plumb v. Cattaraugus Go. Mut. Ins. Co., 18, 392. When objection to proofs of loss waived — evidence that mortgagee should insure and mortgagor pay premiums competent — insurance of mortgagee's interest is of property and not of debt — subrogation. Kernochan v. New York Bowery F. Ins. Co., 17, 428. Limitation of time for suing valid — how waived. Ripley v. JEtna Ins. Co., 30, 136; BeGrovev. Metropolitan Ins. Co., 61, 594 ; 19 Am. Rep. 305 ; Steen v. Niagara Fire Ins. Co., 89, 315; 42 Am. Rep. 297. Prepayment of premium may be waived — by delivery. Boehen v. Wil- liamsburgh Ins. Co., 35, 131. Indorsement of "privilege for $4,500 additional insurance " waives printed con- dition against additional insurance. Bene- dict v. Ocean Ins. Co., 31, 389. What is not waiver of prepayment of premium by general agent. Wood v. Poughkeepsie Ins. Co., 32, 619. When prepayment of premium waived — parol evidence to identify location of property. Bow/man v. Agricultural Ins. Co., 59, 521. Waiver of prepayment of premium. Washoe Tool Manfg. Co. v. Sibernia Fire Ins. Co., 66, 613. Insurance of consignment by invoice and bill of lading — assignment — custom — ratification. Block v. Columbian Ins. Co., 42, 393. Renewal waives forfeiture and revives original policy. Shearman v. Niagara Fire Ins. Co., 46, 520 ; 7 Am. Rep. 380. Condition that policy shall not be bind- ing until payment of premium may be 232 INSURANCE, I. 12. — 13. waived by agent by parol. Bodine v. Six- change Fire Ins. Co., 51, 117 ; 10 Am. Rep. 566. When condition for delivery of account of loss not waived as matter of law. Un- derwood v. Farmers' Joint-Stock Co., 57, 500. When proofs of loss not waived. Blos- som v. Lycoming Fire Ins. Co. , 64, 162. Local agent bas no authority to waive provision that waiver of condition must be in writing subscribed by officer. Van Allen v. Farmers' Joint- Stock Ins. Co., 64, 469. " Forthwith " — waiver of notice. Ben- nett v. Lycoming Co. Mut. Ins. Co., 67, 274. Knowledge of agent receiving applica- tion waives condition for specific repre- sentation and statement in policy as to leased land. Van Schoick v. Niagara Fire Ins. Co., 68, 434. Waiver of condition by agent invalid when not indicated as prescribed by policy. Walsh v. Hartford Fire Ins. Co., 73, 5. When company bound by waiver by agent. Whited v. Germania Fire Ins. Co., 76, 415 ; 30 Am. Rep. 330. Condition as to intent of insured being other than represented what not breach — waiver of condition — other insurance affected — knowledge of agent — written consent — waiver. Richmond v. Niagara Fire Ins. Co., 79, 230. Incumbrances — mortgage, judgment — renewal — other insurance — proofs — fore- closure — waiver of forfeiture — evidence — v fraud. Titus v. Glens Falls Ins. Co., 81, 410. Waiver of condition as to vacancy. Short v. Home Lis. Co., 90, 16; 43 Am. Rep. 138 ; Woodruff v. Imperial Fire Ins. Co., 83, 133; Steen v. Niagara Falls Ins. Co., 89, 315. Condition as to non-occupancy of premi- ses held waived by knowledge of agent and retention of premium -=— sale under foreclosure does not transfer interest until deed executed. Haight v. Continental Ins. Co., 92, 51. Written application not made by insured does not bind him — forfeiture held waived by assent by agent authorized to waive subsequent assignment of policy though he had no authority to waive for- feiture — ratification by failure to object after notice. Benninghoff v. Agricultural Ins. Co., 93, 495. 