[Si' Cornell University Library KFN5045.1.C81 Digest of cases in law and equity, argue 3 1924 017 133 418 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017133418 DIGEST CASES IN LAW AND EQUITY, ARGUED AND DETEKMINED IN THE COURT OF APPEALS STATE OP NEW YOEK, DUEING THE FIEST ELEVEN TEARS OF ITS OEGAMZA.TI0N, AS CONTAINED IN SIXTEEN VOLUMES OF ITS KEPOETS, FEOM 1st COMSTOOK TO 16th new toek eepoets, inclusive, Except 6th Selden, not yet published. 184=7 to 1859. FEANCIS E.^OENWBLL, COUNSELLOB AT LAW. ALBANY: WBAEB 0. LITTLE, LAW BOOKSELLER AND PUBLISHER. MDCOCLIX. ^b^Qs:^ Entered according to Act of Congress, in the year MDCCCLIX, in the Clerk's Office of the District ■ Court of the United States for the Northern District of New York, by WEAKE C. LITTLE. WKED, PARSONS & COMPANY. Stereotypers and Printers, Albany. PREFACE. The decisions of the Court of Appeals of the State of New York having, in the course of the eleven years that have elapsed since its organization, filled sixteen volumes of Reports, there seems to be an absolute necessity of some means of more ready reference to the several matters embraced in such decisions than is furnished to the Profession by the notes at the end of each volume — some means of avoiding the labor of going through, volume by volume, with the whole sixteen, in the investigation of a partisular point of law or practice. The Digest here presented will, it is believed, to some extent, supply that need. It is a careftd, and meant to be a complete, compilation of the points. decided in the whole series of cases, from 1st Comstook to 16th New York Reports, inclusive, (except 6th Selden, not yet published, ) and was suggested by the need of such a book, which for several years, in common with the Profession at large, the wiiter has felt in his own practice, as the volumes of Reports of this court have accumu- lated. In fact, a portion of it was prepared for his own use before he entertained the idea of pubhcation. While the Digests already in use are necessary to the Lawyer for reference to the decisions of the old courts and the courts of inferior jurisdiction, it is indispensable that he should have a compendious reference to cases which contain the law as it is in his own time, and on the various questions that are perpetually arising in a great commercial State, and that grow out of the modern changes in statutes and organic laws. Few States or countries have been more fortunate in possessing an able and independent judiciary, than the State of New York, in its Court of Appeals — nor more illustrious in legal talent than it has been in the array of eminent counsel who, from time to time, have conducted the argument of causes in that court. There is thus especially imparted to the cases here digested that rare value which pertains only to decisions of a court of last resort, resulting, as they do, from thorough and complete discussion and dehberation, and being final and conchiaive. In view of the fact that the best Digest is, after all, chiefly useful as an indexj it has been the aim of the writer, in preparing the work, to omit nothing which ir PREFACE. might tend to make it, as far as possible, a full index to the several volumes of Reports, as well as a Digest of Cases; and with that view, numerous references are given to the reporter's index to the different volumes, pointing out where the par- ticular subject may be found referred to in other cormections, and with more or less remote shades of apphcation — liius avoiding the necessity of a constant repe- tition of the same oases at length (they being also digested under their proper head), and at the same time preserving the most valuable of the references of that description, which the reporters have thought worthy of insertion in their index. It has also been his endeavor to give, as far as practicable, the facts of the par- ticular case digested. And in doing this, he has frequently adopted the statement made by the reporters in their head notes, sometimes condensing, for the sake of brevity, and sometimes enlarging upon it for greater clearness. And at the same time what is conceived to be the point decided or the substance of the case, or the particular subject of it, is printed in italics at the beginning of each paragraph ; so that in most cases a mere glance over the page, will possess the reader of the point decided, or the particular connection in which the general subject of his inves- tigation comes in question. While a proper self-respect impels the writer to say that he has not servilely adopted the language of the reporters, or merely copied their notes, yet so far as he has any personal feeling in the matter or any individual reputation involved it will be a satisfaction to him to be assured that wherein he has departed from their language or arrangement, he has not marred the work of reporters so eminent in the Legal Profession as Comstock and Selden and their successors. The list of afSrmed and overruled cases is not as ftill and complete as it should be ; and it is impossible to prepare an index of cases digested until the whole body of the work has gone through the hands of the compositor. In view of these facts it is the design of the author (in case it should not be practicable to include them in this volume without incurring too much delay) to prepare such lists and index by themselves in a second volume that shall also include a Digest of such additional volumes of Reports beyond the 16th, as shaUhave appeared in the mean- time. With unassumed difadence in respect to the merit of so much of the work as has originated with himself, and made painfully conscious by deUberate review of the printed volume that there are many points of arrangement and otherwise that might have been made better, the writer can only ask for its faults the considerate indul- gence of a Profession which is ever ready to appreciate any attempt to fadhtate its researches or lighten the burden of its labors. BuFPALO, May, 1859. JUDGES OP IHE COURT OF A.PPE^LS, DUKINQ THE PERIOD COVERED BY THIS DIGEST, From July i, 1847, to and including March Term of 1858. 1. Tliose Elected or A.ppointe Hon. JOHN W. EDMONDS, I Hon. PHILO GRIDLEY, " MALBONE WATSON, " HENRY WELLES. Hon. NATHAN B. MORSE, " JOHN WILLARD, 6. From January 1, 1S53| to January 1, 1 S54< Hon. CHARLES MASON, " MOSES TAGGART. 7. From January 1, 1834, to January 1, 1855. Hon. HENRY P. EDWARDS, I Hon. WILLIAM P. ALLEN, " AMASA J. PARKER, | " SAMUEL L. SELDEN. 8> From January 1, 1855, to January 1, 1856. Hon. GILBERT DEAN, " AUGUSTUS C. HAND, Hon. SCHUYLER CRIPPEN, "" RICHARD P. MARVIN. 9. From January 1, 1856, to January 1, 1857. Hon. WILLIAM MITCHELL, , " WILLIAM B. WRIGHT, Hon. FREDERICK W. HUBBARD " THOMAS A. JOHNSON. 10. From January 1, ;1S57, to January 1, 1858. Hon. JOHN W. BROWN, " ALONZO C. PAIGE, Hon. WILLIAM H. SHANKLANJ>, " LBYI F. BOWEN. Hon. JAMBS J. ROOSEVELT, " IRA HARRIS, 11. From January 1, 1858, to January 1, 1 859. Hon. DANIEL PRATT, " THERON R. STRONG, DIGEST. ABATEMENT. 1. The action of replevin is abated by plaintiff's death, and cannot be revived by scire facias. Burkle v. Luce, 1 Comst,, 163. 2. Irregularity in commencing suit can be taken advantage of by plea or motion only, not on the trial. Case of suit commenced by declaration in common pleas, one defendant residing gjat of county. Daniels v. Patterson, 3 Comst., 47. 3. Non-joinder of proper co-plaintiff in tort must be pleaded, or it is waived. If it appears on the face of the complaint, a demur- rer is the only remedy. Interest of owner not joined, cannot be proved on the trial in diminution of damages. ZahrisTcie et al. v. Smith, 3 Kern., 322. 4. Pleas in abatement and in bar may be united under the Code, in the same answer. Case of non-joinder of party defendant, pleaded with defence on the merits. Sweet v. Tuttle, 4 Kern., 465. 5. On death of one of several defendants in partition, after his default and before judgment, unless the action be regularly con- tinued against his heirs, they are not bound by the judgment, though they may have been made parties to proceedings to distri- bute, but have never in fact shared in proceeds of sale under such judgment. Requa v. Holmes, 16 N. Y. Rep., 193. 18 COURT OF APPEALS DIGEST. ABSENT AND ABSCOIfDINS DEBTORS. ABSENT ANI> ABSCONDING DEBTORS. 1. Application must show aflSrmatively that creditor resides, or debt arose in this state, or no jurisdiction is acquired. (Bat see Laws of 1845, chap. 163, also Ready v. Stewart, 1 Code Rep., K S., 297). Statement of those facts by way of recital, is not enough. Appointment of trustees conclusive as to regularity of proceedings, but not as to jurisdiction. Witnesses presumed disinterested until contrary appear. Witnesses' affidavits indispen- sable as to fact of non-residence of debtor, but not as to the debt. Staples V. Fairchild, 3 Comst., 41. 2. Affidavits of absconding from the city of New York, not suffi- cient to give jurisdiction, and sheriff is trespasser for seizing goods under attachment showing on its face that such absconding is made the foundation of the attachment. Castellanos v. Jones, 1 Seld., 164. 3. Debtor may be non-resident, though domicil here; detained abroad three years is non-resident, though house and family here ; sureties in bond for release, estopped from denying non-residence m suit on bond. Hazzard v. Morgan, 1 Seld., 422. 4. Appointment of trustees conclusive evidence of regularity, but not of jurisdiction. Affidavit sufficient which states departure or concealment in the alternative. Witnesses presumed disinterest- ed. Jurisdiction cannot be afterwards collaterally impeached by extrmsic proof of interest in witness. Van Alstyne v. Erwine, 1 Kern., 331. 5. New York superior court justices may entertain proceedings. Where creditors proceed as partners, if one of them be a resident of this state it is sufficient. (See Laws of 1845, chap. 153.) Renard v. Hargous, 3 Kern., 259. 6. Omission of officer to file report or record appointment within statute time, does not vitiate proceedings. Appointment and report are by the Statute (2 R. S. 13, sees. 62, 68) made evidence of what IS stated therein, in favor of party taking title from trustees. Wood V. Chapin, 3 Kern., 509. COURT OF APPEALS DIGEST. 19 ACADEMIES — AOCODITT STATED. ACADEMIES. 1. Unincorporated academies are subject to taxation on their buildings. Dictum to the contrary in 1 Seld., 376, overruled. Chegaray v. The Mayor, Sfc, of New YorTc, 3 Kern., 220. ACCESSIOlSr. 1. Wilful trespasser taking corn, cannot change its ownership by making it into whiskey. Whiskey still liable on execution against owner of the corn. If innocent purchaser from wilful wrongdoer, change the species of the property after his purchase, he is protected, but not otherwise. The wrongdoer himself, can work no change in the form so as to alter the title, so long as the change can be traced. Sihbury v. McCoon, 3 Const., 379. ACKNOWLEDGMENT. 1. See " Evidence," 1, 2, 1 Comst. " Id.," 1, 1 Seld. See "Deed," 7, 2 Seld. ACCORD AND SATISFACTION. 1. See " Receipt," 1, 2, 4 Seld. See " Payment," 4 Kern. It >/fd'i^U^ ACCOUNT STATED. 1. Conclusive, unless fraud or mistake exist. Examination by both parties, and assent, express or implied, sufficient. What is an account stated, on given facts, is a question of law. Account rendered must be objected to within a reasonable time, or party to whom it is rendered is bound by it as an account stated. Where T. & Co., a firm in New York, on the first of February, 1847, pursuant to custom, rendered to L. & Co., a firm in Ulster county, an account of their mutual dealings, containing a charge against the latter of $880.48, and showing a balance due them 2Q COURT OF APPEALS DIGEST. ACCOUNT MUTUAL — ACCUMULATIOIT. of $5,623.41 ; and L. and Co., on the 17th of February, drew on T. and Co. for an amount corresponding with this balance, which was paid, and made no objection to the- account till November following, when they brought a suit to recover the amount of the $880.48, claiming that it was improperly charged to them : Held, that they could not recover without proving, affirmatively, mis- take or fraud in the account rendered. Lockwood v. Thorn, 1 Kern., no. Aaa^ I ^ , 537, 24 COURT OF APPEALS DIGEST. 2. When rights of action survive and are assignable. Inte- rest in damages under statute in relation to " death by wrongful act," &c., as assignable. Quin, administrator, v. Moore et al., 13 N. Y. Rep., 432. 3. [ Distinction between single and entire, and several, rights of ac- tion. Severance. Former suit in bar as to part.] Where there are several items of account for goods sold or work performed at differ- ent times, there must be either an express contract, or the circum- stances must be such as to raise an implied contract, embracing all the items, to make them a single and entire demand. Secor v. Slurgis, 16 N. Y. Rep., 548. The business of ship carpenters was carried on in one part of a building, under the direction of two of the partners in a firm, and the business of ship chandlers in another part of the same building, under the direction of a third partner; separate books of account were kept by different clerks in the two branches of business, and the partners confined themselves respectively to the management of one of the branches, without personally taking part in the other. Work was done and materials furnished from the carpentry branch in repairing and equipping a brig, upon the order of her captain, to the amount of $139; and immediately thereafter goods and articles of ship chandlery were furnished to the same brig, and on the order of the same captain, at different times through the period of a month, amounting to $521 : Held, that the two accounts did not constitute an entire claim, but on the contrary formed two several causes of action ; and that a recovery and satisfaction of the first claim, was no bar to a subsequent action for the second. Id. Assuming that the accounts would have formed an entire de- mand, they were severed by the giving of a bond to secure the $521 due for chandlery, for the purpose of discharging an attach- ment against the brig, the account for carpenters' work remaining alien on the vessel ; so that an action could be maintained on such bond, notwithstanding judgment had been obtained and satisfied by proceedings in admiralty to enforce the lien for carpenters' work. Id. COURT OF APPEALS DIGEST. 25 ACTION — ACTION ON THE CASE. 4. See also 1 Comsu, Titles, " Bills of Exchange and Promissory Notes," 1; " Fraud," 1, 6, 7 ; " Money had and received ; " " Ani- mals;" "Covenant." See also 2 Comst., Titles, "Agent," 5; " Case ;"" Corporation ; " " Partnership," 3 ; "Sheriff;" "Tres- pass," 2, 3. See also 2 Seld., Title, " Executor and Administra- tor," 1, 2, 3 ; and 3 Seld., Title, "Auction Sale." Also 2 Kern., " Bailor and Bailee." 5. [ When no demand necessary before suit.^ No demand is ne- cessary before bringing an action for money received to plaintiffs' use, where it was the duty of the defendant to have remitted it ; and in such a case interest is recoverable from the time when it should have been remitted. Case of a fund ultimately belonging to plaintiffs, drawn by defendant, on order of plaintiffs' agent, out of which defendant agreed, when he took the order, to pay him- self a small debt, and remit balance to agent's wifq for the use of the plaintiffs. Stacy v. Graham, 4 Kern-, 492. 6. See also 15 N. Y. Rep., Titles, "Assessors and Assessments," 1; "Contract," 3, 7, 8; " Husband and "Wife," 3; "Landlord and Tenant;" " Municipal Corporations," 2 ; "Negligence;" "Office and Officer;" "Partnership." 7. See " Action on Statutes," 1 Comst. ACTION ON THE CASE. 1. In an action on the case for injury to real estate, plaintiff must show title or actual possession. A mere conveyance to plaintiff is not enough, unless the grantor had title or possession. Gardner v. Heart, 1 Comst., 528. 2. [_Diverting watercourse. Construction of deed."] Where lands were conveyed with a reservation in the following words : " The said parties of the first part do hereby reserve, to themselves and to their heirs and assigns, one acre and a half of land, out of the above described premises, at the southeast corner of lot No. 11, and on which the tannery is erected ; and running northwardly with the highway so as not to exceed twenty-four rods in the rear ; and the said parties of the ^rst part as aforesaid, do also reserve to 26 COURT OF APPEALS DIGEST. ACTION ON THE CASE. themselves and their use, a certain well and water works laid down _/or the purpose of supplying the tannery aforesaid with water ;" Held, that the reservation of the well and water works, was un- limited in the uses to which the water might be applied, and was not restricted to the purpose of supplying the tannery : Held, also, that the right to the use of the well and water works was not limited to the parties making the reservation, but passed to their grantees of the one and a half acres of land, as appurtenant to it. Borst V. Empie, 1 Seld., 33. 3. \_Negligence of agent or servant.'] Where persons having a license or grant to construct, at their own expense, a sewer in a public street, engage another person to construct it, at a stipulat- ed price for the whole work, they are not liable to third persons for any injury resulting from the negligent manner in which the sewer may be left at night, by the workmen employed in its con- struction. Blake v. Ferris, I Seld., 48. 4. [Immediate employer of agent or servant only responsible for his negligence.'] The immediate employer of the agent or servant through whose negligence an injury occurs, is the person respon- sible for the negligence of such agent or servant. . To him the principle respondeat superior applies. There cannot be two supe- riors severally responsible in such case. Id. > 5. Where the license or grant was given by the city authorities, with a provision " that the grantees should cause proper guards and lights to be placed at the excavation, and should be answerable for any damages or injuries which might be occasioned to persons, animals or property in the construction of the sewer:" Held, that this provision did not enure to the benefit of a stranger, so as to render the grantees liable to such stranger for the negligence of servants or agents, for whose conduct they would not otherwise be responsible. Id. 6. The corporation of the city of New York is liable for injuries to third persons, resulting from the negligence of persons employed by officers of the corporation in the repair of its public sewers. Lloyd V. The Mayor, Sfc, of New York, 1 Seld., 369. COURT OP APPEALS DIGEST, 27 AOTXON TO KBOOVEK PEKSONAI. PROPERTY — ADVERSE POSSESSION. 7. Principal not liable to one servant for the negligence of another servant engaged in the same general business. Case of a railroad trackman on handcar run over by extra train, through negligence of the managers of the train not exhibiting lights at night. Coon v. The Syracuse and Utica Railroad Company, 1 Seld., 492. 8. Corporation not liable for negligence of contractors' servants, notwithstanding it reserves supervision of the work by its officers. Plaintiff's horse injured by stone from blast fired without warning in excavation of Seventy-first-street, New York, under contract. Kelly v. The Mayor, Sfc, of New York, 1 Kern., 432. 9. See also 1 Comst., Titles, " Nuisance," " Animals ;" and 4 CoOTs^, Titles, "Action," "Mortgage," "Tort." ACTION TO RECOVER PERSONAL PROPERTY. 1. See in 5 Seld., Titles, " Judgment," 3, 4, 5 ; « Lien," 1, 2, 3. ADVERSE POSSESSION. 1. [Flowing lands. License from vendee, hy contract, not evidence against grantee of vendor by deed.'\ Where A, being in posses- sion of lands and claiming to hold under a contract from the Hol- land Land Company, executed to B an instrument purporting to grant the absolute right to flow the lands by means of a mill-dam, B knowing the manner in which A claimed to hold : Held, in an action on the case for flowing the lands, that such instrument was not admissible in evidence to lay the foundation of a mer adverse to the plaintifi" who bad acquired the title of the Holland Land Company. Pitts v. Wilder, 1 Comst., 625. 2. See also 4 Const., Title, " Limitations, Statute of." 3. [By a co-tenant.'] The purchaser at a sheriff's sale of an estate for the life of the judgment debtor, holds his title in subordination and not in hostility to the title of the reversioner, and an adverse possession against the tenants in reversion, cannot be predicated of it. Burhans v. Van Zandt, 3 Seld., 523. 4. See also 5 Seld., Titles, " Statute of Limitations," 4-7 ; " Watercourses," 2, 3. 28 COUET OF APPEALS DIGEST. ADJODKNMBNT AGENT. 5. See also 1 Kern., Title, " Prescription." 6. See also 2 Kern., Title, " Presumption of Grant." 7. See also 4 Kern., Title, "Pleadings," 4. ADJOURNMENT. 1. See 1 Seld., Title, " Town Meeting." ADMISSIONS AND CONFESSIONS. 1. See 15 N. Y. Rep., Title, •' Evidence," 1,2,3; « Pleading," 3. ADMINISTRATION. 1. See 2 Seld., Title, « Executor and Administrator," 5, 6, 7. 2. See also 1 Kern., Title, "Executors and Administrator;" 4 Zern., Titles, " Death by Negligence ;" " Executors and Ad- ministrators." •« AGENT. 1. Ratification of fart of an originally^ unauthorized transaction of an agent, or one who assumes to he agent, is a confirmation of the whole. One of the clerks in Chancery loaned upon bond and mortgage the sum of $29,000, which had been paid into that court to secure a widow's dower, in pursuance of a decree in partition. Afterwards the borrowers executed to the clerk another bond for the same sum, and another mortgage upon different property. These secu- rities were intended as a substitute for the first bond and mortgage, and were so received by the clerk, who, thereupon, without any direction of the court, executed a satisfaction of the first mortgage, which was entered of record. The owners of the fund, (after the death of the widow,) with notice of all the circumstances, foreclosed the second mortgage in the name of the clerk, and had the property sold : .Held, that although the discharge of the first mortgage was void, and might have been treated as a nullity, yet COURT OF APPEALS DIGEST. gg the election of the owners of the fund to proceed upon the substi- tuted security, was a ratification of the acts of the clerk, and therefore that a bill filed to foreclose the first mortgage, for the purpose of collecting the residue of the money not realized by the first foreclosure, could not be sustained. The Farmers' Loan and Trust Company, Walworth, 1 Comst-, 433. 2. A known agent is not liable to a third person who is ultimate owner of moneys received for principal, though not paid over. Principal only is liable^ nor can a refusal on request to agent to pay to third person, make agent liable. Case of deputy sheriff sued for moneys received by him as such, on redemption of real estate, by the holder of the certificate of sale ; Held that sheriff only was liable to an action. Colvin v. Holbrook, 2 Comst., 126. 3. Principal is liable on contracts of agent, where the authority is substantially pursued, and this is especially the case where no dis- sent of principal is shown, after a considerable lapse of time, it being proper to presume, in such case, that he had been informed of the acts of the agent in the premises. Gage v. Sherman, 2 Comst., 417. 4. Principal is not liable for the unauthorized wilful trespass of the agent. A corporation held not liable for wilful trespass of its employee, even though its president and general agent be present and encourage the act. Case of plaintiff's boat run into and damaged by wilful act of captain of defendant's boat, approved by defendant, president and general agent on board latter boat. Vanderbilt v. The Richmond Turnpike Company, 2 Comst., 479. 5. A special agent has no power beyond the terms of his appointment. An agent appointed to " take care " of personal property, and to give his principal notice of the existence of liens upon it, has no authority to make an agreement with a third person to purchase the property on account of his principal, at a sale to which it is exposed to satisfy rent, under a distress warrant. Brisbane v. Adams, 3 Comst., 129. 6. Agent's certificate of balance due is not a promissory note, either of agent or principal. Or if it be construed as agent's note, it does not discharge the debt, even though taken in full of the debt, 30 COURT OF APPEALS DIGEST. unless principal has settled with agent and allowed it to him. Davis V. Allen, 3 Comst., 168. 7. Corporation officer held individually liable on an unauthorized acceptance. " J. E. L., President of the Rosendale Manufacturing Co." The bill was as follows : "Eagle Eivee, August 20, 1846. "Sixty days after sight, please pay to the order of Chafles Ellett, Supt., three hundred dollars, value rec'd, and charge the same as advised. . (Signed), "Abraham Moeeell. " To John R. Livingston, Jr., " President Rosendale M'ng Co., New York," (and indorsed) "Pay to the order of Theodore F. Moss, Esq., "Charles Ellett, SupH," (and written across face) "Accepted, Sept. 14, 1846, "John R. Livingston, Jr., " President Rosendale M'ng Co., 16 Wall-st." Held, not to be the obligation of the company, for want of proof of authority to accept, though the proof showed existence of such ' a company engaged in smelting copper ore, and having an office in New York; and further showed that Ellett and Moss were agents of company in various capacities, and Livingston was in fact its president; and that the bill in suit was drawn by the agent at Lake Superior, and paid to plaintiff for his wages due from the company. Moss v. Livingston, 4 Comst-, 208. 