12. Actions to reform or cancel policy. Action to reform policy may be brought after loss — evidence. Van Tuyl v. West- chester Fire Ins. Co., 55, 657. When policy not reformable for mis- take — proof must be clear. Mead v. Westchester Fire Ins. Co., 64, 453. When insurer may cancel — motive not inquired into. International Life Ins. and Trust Co. v. Franklin Fire Ins. and Trust Co., 66, 119. Judgment in action on policy against insured is bar to action to reform the policy. Steinoach v. Belief Fire Ins. Co., 77, 498 ; 33 Am. Rep. 655. 13. Actions against companies. Insured cannot maintain action if he has parted with his interest before loss. Mur- dock v. Chenango Co. M. Ins. Co., 2, 210. Limitation of time for suing is valid. Roach v. New York & Erie Ins. Co., 30, 546 ; Ripley v. jEtna Ins. Co., 30, 136. Limitation of time for bringing action, when waived. Ames v. N. T. Ins. Co., 14, 253 ; Steen v. Niagara Fire Ins. Co., 89, 315; Ripley v. Mtna Ins. Co., 30, 136. Limitation of time to sue — parties may provide for shorter than that fixed by law ■ — when time not extended by pendency of injunction against company. Wilkin- son v. First Nat. Fire Ins. Co., 72, 499 ; 28 Am. Rep. 166. Insurance on goods "sold but not de- livered " — action maintainable by insurer as trustee. Waring v. Indemnity Fire Ins. Co., 45, 606 ; 6 Am. Rep. 146. Refusal by insured to arbitrate after election of company to repair not defense to action for loss. Wynkoop v. Niagara Fire Ins. Co., 9i. 478 ; 43 Am. Rep. 686. INSURANCE, I. 14 — 17. 233 14 Mistake. Mistake in naming as insured one who has no interest, cured by secretary's in- dorsement that loss shall be payable to mortgagee. Solm v. Rutgers' Mre Ins. Go., 4 Abb. 279 ; 3 Keyes, 416 ; 2 Trans. App. 227. Misrepresentation — stating owner to be a widow, when she is really only three years old, material — act of owner. Gra- ham v. Fireman's Ins. Go., 87, 69 ; 41 Am. Eep. 349. Company bound by contract made by agent under mistake as to meaning of equivocal word. Winne v. Niagara, eta. , Ins. Go., 91, 185. 15. Contribution between companies. Contribution as between different poli- cies — what must appear — evidence to show general and not contributory policies. Lowell Manuf., etc. v. Safeguard Mre Ins. Co., 88, 591. 16. Other insurance. Other insurance — knowledge of com- pany — notice to agent — mistake of agent in filling up application does not avoid. Rowley v. Empire Ins. Co., 4 Abb. 131. Incumbrances and other insurance — when conditions waived. Ames v. N. Y. Ins. Co., 14, 253. What is other insurance as to apportion- ment — how amount ascertained. Ogden v. East River Ins. Co., 50, 388 ; 10 Am. Rep. 492. Insured not estopped by statement in proofs of loss that there was other insur- ance. McMaster v. President, etc., of Ins. Co. of IT. A., 55, 222 ; 14 Am. Rep. 239. Evidence of waiver of condition by agent. Pechner v. Phcenix Ins. Co., 65, 195. Agreement between mortgagee and in- surer for independent insurance — surplus moneys. Ulster Go. Sav. Inst. v. Leake, 73, 161 ; 29 Am. Rep. 115. "Mortgage clause" — effect of, as to other insurance — change of ownership — 30 interest. Hasting v. Westchester Mre Ins. Co., 73, 141. Surrender and reinsurance — agent of minor acting for insured — authority of agent. Train v. Holland Purchase Ins. Co., 68, 208. Mistake of agent in filling up applica- ton. Sprague v. Holland Purchase Ins. Co., 69, 128. Other insurance simply voidable avoids policy at election of insurer. Bigler v. NewYork Gent. Ins. Go., 22, 402 ; Landers v. Watertown Mre Ins. Go., 86, 414; 40 Am. Rep. 554. When renewal is other insurance. Doran v. Franklin Mre Ins. Co., 86, 635. 17. Change of title. Mortgage is not alienation. Conover v. Ins. Co., 1, 290. Alienee of property insured in mutual company, with consent that policy ' ' re- main good," the policy not being assigned, cannot recover at law, nor can the insured, or both. Bodle v. Chenango Go. M. Ins. Co., 2, 53. Alienation by one partner of his interest to his copartners does not affect previous assignment of policy by the firm. Tillou v. Kingston Mutual Ins. Co., 5, 405. When consent that policy shall remain valid notwithstanding change in title is equivalent to new policy on perfecting of title. Benjamin v. Saratoga Co. M. F. Ins. Co., 17, 415. Conveyance and mortgage back for pur- chase-money constitutes change of title — authorities on transfer collated. Savage v. Howard Ins. Co., 52, 502 ; 11 Am. Rep. 741. Insured mortgagee buying premises — parol consent to change. Pratt v. New York Cent. Ins. Co., 55, 505 ; 14 Am Rep. 304 Owner of premises sold on execution has insurable interest during time for re- demption — if loss payable to incumbran- cer, insurer not entitled to subrogation to his securities — incumbrancer may sue alone. Cone v. Niagara Falls Mre Ins. Go., 60, 619. 234 INSURANCE, I. 18—21. Assignment in bankruptcy is change of title avoiding policy, although loss pay- able to mortgagee. Perry v. Lorillard Mre Ins. Co., 61, 214; 19 Am. Rep. 272. Appointment of partner as receiver is not change of title — acceptance of proofs — warranty as to character of business. Keeney v. Home Ins. Go., 71, 396 ; 27 Am. Hep. 60. Death of insured, leaving will disposing of his estate, works a "change of inter- est." Slisrwood v. Agricultural Ins. Co., 73, 447 ; 29 Am. Eep. 180, note. 18. Evidence. Oral representations not embodied in policy — evidence of, incompetent. . Mayor, etc. v. Brooklyn, Mre Ins. Co., 4 Keyes, 465 ; 3 Abb. 251. Authority of secretary to consent to as- signment — how provable. Conover v. Mat. Insurance Co., 1, 290. Admissions of secretary. Baptist Church v. Brooklyn Mre Ins. Co., 28, 153. "W hen course of dealing may be'shown. Fabbri v. Phornix Ins. Co., 55, 129. 19. Assignment of policy. Agent to receive applications and pre- miums on renewals has no implied au- thority to consent to assignment. String- ham v. St. Nicholas' Ins. Co., 4 Abb. 315 ; 3 Keyes, 280. Assignee of vendor's interest in contract of sale of lands is entitled to insurance effected by vendee in pursuance thereof, although paid to vendee after notice cf assignment. Cromwell v. Brooklyn F. Ins. Co., 44, 42 ; 4 Am. Eep. 641. What amounts to assignment of insur- ance policy. Greene v. Republic Mre Ins. Co., 84, 572. 20. Loss. Exemption for loss by explosion extends to explosion of boiler insured — repug- nancy. Hay ward v. Liverpool, etc., Ins. Co., 2 Abb. 349 ; 3 Keyes, 456. Exemption for loss by explosion. Briggs v. North American, etc., Ins. Co., 53, 446. When mortgagor is insured, " loss pay- able to mortgagee," the latter cannot re- cover if former has made breach of con- ditions. Grosvenor v. Atlantic Mre Ins. Co., 17, 391. So when policy is assigned to mortgagee with consent of insurer. Buffalo Steam Engine Works v. Sun Mat. Ins. Co., 17, 401. Loss payable to mortgagee — payment by insurer when not payment on mort- gage. Springfield Mre and Marine Ins. Co. v. Allen, 43, 389 ; 3 Am. Eep. 711. Policy in goods held on bailment con- strued — measure of recovery. StiUweU v. Staples, 19, 401. Proofs of loss — when sufficient by mortgagee. Pratt v. New York Cent. Ins. Co., 55, 505 ; 14 Am. Eep. 304. Adjustment of claim and agreement to pay is conclusive. Smith v. Glens Falls Ins. Co., 62, 85. When mortgagee cannot compel insured to make proofs of loss. Graham v. Phoe- nix Ins. Co., 77, 171. Proofs of loss — diligence in furnishing — waiver of forfeiture by failure to ob- ject — objection on specific ground waives others. Brink v. Hanover Mre Ins. Co., 80, 108. Title to moneys from loss as between mortgagees under covenants for insurance. Bunlop v. Avery, 89, 592. 