8. An agent cannot lawfully purchase for himself, directly or indi- rectly, even at a price higher than his principal is willing to pay, and whether at a private or a judicial sale. Case of purchase by agent of real estate sold on foreclosure of a mortgage left with agent to collect. There was evidence of imposition in some respects upon the principal, who was old and infirm ; but the court in decreeing on application of heirs of principal, that the purchase be regarded as made for the principal, lay down the general doctrine above stated, and without regard to the imposition practised in that case, put it also upon the ground that in no case can an agent right- fully assume any position where his interest will be adverse to that of his employer, Moore v. Moore, 1 Seld., 256. COURT OF APPEALS DIGEST. 31 AGREEMENT — ALBANY BASIK. 9. Agent liable for negligence only to his immediate employer ; Bank Collections ; Neglect to- charge Indorser. Where a country bank sends to its correspondent, a bank at Albany, for collection, an indorsed bill of exchange payable in New York, and the latter bank indorses and transmits it to its own corresponding bank in New York for that purpose, the Albany bank alone is answer- able for any negligence in presenting the bill by which the in- dorser fails to be charged. The Albany bank is the only agent of the country bank. The New York bank becomes the agent of the Albany bank, and is answerable to it alone for breach of duty. Montgomery County Bank v. Albany City Bank, 3 Seld., 459. 10. See also 1 Comst., Titles, "Insurance," 1,2; "Mortgage," 3, 4. 2 Comst., Titles, "Action," 4; " Bills of Exchange," 1, 2; "Partnership," 1,4,5; " Redemption of Lands," 8. Z Comst., Titles, " Corporations," 1, 3 ; " Factor," 1, 2, 3, 4, 6 ; " Power and Authority," 2. 4 Comst., Title, " Bills of Exchange and Pro- missory Notes," 5. 1 Seld., Titles, "Action on the Case," 3-11; "Agreement," 3-8. 5 Seld., Title, "Principal and Agent." 3 Kern., Titles, " Principal and Agent," " Trespass," " Trust and Trustee," 4, 5. 4 Kern., Title, " Principal and Agent." 15 N. Y. Rep., Titles, "Corporations," 6, 7, 8; "Principal and Agent." AGREEMENT. See "Contract," seq. ALLEGIANCE. See 1 Comst., Title, " Criminal Law," 1, 2, 3, 4. ALBANY BASIN. 1. [ Who must keep bridges in repair.^ It is the duty of the owners of lots on the pier, and not of the canal commissioners, to keep in repair the bridges erected pursuant to the fourth section of the act of 1823 {Laws of 1823, p. 128), authorizing the coq- 32 COURT OF APPEALS DIGEST. struction of a basin in the city of Albany. This duty was imposed upon the pier owners by that act, and they have not been discharged rom it by chap. 200 of the Laws of 1849. Follet et al., Canal Commissioners, v. The People, 2 Kern., 268. ALIEN. 1. Descent between citizen brothers, or their representatives, is imme- diate, and is not impeded by alienage of their common ancestor. By the common law rule of descents.ithe alienage of a common grandfather does not impede descent between cousins, the children of brothers who are citizens, and capable of transmitting by descent. McGregor v. Comstock, 3 Cornet., 408. The rule that the descent between brothers is immediate, and not impeded by the alienage of their father, holds also between one of the brothers, and the representative of the other, and also between the representatives of both of them. Id. 2. [Descent derived through alien ancestors, lineal and collateral.'] The 22d section of the statute regulating descents, which provides that no person capable of inheriting real estate " shall be preclu- ded from such inheritance by reason of the alienism of any ances- tor of such person," protects the inheritance whether the claimant derives title through lineal or collateral ancestors, or through both. McCarthy v. Marsh, 1 Seld., 262. 3. The word " ancestors," by its established import, when used in relation to succession to real estate by descent, embraces both lineals and collaterals. Id. 4. Dennis McCarthy, a naturalized citizen, died in 1835, in the city of New York, intestate and without issue, seized of real estate in that city. Dennis McCarthy of Saratoga, who was naturalized in 1834, and was a great grandson of Daniel McCarthy, a brother of Timothy McCarthy, who was the grandfather of the deceased Dennis, claimed the estate of which the latter died seized, as his heir at law ; all the ancestors of the latter, and of the claimant, having died aliens: Held, that the claimant was entitled to the estate. Id. COURT OF APPEALS DIGEST. 33 5. A record of the judgment of a competent court, admitting an alien to become a citizen, and reciting the facts which entitled the alien to such judgment, cannot be impeached by proof contra- dicting those recitals. In all collateral proceedings, such record is conclusive. Id. 6. [Power to hold real estate under act of April 2, 1798.] Land conveyed to an alien pursuant to the provisions of "An act to enable aliens to purchase and hold real estate vrithin this state," under certain restrictions therein mentioned, passed April 2, 1798, may continue to be held by alien heirs and alien devisees of the grantee, until by inheritance, devise or grant, the title comes to a citizen. DuJce of Cumberland v. Graves, 3 Seld., 305. 7. The term " heirs" in that statute, applies as well to the heirs of the first heir as to the first heir himself, and the term " assigns" includes devisees and heirs of assignees, and assignees of heirs. Id. 8. A devise of lands held under the act, by an alien to alien trustees, taking effect in 1811, vested a legal estate in the trus- tees. Id. 9. The act of March 3, 1819, declaratory of the construction of the former act, cured any defect in titles then existing, arising from the alienism of any of the parties through whom they had passed. Id. 10. [_A devise to an alien is good at common law, and a devise to a posthumous alien is good notwithstanding statute, 2 R.S., 57, sec. 4.] By the common law an ahen can take real estate by devise, although he cannot hold it as against the state. Wadsworth v. Wadsworth, 2 Kern., 376. 11. The statute (2 R. S., 57, sec. 4,) which declares that every devise of real property to a person who, at the time of the death of the testator, shall be an alien not authorized by statute to hold real estate, shall be void, does not apply to an alien devisee born after the death of the testator. Id. 12. Accordingly where the testator devised lands in trust for the use of his daughter, who was an American citizen, during her life, with remainder in fee to her issue, and she subsequently died, leaving an alien son-, born after the death of the testator: Held, 34 COURT OP APPEALS DIGEST. ALIENATION AJTENDMENT . that he took under the will as against the heirs of the testa- tor. Id. 13. [_Meaning of the words ^^ alienism of any ancestor."'] The sta- tute (1 E. S., 764, sec. 22) which provides that no person capable of inheriting real estate shall be precluded from such inheritance by reason of the alienism of any ancestor of such person, enables those only to inherit who would be entitled to the estate by the ordinary law of descent on the death of the person last seized, but for the alienism of some person through whom title is deduced. McLean and vnfe v. Swanton, 3 Kern., 535. 14. It does not enable a person to take an estate by inheritance who deduces title by descent through a living alien relative of the deceased, who would himself inherit the estate were he a citi- zen. Id. 15. Where the decedent left him surviving a sister, and a niece, her daughter, the former an alien and the latter a citizen : Held, that the niece did not take his real estate by inheritance. Id. ALIENATION. 1. See 2 Seld., Title, " Landlord and Tenant." AMBIGUITY. 1. See 1 Comst., Title, "Parol Evidence," 1. AMENDMENT. 1. See 1 Comst., Title, "Appeal," 16, 24. 2. See 2 Cornet., Title, " Exceptions," 3. 3. See 4 Comst., Title, "Pleading," 3. 4. See 1 Seld., Title, "Remittitur." 5. [At the trial.'] An amendment of the pleadings, b^ striking out counts or parts of counts from the declaration, allowed by a Judge during the trial, without costs, is authorized by section 149 of the Code of 1848, which refers the terms to the discretion of the court. The Cayuga County Bank v. Warden, 2 Seld., 19. COURT OF APPEALS DIGEST. 35 AMENDMENT. 6. [Not allowed so as to increase claim of damages in complaint, after verdict, except, Sfc] Where a verdict exceeds the amount of damages claimed in the complaint, an amendment of the com" plaint, increasing the demand of damages to the amount of the verdict, will not be allowed except upon the condition of payment of costs, and granting a new trial. Corning v. Corning, 2 Seld., 97. 7. Where the judge at the trial, in such case, allowed an amendment of the complaint, without imposing terms, and judg- ment was entered for the amount of the verdict ; and the supreme court on appeal, at general term, vacated the order granting the amendment, and gave leave to the plaintiff to remit the damages so far as they exceeded the amount originally demanded ; and that being done, affirmed the judgment for that amount, with costs, reversing it as to the excess, the judgment was affirmed. Id. 8. [Direct in complaint omitting essential averment of fact, cured by averment of same fact in the answer J] Where the complaint omitted to aver a fact essential to the maintenance of the action, but this fact appeared from the defendant's answer, and objection to the complaint on account of this omission was first taken at the trial, when it was overruled and judgment rendered in favor of plaintiff, and defendants appealed to this court : Held, that this court would deem the defect supplied by amendment, and sustain the judg- ment. Bate V. Graham, 1 Kern., 237. , 9. See also 1 Kern., Title, " Variance." 10. [Court may am^nd complaint at trial, as to matters put in issue by reply.] The court at the trial may remedy by amendment a variance between the case made by the proof and the complaint, where all the facts essential to the rights of the parties are put in issue by the answer and reply. Hall v. Gould, 3 Kern., 127. 11. [Amending sheriff's return on execution.] The Supreme Court has power to authorize a sheriff to withdraw from the files an execution, and to cancel a return of nulla bona made thereon ; and after the return has" been thus cancelled, it does not conclude or estop the sheriff as against parties who did not act upon the faith of it. Barker v. Binninger, 4 Kern., 270. 36 COURT OF APPEALS DIGEST. 12. ICourt at trial has no power to add a new f arty plaintiff after evidence is closed, and thereupon give judgment in his favor ^ Where an action to prevent construction of a railway in Broadway, New York, was brought by a resident tax-payer, and the court at the trial, after all the evidence was given, held that he could not maintain the action, and made an order permitting the attorney- general to be added as a party plaintiff, and then gave judgment for the relief prayed : Held, that such 'order was reviewable by this court : Held further, that the amendment was not authorized by the Code, and the order was therefore erroneous. Davis et al. v. The Mayor, SfC, of New York, 4 Kern., 606. 13. See also 15 N. Y. iiep.. Titles, " Evidence," 6 ; " Pleading," 1. ANIMALS. 1. \_Owner of domestic animals not liable in general unthout notice, &fc., for injuries &?/.] The owner of a domestic animal is not in general liable for an injury committed by such animal, unless it be alleged and shown that the defendant had notice of its vicious propensity. Van Lenven v. SyJce, 1 Comst., 515. 2. [^But where animal is trespassing on plaintiff^s close, no notice necessary.'] But if the animal is unlawfully in the close of another, and commits the mischief there, the owner is liable with- out alleging or proving a scienter. Id. 3. [But in that case action should be trespass quare clausum, and the injury set up in aggravation, Sfc] And in such cases, the decla- ration should be for breaking and entering the close, and the particular mischief, e. g. the killing of another domestic animal, should be alleged in aggravation of the trespass. Id. 4. The declaration in a justices' court alleged that the defend- ant's sow and pigs mangled and tore a cow and calf of the plaintiff so that they died. The evidence tended to show that the injury was committed as alleged, and that it was done while the sow and pigs were trespassing in the plaintiff's close : Held, that the plain- tiff could not recover, for the reason that there was no allegation COURT OF APPEALS DIGEST. 37 AlflMiiS, CARRIERS OF — APPEAL. or proof of a, scienter, and no allegation of a breach, of the plaintiff's close. Id, ANIMALS, CARRIERS OF. See 4 Kern., Title, " Common Carrier." ANSWER. 1. See 2 Comst., Title, " Pleadings in Equity," 2. Bee 1 Seld., Titles, " Chancery ;" " Code of Procedure." 3. See 5 Seld., Title, " Evidence," 6. 4. See 4 Kern., Title, " Pleadings." APPEAL. I. When an appeal does not lie to this court. II. Miscellaneous cases concerning appeals. I. "WHEN AN APPEAL DOES NOT LIE. 1. In matters of discretion, as in case of refusal to set aside default, in a chancery cause. Fort v. Bard, 1 Comst., 43; Scker- merhorn V. MohawJc Bank, 1 Comst., 125. /g-<^Kl//iU, 5^ 2. From decision of single judge at special term. Grade v. Freeland, 1 Comst., 228. 3. From an interlocutory decree made prior to the Code, where the appellant suffered fifteen days to elapse, limited by the statute in force prior to the Qode, before he perfected his appeal. The Mayor, Sfc, of New YorTc, v. Schermerhorn, 1 Comst., 423. 4. From orders in respect to temporary injunctions, whether granting, continuing, dissolving or denying the same. Vander- water v. Kelsey, 1 Comst., 553 ; Selden v. Vermilyea, 1 Comst., 534. 5. From order denying a rehearing. Marvin v. Seymour, 1 Cornet., 535. 6. From order compelling a party to appear before a master to be examined. Id. 38 COURT OF APPEALS DIGEST, APPEAL. 7. From decision of Supreme Court on writ of error pending when Code took effect. Grover v. Coon, 1 Comst., 536. 8. From final judgment in Supreme Court, rendered in May, 1848, prior to Code. Writ of error only remedy. Rice v. Floyd, 1 Comst., 608. 9. From decision of Supreme Court, granting or refusing new trial on bill of exceptions, made after the Code took effect, (to wit, November, 1848,) in a suit commenced before July 1, 1848. Neither does the judiciary act, nor the Code (of 1848) provide for such a case. Tilley v. Philips, 1 Comst., 610. 10. From decision of Supreme Court refusing to set aside a judgment for irregularity, or as a favor. It is not a Jinal order under section 11, subdivision 2, of Code. Sherman v. Felt, 2 Comst., 186. 11. To bring up errors in a judgment roll, which have not been actually passed upon by the general term. Lake v. Gibson, 2 Comst., 188. 12. From an order made on motion to award an issue to be tried by jury. Candee v. Lord, 2 Comst., 269. 13. From decision of court of chancery, granting or refusing a new trial after a verdict on issue awarded. Lansing v. Russell, 2 Comst., 563. 14. From decree providing for reference, and reserving further directions until the coming in of referee's report. Conger v. Douglass, 2 Comst., 571. 15. From order on motion to vacate a master sale. WaTceman V. Price, 3 Comst., 334. 16. From order refusing to set aside a judgment on the alleged ground that it was entered under a void authority, before Code, e. g. bond and warrant of attorney. Dunlop v. Edwards, 3 Comst., 341. 17. From order granting new trial. (But see chap. 723, Laws of 1857, sec. 11, sub. 2.) Duane v. The Northern Railroad Company, 3 Comst., 54:5. /ff^YiJ*^ 18. From judgment or order by default. Swarthout v. Curtis, 4 Comst., 415. . /TjtA^ COURT OP APPEALS DIGEST. 39 19. From order refusing leave to file exceptions after usual time had expired. King v. The Merchants' Exchange Company, 1 Seld., 547. 20. From order denying rehearing on interlocutory decree. Id. 21. In cause arising in justice's court, though in a case where plea of title had been interposed. (But see chap. 723, Laws of 1857, sec. 11, sub. 3.) Brown v. Brovm, 2 Seld., 106. 22. From order refusing to stay trial in one cause, until the decision of another. James v. Chalmers, 2 Seld., 209. 23. From order in partition declaring the rights of the parties. Bebee v. Griffing, 2 Seld., 465. 24. From order of Supreme Court, setting aside a judgment and entering it anew, to give opportunity for appeal. (The court dis- approve the practice, and question the right to make such an order.) Humphrey v. Chamberlain, 1 Kern-, 274. 25. From order confirming report of commissioners to appraise and fix compensation for lands taken under general railroad law. New York Central Railroad Company v.' Marvin, 1 Kern., 276. 26. From decision of general term on report of commissioners of estimate and assessment, on opening streets in the city of New York. In re Canal and Walker-streets, 2 Kern., 406. 27. From decision on demurrer, prior to the disposing of issues of fact. Paddock v. The Springfield Fire and Marine Insurance Com- pany, 2 Kern., 591. 28. From determination in Supreme Court on question of fact* in an equity suit commenced since the Code. Newton v. Bronson, 3 Kern., 587. 29. From order removing a cause to the United States Court. lllins V. The New York and New Haven Railroad Company, 3 Kern., 597. 30. Where the parties had stipulated beforehand that the deci- sion of the general-term of the Supreme Court should be final. This court will enforce the stipulation by dismissing the appeal. Townsend v. The Masterson, Smith and Sinclair Stone Dressing Company, 15 N. Y. Rep., 587. 40 COURT OP APPEALS DIGEST. 3L From judgment of special term of Superior Court of Buffalo in foreclosure, where general term had overruled demurrer ; should have first appealed to the general term from the judgment of fore- closure. The Hollister Bank of Buffalo v. Vail and another, N. Y. Rep., 593. * • 32. From order of Supreme Court granmig a new trial. (Prior to act of May 6, 1857.) Ely v. Holton, 15 N. Y. Rep., 595. 33. From judgment of General Term in^cause arising in justice's court. (Prior to May 6, 1857.) Humphrey v. Parsons, 15 N. Y. Rep., 595. 34. From an order of General Term setting aside judgment and execution for irregularity, where the order gives no direction as to previous proceedings in the cause, such an order does not "deter- mine the action nor prevent a judgment from which an appeal might be taken." Jones v. Derby, 16 N. Y. Rep., 242. 35. From affirmance or reversal of judgment on report of referee, where no case has been made. Turner v. Haight, 16 N. Y. Rep., 465 ; Magie v. Balcer, 4 Kern., 434. 36. From order of Supreme Court granting new trial in eject- ment on payment of costs, under the statute. 37. On a mere matter of practice. It is no ground of appeal that damages on default in the court below were assessed without the filing of any affidavit of such default, that being a question of practice not reviewable here. Catlin v. Billings, 16 N. Y. Rep., 622. II. MISCELLANEOUS DECISIONS CONCERNING APPEALS. j(l.) Undertaking. (2.) Case and Exceptions. (3.) When Code governs and when not, as to anneals. (4.) Other matters. (1.) Undertaking. 38. One undertaking of $250 on appeal from two orders is not sufficient, though one of the orders be not appealable ; but appel- lant may amend. Schermerhorn v. Anderson, 1 Comst., 430. COURT OF APPEALS DIGEST. 41 39. Unless undertaking to pay costs and damages is given, the appeal is not effectual for any purpose. Undertaking under sec- tion 284 is not enough. Court cannot allow undertaking to be amended without consent of sureties. Langley v. Warner, 1 Comst., 606. 40. One undertaking to pay costs and damages is sufficient on plaintiff's appeal in replevin, though there be different respondents who were awarded different sums by the same record below, as damages. Smith v. Lyvgs, 2 Comst., 569. 41. No liability is incurred on undertaking under section 335, where the appeal is dismissed. Drummond et al. v. Husson et al., 4 Kern., 60. (2.) Case and Exceptions. 42. Under the Code of 1848, no review could be had in this court on a case. There must have been a hill of exceptions or spe- cial verdict. Livingston v. Radcliff and other cases, 2 Comst., 189. 43. Rule 7th, of May 25, 1849, requiring copies of case to be served within forty days after appeal perfected, applied to all appeals, pending or future. Dresser v. Brooks, 2 Comst., 559. 44. Exceptions need not be signed or sealed ; but unless they are separated, by order of the court below, from irrelevant portions of the evidence, the appeal will be dismissed. ZabrisJcie v. Smith, 1 Kern., 480. 45. \_Trial by the court without a Jury."] In order to review, on appeal, a judgment rendered on a trial by the court without a jury, a case must be made and settled in the usual manner by the judge who tried the cause, and such case must contain : 1. The facts found by the judge, and his conclusions of law, stated separately ; 2. The exceptions taken during the trial ; 3. The exceptions taken after judgment to his final conclusions ;" 4. If a review by general term on questions of fact is desired (but not otherwise), the evidence bearing on those questions. Hunt v. Bloomer, 3 Kern., 341. See also Magie v. Baker, 4 Kern., 434. Decisions made by the judge during the trial, which are deemed erroneous, must be excepted to at the trial, as the only exceptions 42 COURT OP APPEALS DIGEST. that can be taken within the ten days after judgment, are the exceptions to the _final conclusions of law of the judge. Id. Where exceptions appear in the case as settled, it will be as- sumed on appeal that they were duly taken. But unless the case contains some exception, either to rulings in the progress of the trial, or to such final conclusions, the cause cannot be reviewed in this court, and the appeal will be dismissed. Id. 46. [ Trial by referees.'] The court apply the same rules laid down above in Hunt v. Bloomer, as to making and settling a case after trial by court without a jury, to the case of a trial before referees, and Judge Comstock points out the proper course to be pursued, in the following language : " After trial, the first step will be to except within the time limited, upon the legal points and propositions involved in the final decision, ruled against the party intending to appeal. The next proceeding will be to prepare a case and have it settled by the judge or referees, if not agreed on. This will contain the evidence bearing upon any conclusion of fact intended to be reviewed ; also, the exceptions taken during the trial, and those made after the trial, to the final decision. The facts found and conclusions of law must be separately stated. This statement, like the other parts of the case, must be prepared by the party who appeals, and of course it will be subject to amendment and settlement. On the case so prepared and settled, the review is to be had at the general term. The exceptions sepa- rately served after judgment should not appear at all, except as they are settled and stated in the case." Johnson v. Whitlock, 3 Kern., 344. 47. The review in this court of a judgment entered upon the decision of referees, must be opon the same case containing excep- tions, upon which the cause was heard at general term, except where, by leave of that court or consent of parties, a case contain- ing only the questions of law is substituted. Id. 48. And the court below has power on motion to reform the case there used ( with reference to an appeal to this court ), so that it may be freed from such portions of the evidence as are not neces- sary to present the questions of law. But it has not power to COURT OF APPEALS DIGEST. 43 change it so as to present the facts otherwise than as found by the referees, or to insert exceptions not actually taken. Id. 49. [ Trial by the court without a jury ; what the case on appeal must contain.] The principles above laid down in Hunt v. Bloomer, and Johnson v. WhillocTc, in respect to case and exceptions, reiterated ; and held further ( although tolerating it in the case before them), that it is not sufficient statement of the exceptions relied on, that they are contained in the written decision" of the judge, and that the case contain a reference to that papef as setting forth the exceptions. They must be also inserted in the body of the case. Smith V. Grant, 15 N. Y. Rep., 590. . 50. Held, in a case originally tried before a referee, that it was not enough that exceptions were duly taken to the report, but they must be incorporated in a case which should also contain the facts found, and the conclusions of law; that it was of no avail that such facts and conclusions were stated in the referee's report, as the court could only look to the case for the purpose of considering exceptions. Judgment affirmed, there being no error apparent upon the record. Turner v. Haight, 16 N. Y. Rep., 465. 