21. Mutual companies. Mutual company may divide risks into classes — but all assets are applicable if necessary to pay losses in either class. White v. Boss, 4 Abb. 589. Maker of premium note to mutual com- pany liable to assessment for losses whether on cash or note policies, the cash premiums being exhausted. White v. Havens, 4 Abb. 582. Assessment by mutual company — pub- lication — report of referee in creditor's action — objection. Sands v. Shoemaker, 4 Abb. 149. INSUEANCE, I. 22 — 24. 235 ' Subscription notes given to company, to be in advance for premiums on policies agreed to be taken, are valid. Brown v. Crooke, 4, 51. Surrender of deposit note by mutual company cut off subsequent right to assess for previous losses unadjusted at time of surrender. Hyde v. Lynde, 4, 387. Mutual company may insure property in Canada. Western v. Oenesee Mutual Ins. Co., 12, 258. Member of mutual company is liable on his deposit note in proportion of his note to whole amount of notes collectible and legally assessable. Bangs v. Gray, 12, 477. A mutual company, authorized to take notes of members for premiums, may not take notes of others than the party insured. Mutual Benefit Life Ins. Co. v. Davis, 12, 569. A promissory note executed as part of capital stock of an insurance company may be transferred by indorsement. White v. Haight, 16, 310. One insured in mutual company liable to assessment during term of policy, even after destruction of his insured property by fire. Bangs v. Skidmore, 21, 136. Mutual company may insure without providing for contingent liability of in- sured. Mygatt v. N. T. Protection Ins. Co., 21, 52. When note to mutual company not deemed payable absolutely. Dana v. Mun- son, 23, 564. Capital note to mutual company is legally payable at its date. No demand necessary. Howland v. Edmonds, 24, 307. Mutual company may classify its risks, pledging the premiums primarily for losses in their respective departments. Sands v. Boutwell, 26, 233. When mutual company may transfer premium notes. Brookman v. Metcalf, 32, 591. Capital note fraudulently given— maker liable on, although destroyed. Tuckerman v. Brown, 33, 297. Policy of mutual company payable in golA — dividends need not be paid in gold. Luling v. Atlantic Mutual Ins. Co., 51, 207. Note given to mutual company before organization may be deemed a stock note. Jackson v. Van Blyhe, 52, 645. 22. Foreign companies. Foreign companies may enforce note of trustee taken as part of guaranty fund in this State, although other security re- quired in State of residence — estoppel — evidence — statute of . limitations. Hope Mutual Ins. Co. v. Perkins, 2 Abb. 383. Place of contract — company in this State, application to agent in Ohio. Hyde v. Ooodnow, 3, 266. Taxation of foreign insurance company. Fire Department of Troy v. Bacon, 3 Keyes, 402. How action commenced against foreign company. Oibbs v. Queen Ins. Co., 63, 114 ; 20 Am. Rep. 513. 23. Insolvent companies. Receiver may recover dividends paid when company was insolvent- — creditors\ may be made parties in order to be en- joined from proceeding individually. Osgood v. Laytin, 3 Keyes, 521 ; 3 Abb. 418. In action by receiver for dividend paid after insolvency, defendant cannot set off claims for return of premiums and for losses. Osgood v. Ogden, 4 Keyes, 70. Requisites and validity of assessment. Sands v. Sanders, 28, 416. 