51. Trial by the court below as to th§ validity of an assignment for the benefit of creditors. The written decision below found in terms, as a conclusion of fact, that the assignment was made " with intent and for the purpose to hinder, delay and defraud creditors." The written opinion of the judge showed that he found it void in law by reason of a provision in respect to compen- sation of assignees. But inasmuch as the case did not show affirmatively that there was no evidence of fraud in fact, held that the question whether it was void in law could not be considered by this court on appeal. Titus v. Orvis, 16 N. Y. Rep., 617. (3.) When Code governs and when not, as to appeals. 62. An interlocutory order was made by the Supreme Court in equity, and notice thereof served 19th May, 1848. An appeal was taken July 24th, 1848 : Held, that such appeal was barred by the lapse of fifteen days, according to the statute in force before the 44 COURT OF APPEALS DIGEST. Code took eiFect, and was too late. The Mayor, S^c, of New York V. Schermerhorn, 1 Comst., 228. 53. Order denying motion to vacate a decree made prior to the Code, is reviewable only in the manner prescribed by the old practice. The Code gives no new right of appeal in such cases. Spaulding v. Kingsland, 2 Comst., 426. 54. The Code does not take away jurisdiction to hear appeals brought under the judiciary act. Whether such appeals may still be brought, quere. Construction of judiciary act as to appeals. Butler V. Miller, 1 Comst., 428. 55. Under section 11 and subdivision 1 of the Code, authorizing an appeal to this court from a judgment of the Supreme Court in ap action " brought there from another court," an appeal vrill lie from a decree made by that court in a suit which was pending in the Court of Chancery when the new Constitution took effect, and which, by force of the Constitution became vested in the Supreme Court. The Farmers^ Loan and Trust Company v. Carroll, 2 Comst., 666. 56. Where a suit commenced in the late Court of Chancery was pending in the Supreme Court when the Code took effect, and was heard at a special term on pleadings and proofs in April, 1850, and reheard by the same court at a general term in May, 1851, and pursuant to an order for that purpose ; on appeal, held, that the cause was reviewable in this court upon the whole evidence, with- out there being a statement of the facts found by the Supreme Court, or any exception to its decision. And in such a case this court has authority to reverse the decision of the court below on a question of fact. But where, in a suit at law or in equity, com- menced prior to the enactment of the Code, the trial is had after the act of July 10th, 1851, took effect (Laws of 1851, pp. 876, 903 sec. 459), the review in this court is confined to questions of law. Dunham v. Wathins, 2 Kern., 556. (But see chap. 306, Laws 1859, sec. 19.) COURT OF APPEALS DIGEST. 45 (4.) Other matters. 57. A statute is not unconstitutional which takes away a right of future appeal in a pending action. Grover v. Coon, 1 Comst., 536. 58. An appeal on demurrer is waived by putting in an answer in the cause. Schermerhorn v. The Mohawk Bank, 1 Comst., 125. 59. An appeal is perfected as soon as notice of appeal is served and undertaking filed, and a motion to dismiss for any proper cause may then be made, though the time to except to sureties has not expired. A regular appeal stays proceedings, though time to ex- cept to sureties has not expired. Thompson v. Blanchard, 2 Comst., 661. 60. Meaning of the term "final orders," as used in section 3 of act in relation to existing suits. Embraces orders made in special proceedings, or upon summary application after judgment ; and in the latter case the application it seems must concede the validity of the judgment, and seek relief upon matters arising subsequently. Dunlop V. Edwards, 3 Comst., 341. 61. Referee's decision on question of fact not reviewable in this court. (But see sec. 19 of chap. 306 of Laws of 1858, as to 'old Chancery causes.) Esterly v. Cole, 3 Comst., 502. 62. Decree of the Supreme Court reversing surrogate's decree is reviewable here as a " final determination," &c., notwithstand- ing further proceedings are by it directed in the surrogate's court. Messerve v. Sutton, 3 Comst., 546. 63. This court will not review a finding of the court below on a question of fact, however erroneous, in actions commenced under the Code. Borst v. Spelman, 4 Comst., 284 ; Griscom v. The May- or, Sfc, of New York, 2 Kern, 586 ; Western v. The Genesee Mutual Insurance Company, 2 Kern., 258. 64. Under the former practice of the Court of Chancery, a de- cree was regarded as final which reserved no questions, although a reference was directed upon which questions might arise, to be again brought before the court. But under theTlode such a decree 46 COURT OF APPEALS DIGEST. does not become a " final determination," &c., for the purposes of an appeal to this court, until after the referee's report under such order has been confirmed. So held in a foreclosure case, where, as prayed in the bill, the court had decreed that a satisfaction entered of record be set aside, that there be a foreclosure, and a reference was ordered to compute amount due. Swarthout v. Curtis, 4 Comst., 415. 65. An appeal perfected on the same day of the filing of the judgment roll, but before it was actually filed, is nevertheless regu- lar. The law does not regard fractions of a day, except where it is necessary to prevent injustice. Blydenburgh v. Cotheal, 4 Comst., 418. 66. A special verdict need not embrace facts admitted by the pleadings, as those facts are before the court on appeal, whether so found or not. Barto v. Himrod, 4 Seld., 483. 67. Petition against infant heirs to compel specific performance of ancestor's contract to sell land, is a "special proceeding" within section 11 of the Code, and an appeal lies from a final order of the Supreme Court in such a proceeding, afiecting a sub- stantial right. Hyatt, administrator, v. Seeley, 1 Kern., 52. 68. Matters not appealed are not to be considered on appeal from portions of a decree. 69. An order setting aside a judgment by confession for an alleged defect in the statement on which it was entered, is appeal- able. Belknap v. Waters, 1 Kern., 477. 70. A party cannot object, for the first time on appeal, that there is a variance between pleadings and proof, nor that a ques- tion of fact was not left to the jury. Barnes v. Perrine, 2 Kern., 18. 71. An order imposing costs on a party beneficially interested in the action is appealable. Giles v. Hulbert, 2 Kern., 32. 72. Objections that evidence might have obviated cannot be raised on appeal for the first time. Bumstead v. Dividend Mutual Insurance Company, 2 Kern., 81. 73. On undisputed facts the general term may reverse the decision of the spltial term, and render final judgment, instead of COURT OF APPEALS DIGEST. 47 ordering a new trial ; but if there be any dispute as to the facts, or any error on the trial, the only relief proper for the general term is to order a new trial. And this court on appeal will examine the case and review the action of the court below, not- withstanding there is no bill of exceptions, the appellant here having succeeded at the special term, and therefore never having had occasion to make a bill of exceptions. Marquat v. Marquat, 2 Kern., 336. 74. Where the Code has required the facts to be found on the primary trial, and has limited the review as to such questions to the general term of the same court, the finding must settle the material facts before the case can be reviewed in this court on questions' of law arising or claimed to arise from such facts. Gris- com V. The Mayor, Sfc, of New York, 2 Kern., 586. 75. The special term of the Supreme Court has no jurisdiction to review a judgment rendered on the report of a referee. It can only be done by the general term on appeal. Dana v. Howe, 3 Kern., 306. 76. Where the appeal to this court has been dismissed under rule 2, for neglect of the appellant to procure a return to be filed within the proper time, the cause will not be reinstated unless the appellant shows a clear case of diligence on his part, and that the inexcusable default of the clerk, or unavoidable accident, has prevented the filing of the return or the extension of the time to file it. Spoore v. Freeman, 16 N. T. Rep., 620. 77. An appeal will lie from a surrogate's decree of distribution, though the appellant has received his distributive share under it. Higbie V. Westlake, 4 Kern., 281. 78. After a trial and general verdict, this court can only con- sider questions of law upon exceptions, and not whether the damages are excessive or the verdict is against the weight of evi- dence. Oldjield V. The New York and Harlem Railroad Company, 4 Kern., 310. 79. "An objection by the defendant on the trial below, that a residue of the claim in suit was not assignable, does not raise the question here whether the assignment, accompanied by the verbal 48 COURT OF APPEALS DIGEST. APPOIKTMEST — APPRAISAI,. agreement proved in the case, was void for maintenance, an objec- tion on the last mentioned ground not having been made at the proper time at the trial. Burgiitv. Ireland et al., 4 Kern., 322. 80. There should be a distinct exceptioo on the trial to each conclusion of law complained of. A general exception is not available on appeal unless aZ^ the conclusions are erroneous. Magie V. Baker, 4 Kern., 434. 81. See also the following Titles : 1 Const., " Costs," 1 ; « Con- stitutional Law," 3. 2 Comst., " Court of a Justice of the Peace," 5, 6, 7 ; " Jurisdiction," 2, 3, 4, 6 ; " Eemittitur." 3 Comst., " Sur- rogate." 4 Comst., "Pleading," 3. 1 SeU., "Highways," 4; " Remittitur ;" « Will," 8. 4 SeU., « Highways," 1, 2, 3 ; « Judg- ments and Decrees," 1, 2, 3, 4 ; " New Trial," 1 ; " Practice," 1, 2, 4, 5. 5 SeU., " Exceptions," 1, 2, 3. 1 Kern., " Practice," 6, 7, 8, 9. 2 Kern., " Exceptions at the Trial." 4 Kern., " Amendments ;" " Error, Writ of;" " Exceptions ;" " Pleading," 1, 2, 3. 16 N. F. Rep., " Practice," 5, 6, 7. APPOINTMENT. 1. See 1 Comst., "Husband and Wife," 1, 4, 5, 6. APPOINTMENT BY GOVERNOR. 1. [ Governor may appoint county cleric to fill vacancy, Sfc.'\ The Governor is authorized to fill, by appointment, the vacancy occar sioned by the death of a county clerk, and the right of the deputy clerk to discharge the duties of the office ceases when such appointment is made. The People ex rel. Henderson v. SnedeTcer, 4 Kern., 52. APPRAISAL. 1. {Of lands tahen by railroads.-] See 1 Kern., " Appeal," 8. 2. See also 3 Seld., " Corporation," 2. COURT OF APPEALS DIGEST. ^ 49 APPBOPKIATION OP LANDS. 3. [As to proceedings by Hudson River Railroad Company, under chap. 31, of Laws of 1847.] The act amending the charter of the Hudson River Railroad Company ( chap. 31, of Laws of 1847), does not require that all the persons composing the jury of apprai- sers thereby authorized, shall concur in the assessment and apprai- sal of damages ; an assessment and appraisal made by a majority upon a meeting of all, is in accordance with the act. Per Johnson, J. Cruger v. The Hudson River Railroad Company, 2 Kern., 190. 4. Such appraisers are a jury, within the meaning of that term, as used in section 7, of article 1 of the Constitution. Johnson, J. Id. 5. [ Requisites of a plea of title acquired under such proceedings^ Where the act authorizing a railroad company to take land for its use, prescribed that reasonable notice, of not less than ten days, should be given to the owner, of the time when the jury to appraise the damages would be drawn; and a plea setting up title by virtue of proceedings under the act, alleged that reasonable notice of such time was given : Held, on demurrer to the plea, that a previous notice of not less than ten days was necessary to give the officer jurisdiction, and that the plea was bad ; and further, held, that averments in the plea, that the owner appeared before the officer at the time appointed for^rawing the jury, and objected to the regularity of the proceedings, without averring upon what ground, and that on the day when the jury met to appraise the damages, he again appeared and objected to the competency of one of them, who was set aside, did not cure the defect as to notice, and render the proceedings valid. Id. APPROPRIATION OF LANDS. 1. See " Canal Damages." 4 Comst. 2. [Regularity of Proceedings ; Waiver of Objections ; Tenants in Common ; Joint Assessment of Damages."] Proceedings under the right of eminent domain, to acquire the possession of lands held by tenants in common, should be against such tenants severally, (where the statutes do not otherwise provide,) so that the damages to which 50 COURT OF APPEALS DIGEST. APPROPEIATION OF PAYMENTS. each may be entitled, will be separately awarded and paid. Dyck- man v. The Mayor, Sfc, of New Yorlc, 1 Seld., 434. 3. Personal notice should be given to each person proceeded against. Id. 4. Where such persons are proceeded against _;'oiw%, objections on that account, and on account of the want of notice, may be waived by them. Id. 5. By a voluntary appearance of the parties, and contesting the proceedings on the single ground of the inadequacy of the damages awarded, such objections are waived. Id. 6. A tender to one of the tenants in common, of the sum awarded to all in such joint proceedings, is a sufficient tender to all. Id. 7. To give the vice-chancellor jurisdiction of such proceedings, under the act for supplying the city of New York with water (Laws of 1834, chap. 256), it was necessary to show that an unsuc- cessful attempt had been made by the water commissioners, to agree with the owners for the purchase of the land. But a state- ment of that fact in the petition, sworn to positively by one of the commissioners, was sufficient prima facie to confer such jurisdiction. Id. 8. That fact was an issuable one, and might have been contro- verted on the hearing, and if not established, the application should have been dismissed. Per Gardner, J. Id. 9. The parties having appeared and neglected to make that objection, or to introduce proof on the subject, are estopped by the record from doing so in a collateral proceeding. Id. APPEOPRIATION OF PAYMENTS. [^Payment on running account.'] Where no specific application is made by the parties, of payments upon a running account, they will be applied in equity upon the first items of indebtedness, although the creditor may have held security for the payment of those items, and none for the final balance of account. Truscott v. King, 2 Seld., 147. COURT OF APPEALS DIGEST. 51 AEEITKAMENI AND AWARD. ARBITRAMENT AND AWARD. 1. Arbitrators need not be sworn, but the oath may be waived, tacitly or expressly, it not being essential to jurisdiction, that being conferred by the agreement of the parties. Nor need the agree- ment provide for a judgment on the award. Howard v. Sexton, 4 Comst., 157. 2. Award as to matters not submitted may be rejected as sur- plusage, and the remainder allowed to stand. A delivery of the award exhausts the powers of the arbitrators, even to correct errors in the first award. And paro]*'evidence cannot be received to impeach the award by showing that the arbitrators intended to award otherwise. Dolce v. James, 4 Comst., 557. 3. Every reasonable intendment is to be made to uphold an award. And though its terms are less comprehensive than the submission, the award is yet good, unless it appears that matters submitted were brought before the arbitrators which are not embraced in the award. Ott v. Schroeppell, 1 Seld., 482. 4. By bonds of submission, dated December 28th, 1842, executed by E. O. and H. W- S., three persons were appointed arbitrators, to award and determine of and concerning '.first, the amount which had been actually paid upon a certain contract (describing it) which in justice should be applied thereon, and to indorse the amount so found, on said contract : and, secondly, of and concerning all actions, debts, demands, &c. (excepting a slander suit), so as the said award be made in writing, subscribed by them or any two of them, and attested by a subscribing witness, ready to be deli- vered to the parties on or before the first day of February, then next. The three arbitrators heard the matters in controversy, and on the 28th of January, 1843, two of them signed an award, stating that they had heard the proofs and allegations of the par- ties, and examined the matters in controversy submitted to them, and had awarded that H. W. S. pay to E. 0. $532.69, which was to be in full satisfaction of all debts, dues, actions, &c., except the slander suit. At the same time, the three arbitrators made and 52 COURT OF APPEALS DIGEST. AEBITEAMEBfT AUTD AWAKD. signed an indorsement on the contract, as follows : " The whole amount which has been paid actually on the within contract, up to the first day of January, 1841, is, and by our award amounts to $530.62. The signatures of the two arbitrators who united in the award were duly witnessed ; that of the other arbitrator was not witnessed : Reld, (1.) that the award was valid ; that the indorse- ment on the contract was to be regarded as part of the award, the whole constituting but one instrument, and to be construed as such ; (2.) But if construed separately, the indorsement on the contract was a complete award upon that part of the submission. Any form of words which amounts to a decision of the question submitted, is good as an award ; (3.) That the signature of two of the arbitrators, duly witnessed, was a sufficient execution of the award, and the addition of the other name not witnessed might be regarded as surplusage; (4.) That an award of the amount paid on the contract up to January 1st, 1841, was equivalent to an award of the amount paid up to the date of the submission, as it did not appear that anything was paid, or claimed to have been paid, in the intermediate time ; (5.) That the court would not presume, without proof, that there were matters in dispute before the arbitrators, which they neglected or refused to pass upon. Id. 5. A valid award made by arbitrators merges the original cause of action, and bars any action thereon. Coleman v. Wade, 2 Seld., 44. 6. An award extending time to principal debtor, discharges the surety. Id. 7. An award, though not performed, bars action on original demand ; but to be available in bar, it must be pleaded, and can- not be insisted on under a general denial, though proved by plain- tiff incidentally. Brazill v. Mane et al., 2 Kern., 9. 8. Arbitration of an equitable title to lands is not prohibited by the statute. (2 R. S., 541, sec. 2.) That only extends to the legal title. Olcott V. Wood et al., 4 Kern., 32. 9. A voluntary association cannot confer judicial powers on its officers or committees ; the creation of judicial tribunals being one of the functions of the sovereign power. An adjudication of the COURT OF APPEALS DIGEST. 53 AEEEST — ASSIGNMENT. Grand Lodge of Odd Fellows, as such, on rights of property, is not good as a judgment, nor, it seems, as an award. Austin v. Searing, 16 N. T. Rep., 112. 10. See also the following Titles : 1 Coms^, "Contract." 1 Seld., " Action," 1, 2. 4 Seld., " Infant," 1, 2 ; " Corporation," 2-4. ARREST. 1. Insanity is no ground at common law for discharge from arrest in a civil suit. Busk v. Fettibone, 4 Comst., 300. 2. And an order of discharge by a judge under sec. 33, of chap. 135, of Laws of 1842, must direct the prisoner to be sent to the Lunatic Asylum, or it is void, and the sheriff is liable for an escape. The language of the statute is, «' order him into safe custody, and to be sent to the asylum." Id. 3. A prisoner discharged and sent to the asylum under this stattite, on being restored to sanity, may, it seems, be again arrested by his creditor. Id. 4. See also following Titles : 2 Seld., "Imprisonment." 5 Seld., "Execution," 1, 2. ART UNION. See 3 Seld., " Lotteries," 1-5. ASSIGNMENT. 1. It is only under a general assignment that the United States is entitled to priority as a creditor by virtue of the act of Congress of March 2, 1799, sec. 65; (1 Story's Ed. Laws U. S., 630,) not under an assignment for the benefit of a single creditor or surety. Bouchaud v. Dias, 1 Comst., 201. 2. Accordingly where a debtor made such an assignment of his property, and his surety in certain custom house bonds filed a bill claiming that the United States had acquired a right to be first paid, and to be subrogated to that right on the ground that as such 54 COURT OF APPEALS DIGEST. ASSIGNMENT. surety he had been coinpelle.d to pay the bonds. Held, that the bill could not be sustained. Id. 3. A general assignment passes to the assignee, equitable in- terests of the assignor as devisee, as a right to be reimbursed out of assets subsequently discovered, where the land devised had been sold to pay testator's debts. Couch v. Delaplaine, 2 Comst., 397. 4. It is not a fraud upon creditors that a general assignment by a failing debtor gives priority to a usurious and irregular judg- ment. Murray v. Judson, 5 Seld., 73. 5. An authority to the assignees to sell on credit renders a general assignment for benefit of creditors void, and the assignor retains and has no power to modify it, after delivery to and acceptance by the assignee. Porter v. Williams, 5 Seld., 142. 6. The right of a general assignee to the assignor's bank deposit is perfect on delivery of the assignment, and the bank is liable for it to the assignee, though without notice of the assign- ment and before suit the bank applied the deposit to payment of assignor's maturing note. Bechwith v. Union Bank, 5 Seld., 211. 7. A claim for the conversion of personal property passes under a general assignment, and assignee may sue ^n his own name. McKee v. Judd, 2 Kern., 622. 8. Assignment for benefit of creditors is not vitiated by omis- sion of debtor expressly to assign his right of redemption of real estate from sale under a judgment assigned. Nor is it vitiated by a grant of power to the assignees to compromise doubtful claims. Dow V. Platver, 16 N. Y. Rep., 562. 9. See also the following Titles : 1 Comst., " Non-Imprisonment Act." 2 Comst., " Estopped," 2, 3 ; " Fraud ;" " Tori;," 3 Cornet., " Bill of Exchange ;" " Judgment," 1. 4 Comst., " Fraud," 1 to 5 ; "Usury." 1 Seld., "Bills of Exchange;" " Corporation," 1, 2, 3; "Insurance," 4 to 7 ; "Receiver of Foreign Corporation." 2 Seld., " Bills of Exchange and Promissory Notes ;" " Chose in Action ;" " Fraudulent Conveyances;" "Insolvent;" "Receiver," 5. 3 Seld., "Voluntary Assignment." 1 Kern., "Fraudulent Con- veyances." 3 Kern., "Chose in Action;" "Fraudulent Convey- ance," "Insurance." 4 Zerw., "Evidence," 16. 15 N. T. Rep., COURT OP APPEALS DIGEST. 55 ASSIGMEE OF CHOSE IS ACTIOJf — ASSESSOBa AND ASSESSMENT. "Contract," 5, 6; "Corporations," 3 to 7 ; "Fraudulent Conveyances;" "Landlord and Tenant," 7; "Warranty." 16 N. T. Rep., " Agreement," 1, 2 ; " Bill of Lading;" " Evidence," 8, 9 ; " Fraudulent Conveyance ;" " Witness." ASSIGNEE OF CHOSE IN ACTION. See 3 Kern., " Witness," 3, 4. ASSESSORS AND ASSESSMENT. 1. A proper assessor's certificate attached to the assessment-roll, under 1 R. S., 394, sees. 26, 27, is necessary to give supervisors jurisdiction to issue their warrant to the collector, and the -want of it is a defect on the face of the vearrant and roll, and renders the collector a trespasser, seizing property under it. Van Rensselaer V. Witbeck, 3 SeU., 517. 2. Requisites to sustain bill to remove cloud upon title. If a tax deed be made by statute presumptive evidence of regularity of previous proceedings, a bill will be sustained if proceedings be in fact void, and injunction will be issued restraining execution and delivery of tax deed. Scott v. Onderdonk et al., 4 Kern., 9. 3. Assessors are liable for damages thereby sustained, who assess for personal property, one who is not in fact a resident, " at the time the assessment is made," and it seems this " time," is the first day of July, the assessors being required to complete their preparatory inquiries in the months of May and June. Mygatt v. Washburn, 15 N. Y. Rep., 316. 4. Buffalo city charter of 1843, in connection with chap. 327, of Laws of 1846, construed as to power to tax, and extent of such power. Rents reserved by leases in fee, or for life or lives, or for more than twenty-one years, though less than twenty-one years of the term remain unexpired, held taxable as personal estate for county, state and city purposes. City of Buffalo v. La Couteulx, 15 N. Y. Rep., 451. 56 COURT or APPEALS DIGEST. ASSOCIATIONS AND JOINT STOCK COMPANIES — ATTACHING CREMTOE AND ATTACHMENT. 5. Buffalo city charter of 1843. Damages sustained by owners of adjoining lands, in consequence of change of grade of street, must be assessed by the same assessors, and in same proceeding as expenses of working the grade and paving, and a subsequent sepa- rate assessment of such consequential damages held absolutely void. Howell et al. v. The City of Buffalo, 15 N. Y. Rep., 512, 6. See also the following Titles : 2 Comst., " Sales for Taxes and Assessments." 1 Kern., " Taxes," 3 to 6. 2 Kern., " New York City," 1, 2, 3. 4 Kern., " Municipal Corporation," 1, 2, 3, 4, 7, 8, 11. ASSOCIATIONS AND JOINT STOCK COMPANIES. See 16 N. Y. Rep., " Parties to Action." ATTACHING CREDITOR AND ATTACHMENT. 1. [Affidavits required; Service on trustee when necessary ; Sheriff^ a return^ Upon an application for an attachment against a non- resident debtor, alleging indebtedness upon a judgment obtained in another state, an affidavit, stating the debt as arising upon a judgment "obtained as these deponents believe," at a particular time and place, but positively alleging the debt and the considera- tion upon which the judgment was recovered, is sufficient. Donnelly V. Corhett, 3 Seld., 500. 2. [What class of trustees for foreign corporation must he served with copy proofs."] It is not necessary in an attachment issued against a foreign corporation, under the amended statute in relation to suits against foreign corporations (Laws of 1842, chap. 197), to serve a copy of the proof upon one to whom lands have been conveyed in a passive trust for the corporation. He has no interest in them, either as trustee or otherwise. The service is required to be made only upon a trustee who holds a trust recognized by law. Wright v. Douglass, 3 Seld., 564. COURT OF APPEALS DIGEST. 57 ATTORNEY. 3. \When sheriff"' s return sufficient to warrant jury in finding fact of sale of real estate.'] A sheriff's return upon an execution "made in full by the sale of real estate," taken in connection with his cer- tificate, stating the sale and the purchase, and dated upon the same day, is sufficient evidence to warrant the jury in finding the fact of the sale. Id. 4. [Residence of applicant must he shown^ In an application for an attachment against a non-resident debtor, it is necessary that the fact that the applicant is a resident be distinctly proved. A recital of the applicant's residence by way of addition, in the application which is verified, is not sufficient. Payne v. Young, 4 Seld., 158. ' 5. [Mere recital of residence not enough.]^ In this case the form used was " the application of C. L. Y. and J. B. T., of the city of New York," and the affidavit alleged that the matters stated in the application were true : Held, insufficient. Id. 6. [Bond upon."] The obligor in a bond given pursuant to sec- tion 55 of title 1, eh. 5 of part 2, of the Revised Statutes, (2 R. S., p. 12,) cannot object that it was made by the defendant in an attachment with but one surety. Ward v. Whitney, 4 Seld., 442. 7. See also the following Titles : 2 Comst., " Parties to Actions." 3 Comst., " Absent, Concealed, and Non-resident Debtors." 4 Comst., "Court of a Justice of the Peace," 2, 3, 5. 1 Seld., " Ab- sent and Absconding Debtors." 1 Kern., " Absconding Debtors," 2, to 6. 3 Kern., "Absconding Debtors." ATTORNEY. 1. [Effect of his removal from state on rights of party to notice of motion^ ^c,'\ Where the attorney for the plaintiff in error removed from the state, and notice had been given to the party to appoint another attorney pursuant to the statute, (2 R. S., 287, sec. 67,) held, nevertheless, that a motion to quash the writ of error could not be made without notice thereof to the plaintiff in error. Jewell v. Schouten, 1 Comst., 241. 58 COURT OF APPEALS DIGEST. ATTORNEY. 2. \_Auorney of record may proceed under non-imprisonment act, without new retainer.] The attorney who prosecutes a suit and obtains a judgment, may, without any other authority than his retainer in the suit, demand from the debtor an assignment of his choses in action, and on refusal institute proceedings under the non-imprisonment act. Stewart v. Biddlecum, 2 Comst., 103. 3. [Atto7iiey of record not liable for referee' s fees^ The rule of law making attorneys liable for the fees of certain officers, should not be extended by analogy. Judson v. Gray, 1 Kern., 408. 4. Referees do not belong to the class of officers to whom attor- neys and solicitors have been held personally responsible for services rendered in the suit ; and therefore held, that the solicitor for the complainant in a chancery suit was not personally liable to a referee, appointed by the court under the judiciary act of 1847, to take and state an account in the cause for his fees. Id. 5. [^Communication of client to attorney's clerk privileged, it seem^.] It seems that a communication made by a client to an attorney's clerk in giving him instructions in regard to a suit which the attorney is prosecuting for such client, is privileged in the same manner as if made to the attorney in person. Per Bowen, J. Gibley v. Waffle, 16 N. Y. Rep., 180. 6. \_The maxim "potior conditio defendentis," does not apply to conveyance to attorney, by client, to defraud creditors, though illegal ; client relieved against, as not " in pari delicto."] An attorney, on the application of his client for advice upon the question, whether an equitable interest which the client had in certain land, could be reached by a creditor, procured from the client an assignment of such equitable interest for a grossly inadequate consideration ; the proceeding being recommended by the attorney for the purpose of defrauding the creditor, and he promising to reconvey after an arrangement should have been made with the creditor. The attorney procured a conveyance of the land to himself, and claimed to hold it absolutely, as against the client : Held, that although the agreement was illegal, and the law would not relieve either party against the other when they stood upon an equal footing, yet the rule prohibiting an attorney from obtaining any advantage COURT OF APPEALS DIGEST. 59 ATTORNET-QENEKAL's sale — ATTOEHMEKT — AtJCTION SALE. in a transaction with his client must prevail, and that the attorney must reconvey the land upon the consideration paid by him being refunded. Ford V. Harrington, 16 N. Y. Rep., 285, 7. See also the following titles : 3 Comst., " Judgment," 1 ; 3 Kern., " Trespass." ATTORNEY-GENERAL'S SALE. 1. \_His deed concerning land not advertised on mortgage sale, no clovd on title.] A purchaser at a sale by the attorney-general, under a mortgage executed to the people of the state, must claim through the advertisement and the sale, and therefore, although the deed given in pursuance of such sale, should profess to convey land embraced in the mortgage, but not included in the adver- tisement and sale, there is no occasion for the owner of such land to resort to a court of equity to remove the cloud from his title. Cox V. Cliji, 2 Comst., 118. ATTORNMENT. 1. See 1 Said., Title, " Dower," 9. AUCTION SALE. 1. [Purchaser of goods at auction sale cannot avoid his purchase on the ground of a -previous secret private sale thereof, in violation of the statute.] Where articles liable to auction duty are advertised for sale at auction, and on the day of sale before the auction com- mences they are, without the isnowledge of the auctioneer, sold privately by the owner, and the auction sale permitted by the vendor and vendee to proceed, a purchaser at the auction cannot avoid his purchase on the ground-that the private sale was in vio- lation of the statute. Minturn v. Main, 3 Seld., 220. 2. [Secret vendee puffing goods at the sale, makes it voidable, but purchaser must offer to rescind and return goods before suit.] Where under such circumstances the secret vendee bid upon the goods 50 COURT OF APPEALS DIGEST. AUDITOK OP THE CANAL DEPAETMENT BAILMEKT. at the auction sale, his fraud renders the sale voidable, and in order to take advantage of the fraud the purchaser at the auction must oiFor to rescind the bargain, and return, or tender a return, of the goods. Id, 3. \_Public auctioneer may sue in his own name, whether commissions, Sfc, have been paid or not.'] A public auctioneer v^ho sells goods for another, may maintain an action for the price, although he has received his advances and commissions, and has no interest in the property sold or its proceeds. Id. AUDITOR OF THE CANAL DEPARTMENT. 1. See 3 Kern.', Title, " Canals." AVOWRY. A general avowry which does not set forth the landlord's title is good under the statute (2 R. S., 529, ■§ 41,) where the tenant is in the enjoyment of the premises at the time the distress is made, although the rent is payable in advance, and the tenant leaves the premises before the end of the period for which the rent was to be paid. Nichols v. Dusenbury, 2 Cornet., 283. BAILMENT. I. Cases where the contract was held to be one of bailment. II. Where it was held not to constitute a bailment. III. Other matters concerning Bailees, Carrier, Lien, Right of Action, &o. I. CASES OF BAILMENT. 1. The plaintiffs agreed to deliver good merchantable wheat at a flouring mill carried on by defendant, " to be manufactured into flour." The defendant agreed to deliver one hundred and ninety- six pounds of superior flour, packed in barrels to be furnished by the plaintiffs, for every four bushels and fifteen pounds of wheat. He was to be paid sixteen cents per barrel, and two cents extra in case the plaintiff made one shilling net profit on each barrel of COURT OF APPEALS DIGEST. 61 BAILMENT. flour. The defendant was to guarantee the inspection. The plaintiffs were to have the '• offals or feed," which the defendant was to store until sold : Held, that the contract imported a bail- ment of the wheat and not a sale, and therefore that the plaintiffs might maintain replevin for a portion of the flour manufactured from the wheat delivered under the contract. Mallory v. Willis, 4 Comst., 76. 2. Wheat was delivered to the defendants, (who were millers,) and receipts taken for it in the following forms : " Eeceived, October 25, 1844, from J. W., by D. B., twenty-seven and 30-60 bushels wheat, being of the first quality." « * • " Received, November 21, 1845, from J. S. W., by F. M. E., two thousand three hundred and forty-five bushels first quality wheat, subject to order any day when called for after Ist day of January next, without charge for storage." In an action of trover brought by J, S. W. and another, as executors, against the signers of the re- ceipt, for the conversion of the wheat, parol evidence was held admissible on the part of the plaintiffs, to show that the wheat belonged to them as executors, and not to J. S. W. in his own right. Wadsworth v. Allcott, 2 Seld., 64. 3. Parol evidence was also held admissible to show that the receipts at the time of their execution were understood by the signers to be given for the benefit of the executors. Id. 4. The second receipt, by its terms, imports a bailment and not a sale of the wheat. Id. 5. Evidence of usage or custom as to the meaning of a contract is not admissible when its terms are plain and unambiguous. Id. 6. No question as to the meaning of such contract can be pro- perly submitted to a jury. Id. 7. Foot, J., dissented as to the construction of the receipts, hold- ing that the second receipt being given by millers and not by warehousemen, must be regarded as evidence of a sale of the wheat," to be repaid in kind, and not of a bailment. Id. 8. Where a contract is made with a manufacturer to deliver to him raw materials to be returned manufactured, the contract is one of bailment and not of sale, and the title to the article when 62 COURT or APPEALS DIGEST. BAILMENT. manufactured remains in the original owner. Foster v. Pettibone, 3 Seld., 433. 9. If the contract simply requires the return of a manufactured article of equal value, then it is one of sale, and the title of the raw material is changed, and the manufacturer becomes a debtor to the person delivering it for the return of the manufactured article. Id. II. CASES NOT OF BAILMENT, BUT OF SALE OB OTHERWISE. 10. The defendant, who owned a flouring and custom mill, contracted to " take " the wheat of the plaintiffs, which was to be of good merchantable quality, and to "give" them one barrel of super- fine flour, at his mill, for every 36-60th bushels. He was to pack the flour in first-rate barrels, and warrant it to pass inspec- tion ; one-half the flour to be delivered on a given day later, or as much sooner as he could make it : Held, that the contract imported a sale of the wheat and not a bailment, and therefore that the accidental destruction of the mill and of the wheat after it was received into the mill, by fire, did not excuse the defendant from delivering the flour. Norton v. Woodruff, 2 Comst., 153. 11. The owners of a steamboat employed in the business of towing boats for hire, are not common carriers, nor (per Beonson, J.,) are they bailees of any description ; and they may, therefore, restrict their (otherwise) legal liability by special agreement. Wells V. The Steam Navigation Company, 2 Comst., 204. IIL other MATTERS CONCERNINa BAILEES. 12. Consignor being the owner may recover of carrier for loss, and in such suit the consignee is a proper witness. The consignee IS presumed to be the owner, but the fact may be shown otherwise. The words " shipped in good order," in bill of lading, shift the burden of proof upon the carrier. Price v. Powell, 3 Comst., 322. 13. Delivery by carrier at a wharf is not enough without notice to the consignee and reasonable time to him to remove the goods. COURT OF APPEALS DIGEST. , 63 BANKBUPTCY. Until then, the carrier's custody and responsibiUty continues. Whether custom can be shown otherwise, quere. Id. 14. The lien of a bailee for hire extends to all goods under one contract, for labor on a part. Part of a quantity of logs held liable for labor in sawing up other logs of the same lot. Morgan v. Congdon, 4 Comst., 651. 15. Either general owner or bailee may maintain action against third person wrongfully taking or converting the property ; but a judgment on the merits, in owner's action, is a bar to bailee's subsequent suit. Green v. Clark, 2 Kern., 343. 16. See also the following Titles : 1 Comst., "Pledge." 2 Comst., "Pledge." 3 Comst., "Replevin," 10, 11. 4 Comst., « Contract," 1, 2, 3 ; "Factor." 4 Sdd., " Common Carrier," 1, 5, 6. 16 N. Y. Rep., "Pledge;" "Tender," 1. BANKRUPTCY. I. Upon wliat claims disoliarge operates. II. Pleadiiig and Proof, ni. Other matters ; Wife's debt ; Buying off opposition ; Preferences. I. UPON WHAT CLAIMS DISCHAEGE OPERATES. 1. A judgment recovered on prior debt, pending proceedings for discharge, is avoided by the discharge, and the costs included in the judgment, being accessory to the debt, are also discharged. Clark V. Rowling, 3 Comst., 216. 2. One joint debtor surety for the other who becomes bankrupt, may prove his claim though the bankrupt assumed the whole debt. And in such case, the discharge is a bar as to all payments made by the former, subsequent to the discharge. Craft v. Mott, 4 Comst., 603. 3. A discharge in bankruptcy, is a good bar to a claim against a common carrier for the loss of goods entrusted to him. It is a claim arising on contract within the act of 1841. Campbell v. FerJcins, 4 Seld., 430. g4 COURT OF APPEALS DIGEST. BANKRHPTCT. 4. A discharge bars the claim of a surety in a replevin suit, pending at the time of the discharge. Tobias v. Rogers, 3 Kern., 69. II. PLEADING AND PEOOF. 5. Fraud may be proved to avoid a discharge, though not pleaded where there has been no opportunity tS plead it. As in case of a defendant in trespass, who justifies the taking by judgment and execution, and plaintiff proves the discharge in reply. A plea must aver jurisdictional facts ; but where there has been no oppor- tunity to plead, the jurisdiction will be presumed. RucJcman v. Cowell, 1 ComsU, 505. 6. It is no justification to a judgment creditor at whose suit a levy is made, that he did not know of the discharge. Otherwise as to the officer, he being protected by the process. Id. 7. In pleading a discharge under the voluntary provision of the act of 1S41, it is necessary to state that the bankrupt resided within the district where the discharge was granted, that he owed debts not created in consequence of his defalcation as a public ofiicer, &c., and that he presented his petition to the proper court, containing the matters required by the act. McCormick v. Pickering, 4 Comst., 276. 8. And the jurisdictional facts being stated, the regularity of the subsequent proceedings will be presumed, and need not be averred. The plea need not state that notice to creditors was pub- lished, that they did or did not object to the decree, or that the requisite time elapsed before the decree was granted. And an averment oi filing the petition in the District Court, is equivalent to an averment that it was presented to the court. Id. 9. Nor need the plea state specially that the particular debt in suit was included in the schedule annexed to the petition. And a plea of bankruptcy to debt on bond is good, though it only hypothetically admit the execution of the bond. Id. 10. Under the system of pleading, prior to the Code, a discharge might be proved under the general issue and notice of the same. Campbell v. Perkins, 4 Seld., 430. COURT OF APPEALS DIGEST. 65 BANKS AKD BANKING, III. OTHER MATTERS. 11. [ Debt of the loife.'] Bankruptcy of the husband is no ground for a bill in equity to reach the wife's estate for her debt. Such debt is provable before the assignees. Vanderheyden v. Mallory, 1 Comst., 452. 12. [ Buying off opposition.] A note given in consideration of withdrawing opposition to discharge, is void, though the opposing creditors had valid claims to more than the amount of the note and though the debtor did not connive at the transaction, or have any knowledge of it. It is void as against the policy of the bank- rupt law. Bell V. Leggett, 3 Seld,, 176. 13. Preferences in contemplation of bankruptcy avoid the dis- charge. Caryl v. Russell, 3 Kern., 194. 14. Where the jurats attached to the petition and schedules set forth that the oaths were taken before the clerk of the District Court, it will be presumed that such oaths were administered m open court. iSchermerhorn v. Tallman, 4 Kern., 94. \ 15. See also the following Titles : 1 Comst., *' Husband and Wife," 4, 8; 4 Comst., "Constitutional Law," 2; "Surety," 9; 2 Seld., "Set-OflF;" 4 Seld., "Jurisdiction," 1 to 9. BANKS AND BANKING. £«^ J r ^iv*^2«>' '■ I. Decisions under restraining laws and special charters. II. Other matters ; Deposits ; Mortgages pledged for circulating notes ; Foreign hank notes under five dollars ; Banks as indorsers. III. The " Trust Case ;" Curtis et al v. Leavitt. I. DECISIONS UNDER RESTRAINING LAWS AND SPECIAL CHARTERS. 1. Chapter 363 of Laws of 1840, section 4, is as follows : " § 4. No banking association or individual banker, as such, shall issue or put in circulation any bill or note of said association or indi- vidual banker, unless the same shall be made payable on demand and without interest, and every violation of this section by any officer or member of a banking association, or by any individual banker, shall be deemed and adjudged a misdemeanor, punishable by fine or imprisonment, or both, in the discretion of the court having cognizance thereof: ' Held, that this prohibition is not confined to 9 66 COURT OF APPEALS DIGEST. BAKKS AJiTD BANKING. bills or notes circulating as money. Twelve months negotiable notes for previous debt of the bank are within it, and trust deed to secure them is void. Time certificates of deposit are also within it. Leavitt, receiver, v. Palmer, 3 Comst., 19. 2. 1 R. S., 589, section 1, is as follows : " § 1. It shall not be lawful for the directors of any moneyed corporation, 1. To make dividends except from the surplus profits arising from the business of the corporation ; 2. To divide, withdraw, or in any manner pay to the stock- holders, or any of them, any part of the capital stock of the cor- poratioa, or to reduce such capital stock, without the consent of the legislature ; 3. To discount or receive any note or other evidence of debt, in payment of any instalment actually called in and required to be paid, or with intent of providing means of making such payment. 4. To receive or discount any note or other evidence of debt, with the intent of enabling any stockholder to withdr3,w any part of the money paid in by him on his stock ; 5. To apply any portion of the funds of the incorporation, except surplus profits, directly or indirectly, to the purchase of shares of its own stock ; 6. To receive any such shares in payment or satisfaction of any debt due to their corporation, except as hereinafter provided ; 7. To receive from any other stock corporation, in exchange for the shares, notes, bonds, or any other evidences of debt of their own company, shares of the capital stock of such other corpora- tion, or notes, bonds, or other evidences of debt issued by such other corporation ; 8. To make any loans or discounts, if the incorporation have banking powers, by which the whole amount of the loans and dis- counts of the company shall be made to exceed three times its capital stock then paid in and actually possessed ; 9. To make any loans or discounts to the directors of such cor- poration, or upon paper upon which such directors, or any of them, shall be responsible, to an amount exceeding in the aggregate one- third of the capital stock of such corporation actually possessed ; COURT OF APPEALS DIGEST. 67 EANES AND BANKIira. but no securities taken for any such loan or discount shall be held invalid :" Held, that the transfer of Arkansas bonds by an insol- vent bank to a director in exchange for its shares, is void both as against 1 K. S., 589, section 1, and also on general principles as in fraud of creditors. That " Free Banks" are moneyed corpora- tions within that statute, and that section 1 applies though they have no board of " directors," the object of the lav? being to pro- hibit such acts ly the hank, no matter who acts for it. Gillet v. Moody, Z Const., 479. 3. Chapter 20 of Laws of 1837, page 14, is as follows : •' § 1. So much of title twenty, chapter twenty, first part of the Revised Statutes, relating to unauthorized banking, and the circulation of certain notes or evidences of debt issued by banks, as prohibits a person or association of persons not incorporated, from keeping offices for the purpose of receiving deposits, or discounting notes or bills, is hereby repealed." ^' §2. This act shall not be so con- strued as to authorize or permit any corporation created by the laws of any other state or country to keep any office for the pur- pose of receiving deposits, or discounting notes or bills, or issuing any evidence of debts to he loaned or put in circulation as money within this state." " § 3. No incorporated bank in this state, nor any officer or director thereof, shall open or keep an office of deposit or discount under this act, or be interested or concerned, directly or indirectly, in any such association. The bank officer or director shall forfeit the sum of one thousand dollars for each violation of any of the provisions of this section :" Held, that these restraining statutes are not violated, it seems, by a foreign corporation, which having power to make contracts and do lawful business within this state, keeps an office in the city of New York, receives deposits of money in trust, and issues certificates therefor, payable with interest at a specified time (not adapted or intended for circulation as money). Nor is it a violation of those statutes to issue such certificates in exchange for bonds and mortgages received by the corporation. Mumford v. American Life Insurance and Trust Company, 4 Comst., 463. gg COURT OF APPEALS DIGEST. BANKS AND BANKINO. 4. 1 R. S., 591, section 8, is as follows : " § 8. No conveyance, assignment or transfer, not authorized by a previous resolution of its board of directors, shall be made by any such (moneyed) corporar tion, of any of its real estate, or of any of its effects, exceeding the value of one thousand dollars; but this section shall not apply to the issuing of promissory notes, or other evidences of debt, by the officers of the company, in the transaction of its ordinary business, nor to payments in specie or other current money, or in bank bills, made by such officers ; nor shall it be construed to render void any conveyance, assignment or transfer, in the bonds of a purchaser for a valuable consideration, and without notice." A transfer of over $1,000 worth of promissory notes, by a cashier to a director, held void, there being no previous resolution of directors, authoriz- ing the same, and held void as to receiver, the director being chargeable with notice as an officer of the bank, could not be a bona fide purchaser ; nor in receiver's suit can the purchaser recoup the consideration paid. Gillett, receiver, Sfc, v. Phillips, 3 Kern., 114. 5. 1 R. S., 712, section 6, as to unauthorized banking, is as follows : " <§ 6. No person, association of persons, or body corpo- rate, except such bodies corporate as are expressly authorized by law, shall keep any office for the purpose of receiving deposits, or discounting notes or bills, or issuing any evidences of debt, to be. loaned, or put in circulation as money ; nor shall they issue any bills or promissory notes, or other evidences of debt as private bankers, for the purpose of loaning them, or putting them in circulation as money, unless thereto specially authorized by law :" Held, that the issuing of negotiable certifi- cates of deposit by the American Life and Trust Company, for £1,000 each, payable with interest, at a distant day in a foreign country, is a violation of the provisions of this section of the statute, it being proved that such certificates are issued for the purpose of being loaned as money. Schermerhorn v. Tollman, 4 Kern., 94. COURT OF APPEALS DIGEST. 69 BANES AND BANKING. II. OTHEE MATTEES. Deposits. Mortgages pledged for cirpulatmg notes. Foreign bank notes under $5. Banks as iodorsers. 6. Money deposited, generally becomes the property of the depositary, the depositor's right being a chose in action ; so that depositor's draft, delivered to third person to pay the latter's note due at bank holding the deposit, is no transfer until acceptance ; and therefore on failure of the bank before acceptance of the draft, the deposit belongs to the general creditors of the bank. Chapman V. White, 2 Seld., 412. 