24. Renewals. Renewax of policy is not making another insurance. Brown v. Cattaraugus Co. Mut. Ins. Co., 18, 385. When renewal is other insurance. Doran v. Franklin Fire Ins. Co., 86, 635. Renewal on change of location of prop- erty notified to insurer ; construed to apply to the new location. Ludwig v. Jer- sey City Ins. Co., 48, 379 ; 8 Am. Rep. 556. Agreement to renew, implies renewal on former terms — limitation, construction of. Hay v. Star Fire Ins. Co., 77, 235 ; 33 Am. Rep. 607. 236 INSUEANCE, II. 1 — 3. II. Marine insurance. 1. Insurers against peril of sea or lakes are not liable to indemnify the owners of a vessel which has been condemned for a collision produced solely by the negligence of its master and mariners. Mathews v. Howard Ins. Co., 11, 9. General average — how long liability continues. Nelson v. Belmont, 21, 36. Sale and taking back mortgage of vessel is not assignment of the insured's interest. Hitchcock v. North-western Ins. Co. , 26, 68. Permission for voyage to forbidden port — deviation nullifies, although neces- sitated by commercial regulations. Stevens v. Commercial Mut. Ins. Co., 26, 397. Seaworthiness — presumption — on " ac- count of whom it may concern " — proofs — evidence of navigators. Walsh v. Wash- ington Marine Ins. Co., 32, 427. Insurance of passenger passage money — rules governing. Ogden v. Mutual Ins. Co., 35, 418. Insurer bound to know customs of place of business and held to contract with reference thereto. Hartshorne v. Union Mut. Ins. Co., 36, 172. Evidence of agent as to reasons for re- fusal to insure inadmissible to show dan- gerous character. Atlantic Dock Co. v. Libby, 45, 499. Marine "suing and laboring" clause. Alexandre v. Sun Mutual Ins. Co., 51, 253. Mistake as to identity of vessel avoids, although underwriter negligent. Hughes v. Mercantile Mut. Ins. Co., 55, 265 ; 14 Am. Rep. 254. Interest — over- valuation of valued policy — negligence. Sturm v. Atlantic ■ Mut. Ins. Co., 63, 77. Barratry may be insured against — authorities collated — evidence. Atkinson v. Great Western Ins. Co., 65, 531. "Port risk" — meaning and effect of — evidence of usage. Nelson v. Sun Mut. Ins. Co., 71.. 453. Inconsistent conditions — waiver. Allen v. St. Louis Ins. Co., 85, 473. Insurers liable for extra expense of- wreekers in floating stranded vessel — value of vessel declared in policy conclu- sive. Providence, etc., Co. v. Phmnix Ins. Co., 89, 559. Vessel on beach unoccupied and with, furniture removed ' ' not at anchor " and " vacant " within the conditions of policy. Beid v. Lancaster F. Ins. Co., 90, 382. 2. Construction of policy. When policy covers consignment of cargo for sale. Bolker v. Great Western Ins. Co., 3 Keyes, 17. Construction of policy — ' ' consigned " — open policy — rates — vessel out of time. Rolker v. Great Western Ins. Co., 4 Abb. 76. When insurance to vessel foundering at sea becomes fixed and certain. Duncan v. Great Western Ins. Co., 1 Abb. 562. Insurance of ship on stocks does not cover timber intended for it but not joined to it. Hoodv. Manhattan Ins. Co., 11, 532. 