7. The statute giving the comptroller power to transfer mort- gages pledged for circulating notes, must be strictly followed, and he has no right to assign the mortgages to a third person on receiv- ing from him circulating notes of equal amount. Mitchell v. Cook, 3 Seld., 538. 8. The circulation of foreign bank notes under denomination of $5, is still illegal under chapter 295 of Laws of 1830 ; but mere knowledge by a foreign bank that the proceeds of discount of a note in such bills are intended for circulation here, is no defence to a suit on the note so discounted. Merchants^ Bank v. Spaulding, 5 Seld., 53. 9. A bank may be indorser on its own notes forjts own benefit, but cannot be accommodation indorser, nor made liable in that character, unless it represented to plaintiff that the discount was for its benefit. " A. B., Cash" is a good indorsement by a bank, and the holder may write the contract over it. The Bank of Genesee v. The Patchin Bank, 3 Kern., 309. 10. See also 3 Comst., " Corporations," 1, 2 ; 1 Seld., " Consti- tutional Law," 4 ; 2 Seld., "Evidence," 11, 12; 3 Seld., " Corpo- rations," 6 to 12 ; 5 Seld., " Bills of Exception and Promissory Notes," 4, 5, 6 ; " Foreclosure," 2 ; 2 Kern., " Corporation," 5 ; " Usury," 1, 2, 3. 70 COURT OF APPEALS DIGEST. BANKS AND BANKING. III. THE " TRUST CASE ;" CURTIS ET AL. V, LEAVITT, &C. 15 N. Y. Rep., 9. The following general propositions appear to be settled as law, by this case : 1. That banking associations under the law of 1838, as incident to their banking powers, may borrow money. 2. That having the power to borrow money, they have also the necessary power to give obligations for its repayment, in any form not expressly prohibited by law. 3. That prior to the act of May 14, 1840 (which prohibited banking associations, &c., from "issuing or putting in circulation any bill or note of such association unless made payable on demand and without interest"), such a bank could give any form of obligation for the repayment of a loan, where such obligation was not of the class prohibited by the restraining laws, 1 R. S., 212, to wit : " those calculated or intended for circulation as money." 4. That banking associations are not subject to the provisions of the safety fund act (Laws of 1829, chap. 94), and therefore not affected by section 35 of that act which prohibits the issuing of " bills or notes " unless payable on demand and without interest. And as a result of these four propositions, 5. That bonds issued in April and May, 1840, by one of the banks formed under the general law of, 1838, payable in five and seven years in sterling money, with semi-annual interest made pay- able in London, no place of payment of the principal being named, and issued and intended to be sold in England to raise money for the bank, were valid securities, notwithstanding they were in effect, for want of a lawful seal, mere notes and not bonds, inasmuch as not being " designed for circulation as money," the restraining laws did not apply to them ; the section of the safety fund act of 1829 referred to did not reach them; and the act of 1840 had not then gone into effect. 6. That notwithstanding the bank referred to was at the time on the brink of insolvency, if not actually insolvent, yet as its officers honestly expected it would be able to go on with business COURT OF APPEALS DIGEST. 71 BANES AND BANKINQ. and pay all its debts, it was held, that a pledge and transfer of the assets of the bank (consisting of bonds and mortgages received from subscribers in payment for capital stock) to secure the pay- ment of the aforesaid bonds was vafid under the ninth section of the " act to prevent the insolvency of moneyed corporations," for the reason that there was no "intent to prefer any particular creditor." 7. That such transfer of assets of the bank for the security of such bonds was valid, though not authorized by a previous resolu- tion of the directors, notwithstanding the eighth section of said act requires such previous resolution where »' assets of over $1,000 in value are transferred," but saves from its operation " bona Jide purchasers without notice," on the ground that in this case the purchasers of the bonds so secured had no notice in fact of the want of such previous resolution. 8. That though the deeds of transfer of such assets to trustees for the benefit of the purchasers of the bonds contained a provision that after pajdng the bonds by collection or sale of the assets, such trustees should " repay and restore to the bank any surplus or securities remaining on hand after final 'pg.yment of the bondholders," yet such trust was not void under 2 R. S., 135, section 1, declaring void " conveyances, &c., of personal estate made in trust for the use of the grantor," because that statute applies only to passive trusts under conveyances wholly or primarily for the use of the grantor, and not to instalments for other and active purposes where the reservations are incidental and partial only, and at most the reservation only would be void; nor was it void under 2 R. S., 137, as made with intent to hinder, delay or defraud creditors, because : (1) there was no evidence of any such fraudulent intent in fact, but the contrary; and because, (2) the statute applies rather to the case of an insolvent and failing debtor, who, in assigning the mass of his property for the benefit of creditors, reserves something for himself before creditors are satisfied ; and does not apply to a transaction of loan with honest intent, like the one in question, where the reservations are innocent in them- selves, and are only what the law would imply. 72 COURT OF APPEALS DIGEST. BANKS Am> BAJSKllSa. 9. That as to the act of May 14, 1840, which took effect June 3, 1840, prohibiting banks from issuing time bills and notes. The bank in question had, prior to June 3, transmitted to a house in London a large amount of such bonds as a pledge for an existing debt of the bank to that house, and for further large advances desired by the bank, with power to the house to sell the bonds in accordance with the original purpose for which they and the trusts were created, and apply the proceeds in payment of the debt and advances. The house made the advances and after receiving the bonds, or being advised of their shipment to them, gave up other securities equal to the amount of the preexisting debt : Held, that the bonds, be they bonds or notes, having been thus pledged prior to June 3, 1840, were not issued in violation of said statute, and that purchasers of so many of them as were sold by the said London house, whether they purchased before or after that day, took a valid title under the previous pledge and execution by the pledgees of the power to sell. 10. That under the statute, second and third Victoria, chap. 37, enacted in 1839, providing that " from and after the passing thereof, no bill of exchange or promissory note made payable at or within twelve months from the date, or not having more than twelve months to run, nor any contract for the loan or forbearance of money above the sum of ten pounds sterling," should be void by reason of any rate of interest taken or agreed to be taken ; except- ing, however, from the operation of the^ct, loans of money upon the " security of any lands, tenements, or hereditaments, or any interest therein." That under that statute a portion of the afore- said bonds sold at an (otherwise) usurious discount, were exempt from the penalties ., 575. \ 120, 121. Holder presumed to know residence of his immediate indorser, and bound to inform notary thereof. No excuse for not giving notice, that notary could not find indorser, without proof that holder did not know his residence, 16 N. T. JJ«p., 235. n. FORGERY, EFFECT OF, ON LIABILITY. I to 6. Acceptor paying bill to second indorser, cannot recover back such payment, on the ground that payee's indorsement was forged by drawer where payee was not owner of bill and had no interest therein. Such payee being a stranger to the till, his indorsement was not iiecessary to give title to the party discounting the bill, as he in effect pays at drawer's request, and paying without funds has his perfect right of action against drawer, without reference to genuineness of indorsement, which drawer is estopped to deny, it being as to him as a bill payable to bearer. 1 Comst., 113, 23 to 27. Prawee being presumed to know drawer's handwriting, cannot recover back of holder, though drawer's name be in fact forged. But this rule does not apply to a forged alteration of the body of the bill, as to one altered after issue, fraudulently from $105 to gl,005. 3 Comst., 230. 39 to 42. Drawee being presumed to know drawer's signature, cannot generally re. cover back payment to bona fide holder of forged drafts. But in such case if bill be not shown to drawee when he pays, and there is no want of diligence, he may recover hack, the bill turning out to be forged. 4 Comst., 147. III. OTHER MATTERS. II to 12. Second indorser not liable as guarantor or maker though in fact surety for maker. (7 BiU, 416, reaffirmed.) 1 Comst., 321. 19, 20. Drawing at sight against bill sent for collection and payment of draft, trans- fers title to bill and proceeds. 2 Comst., 380. 21. Drawer being never liable to acceptor in the character of drawer, release to him as drawer no discharge to claim for moneys subsequently paid on draft for his accommodation. 2 Comst., 469. 35 to 37. Indorsement of negotiable note is itself negotiable whether note be indorsed before or after dishonor, the dishonored note being still negotiable. 3 Comst., 494. 43 to 45. Agent negotiates principal's checks to bona fide holder, but misapplies pro- ceeds ; principal cannot maintain trover for checks. Good faith presumed in holder of commercial paper. But proof of fraudulent putting into circulation originally, compels holder to prove good faith, &c. 4 Comst., 166. 46. Acceptance by " J. E. L., President, &c., of Manufacturing Co.," binds him indi- vidually, unless shown he was authorized to bind the company. 4 Comtt., 208. 48, 49. Unaccepted bill no lien on funds in hands of drawee. 1 Seld., 525. 54, 55. Form of note ; surplusage. 2 SM., 124. COURT OF APPEALS DIGEST. 79 BILLS OP EXCHANGE AND PEOMISSOKT NOTES. 56, 57. In action on note it is good evidence under money counts of liability of accom- modation indorsers. 2 Seld., 19. 58 to 60. Possession prima facie evidence of title, and not rebutted by proof that party did not obtain it until after due. 2 Seld., 209. 61 to 63. A check is no assignment of or lien on drawer's funds until after it is accepted. 2 Seld., 412. 65 to 67. In action by indorsee against acceptor, the bill is prima facie evidence under money counts, of money had and received. 3 Seld., 281. 73. When party paying, entitled to note paid, &c. 3 Seld., 486. 74 to 77. Time check entitled to days of grace by our law. Usage in other states not admissible as evidence to control the question. 4 Seld., 190. 82 to 84. Third person's check charged to him in account is payment by drawee, though drawer afterwards turn out insolvent. 5 Seld., 463. 85,86. Note signed "D. H., agent for," &c.; binds agent and not principal. 5 pay it. Id. 100. A complaint stating facts which ^how that the maker of the note was entitled to its possession, and alleging that the defendant wrongfully converted and disposed of it to his own use, is sufficient after verdict. Id. 101. A notice of protest to an indorser, dated the day a note is payable, and which states its amount and the names of the maker and indorser, is a sufficient description of the note, in the absence of proof that any other note existed to which the notice might refer. Youngs v. Lee, 2 Kern., 551. 102. A statement in such notice that the note is protested for non-payment, is sufficient notice of a presentment and demand of payment at the time and place of payment. Id. 103. Where the owners of a note due in a few days, which was deposited for collection with the bank where it was pay- able, withdraw it from the bank and surrender it to the maker on receiving from him his note payable in three months, indorsed by the third person : Held, that they were holders of the note last named for value, to the amount of the note surrendered, and that they were entitled to recover this amount against the in- dorser, notwithstanding the delivery of the note to them was a diversion of it by the maker from the purpose for which it had been indorsed, they having received it without notice of such diversion. Id. 104. An indorser of a note does not dispense with the necessity of presentment for payment and notice of non-payment, by taking from the maker security against his liability. Seacard v. Miller and Miller, 3 Kern., 55. 105. The law of the place where a draft is made payable gov- erns as to its being payable with or without days of grace. Bowen V. Newell, 3 Kern., 290. 106. Where a draft drawn and indorsed in New York on a bank m Connecticut, was by its terms payable on a specified day, and COURT OF APPEALS DIGEST. 95 BILLS OF EXCHANGE AND PKOMISSORY NOTES. it was presented and protested for non-payment on that day, and notice thereof given to the indorser : Held, that he was liable, it being proved that days of grace are not allowed on such instru- ments by the law of Connecticut, although it is otherwise by the law of this state. Id. 107. Where the cashier of a banking corporation is authorized to indorse paper on its behalf, and with the intention of binding the corporation, writes his name " A. B. Cash," on the back of the paper, the holder is authorized to write the name of the corpora- tion over the signature of the cashier, with proper words to make the indorsement in form a contract, in the name and on the behalf of the corporation. Per Denio, J. The Bank of Genesee v. The Patchin Bank, 3 Kern., 309. 108. Where the known residence of an indorser is in the village where the note is held and made payable, notice of its dishonor can- not be served through the mail, directed to him at his place of busi- ness in another town. Van Vechten et al. v. Fruyn, 3 Kern., 549. 109. The notice should be served on him personally, or by leav- ing it at his residence or place of business. Id. 110. Accordingly, where the indorser of a note held and payar ble in Catskill resided with his family there, but his place of business was in New York, where he usually spent four days in the week and received a portion of his letters : Held, that a notice of non-payment, deposited in the post office at the former place, addressed to him at the latter, was not good service. Id. 111. See also 3 Kern, Titles, "Banks and Banking;" "Princi- pal and Agent," 2. 112. An order drawn by the president of a railroad corporation upon its treasurer, directing the latter to pay to A. B., or order, a specified sum, stated as being the amount due A. B. for work done by him as contractor, in building a section of the corpora- tion's railroad, is in efi'ect a promissory note, and may be declared on as such. Fairchild v. The Ogdensburgh, Clayton and Rome Railroad Company, 15 N. Y. Rep., 337. 113. It is not a bill of exchange, because it lacks the essential elements of two parties, as drawer and drawee. Presentment and demand of payment are therefore unnecessary. Id. 96 COURT OF APPEALS DIGEST. BILLS OF EXCHANQE AND PROMISSOKT BOTES. 114. The indorsement of a promissory note imports a guaran- ty by the indorser, that the makers were competent to contract in the character in which, by the terms of the paper, they purported to contract. Inuin v. Downs, 15 N. Y. Rep., 575. 115. Presentment to one of two persons who, by the signature to a promissory note, purport to constitute a partnership firm, is suificient to charge the indorser, though such person and her putar tive partner are married women. Id. 116. Knowledge by one who became the holder of such note before maturity, and for a valuable consideration, that the makers were married women, does not deprive him of the right to rely upon the implied guaranty of the indorser, that the makers were competent to contract as partners, nor of the character of a bona fide holder. Id. 117. See also 15 iV. Y. Rep., Titles, " Banks and Banking Asso- ciations ;" " Partnership," 2. 118. The certification by an authorized agent, of a negotiable check drawn upon a banking company, is equivalent to the accept- ance of a bill of exchange, and imposes upon the bank an obliga- tion to pay the amount for which the check is drawn, to the bona fide holder, upon demand, at any time before the statute of limita- tions attaches. Farmers^ and Mechanics^ Bank v. Butchers^ and Drovers' Bank, 16 A^. Y. Rep., 125. 119. A bona fide holder, for value, of a check negotiable upon its face, and certified to be good by the paying teller of the bank on which it is drawn, whose authority to certify is limited to cases where the bank has funds of the drawer sufficient to cover the check, can enforce the payment of the check, although the drawer has not such funds, and the check was certified by the teller with- out tunds, in violation of his duty, for the mere accommodation of the drawer, and upon his promise that it should never be pre- sented for payment. Id. 120. The holder of a promissory note or bill of exchange is presumed, in the absence of proof to the contrary, to know the person and residence of his immediate indorser, and is bound to communicate his information to any agent who may be employed COURT OP APPEALS DIGEST. 97 BILI.S OF EXCHANGE AND PBOMISSOBY NOTES. to charge such indorser with notice of the non-payment of the paper. Lawrence v Miller, 16 N. Y. Rep., 235. 121. A notary public, employed to give notice of the non-pay- ment of a promissory note to an indorser who resided in Williamsr burgh, left a written notice at the place of business in the city of New York, of a person other than the indorser, but bearing the same name, no person being there present. He had no informa- tion in respect to the residence of the indorser, except that a person of the same name had a place of business in the city of New York, and upon going to the place of business of the holder of the note, for the purpose of making further inquiry, was unable to find the holder, or to obtain any further information. The notice not reaching the indorser: Held, that he was discharged. Id. 122. A. bought goods of B., to be paid for in the note of C, whom both parties supposed to be solvent. The goods were deli- vered, and immediately thereafter the note was tendered ; but rumors affecting the credit of C. having in the meantime arisen, B. refused to receive it. A. kept the note in his possession till it was destroyed by fire, treating it as the property of B., and professing to hold it for his benefit, though having made a qualified and con- ditional sale of the note to a fourth party, who had notice of all the facts, subject to revocation if A. should require it for any purpose in the anticipated litigation with B.: Held, that B. could at any time accept the note in payment for the goods, and maintain an action thereon against the maker, after its destruction, without indicating the acceptance by any other act than that of commencing the action. Des Arts v. Leggett, 16 N. Y. Rep., 582 123. An action may be maintained upon a promissory note which has been accidentally destroyed, without the plaintiff giving the indemnity required in an action upon a lost note. Id. 124. A honafide holder, for value, of a negotiable check certi- fied to be good by the paying teller of the bank on which it is drawn, whose authority to certify is limited to cases where the bank has funds of the drawer to meet the check, can recover of the bank the amount of the check, although the drawer had no funds in the bank, and the check was certified by the teller in vio- ls 98 COURT OF APPEALS DIGEST. BONA FIDE PURCHASER — BONDS lation of his duty, and for the accommodation of the drawer. (Opinion ofDenio, J., omitted in 16 N. Y. Rep., 125.) The Farmers and Mechanics^ Bank of Kent County, Maryland, v. The Butchers' and Drovers' Bank, 4 Kern., 623. BONA FIDE PURCHASER. 1. See 15 N. Y. Rep., Titles, " Bills of Exchange and Promis- ory Notes," 5 ; " Corporation," 6, 7, 8 ; " Notice," BONDS. 1. See 1 Comst., Titles, " Office and Officer," 1, 2, 3 ; » Indem- nity." 2. See 2 Comst., Titles, " Mortgage," 2 ; " Parties to Actions." 3. See 3 Comst., Title, " Replevin," 6, 7. 4. See 1 Seld., Title, " Absent and Absconding Debtors," 6. 5. [^Amount of recovery on, in certain cases ; Interest recoverable beyond penalty.] In an action upon a bond conditioned to indem- nify the obligee against moneys which he may be compelled to pay for a third person, the obligee may recover the moneys which he may be compelled so to pay, to the amount of the penalty, together with interest upon the amount as damages for the detien- tion. Lyon v. Clark, 4 Seld., 148. 6. Such a bond, although in form one of indemnity, is a bond for the payment of money only, and the obligors, although describing themselves as the attorney of a third person, are in no respect sureties. Id. 7. Where the sum actually due by the condition of a bond with- out interest equals the penalty, interest can be recovered as damages beyond the penalty. Id. 8. The apparent conflict in the cases, upon the question whether a recovery in debt on a penal bond can be had beyond the pen- alty, arises from confounding actions on bonds for the performance of covenants, with actions on bonds for the recovery of money only COURT OF APPEALS DIGEST. 99 BOUNDAKT IIKE. In the former class of cases the recovery is generally limited to the amount of the penalty, while in the latter it is not. Id. 9. See 4 Seld., Title, " Attachment," 3. 10. See 1 Kern., Title, " Laborers on Public Works," 11. See 4 Kern., Title, " Undertakings on Appeal." BOUNDARY LINE. 1. \A. parol agreement fixing a line cannot affect the true title to the lands hounded by ^^] A., being in possession of nine acres of land adjoining a certain ditch on the north, and also of land on the south side, he and his grantors having had such possession on both sides of the ditch, under claim of title by deed, for more than twenty years, made a parol agreement with B., who claimed title to the nine acres, that the ditch should constitute the division line between them, and B. thereupon entered into and for five years kept possession of the nine acres : Held, that such agreement did not of itself affect the true title to the premises, and that A. having shown title in himself, was entitled to recover possession of such nine acres. Terry v. Chandler, 16 N. Y. Rep., 354. 2. l^Practical location and long acquiescence conclusive as evidence of the real line, and not of a parol agreement establishing the line.] Practical location and long acquiescence in a boundary line are conclusive, not upon the notion that they are evidence of a parol agreement establishing the line, but because they are of them- selves proof that the location is correct, of so controlling a nature as to preclude evidence to the contrary. Baldwin v. Brown, 16 N. Y. Rep., 359. 3. \_Forty years acquiescence held conclusive, though original loca- tion made under mistake of facts.] The acquiescence of adjoining proprietors, for forty years, in the practical location of a boundary line between their lands is conclusive, althoygh it be proved that such location was originally made under an agreement resulting from a mutual mistake as to facts. Id. 4. [Monuments not always controlling over courses and distances.] The rule that fixed monuments are to prevail over courses and 100 COURT OF APPEALS DIGEST. BOOKS — gANALS AND CANAL DAMAGES. distances, ia applying the description of land, applies with less force to those which are artificial than to natural and permanent objects, and fails entirely when, from the designation of quantity or other elements of description, it is apparent that the courses and distances are correct. Per Selden, J. Id. BOOKS. 1. See 2 Seld., Title, "Evidence," 11, 12. BRIDGES. 1. See 2 Kern., Title, " Highways." BURDEN OF PROOF. 1 See 16 N. Y. Rep., Title, " Criminal Law," 4. BURGLARY. 1. See 16 N. Y. Rep., Title, " Criminal Law," 4. CANALS AND CANAL DAMAGES. 1. [Land damages treated as real estate ; Creditor's hill to reach.] Lands in Rochester were appropriated in 1836, by the state, for the enlargement of the Erie canal, and the owner neglected to claim damages within a year, so that according to 1 E. S., 226, section 48, he would be " deemed to have surrendered all his interest in the premises " to the state. But in 1841 a special act of the legislature was passed, directing the damages to be appraised on the application oi the " owner, his heirs or assigns." In 1842 the damages were appraised accordingly, and in 1843, with the consent of the original owner, were paid over to the defendants, who had acquired his title q/ier the expiration of a year from the time of the appropriation. In 1841 a creditor, by filing a bill in COURT OF APPEALS DIGEST. 101 CAHALS AND CANAL DAMAGES. chancery against the original owner; after execution at law had heen returned unsatisfied, acquired a lien upon his personal pro- perty, and on that ground claimed to be entitled to the damages in question: Held, that the damages were rightfully received by the defendants, and that the receiver appointed in the creditor's suit could not sustain a bill filed to recover the money out of their hands. Danforth, receiver, Sfc, v. Suydam, 4 Comst., 66. 2. It seems the special act of 1841 should be regarded as waiv- ing the surrender of the owner's title by lapse of time, and restoring his interest, so far at least as to entitle him to damages on the basis of an imputed ownership of the land. Hence the defendants, who had acquired the owner's interest in the land, were entitled to receive the money instead of a creditor who had acquired a lien upon personal estate. Id. 3. See 3 Seld., Title, " Constitutional Law." 4. See 4 Seld., Title, " Constitutional Law," 4, 5, 6, 7. 5. \_Canal auditor not mere ministerial officer.] The auditor of the canal department is not a mere ministerial ofiicer. (Laws of 1848, 272, §§ 2, 11.) The People, ex rel. Merriam v. Schoonmaker, 3 Kern., 238. 6. {^Not bound to pay canal commissioner's illegal draft."] He is not bound to draw his warrant for the payment of a draft made upon him by a canal commissioner, unless the latter is authorized by law to make the draft. Id. 7. [^Canal commissioner may adjust damage, for temporary supply of water to canals.] A canal commissioner is empowered to adjust the amount of damages caused by the appropriation of water for the temporary supply of the canals. (Laws of 1833, 261, §§ 1, 2; 1 R. S., 227, § 58.) Id. 8. [But not for permanent supply.] But he has no authority to do so, where the appropriation is for the permanent supply of the canals. Id. 9. And where a canal commissioner adjusted the amount of damages caused by the diversion of water for the necessary supply of the canals, and drew and delivered to the claimant a draft on the auditor for the amount, and the latter declined to draw his 102 COURT OF APPEALS DIGEST. CAMOBLLATIOH OP INSTEUMENTS — OASES EEAFFIRMED OR APPROVED. warrant on the treasurer for its payment : Held, that he could not be compelled by mandamus to do so, it appearing that the damages were occasioned by an appropriation of the waters for the permanent supply of the canals. Id. 10. See also 1 Kern., Title, " Constitutional Law," 4, 5, 6, 7. 11. See also 2 Kern., Title, " Albany Basin." CANCELLATION OF INSTRUMENTS. 1. See 2 Comsu, Title, " Jurisdiction of Chancery," 2. CASES REAFFIKMED OR APPROVED, DOUBTED, OVERRULED AND EXPLAINED. I. REAFFIRMED OR APPROVED, AS FOLLOWS: Alexander v. Green, 7 Hill, 544, 4 Seld., 375. Brewster v. Power, 10 Paige, 562, 15 N. Y. Rep., 477. Canal Bank v. Bank of Albany, 1 Hill, 287, 1 ComsU, 113. Deraismes v. Merchants' Mut. Ins. Co., 1 Comst, 371, 4 Comst., 51. Hall V. Newcombe, in error, 7 Hill, 416, 1 Comst., 321. Hall V. Farmer, 5 Denio, 484, 2 Comst., 553. Haxton v. Cone, 2 Barb. Ch. R., 506, 15 N. Y. Rep., 327. Livingston v. Hollenback, 4 Barb., 9, 15 N. Y. Rep., 451. Le Couteulx v. Supervisors, &c., 7 Barb., 249, 15 N. Y. Rep., 451. Miller v. Thompson, 3 Manning and G., 576, 15 N. Y. Rep., 342. North River Bank v. Aymar, 3 Hill, 262, 16 N. Y. Rep., 143. Oakley v. Aspinwall, 4 Comst., 514, 3 Kern., 500. People V. Hulse, 3 Hill, 309, 3 Seld., 378. Pinkney v. Hagadorn, 1 Duer, 89, 4 Kern., 584. Powell V. Tuttle, 3 Comst., 396, 1 Seld., 144. Sherred v. Cisco, 4 Sand., 480, 15 N. Y. Rep,, 601. Slee V. Manhattan Co., 1 Paige, 48, 15 JV: Y. Rep., 231. Talhnage v. Pell, 3 Seld., 328 (conf d on start deeitis), 15 N. Y. Rep., 88. Tracy v. Tallmage, 4 Kern., 162, 15 N. Y. Rep., 88. "Woloott V. Van Santvoord, 17 John., 248, 15 N. Y. Rep., 339. COURT OF APPEALS DIGEST. 103 OASES DOUBTED, OVEKKCLBD. II. DOUBTED, AS FOLLOWS: Brisbane v. Pratt, 4 Denio, 63, Butler et al. v. Miller, 1 Denio, 407, Campbell v. Mesier, 4 John. Ch., 334, Chapman v. Robertson, 6 Paige, 627, Doe V. Richards, 3 Term R., 356, Ex parte Shumway, 4 Denio, 258. Ex parte Bank of Monroe, 7 Hill, 177, Gazeley v. Price, 16 John., 267, Guernsey v. Carver, 8 Wend., 492, Gully V. Bishop of Exeter, 4 Bing., 290, Kinney v. "Watts, 14 Wend., 38, Leonard v. Vredenburgh, 8 John., 28, Lequeer v. Prosser, 1 Hill, 256, Manrow v. Durham, 3 Hill, 584, Oakley v. Boorman, 21 Wend., 588, Parker v. Parmelee, 20 John, 130, Stanton v. Ellis, 16 Barb., 319, Starr v. Peck, 1 Hill, 274 (dictum disapproved), Stevens v. Lockwood, 13 Wend. , 644, Trench v. Chenango Mut. Ins. Co., 7 Hill, 122, Utica Ins. Co. v. Scott, 19 John., 1, Utica Ins. Co. v. Kipp, 8 Cow., 20, Utica Ins. Co. v. Caldwell, 3 Wend., 296, Utica Ins. Co. v. Kipp, 3 Wend., 369, Utica Ins. Co. v. Bloodgood, 4 Wend., 652, 2 Seld., 209. 1 Comst., 496, 15 K Y. Rep., 601. 15 N. Y. Rep., 88. 3 Seld., 168. 2 Cotnst., 490. 2 Comst., 490. 4 Comst, 396. 16 N. Y. Rep., 548. 3' Seld., 168, 3 Kern., 151. 4 Seld., 207. 4 Seld., 207. 4 Seld., 207. 4 Seld., 207. 4 Com^i., 396, 2 Kern., 575. 15 N. Y. Rep., 345. 16 N. Y. Rep., 548. 2 Seld., 53. 15 N. Y. Rep., 97. 15 N. Y. Rep., 97. 15 N. Y. Rep., 97. 15 N. Y. Rep., 97. 15 iV. Y.Rep.,97. As to these last five cases, Court of Appeals doubt correctness of decision, as invoking a sound principle for the wrong party. III. OVERRULED, AS FOLLOWS : Arnold v. Tallmage, 19 Wend., 527, Bowne v. Potter, 17 Wend., 164, Carter v. People, 2 Hill, 317, Chegary v. Jenkins (dictum in), 1 Seld., 376, Clark et al. v. Sawyer, 3 Sand. Ch. R., 351, Colvin V. Corwin, 15 Wend., 557, Danks v. Quackenbush, 1 Comst., 129, Ex parte Reed, 4 Hill, 573, Goodrich v. Downs, 6 Hill, 438 (overruled in part), Herkimer M. & H. Co. v. Small, 21 Wend., 273 ; and C, 2 Hill, 127, 2 Com^t., 388. 1 Comst., 242. 3 Seld., 378. 3 Kern., 220. 2 Comst., 436. 16 N. Y. Rep., 548, 1 Kern., 281. 4 Cornet., 173, 15 N. Y. Rep., 88. i. 2 Comst., 330. 104 COURT OF APPEALS DIGEST. CASES OVEBBITLED, COMMENTED ON AND EXPLAINED. Herrick v. Manley, 1 Caine's Rep., 253, 2 Comst., 517. Johnson v. Beardslee, 15 John., 3, 2 Comst., 523. Patterson v. Choate, 7 "Wend., 441, 2 Comst., 523. People V. Mayor of Brooklyn, 6 Barb., 209, 4 Comst., 419. People V. Rector, 19 Wend., 569, 3 Seld., 378. Sherwood v. Vandenburgh, 2 Hill, 303, 1 Comst., 242. Stevens v. Rowe, 3 Denio, 327, 3 Seld., 550. Wait V. Day, 4 Denio, 439, 15 N. Y. Rep., 477. Wright V. Wright, 1 Cow., 598, 3 Comst., 93. IV. COMMENTED ON AND EXPLAINED, AS FOLLOWS I Abraham*. Plestero, 3 Wend., 538, 1 Seld., 320. Astor V. L'Amoreux, 4 Seld., 107, 16 N. Y. Rep., 543. Barney v. Griffin, 2 Comst., 365, 15 JV. Y. Rep., 176. Barry v. Merchants' Ex. Co., 1 Sand. Ch. R., 280, 15 N. Y. Rep., 176. Bartlett v. Campbell, 1 Wend., 50, 15 N. Y. Rep., 405. Blanchard v. Ely, 21 Wend., 342, 16 JV. Y. Rep., 489. Bggleston v. Knickerbocker, 6 Barb., 458, 4 Seld., 402. Gardner v. Adams, 12 Wend., 297, 2 Com^., 293. Gillet V. Moody, 3 Comst., 479, 15 N. Y. Rep., 88. Gillet V. Phillips, 3 Kern., 114, 15 N. Y. Rep., 88. Grignon v. Astor, 2 How., 319, 2 Comst., 459. Johnson v. Hunt, 23 Wend., 87, 1 Seld., 320. Kellogg V. Schuyler, 2 Denio, 73, 3 Comst., 216. King V. Merchants' Ex. Co., 1 Seld., 547, 15 N. Y. Rep., 176. Lasolla et al. v. Holbrook, 4 Paige, 169, 4 Comst., 195. Leavitt v. Palmer, 3 Comst., 19, 15 N. Y. Rep., 88. Leitch V. HoUister (dictum disapproved), 4 Comst., 214, 15 N. Y. Rep., 88. McPherson v. Cunliff, 11 Serg. & Rawle, 429, 2 Comst., 459. Manly v. The People, 3 Seld., 295, 16 N. Y. Rep., 344. NeUis V. Clark, 20 Wend., 24; and S. C, 4 Hill., 424 (con- firmed), 15 iV. r. Rep., 335. People V. Hendrickson, 6 Seld., 13, 15 N. Y. Rep., 392. Rexo. Wheaton, 2 Moody C. C, 45, 15 JV. Y. Rep., 388. Rolles Ab. Trespass. I pi. 1, 4 Comst., 195. Safford v. Wyckoff, 4 Hill, 442, 15 JV. Y. Rep., 88. Smith & Hoe, v. Acker, 23 Wend., 658, 4 Comst., 580. Smith V. Mumford, 9 Cow., 26, 3 Comst., 193. Stiles V. Stewart, 12 Wend., 473, 3 Comst., 193. Thompson v. Hewitt, 6 Hill, 254, 3 Cornet., 216. Westervelt v. Smith, 2 Duer, 449, 15 JV Y. Rep., 405. White V. Parker, 8 Barb., 48, 4 SeM., 402. COURT OF APPEALS DIGEST. 105 CAEEIEKS — OEETIOEAEI. CARRIERS. (See Common Carriers, seq.) CASE AND EXCEPTIONS. 1. See 3 Kern., Title, " Appeal," 3 to 16. 4 Kern., " Appeals,' 5 to 9, ante. CERTIFICATE OF DEPOSIT. 1. See 3 Const., Title, " Banks and Banking," 4. CERTIORARI. 1. See 1 Comst., Title, " Landlord and Tenant," 4. 2. See 4 Comst., Title, " Court of a Justice of the Peace," 1. 3. [_At common law, Jurisdictional facts only, reviewed.'] Upon a common law certiorari, issued by a superior court for the purpose of reviewing the proceedings of a subordinate tribunal, so much of the testimony should be returned as bears upon the question of the jurisdiction of such tribunal over the subject matter in controversy, and over the persons of the parties. The People v. Goodwin, 1 Seld., 568. 4. The question of jurisdiction will be reviewed upon the evi- dence so returned. Id. 5. The decision of the subordinate tribunal in relation to all other facts is final and conclusive, and will not be reviewed on a common law certiorari. Per Ruggles, Ch. J. Id. 6. See also 1 Seld., Title, " Landlord and Tenant," 3, 4. 7. [To remove proceedings for discharge of insolvents ; Statute writ not limited to review of question of jurisdiction.] Upon a certiorari issued in pursuance of section 47 of 2 R. S., page 49, which pro- vides that " whenever any authority shall be exercised by any officer," pursuant to any of the provisions of that title, " the pro- ceedings may be removed into the Supreme Court by certiorari, 13 106 COURT OF APPEALS DIGEST. CKRTIPICATES CHAMPEKTT. and there examined and corrected ;" the power of the court is not limited to the questions of the jurisdiction of the officer and the regularity of the proceedings, but it may examine and correct any erroneous decision of the officer upon a question of law. Morewood V. Hollister, 2 Seld., 309. 8. IReturn, no presumption beyond facts stated in,] On the return of a writ of certiorari, the court can only look at the facts returned. It will not assume that there was other evidence before the infe- rior tribunal to sustain its acts. The People v. Soper, 3 Seld., 428. 9. See 4 Kern., " Municipal Corporations," 8. CERTIFICATES. 1. [_Clerk''s certificate of copy record, good, though not stating he has compared with original, <^c.] A certified copy of the docket of a judgment procured for the purpose of redeeming from a sheriff's sale of real estate, will be held good, although the certificate does not state that the clerk has compared the copy with the original, and that it is a correct transcript therefrom, and of the whole of such original. Per Jewett, J. Miller v. Lewis, 4 Comst., 553. CHAMPERTY. 1. [iVb such thing as champerty or maintenance in this state, except as defined by the statute against buying, ^c, pretended titles."] A contract by which a party agrees to, and in pursuance of which he does, aid another who claims a preemption right to a lot of land by virtue of the provisions of an act for the disposition of certain vacant lands belonging to the Onondaga salt spring reservation, (Laws of 1848, 466,) in presenting his claim to the commissioners of the land office, and in procuring the title, in consideration that he shall have a portion of the land as compensation, is not void on account of champerty, or as being against public policy. Sedg- wick V. Stanton, 4 Kern., 289. 2. The law as to maintenance and champerty held not to be in force in this state, except as to the single case mentioned in the COURT OP APPEALS DIGEST. 107 Revised Statutes. Id. Also Durgin v. Ireland, 4 Kern, 322. 2 E. S., 691, >§§ 5, 6, 7, referred to, is in substance as follows : First Prohibits any officer or person from taking any conveyance of lands from any person not in possession, while such lands are the subject of controversy by suit, knowing the pendency of such suit and the fact that grantor was not in possession ; Second. Prohi- bits the buying or selling of any pretended title to lands, unless the grantor and those under whom he claims shall have been in posses- sion for the space of a year before the sale ; and. Third, excepts mortgages of such lands by persons not in possession, and convey- ances by such persons to those in possession. CHANCERY. 1. \_BiU of revivor."] Where a party claiming an estate by in- heritance, files a bill for the purpose of setting aside a v?ill, and dies pending the suit, his devisee may file an original bill in the nature of a bill of revivor and supplement, and if his right as de- visee be admitted or established, he will be entitled to the benefit of the proceedings in the original suit. Brady v. McCosker, 1 Comst., 214. 2. See also 1 Comst., Titles, "Appeal;" "Pleadings in Equity ;" "Parties to Actions," 1; "Money Had and Received ;" "Cove- nant," 3 ; " Mortgage," 1, 2, 3, 4 ; " Marshalling Securities," "Husband and Wife," 1, 2, 4, 5, 6, 9, 10, 11. 3. See also 2 Comst., Titles, " Attorney-G-eneral's Sale ;" " In- surance," 7 ; " Jurisdiction," 1 ; " Pleadings in Equity." 4. \When it will not reform deed.] A court of equity will not reform a deed or writing, unless it be alleged and proved that there was a mistake or accident in the preparation of the instru- ment, so that it does not express the true intention of the parties. Leavitt, receiver, v. Palmer, 3 Comst., 19. 5. Where a banking association agreed to secure a party to whom it was under a legal liability, and for that purpose executed its promissory notes for the amount of the liability in a form pro- hibited by law, and at the same time executed a trust deed of a 108 COURT OF APPEALS DIGEST. CHABITABLE DEVISE. portion of its eiFects, which on its face was declared to be collate- ral to the notes, but contained no reference to the original liability : Held,- that in the absence of any allegation or proof of mistake in the deed, a court of equity could not reform it so as to enable it to stand as security for the original liability. Id. 6. See also 3 Comst., Titles, " Set-Off;" ♦' Surrogate," 1, 2, 3. 7. See 4 Const., Title, " Infants." 8. [Ilesponsive answer, when testimony of single witness for com- plainant will outweigh.^ Where the answer of a defendant respon- sive to the bill of complaint, and the testimony of a single witness called by the complainant are in conflict, they balance each other, but a preponderance may be given to the latter, by other circum- stances detailed in the answer, or by its unreasonable or evasive statements. JacTcs v. Nichols, 1 Seld., 178. 9. '[Chanceri/ practice ; Amending hill taken as confessed to show jurisdiction.'] The late court of chancery had power to amend a bill filed before a vice-chancellor, after an order taking the bill as confessed against a defendant who had not appeared, in order to show the jurisdiction of the vice-chancellor, and a decree therein would be regular against the defendant not appearing, Classon v. Cooley, 4 Seld., 426. 10. Accordingly, where a bill was exhibited before the vice- chancellor of the second circuit, for the foreclosure of a mortgage upon lands lying in the first circuit, and one of the defendants whose residence was not stated, resided in the second circuit, it was held, that after taking the bill as confessed against him, an amendment might be made stating his residence and a decree be made thereupon. Id. 11. See also 4 Zero., Titles, " Charitable Uses ;" "Contracts," 3,4; " Equity Jurisdiction ;" "Municipal Corporations," 4, 7 to 11 ; " Principal and Agent." CHARITABLE DEVISE. 1. See 16 N. Y. Rep., Title, " Legacy," 7 to 10. COURT OF APPEALS DIGEST. 109 CHAKITABLB USES — OHAETEE PAETT. CHARITABLE USES. 1. See Will, seq,, case of Owens v. The Missionary Society of Methodist Episcopal Church, an important case on the law of chari- table uses. 4 Kern., 380. CHARTER OF THE CITY OF NEW YORK. 1. See 1 Seld., Title, " Evidence," 3, 4, 5. CHARACTER, EVIDENCE OF. 1. See 3 Seld., Titles, " Seduction," 2 ; " Witness," 1, 2. CHARTER PARTY. 1. [Construction; Extra freight,] The defendants chartered, for a single voyage, at a gross sum, the whole tonnage of the plain- tifi's vessel, " except so much thereof as may be necessary for the accommodation of the officers and crew, and the storage of provi- sions, water, and fuel for the same :" Held, that the defendants were not entitled to the use of the whole vessel, except such parts as were indispensably necessary for the accommodation of the officers and crew, &c., but they were to be accommodated in the mode adapted or fitted to their station ; the character of the ves- sel and the nature of the voyage being taken into consideration. Almgren v. Dutilh, 1 Seld., 28. 2. Where the captain under such a charter, gave up the cabin usually occupied by him and his officers, and induced the sailors to give up the forecastle usually occupied by them, and to occupy other quarters on deck, and removed his water and stores from the store room and forecastle to the deck, and allowed the defendants to fill those places with freight: IZeH, (the jury having found those parts were included in the reservation,) that the captain was entitled to the usual charges for carrying such freight, bevond the gross sum for which the vessel was chartered. Id. 110 COURT OF APPEALS DIGEST. CHATTEL MOKTGAGE. 3. Held also, that proof of the conversation between the captain and the defendants, when in negotiation for the charter of the vessel, in relation to the parts of the vessel which would be re- quired for the use of the captain and crew and their stores, was properly admitted. That such proof did not tend to contradict or vary the written contract, but only to point out the subject to which it applied. Id. 4. That what was necessary for the captain and crew, under the reservation in the charter, was a question of fact, and as such was properly submitted to the jury. Id. 5. [ What is description, and what warranty, in ; Damages for not furnishing freight^ Where a charter party for a schooner, describes her as " of the burden of one hundred and ninety tons, or thereabouts," the statement is a description and not a warranty, and if it were not fraudulently inserted and did not entrap the charterer into the bargain, it will not vitiate the contract, although the vessel be of a burden of only one hundred and forty-two tons, Ashburner v. Balchen, 3 Seld., 262. 6. The fact that shipments could not be so readily obtained, or insurance upon cargo effected upon vessels of one hundred and forty-two tons, as upon one of the size stated in the charter party, is no defence in an action against the charterer. Id. 7. The measure of damages against a charterer who refuses to furnish a cargo according to his contract, is the stipulated price, deducting the net earnings of the vessel during the time she would have been occupied in the charter, including the lay days. Id. CHATTEL MORTGAGE. I. FILING AND REFILING. 9. Instrument designed by parties to be bill of sale to secure indorser, decided to be mere mortgage, and void as to subsequent purchaser for not being filed. 4 Comst, 303. 10. As against creditors, &c., must by statute be filed, and hence to be valid must be in writing, though good between the parties without writing. 4 Comst., 497. 12. Whether mortgage written in a "Day Book," and deposited in town clerk's desk, is well filed, quere. 4 Cormt, 580. COURT OP APPEALS DIGEST. HI CHATTEL MOETOAaE. 18. Valid as to subsequent mortgagee with notice, though not refiled. 3 Xern., 556_ 22, Valid though not reflled, as against subsequent mortgage executed and filed within first year, and refiled from year to year. 4 Kern., 71. II. OTHER MATTERS. 1, 2. Mortgagor absconding, mortgagee takes possession under clause giving him right to do so on demand ; in such case, though debt not due, property cannot be taken under execution against mortgagor. Mortgagor's interest is a mere right of redemption, when he has no right of possession for a definite period reserved to him in the mortgage. 1 Comst., 295. 8. Transfers entire legal title to mortgagee, subject to defeasance. 1 Comat., 496. 5, 6. Action of debt will not lie on a mortgage, unless it contain an express covenant to pay, &o. 3 Comst., 264. 7, 8. Second mortgagee must afSnnatively prove his own good faith, to enable him to attack prior mortgage for fraud. Case of insufficient proof on that point. 3 Comst., 310. 10, 11. Must be in writing as against creditors. General property vests in mortgagee, subject to defeasance. 4 Comst., 497. 14. Where mortgagor of present and future retail stock, is by terms of mortgage to remain in possession and sell, though not on credit, mortgage is void on its face. 5 Seld., 213. 16, 17. Goods of mortgagor having right of possession for definite period, are liable to seizure and sale on execution against mortgagor, and sheriff' is not liable for seizing, selling and delivering to purchaser, though he do so without noticing the mortgage interest. 1 Kern., 501. 19. Becomes fraudulent where mortgagor allowed to sell at retail, for his own benefit. 3. Kern., 677. 21. When mortgagee entitled to demand possession before default. 4 Kern., 22. For general references to other titles involving same subject, see numbers 4, 9, 12 13, 15, 18, 20. 1. Where in a mortgage of personal property, it was provided that the mortgagor should permit the mortgagee to " have, possess, occupy and enjoy" the mortgaged property, whenever he should demand the same, and after the mortgagor had absconded, the mortgagee took possession of the property by virtue of the mort- gage : Held, that the interest of the mortgagor was not the subject of levy upon execution, although the debt secured by the mortgage had not, at the time of the levy, become due. Mattison v. Baucus, 1 Comst., 295. 2. It seems that the interest of a mortgagor of personal property, even before forfeiture, where he has not the right of possession ] 12 COURT OF APPEALS DiaSST, CHATTEL MOKTGAGE. for a definite period, is but a right of redemption merely, which is not the subject of levy and sale upon execution. Id. 3. It seems, that a personal mortgage transfers to the mortgagee the whole legal title to the thing mortgaged, subject only to be defeated by the performance of the condition. Butler v. Miller, 1 ComsU, 496. 4. See also 1 Comsu, Titles, " Extinguishment ;" " Fraud," 8 ; " Property." 5. An action of debt will not lie upon a chattel mortgage to recover the sum of money secured thereby, unless the instrument contains an express agreement to pay the sum, or a distinct acknowledgment of an existing debt. Culver v. Sisson, 3 ComsU, 264. 6. In a chattel mortgage executed by the defendant to the plaintifi" under seal, there was no express covenant to pay the money, nor any acknowledgment except that the instrument was declared to be executed for the purpose of securing the payment of a certain sum. There was a proviso that the instrument should cease and be void on the payment of the sum ; and in case of de- fault, the plaintiff was authorized to sell the goods and apply the proceeds in payment, rendering the overplus to the defendant : Held, that debt would not lie upon the instrument. Id. 7. To show good faith in a subsequent mortgage of personal property, so as to enable the holder thereof to avoid a prior mort- gage on the ground of fraud, it must be proved by evidence dehors, the instrument itself, that the second mortgage was given for a valuable consideration, or to secure the payment of an honest debt. BasTcins v. Shannon, 3 Comst., 310. 8. And evidence showing that about a year before the subse- quent mortgage was given, the mortgagor became indebted to the mortgagee, but not connecting the two transactions, is not suffi- cient. Id. 9. A., a manufacturer, purchased wool to be paid for by his note indorsed by B. The note was made accordingly and indorsed by B. for A.'s accommodation. At the same time A. executed to B. a writing reciting that B. had indorsed the note to be used in COURT OF APPEALS DIGEST. 113 CHATTEL UOBTGAQE. purchasing the wool and declaring that the wool and the cloth to be manufactured therefrom should belong to B. until the note was paid : Held, that the writing was a mere mortgage, and not having been filed as such in the proper town clerk's office, that it was void as against a subsequent purchaser in good faith from A. Thompson v. Blanchurd, 4 Const., 303. 10. A mortgage of goods may be valid between the parties without writing. A personal mortgage must be filed, and conse- quently m writing only, where the rights of creditors and pur- chasers in good faith are concerned. Per Paige, J. Bank of Rochester v. Jones, 4 Comst., 497. 11. In cases of mortgage of goods, the general property vests in the mortgagee, subject to a defeasance by performance of the condition. Id. 12. Whether a mortgage upon a stock of goods written in a book lettered " Day Book," containing an inventory of the goods and store accounts, and deposited in a desk in the clerk's office where personal mortgages are kept in pigeon holes, is properly filed, quere. Griswold v. Sheldon, 4 Comst., 680. 13. See also 4 Comst., Titles, "Fraud," 4 to 7, 11 to 16 ; " Sale," 9. 14. Where the purchaser of a stock of goods in a retail store executed to the vendor a mortgage upon the entire stock, by schedule, the mortgage including also in its terms all articles of a like nature which might be in the store at the time of default in the condition, the mortgagor to continue in possession, but being forbidden by a clause in the mortgage from selling on credit, it was held, that the mortgage was in its terms fraudulent as against creditors, and that there was no question to be submitted to a jury with regard to it. Engell v. Hart, 5 Seld., 213. 15. See 5 Seld., Title, "Husband and Wife," 4. 16. Chattels which are mortgaged may be seized and the interest of the mortgagor therein sold on an execution against the mortgagor, where they are in his possession, and he, at the time of the seizure and sale, is by the terms of the mortgage entitled to their possession for a definite period. Hull v. Carnley, 1 Kern., 501. 