3. Warranty. Warranty against subsequent insurance broken by subsequent insurance by part of owners conditioned to be void if other insurance were made. Mussey v. Atlas Mut. Ins. Co., 14, 79. Warranty of sea- worthiness not broken by registry of one as master who acted only as supercargo. Draper v. Commer- cial Ins. Co., 21, 378. Act of congress as to registry of vessels has no effect as contract of insurance. Id. Mortgage on vessel no breach of war- ranty on marine policy upon tackle that " property is free from liens " BidweUv. North-western Ins. Co. , 24, 302. Capture by Confederates is within war- ranty against capture or seizure. Swin- nerton v. Columbian Ins. Co., 37, 174. Warranty not to use port means not to enter it. Snow v. Columbian Ins. Co., 48, 624 ; 8 Am. Rep. 578. Warranty of stowage in customary manner is implied — evidence of under. INSURANCE, II. 4 — III. 1. 237 writers admissible. Leiteh v. Atlantic Mut. Ins. Co., 66, 100. Marine broker not agent — breach, of warranty for laying up in winter — waiver. Devens v. Mechanics and Traders' Ins. Co., 83, 168. 4. Deviation. Deviation — when perishable articles deemed lost. DePeyster v. Sun Mut. Ins. Co., 19, 272. Insurance for voyage from port to port avoided by a preliminary voyage to test machinery and get coal. Fernandez v. Great Western Ins. Co., 48, 571 ; 8 Am. Rep. 571. Least designed and unnecessary devia- tion is fatal. Audenreid v. Mercantile Mut. Ins. Co., 60, 482 ; 19 Am. Rep. 204. What is — "at and from." Snyder v. Atlantic Mut. Ins. Co., 95, 196. Open policy — correction of erroneous declaration — deviation — delay. Arnold v. Pacific Mutual Ins. Co., 78, 7. 5. Damage and delay from ice. Exception from liability for damage by ice not limited to season of navigation — proximate cause. Allison v. Corn Ex. Ins. Co., 57, 87. "Prevented or detained by ice " means in ordinary course of navigation. Brown v. St. Nicholas' Ins. Co., 61, 332. Stoppage of voyage by ice — construc- tion of condition. Sherwood v. Mercantile Mut. Ins. Co., 66, 630. 6. Loss. Loss occurs when vessel becomes dis- abled although kept afloat some time after- ward. Duncan v. Great Western Ins. Co., 3 Keyes, 394 ; 2 Trans. App. 130. Loss payable to mortgagee- — prior mort- gage constitutes breach of warranty as to liens. Bidwell v. North-western Ins. Co., 19, 179. Mortgagor of vessel covenanting to pay and to insure for mortgagee has insurable interest not destroyed by forfeiture under act of congress of 1831. Wilkes v. People's F. Ins. Co., 19, 184. Member of insolvent mutual marine in- surance company cannot set off his loss against his indebtedness for premiums. Lawrence v. Nelson, 21, 158. Requisites of notice of abandonment to support claim for constructive total loss. McConochie v. Sun Mutual Ins. Co., 26, 477. Acceptance of abandonment justifies recovery for full freight for entire voyage. Buffalo City Bank v. North-western Ins. Co., 30, 251. Measure of recovery on premium note after bankruptcy of company and loss. Osgood v. DeGroot, 36, 348. What is not "loss in consequence of bursting " of boilers. Evans v. Columbian Ins. Co., 44, 146 ; 4 Am. Rep. 650. Insured may recover for total loss if he has abandoned, although some of cargo came to port. Wallerstein v. Columbian Ins. Co., 44, 204 ; 4 Am. Rep. 664. Voluntary surrender when not loss of freight within policy. Allen v. Mercan- tile Mut. Ins. Co., 44, 437 ; 4 Am. Rep. 700. Duty of applicant to notify of loss be- fore issue of policy. Snow v. Mercantile Mut. Ins. Co., 61, 160. Deviation — total loss without aban- donment. McCall v. Sun Mut. Ins. Co., 66, 505. Total loss — abandonment — contribu- tion — agency — delivery of cargo. Rob- ertson v. Atlantic Mut. Ins. Co., 68, 192. Total loss of freight without abandon- ment — salvage — completion of voyage by substituted vessel Hubbell v. Great West- ern Ins. Co., 7