8 114 COURT OF APPEALS DIGEST. CHATTEL MORTGAGE. 17. The officer making 'the seizure and sale is not liable to the mortgagee, although he sell the property generally without in any way recognizing th'e lien of the mortgage, and deliver possession of it to the purchaser. Id. 18. The omission to refile a copy of a chattel mortgage as pre- Bcribed by the Statute (Laws of 1S33, page 402, section 3), does not affect its validity as against a subsequent mortgagee with notice. Hill v. Beebe, 3 Kern., 556. 19. Where the mortgagor of a stock of goods is allowed by the mortgagee to retain and sell them at retail, at his discretion and for his own benefit, the mortgage becomes fraudulent as against creditors.' Ford v. Williams, 3 Kern., 577. 20. See 3 Kern., Title, " Evidence," 9. 21. Where there was a provision in a chattel mortgage, that the mortgagor should remain in possession until default in pay- ment, unless he or some other person should attempt to sell, assign, remove or otherwise dispose of the property : Held, that the seizure of the property before default on a distress warrant for rent due from the mortgagor entitled the mortgagee to the imme- diate possession, and that after demand and refusal replevin would lie against the bailiff for the wrongful detention. Conkey et al. v. Hart, 4 Kern., 22. 22. The omission to refile a chattel mortgage pursuant to the third section of the act of 1833, page 402, does not render it inva- lid as against purchasers or mortgagees intermediate the original filing and the omission to refile. The term "subsequent," in the third section of the act, means after the time of refiling has elapsed : accordingly, Held, that a mortgage executed and filed in Novejn- ber, 1846, but never refiled, was valid as against a mortgage executed and filed in January, 1847, and refiled annually-^till 1850, the chattels in the meantime remaining in the mortgagor's posses- sion. Meech et al. v. Patchin, 4 Kern., 71. COURT OF APPEALS DIGEST. 115 CHECK. 1. See 3 Comst., Title, " Bill of Exchange," 3. 2. See 2 Seld., Titles, " Banks and Banking," 2 ; " Bills of Ex- change and Promissory Notes," 12, 13, 14. 3. [^Presumed drawn against fundsJ] A check drawn upon and paid by a bank is not evidence of indebtedness of the drawer to the bank. The legal presumption is that it was drawn against funds of the drawer. White v. Ambler, 4 Seld., 170. 4. {Distinction between hill and checTc.'] The distinction between a bill and a check is that the former is not payable on demand, while the latter is. It does not depend on the question whether drawn upon a bank or a banker. Boweny. Newell, 4 Seld., 190. 5. [Days of grace.] Whether days of grace are to be allowed or not depends upon the question whether the instrument is pay- able on demand, or at a future day. Id. 6. [Usage of banks cannot be proved to do away with rule of law.] The usage of banks in Connecticut to regard drafts drawn upon them payable at a day certain, as checks, and not entitled to days of grace, is inadmissible as evidence to control the rules of law in relation to such paper. Id. 7. See 5 Seld. and 4 Kern., Title, " Bills of Exchange and Promissory Notes," 4, 5, 6. 8. [Payment of deposit on forged indorsement of depositor'' s check, no defence to bank in depositor's suit for deposit.] In a suit against a bank for money deposited with it by the plaintiff, the defendant produced a check upon the bank, which it had paid, for the amount of the money, signed by the plaintiff and payable to the order of Corlies & Co., and with the name of this firm written upon it. It was proved that this was not the indorsement of the firm, and that it never owned or had any interest in the check : Held, that the plaintiff was entitled to recover. Morgan v. The Bank of the State of New York, 1 Kern., 404. 9. See 3 Kern., Title, " Bills of Exchange and Promissory Notes," 2, 3. 116 COIJRT OF APPEALS DIGEST. CHOSE ni ACTioir. CHOSE IN ACTION. 1. See 2 Comst., Title, "Estoppel," 2, 3. 2. See 3 Comst., Title, " Usury," 4. 3. [Assignment of expectancy good in equity as an agreement, and taJces effect as soon as demand comes into existence.] An assignment for a valuable consideration, of demands having at the time no actual existence, but which vest in expectancy merely, is vajid in equity, as an agreement, and takes effect as an assignment, vrhen the demands intended to be assigned are subsequently brought into existence. Field v. The Mayor, Sfc, of New York, 2 Seld., 179. 4. [Assignee of part of a demand may maintain smt in equity for such part.] Where a person having a demand due him, assigns part of it to different persons, to secure the payment to them of specific sums in succession, a court of equity has jurisdiction of a suit by one of the assignees, to collect his part of the demand. Id. 5. [Faym^nt to original creditor after notice of assignment, no defence to assignee's suiti] Payment by a debtor of his debt, to the original creditor, after notice that the debt has been assigned, constitutes no defence to a suit brought by the assignee. Id. 6. See 2 Kern., Title, " Tort." 7. [A right of action in tort, when not assignable^ A right of action for damages caused by a false and fraudulent representation of the solvency of the vendee of merchandise, is not assignable. Zabriskie v. Smith, 3 Kern., 322. 8. Such a right of action would not survive to the personal representatives of the party defrauded. Id. 9. It seems that a cause of action which would survive to per- sonal representatives can be transferred and enforced in the name of an assignee. Id. 10. [Right of action for mental and bodily sufferings, does not survive.] An action founded on an express or implied promise to a person, does not survive to his personal representatives when the damages consist entirely in the mental or bodily suffering of the deceased. Id. COURT OP APPEALS DIGEST. 117 CITIES AHD VILLAGES — CODE OP PROCEDUEE. 11. See 3 Kern., Titles, " Insurance ; " " Principal and Agent," 1, 2. iKern., "Parties;" "Plank Road Companies," 8, 9. CITIES AND VILLAGES. 1. See 1 Comst., Title, " Sale for Taxes and Assessments." 2. See 2 Comst., Title, " Corporations," 1, 2. 3. See 4 Comst., Title, " Municipal Corporations." CITY OF BUFFALO. 1. [^No bar to claim in tort, under Laws of 1853, 472, that it hat not been presented to common council, for audit Sfc.^ The provisions of the amended charter of Buffalo (Laws of 1853, 472), making it a bar to any action for the collection of any claim or demand against the city, that it has never been presented to the council for audit or allowance ; or, if on contract, that it was presented without affidavit verifying the claim : Held, not to extend to a demand arising out of tort. Howell and Christopher v. The City of Buffalo, 15 N. Y. Rep., 512. CLERK IN CHANCERY. 1. See 1 Comst., Title, " Mortgage," 1, 2, 3, 4. CLOUD UPON TITLE. 1. See 16 N. Y. Rep., Title, "Title to Real Estate." 4 Kern., Titles, " Equity Jurisdiction," 1 to 3 ; " Mortgagee in Possession ;" "Municipal Corporations," 8 to 11. CODE OF PROCEDURE. ,1. See 2 Comst., Title, "Appeal." 2. [Action under Code is not "equity case," within section 47 of Code of 1849.] An action commenced under the Code of Procedure is not an " equity case," although the subject of the suit and the 118 COURT OF APPEALS DIGEST. CODE OP PKOCEOUBB. relief demanded were matters of exclusive equity cognizance, under the former system of pleading and practice. Giles v. Lyon, 4 Comst., 599. 3. Held, therefore, that the 47th section of the amended Code of 1849, authorizing the Supreme Court to transfer " equity cases" to the Superior Court of the city of New York, applied only to suits in equity commenced under the previous system, and did not autho- rize the transfer of an action under the Code, although such action was strictly equitable according to former distinctions.' Id. 4. See also 4 Comst., Title, "Pleading," 1, 2. 5. [Action for breach of covenant against incumhrances ; Good de- fence under Code, that incumbrance was Irft out of exception to covenant, by mistalce.] In an action to recover damages for the breach of a covenant against incumbrances, the defendant under the Code of Procedure, may show by way of defence, that the incumbrance referred to as constituting the breach of the covenant, was by mistake omitted to be excepted from its operation. Haire v. Baker, 1 Seld., 357. 6. [As answer did not allow affirmative relief, defendant allowed stay to bring cross action to reform covenant.'^ As the defendant in such action could not have affirmative relief upon his answer, a cross action to obtain a reformation of the covenant, and in the meantime to stay proceedings in the action for damages, was held proper. Id. 7. [Demurrer in words of statute, "that com/plaint does not state facts," Sfc, held sufficient inform.'^ A demurrer stating in the words of the statute, " that the complaint does not state facts sufficient to constitute a cause of action," is sufficiently definite to raise the question, whether the complaint shows a cause of action. Per Gray, J. Id. 8. See 1 Seld., Title, " Landlord and Tenant," 1, 2. 9. See 2 Seld., Titles, "Amendments;" "Appeal;" "Impri- sonment;" "Judgments," 1, 2; "Parties," 3, 4, 5. 10. See 5 Seld., Titles, "Assignment," 8; "Costs;" "Evi- dence," 2, 3, 4, 5 ; " Execution," 1, 2; " Injunction," 4 ; " Judg- ment," 1, 3, 4, 5 ; " Statute of Limitations," 8. COURT OF APPEALS DIGEST. 119 COHABITATION — COMMOK CABBIEK. 11. See 2 Kern., Titles, "Equitable Relief;" "Judgment by Confession;" "Limitation, Statute of;" "Parties," 2, 3;" ".Plead- ings," 1, 2, 4 to 11 ; " Practice ;" " Slander;" " Tort;" " Witness." 12. See 3 Zerre., Titles, " Amendment ;" "Appeal;" "Corpo- ration ;" " Counter Claim;" "Debtor and Creditor ;" " Injunction Order;" "Pleading;" " Specific Performance ;" "Witness," 3 to 7. 4 Kern., " Appeals ;" " Information ;" " Principal and Agent." 13. See 15 N. Y. Rep., Titles, " Appeals," 5, 6 ; " Evidence," 6 ; " Landlord and Tenant," 8 ; " Pleading." COHABITATION. 1. See 15 N. Y. Rep., Title, "Husband and Wife," 1,2. COLLECTOR. 1. [What he may seize for tax.] A town collector may seize not only the goods and chattels of the person taxed, but any goods and chattels in his possession. Sheldon v. Van BusUrk, 2 Comst., 473. 2. [When he may sell.'] Where a collector levies on goods be- fore the return day specified in his v^arrant, he may, under the statute (2 R. S., 398, sec. 6), sell at any time within a week after such return day. Id. COLLISION. 1. See 1 Kern., Title, " Insurance," 2. 2. See 2 Kern., Title, " Negligence." COMMON CARRIER. 1. Action for loss of baggage sustainable against any one of several railroad oompaniM who, by one agent, sell tickets over route embracing all, and receive baggage for such route, running trains in connection. 4 Seld., 37. 2 to 5. Carrier's bare receipt for goods stating consignee's address not a contract so ai to exclude parol evidence. Evidence as to time navigation orMnariU/ closes not 120 COURT OF APPEALS DIGEST. COMMON CABBIEB. admissible, bnt evidence should be confined to year in question. Admissions of carrier's agents as to cause of delay are evidence for plaintiff as part of resgeetce. 4 Seld.,-4S7. 6. Carriers who charter their boat to another line, but navigate it themselves, are liable to passenger for loss of goods. 4 SeU., 430. 8, 9. Liable, if no special contract, for all damages notarising from act of God or pub- lic enemy, and cannot limit such liability by mere notice, but may by special agreement. 1 Kern., 485. 10. Not liable for delay without their fault unless so agreed. 2 Kern., 245. 11, 12. Owner agrees with forwarder, and forwarder with carrier, to transport pro- perty : owner may sue carrier for failure to transport, and judgment on the merits will bar subsequent action by forwarder, even if the latter could sue at all. 2 Kern., 343. 13. Mere omission to deliver in reasonable time is not a conversion, but only sub- jects carrier to action for damages for delay. 2 Kern., 509. 15 to 18. Liability as carrier commences with receipt of property by one who is both carrier and warehouseman. Oral agreement as carrier to transport goods which are delivered in pursuance of it cannot be done away by giving receipt as forwarders. 3 Kern., 569. 20. Directing package to care of carrier's agent at a station on the route short of ulti- mate, lateral destination, does not make such agent the agent of the consignees, and carrier's responsibility does not end with a delivery to such agent. 16 JV. Y. Sep., 515. 22 to 24. Liability of a common carrier of animals Is different from that of carrier of inanimate property in this : that he is not liable for an injury arising from the con- duct and propensities of the animal, where he has used foresight, vigilance and care to prevent it. Defendants held liable for value of a horse strangled by his halter in a car, jury having found them guilty of negligence in not having a servant to watch at intervals. 4 Kern., 570. See also Nos. 7, 14, 19, 21. 1. Where three separate raih'oad companies owning distinct portions of a continuous railroad between two termini, run their cars over the whole road, employing the same agents to sell pas- sage tickets, and receive luggage to be carried over the entire road, an action may be maintained against one of them, for the loss of luggage received at one terminus to be carried over the whole road. Hart v. Rensselaer and Saratoga Railroad Company, i Seld., 37. 2. Where the plaintiff sends to the office of a common carrier goods to be transported to another place, and a contract is there made for their transportation and a receipt given, simply specify- ing the receipt of the goods, marked with the consignee's address, COURT OF APPEALS DIGEST. 121 COMMON CAKRIEE. the receipt and parol contract may be given in evidence in an ac- tion against the carrier. McCotter v. Hooker, 4 Seid., 497. 3. Such receipt is not a contract embodying the previous oral engagement. Id. 4. In an action for neglect to transport goods from Nev? York to Chicago in the fall of 1847, evidence to show the time when the navigation from Buffalo to Chicago ordinarily closed, is inad- missible. The evidence on that point should be confined to the year 1847. Id. 5. Where the plaintiff entrusted a box to the defendant to be carried from New York to Chicago in the fall of 1847, and it was not delivered there until in the spring of 1848, and then in a damaged condition, and returned to the defendant's office at New York : Held, that it was competent for plaintiff to show the admis- sion of the defendant's agents at New York in relation to the de- tention of the goods. They were a part of the res gtsf.ce. Id. 6. The owners of a line of canal boats engaged in the business of common carriers of passengers and goods, who charter a boat to another transportation company, for a single trip, retaining the charge of it and navigating it with their own master and crew, are liable to a passenger for the loss of his goods upon the pas- sage. Camjibell v. Perkins, 4 Seld., 430. 7. See 4 Seld., Titles, "Agreement," 12, 13, 18, 19; "Bank- rupt," 2. 8. Where there is no special contract as to the liability of a common carrier of property, he is responsible for all loss or dam- age, except that which is caused by the act of God or the public enemy. Dorr v. The New Jersey Steam Navigation Company, 1 Kern., 485. 9. A common carrier cannot limit this liability by notice, even though it be brought to the knowledge of the owner, but he may limit it by express agreement with the owner. Id. 10. Common carriers, where there is no express agreement to transport property within a limited time, are not responsible for delays occurring without their fault. Wiberl v. The New York and Erie Railroad Company, 2 Kern., 245. 122 COURT OP APPEALS DIGEST. COMMOir CAKtllER. 11. Where the owners of property contracted with a forwarder to transport and deliver it to them at a specified price, to be paid by their notes on time, and he contracted with carriers to trans- port and deliver it to the owners for certain freight to be paid the carriers by him : Held, that the owners could maintain trover against the carriers for converting the property, or case for their omission to transport and deliver it ; and held further, tha,t a judg- ment against the owners on the merits in such an action, was a bar to a similar action subsequently brought by the forwarders against the carriers. Green v. Clarice, 2 Kern., 343. 12. The forwarder had no such interest in the property as would enable him to maintain the action against the carriers. Per Marvin, J. Id. 13. The mere omission of a common carrier to transport and deliver property to the consignee within a reasonable time, does not necessarily render him liable for its value. He is liable for dama- ges caused by such omission, but the owner cannot, on the sole ground of unreasonable delay in the conveyance and delivery of the property, refuse to receive it and recover against the carrier for its conversion. Scovill v. Griffith, 2 Kern., 509. 14. See 2 Kern., Title, " Railroad Companies," 4. 15. The liability of a common carrier attaches when the pro- perty is deposited with him for transportation. Blossom et al. v. Griffin et al., 3 Kern., 669. 16. Where a party who is both a carrier and a warehouseman, receives goods into his warehouse to be transported by him, his responsibility as a carrier commences when they are received. Id. 17. Where parties, who were doing business as forwarders and also as carriers, agreed orally to transport merchandise to be deli- vered to them from time to time, and subsequently, on receiving a portion thereof to be transported pursuant to the contract, they executed an instrument stating that the same were received to he forwarded : Held, that they were responsible as carriers and not as forwarders. Id. 18. In construing a written instrument, the court may look to antecedent and surrounding facts and circumstances to ascertain its meaning. Id. COURT OF APPEALS DIGEST. 123 COMMISSION TO EXAMINE WITNESSES. 19. See 3 Kern , Title, " Railroad Companies," 1 to 4. 20. Where a package delivered to common carriers for transpor- tation along their route, on its way to a consignee upon a lateral route branching off from that of the carriers, is addressed to the care of the agent and representative of the carriers at the place ■where the carriage by them is to terminate, such address is to be regarded as a direction to have the package stopped at the place where such agent is in charge of the carrier's business, and does not import that upon receiving it, he ceases to be the agent of the carriers in respect to its custody, and becomes that of the con- signee. Russell V. Livingston, 16 N. Y. Rep., 515. 21. See also the following Titles: "2 Comst., " Bailment," 4, 5, 6, 7, 8. 3 Comst., "Bailment." 4 Comst., "Factor," 1, 2. 5 Seld., " Bills of Lading," 1, 2; "Damages," 1 ; " Lien," 1, 2, 3. 15 N. Y. Rep., " Negligence ;" " Railroads." 22. The liability of a common carrier of animals is not, in all respects, the same as that of a carrier of inanimate property. But the liability of a railroad company engaged as a common carrier of animals, is not limited to the careful and safe conveyance of the car containing them. Clarke v. The Rochester and Syracuse Rail- road Company, 4 Kern., 570. 23. In the absence of a special agreement, the company is responsible for any injury which can be prevented by foresight, vigilance and care, although arising from the conduct of the ani- mals. Id. 24. But the carrier is not an insurer against injuries arising from the nature and propensities of the animals, and which diligent care cannot prevent. As to damage arising from other causes, the lia- bility is the same as that of a carrier of other property. Id. COMMISSION TO EXAMINE WITNESSES. 1. See IKern., Title, « Deposition," 9, 10. 124 COURT OF APPEALS DIGEST. COMMISBIONEKS OF HIGHWATS — COMPTKOLLBR. COMMISSIONERS OF HIGHWAYS. {See Highways.) 1. See 1 Kern., Title, « Plank Road Companies," 9, 12, 16. 2. See 3 Kern., Title, " Plank Road Companies." COMMISSION MERCHANTS. 1. See 5 SeU., Title, " Factors." COMMISSIONERS OF THE LAND OFFICE. 1. See 2 Kern., Title, " Salt Springs." COMMON COUNTS. 1. See 4 Comst., Title, " Contract," 10, 11, 12. COMPARISON OF SIGNATURES. See 4 Kern., Title, " Evidence," 8, 9. COMPROMISE. See4irerffl., Title, "Payment." COMPTROLLER, 1. See 2 Comst., Title, " Sale for Taxes and Assessments," 1, 2. 2. See 1 SeU., Title, " Tax Sale." 3. See 5 Seld., Title, " Foreclosure," 2. 4. See 2 Kern., Titles, " Constitutional Law," 6 ; " Taxes, Land sold for." COURT OF APPEALS DIGEST. 125 CONDITIONS, PRECEDENT AND SUBSEQUENT. CONDITIONS, PEECEDENT AND SUBSEQUENT. 2. Full performance being prevented by act of law, party may recover for part done. 4 Comat., 411. 5, 5 a to 7. Lease of state lands for salt works. Failure to erect works, no title vests. No precise words necessary to constitute condition. If erection of works be regarded as condition subsequent, tben absolute forfeiture without entry is tbe consequence of its breach. ; and after breach in such case grantees cannot maintain ejectment against party entering under patent, though patent be illegally issued. 2 Seld., 74. 8 to 10. Waiver of performance of condition, evidence of. Party whose acts prevent performance by the other cannot avail himself of the non-performance. 2 SeM. , 203. 12. Condition to entitle party to a reward offered. 4 Seld., 228. 16 to 20. Whether precedent or subsequent is question of intent as expressed in in- strument. Grant to railroad company ; condition to build in limited time is condi- tion subsequent, and breach no forfeiture without entry ; and right of entry for breach in such case does not pass by deed or assignment to third person : condi- tions subsequent being regarded as for sole benefit of grantor or his heirs. 2 Kern., 121. See also Nos. 1, 3, 4, 11, 13, 14, 15, 21. 1. See 2 Comst., Title, " Vendor and Vendee," 7, 8. 2. Where, by the terms of a contract for work and labor, the full price is not to be paid until the work is completed, if a com- plete performance becomes impossible by act of the law, the con- tractor may recover for the work actually done, at the full prices agreed on. Jones v. Judd, 4 Comst., 44. 3. See 4 Comst., Titles, " Contract," 15 ; " Landlord and Ten- ant," 6. 4. See 1 Seld., Titles, " Covenant," 1 to 4; " Sale and Delivery of Goods," 16 ; " Will," 5. 5. Where lands are set apart by a resolution of the commis- sioners of the land office, on application in pursuance of sections 91 to 94, of the 4th article, of title 10, chapter 9, part 1, of the Revised Statutes, for the purpose of erecting works thereon for the manufacture of coarse salt, the interest in such lands of the persons to whom, they are set apart, is subject to the condition precedent of their erecting works thereon for the purpose of such manufacture within four years from the time when they are so set apart, and so far as the lands are not covered with such erec- 126 COURT OP APPEALS DIGEST. CONDITIONS, PEECEDENT AND SnBSEQDENT. tions such interest ceases at the expiration of that time. Parmelee V. The Oswego and Syracuse Railroad Company, 2 Seld., 74. 5 a. No precise technical words are required to make a stipulation in a deed or contract, precedent or subsequent. The precedency of conditions depends upon the order of time in which the intent of the transaction requires their performance. Id. 6. If the condition upon which such lands are held during the four years be regarded as a condition subsequent, all interest therein of the holders ceases absolutely on a breach of the condi- tion, without entry by the state. In this respect such interest is like an estate for years, which ipso facto ceases, without entry upon the breach of a condition annexed to the estate, where there is nothing in the lease to qualify the effect of such breach. Id. 7. The persons in whose behalf such lands were set apart, or their assigns, after breach of the condition, have no interest what- ever in the lands not occupied by their erections for the manufac- ture of salt, and cannot maintain ejectment against persons entering thereon under letters patent issued by the state, whether issued in accordance with law or not. The validity of such letters patent cannot be questioned by persons wrongfully in possession of the land. Id. 8. Where on the sale of an interest in letters patent, the privi- lege was given to the purchaser, after the trial of the subject of the patent for a specified time, if it proved useless, to reassign the interest purchased, and receive back the consideration paid for it ; and after the expiration of the time so fixed, a reassignment was accepted by the sellers : Held, that such acceptance was a waiver of the condition requiring a trial of the patent, and enti- tled the purchase to a return of the consideration. Young v. Hun- ter, 2 Seld., 203. 9. The reassignment containing the recital of an excuse for non- performance of the condition, its acceptance by the sellers was an admission of the suificiency of such excuse. Id. 10. The sellers having promised, immediatelyafter the sale, to furnish to the purchaser, within a few weeks, the means of test- ing the usefulness of the patent ; and having, after request by COURT OF APPEALS DIGEST. 127 CONDITIONS, PKECEDENT AND SUBSEQUENT. the purchaser, failed to do so within the time limited for the trial : Held, that although the promise was without consideration, yet as the purchaser relied upon it, as he had a right to do, and w^s thus prevented from performing the conditions of his contract, the sellers could not set up such non-performance in defence to a suit against them for the consideration. A party whose acts prevent the performance of a condition precedent, cannot avail himself of such non-performance as a defence to an action against him. Id. 11. See 3 Seld., Title, "Indian," 1. 12. When moneys had been obtained from several banks by for- geries, and they offered a reward of $5,000 for the apprehension of the forger and the recovery of the moneys, or a proportionate amount for any part thereof; both the apprehension of the forger and the recovery of the moneys, are conditions precedent to the payment of the reward. Jones v. The Phaenix Bank, 4 Seld., 228. 13. See also 4 Seld., Titles, " Agreement," 12, 13, 19 ; " Bond," 1 to 4; "Insurance," 1, 2. 14. See 5 Seld., Title, " Landlord and Tenant," 4, 5, 6. 15. See 1 Kern., Titles, "Contract," 1 to 4 ; "Deed," 2, 3, S, 9, 10 ; " Plank Koad Companies," 13, 14. 16. Whether a condition is precedent or subsequent, depends upon the intention of the parties as expressed in the deed. Nicoll V. The New York and Erie Railroad Company, 2 Kern., .121. 17. Where by a conveyance to a railroad corporation, land w^as granted upon the condition that it should construct its road there- on within a limited time : Held, that the condition was subsequent, and that the title to the land vested in the Corporation on the execution of the deed ; that a mere failure to perform such condi- tion did not divest the title, and that there must be an entry, or what is made equivalent thereto by the statute, by the grantor or his heirs, for a breach of the condition, to forfeit the estate. Id. 18. This right of entry is not a reversion or an estate in- land, and it will not pass by assignment, or by a conveyance of the premises held subject to the condition. Id. 19. Accordingly, where the grantor of premises on condition subsequent, afterwards conveyed the same to a third person, and 128 COURT OP APPEALS DIGEST. CONFESSION OF JUDGMEKT — CONFLICT OP LAWS. there was subsequently a breach : Ihld, that the latter could not divest the title of the grantee on condition. Id. 20. Semble that conditions subsequent can only be reserved for the benefit of the grantor and his fieirs, and that no other person can take advantage of a breach. Id. 21. ^ee 2 Kern., Titles, « Contract," 1, 2 ; "Insurance," 1,4. 3 Kern-, " Covenant," 1, 2 ; " Landlord and Tenant. 4 Kern., " Contract," 14, 16. 15 N. Y. Rep., " Contract," 9 ; " Judg- ment and Execution," 3. CONFESSION OF JUDGMENT. 1. See 2 Kern., Title, " Judgment by Confession." CONFLICT OF LAWS. 1. The North American Trust and Banking Company, an insti- tution organized under the general act (chap. 260 of 1838), in April and May, 1840, issued instruments called honds, first for $1,000,000, and then for $500,000, in sums of .£225 or 1 1,000 each ; the $1,000,000 being payable in five, and the $500,000 in seven years, in sterling money. These obligations v?ere intended for sale in England, in order to raise money for the uses of the company, the interest was payable semi-annually in London, no place for the payment of the principal being specified. The corporate sea\ was impressed upon each bond, but without the use of wax or other tenacious substance : Held, 1. That the bonds were English contracts ; 2. That they were sealed instruments by the English law, although the corporate seal was impressed directly upon the paper without wax, wafer or other tenacious substance ; 3. That their payment was not secured upon lands, but upon the bonds and mortgages assigned by the aforesaid million trust deed, which were New York contracts, and as such, by the law of this state, chattel interests merely ; 4. And therefore, as the result of these propo- sitions, that said four hundred and ninety-nine bonds came within COURT OP APPEALS DIGEST. 129 CONSANaUINITT — CONSIDEEATIOK. the statute of 2d and 3d Victoria, which exempted them from the penalties of usury. Curtis v. Leavitt, 15 N. Y. Rep., 9. 2. Two banks in the city of Philadelphia, agreed to loan to the North American Trust and Banking Company (a New York bank- ing association) $250,000. The negotiation was conducted partly in Philadelphia and partly in New York, and the money (less than the nominal amount of the loan) was actually advanced in New York. The money was to be repaid at one of the banks in Phila- delphia, with interest at the legal rate in Pennsylvania : Held, that this was a Pennsylvania contract, and therefore, if usurious, that by the law of that state it was inoperative only as to the excess over the legal interest. Id., 91, 230, 296. 3. See 4 Kern., Title, " Stare Decisis." CONSANGUINITY. 1. See Comst., Title, " Judge." CONSIDERATION. 1. See 1 Comst., Titles, " Contract," 3, 4, 5 ; " Insurance," 7 ; "Covenant," 3. 4 Comst., "Contract," 4, 5. 2 Seld., « Bills of Ex- change and Promissory Notes," 9, 10, 11 ; " Deed," 3, 4, 5 ; "Judgment," 10. 3 Seld., "Agreement," 4, 5,6; "Bankrupt's Discharge," 1, 2. 4 Seld., "Money paid by Mistake," 12. 5 Seld., "Bills of Exchange and Promissory Notes," 6. 3 Kern., " Deed," 7, 8, 9 ; "Guaranty." 15 N. Y. Rep., " Contract," 7, 8, 9 ; " Cor- poration," 6,7; " Judgment and Execution ;" " Landlord and Tenant," 2, 7; "Partnership," 2; "Trusts;" "Warranty," 3,4. 4 Kern., "Corporations," 1, 2, 3; "Plank Road Companies," 6, 8, 9. 2. A subscription by defendant with others, to a writing prom- ising to pay to trustees or building committee of religious society, a given sura towards a fund of $5,000 to be used in building new church on site of old one ; taking part in society meeting where building committee was appointed and instructed by reso- 9 130 COURT OF APPEALS DIGEST. CONSTITUTIONAL LAW. lution ; and a subsequent removal of old church and building of new by trustees and building committee : Held, to amount to work done and money paid, &c., at defendant's request. Barnes v. Per- rine, 2 Kern., 18. CONSTITUTIONAL LAW. I. Public acts. 1. Those held to be constitutional. 2. Those held unconstitutional. II. Private and local laws. 1. Those held to be constitutional. 2. Those held unconstitutional. III. Special cases involving constitutional questions. I. PUBLIC ACTS. 1. Those held to be constitutional. 1. Section 282 of the Code is constitutional, though it takes away a future right of appeal in a pending action. Grover v. Coon, 1 Comst., 536. 2. Escheated lands. Acts of April 29, 1833,- and March 18, 1834, authorizing release of escheated lands were constitutionally passed, though by less than two-third vote, on the ground that as to subsequent escheats, they do not appropriate public moneys or property within the meaning of article 7, section 9 of Constitu- tion of 1821. Englishbe v. Helmuth, 3 Comst., 294. 3. The general bankrupt law of 1841 (act of Congress of August 19, 1841,) held constitutional, though it authorizes the discharge of a preexisting debt on the voluntary application of the debtor. McCormick v. Pickering, 4 Comst., 276. 4. General banking law. The question as to the constitution- ality of the banking law of April 18, 1838, held to be no longer an open one, since the decision of the Court of Errors in Gifford v. Livingston, 2 Denio, 380, holding it constitutional. Palmer v. Laun-ence, 1 Seld., 389. 5. Supervisors as legislators. Chapter 194 of Laws of 1849, giv- ing legislative powers to boards of supervisors as to protection of shell-fish, held constitutional. Smith v. Levinus, 4 Seld., 472. COURT OF APPEALS DIGEST. " 131 CONSTITUTIONAL LiW. 6. Militia law of April 16, 1851, constitutional though not passed by a three-fifth vote, for the reason that the commutation tax of fifty cents is not a tax within the meaning of article 7, section 14 of the Constitution of 1846. The People v. The Supervisors of Chenango, 4 Seld., 317; and where the act itself doesnot on its face show that it was not constitutionally passed, the objection must be raised by plea. Id. 7. Laws published under authority of the government are pre- sumed to have been correctly passed, whether so certified by pre- siding ofiicers of the legislative body or not. If the fact is claimed to be otherwise, it must be pleaded and proved. Id. 8. The requirement that the yeas and nays shall be taken on the final passage of a bill, and entered on the journal, (Const., arti- cle 3, section 15,) is satisfied where the bill has been so passed, and subsequently amendments have been passed in the same man- ner, which, on being disagreed to by the other house, are receded from by a vote without calling the yeas and nays. Id. 9. The certificate of the presiding officers of each house of the legislature, required by the Laws of 1847, page 276, where a bill requires three-fifths of the members elected to form a quorum for its passage, is only presumptive evidence of the fact. If the cer- tificate is omitted, the fact that three-fifths were present at the final passage o^the bill may be shown by other evidence. Id. 10. Exemption act. The act of 1842, creating additional ex- emptions of property from sale on execution, is constitutional, though in terms extending to debts contracted before its passage. It afiects the remedy and not the debt (Overruling the case of Danks v. Quachenhush, 1 Comst., 129, seq.) Morse V. Gould, 1 Kern., 281. 11. Lands taken for canals. The statute, 1 R. S., 226, section 49, is not unconstitutional, though it requires claims for damages to be presented within one year, and forfeits such claims not so presented. Such lands do not revert on abandonment of the canal. Rexford v. Knight, 1 Kern., 308. 12. Comptroller'' s deed. The legislature have power to enact and determine by law what shall be received by the courts in 132 COURT OF APPEALS DIGEST. COKSTITtTTIOITAL LAW. civil cases as presumptive evidence, and hence to enact as in chap- ter 183, Laws of 1850, that the comptroller's deed under tax sale shall be prima facie evidence of the regularity of sale and prior proceedings. Hani v. Ballou, 2 Kern., 541. 13. Distress for rent. Chapter 274, Laws of 1846, abolishing, held constitutional as to prior leases, as operating upon the remedy, and not " impairing the obligation of the contract." Van Rensse- laer V Snyder, 3 Kern., 299. And this though the contract itself {i. e. the lease) provided expressly for. distress as the remedy. Con- Jcey V. Hart, 4 Kern., 22. 14. County courts. Act of 1847, page 328, section 30, so far as it gives jurisdiction in partition, constitutional. It is a " special case." Doubleday v. Heath, 16 N. Y. Rep., 80. 15. Writ of error in criminal cases; Title of a bill. Chapter 337 of- Laws of 1855, giving writ of eri'orin capital cases with stay of pro- ceedings, constitutional under section 16, article 3, of Constitution of 1846, which declares that " no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." Although the section giving the writ applies to all courts of oyer and terminer through- out the state, while the title to the act is " to enlarge the juris- diction of the general sessions of the peace in and for the city and county of New York :" Held, that as to this section the bill was neither private nor local ; that the character of an act is to be determined by its provisions, and not by its title. The People v. McCann, 16 N. Y. Rep., 58. 2. Public acts which have been held unconstitutional, 16. Exemption act of 1842, as to prior debt. Banks v. Quack- enbush, 1 Comst., 129. (Overruled by Morse v. Gould, 1 Kern, 281. See No. 10, ante.) 17. Widow's dower. Quere if act would not be unconstitutional which should authorize a sale under a surrogate's order, of a widow's estate in dower, where the marriage and seisin of the husband occurred prior to the passage of such act. Lawrence v. Miller, 2 Comst., 245. COURT OF APPEALS DIGEST. 133 CONSTITimONAL LAW. 18. County courts. Act of 1847, page 328, section 30, conferring original jurisdiction on same, in common law actions, held uncon- stitutional. Case of a j udgment by confession for $5,000. Griswold V. Sheldon, 4 Comst,, 580; and case of assault and battery, Kundolf V. Thalheimer, 2 Kern., 593. (As to partition see Doubleday v. Heath, 16 N. Y. Rep., 80, No. 14, ante.) 19. Canal law of 1851. "Act to provide for the completion of the Erie canal enlargement, and the Genesee Valley and Black River canals," passed July 10, 1851 : Held, a violation of article 7. of Constitution of 1846, and void on follovping grounds : (1.) It contravenes the provisions of that article requiring the remainder of the canal revenues to be applied in each fiscal year to the com- pletion of the canals ; (2.) It applies a part of the revenues to the payment of interest instead of the work, of completion ; (3.) It authorizes the contracting of a debt by the state ; (4.) It withholds the remainders of the canal revenues after the completion of the canals, from being applied to the general expenses of the govern- ment. Newell V. Phelps, 3 Seld., 9. See amendment to Constitu- tion as adopted in 1854, embodied in Session Laws of 1854, pp. 11, 1103. 20. Free school act of 1849 held unconstitutional, as passed by the people instead of the legislature. (Chap. 140, Laws of 1849.) The fact of its becoming a law, was by the act itself made to depend upon the result of a popular vote : Held, that this was a contravention of that provision of the Constitution which vests the legislative power in the senate and assembly. That such power could not be delegated. Barto v. Himrod, 4 Seld., 483. 21. Prohibitory liquor law of 1855 declared unconstitutional, as in effect depriving citizens of their property without due process of law. And as to certain modes of trial for offenses against its pro- visions, as infringing upon the right of trial by jury. That the clauses prohibiting a sale, and authorizing search and seizure, in effect destroyed the property in intoxicating liquors owned and possessed by persons within the state when the act took effect. That had the act in terms been applicable only to liquors imported or manufactured after it took effect, it might have been constitu- 134 COURT OF APPEALS DIGEST. CONSTITUTIOHAL LAW. tional, but that as no such discrimination was made, but the act was general in its operation, it could not be upheld. Wynehamer V. The People, 3 Kern., 378. II. PEIVATE AND LOCAL LAWS. « 1. Those held constitutional. 22. Land for streets. A statute is not unconstitutional (2 E. L., 416,) authorizing appropriation of land for streets, in the city of New York, with the owner's consent, and the act not designating how the consent shall be manifested : Held, that parol acts and declarrations were sufficient, without any writing, notwithstanding the statute of frauds. Embury v. Conner, 3 Comst., 511. 23. Brooklyn charter. (Statutes 1833, p. 499, '§,§!> 2, 16, and Statutes 1838, p. 119, §'^ 1, 2,) providing for opening streets with- out compensation to owners of adjoining lands, not taken, but indi- rectly injured, as by excavations causing slides and caving : Held, valid. The land is not " taken for public use," within the consti- tutional provision. And the damage is damnum, absque injuria. Radcliff^s Executors v. The Mayor, &fc., of Brooklyn, 4: Comst., 195. 24. Brooklyn charter of 1834, section 40, «&c., authorizing grading of streets at proportionate expense of those benefited, valid. The People v. The Mayor, Sfc, of Brooklyn, 4 Comst., 419. 25. Title of bill; Taking private property, ^c, for public use. Act of December 10, 1857, concerning fees of officers in the city of New York, &c., valid as sufficiently expressing the subject in its title, which was, " Act in relation to the fees and compensation of certain officers in " the city and county of New York." The act (1.) Forbid the incumbent from appropriating the fees to his own use, and directed the payment thereof into the treasury ; (2.) Pro- vided salaries in lieu of fees, to be paid from the treasury ; (3.) Related to four different officers, surrogate, register, county clerk and superior court clerk ; (4.) Authorized such officers to appoint deputies and assistants under direction of board of supervisors who should fix salaries ; (5.) Regulated in detail the mode of keeping COURT OF APPEALS DIGEST. 135 CONSTITUTIOKAL LAW. account of, and accounting and paying over fees, under penalty of indictment for neglect to conform ; (6.) Prescribed the duties of the city comptroller in keeping account of fees paid in, and of disbursements, &c. : Held, that the bill related to "one subject," to wit, fees and compensation. Further, that the prospective fees of office v^ere not the " property " of the incumbents in the sense of that provision of the Constitution, wTiich forbids the taking of private property for public use, &c. Conner v. The Mayor, Sfc, of New York, 1 Seld., 2S5. 26. Tax for an improvement of f art of a city ; Title of act. The title of " An act to enable the supervisors of the city and county of New York to raise money by tax," authorizing a tax to be assessed upon the city, and directing a portion of it for certain spe- cified purposes to be assessed upon a particular part of the city, is in compliance with section 16 of article 3 of the Constitution. The act embraces but one subject, the levying of the tax. The mode of treating it need not be stated in the title, nor need the title specify all the provisions of the act. Sun Imurance Company V. The Mayor, Sfc, of New York, 4 Seld., 241. 27. Compulsory tax on town of Guilford, Chenango county to pay rejected claim. An act of the legislature authorizing the board of supervisors of Chenango county to levy a tax upon the town of Guilford, to pay a claim of an individual against the town, which the ' town had voted not to pay, and which was not actionable : Held, in an action by the town to restrain the assessment and collection of the amount awarded to the claimant by a commission appointed by law, to be a constitutional and valid act. That the Constitution imposes no limit or restriction upon the taxing power of the legis- lature. That such power extends not only to providing for the payment of legal claims of a public nature, but to claims founded in equity and justice, and even in gratitude or charity. Further, doubted if a town, in its corporate capacity can maintain an action to vindicate its tax-payers from an illegal tax. Tovm of Guilford V. The Board of Supervisors of Chenango county et al., 3 Kern., 143. 28. Police courts in villages. Act establishing police courts in the village of Corning held valid, though not provided for in the 136 COURT OF APPEALS DIGEST. CONSTITUTIONAL LAW. Constitution, on the ground that the power of the legislature in municipal matters is absolute, except as expressly restrained by the Constitution. Sill v. The Village of Corning, 15 N. Y. Rep., 297 ; and to same effect, in case of " Metropolitan Police Act," The People v. Draper et al., 15 N. Y. Rep., 532, 549. 2. Private acts which have been held unconstitutional. 29. Sale of infantas real estate. Chapter 62 of Laws of 1837, a special act authorizing certain executors and trustees to sell lands devised to infants, contrary to the trust, held void, as depriving the citizen of his property without his consent and without due process of law. Powers v. Bergen, 2 Seld., 358. 30. Art Union distribution, held to be a lottery as defined in the Constitution of 1821, article 7, section 11, also as defined in Constitution of 1846 ; and act of January 29, 1844, legalizing it, held unconstitutional. The Alms House Governors v. The American Art Union, 3 Seld., 228. II. SPECIAL CASES INVOLVING CONSTITUTIONAL QUESTIONS. 31. It is the constitutional right and duty of Supreme Court justice, ex-o^cio judge of the Court of Appeals, to sit on the argu- ment and determination of a cause here, notwithstanding he took part in its decision below. Pierce v. Delamater, 1 Comst., 17. 32. Lease of agricultural lands for life, and agreement to devise same, lessee and devisee in consideration thereof to support lessor, is valid as not within the constitutional prohibition against leases of agricultural lands for a period of more than twelve years; on the ground that it is rather a sale than a lease. Stephens v. Rey- nolds, 2 Seld., 454. 33. iSita^e lands near salt springs. Where parcels of the Onon- daga Salt Springs reservation were set apart to an individual, pur- suant to 1 R. S., page 267, section 93, and pursuant to the same statiite, section 94, he made large expenditures and permanent erections for the manufacture of coarse salt, and died in possession intestate : Held, in an action for partition by the heirs against the widow who was administratrix, that they took no estate or interest COURT OF APPEALS DIGEST. 137 OONSTEUCTIOlf OP INSTSUMENTS. in the premises by descent. The Constitution of 1821 prohibited a sale of such lands. The "setting apart" under the statute amount- ed to no more than a lease, and the lessee took no inheritable inte- rest or estate. Newcomb v. Newcomb, 2 Kern., 603. 34. Vacancy in office. Where the office of Supreme Court justice becomes vacant by death of the incumbent, at a time so near a general election that no regular notice of election to fill vacancy can be given, still under the Constitution the vacancy must be supplied at such election, and not by appointment. The People ex rel. Davies v. Cowles, 3 Kern., 350. 35. Hudson River Railroad appraisal act, chapter 31 of Laws of 1847. The appraisers, though less than twelve in number, are a "jury," within the meaning of that term as used in section 7, article 1 of the Constitution. Cruger v. The Hudson River Railroad Company, 2 Kern., 190. 36. See also the following Titles : 3 Comst., "Court of Appeals," 7, 8; "Patent." I Seld., "Office and Officer," 1, 2, 3. 2 Seld., " County Court." 3 Seld., " Municipal Corporations," 1, 2. 5 Seld.; " Corporations," 3 to 6; 3 Kern., " Courts." 16 N. Y. Rep., " Highway ; " " Intrusion on Indian Lands." CONSTRUCTION OF INSTRUMENTS. 1. Where two instruments are executed on difierent days, relat- ing to the same subject matter, and the one last executed refers to and is based upon the former one, in arriving at the intention of the parties in the latter instrument, both should be read and con- strued together ; and the general words used in the last, should be restricted so as to conform to the intention of the parties, as derived from an examination of both instruments. Coddington v. Davis, 1 Comst., 186. 2. Accordingly, where the maker of a note made an assignment to one of the holders for the benefit of his creditors, in which tTie indorser was named and preferred as a creditor to the amount of the note, and the holders were named and preferried as creditors on another account ; but were nowhere set down as creditors in respect 138 COURT OF APPEALS DIGEST. CONSTBUOTIOK OP IKSTEtTMEKTB. to the note, and afterwards the holders in conjunction with other creditors executed to the maker an instrument referring to the assignment, and agreeing in consideration thereof, and of one dollar, to discharge the maker from all claims and demands existing in their favor respectively against him, over and above what they might realize under the assignment, on his agreeing at the same time to pay the balance of their debts in seven years, and the maker at the same time gave to the holders his written promise to pay such balance in seven years : Held, that the claim of the holders to recover the note of the maker was not discharged or suspended, the instrument being regarded as only applicable to their other demand against the maker ; and therefore further held, that their right to recover against the indorser was not affected by such instrument. Id. 3. The addition of a falsity or error in a description is never allowed to prejudice, where upon rejecting it, sufficient particulars remain to designate with certainty the object intended to be de- scribed. Burr V. Broadway Insurance Company, 16 N. Y. Rep., 267. 4. See also 1 Comst., Titles, "Deed;" " Legacy and Legatee," 3, 4 ; " Landlord and Tenant," 3 ; " Contract," 1, 2. 2 Cmnst., "Assignment," 2; "Bailment," 1, 2; "Covenant;" "Deed;" "Estates Tail;" "Landlord and Tenant," 6, 8; "Legacy," 1; "Will." 3 Comst., "Corporations." 2, 3; "Deed;" "Will," 5 to 9. 4 Comst., " Contract," 1, 2, 3, 6 ; " Estate for Life ; " " Fraud," 4, 5 ; " Mortgage of Chattels," 1 ; " Will," 1 to 5, 8, 9, 10. 1 Seld., "Action on the Case," 1, 2 ; " Award," 1 to 7; "Charter Party," 1 to 4; "Covenant," 1 to 4; "Foreign Laws," 1, 5, 6 ; " Trusts," 3 ; " Will," 5, 6, 7, 9 to 21. 2 Seld., "Bailment," 3 to 6 ; "Condition," 2,3; "Deed," 6. 1 Kern., " Contract," 2, 3, 10 ; " Deed," 1, 8 ; " Insurance," 6 to 10. 3 Kern., " Common Carrier," 3,4;" Guaranty ; " " Will." 4 Kern., "Insurance;" "Mistake;" "Wills;" "Chattel Mortgage;" " Undertaking; " "Landlord and Tenant ; " "Illegal Contracts." 16 N. T. Rep., " Legacy." COURT OF APPEALS DIGEST. 139 CONSTTL — CONTRACT. CONSUL. 1. [Exem-ption from suits in state courts.'] A consul of a foreign government, residing in the United States, is not liable to be sued in the state courts. His exemption is not a personal privilege, nor the privilege of his goverment, and it cannot be waived by his appearing in an action in the state courts, and pleading to the merits. Valarino v. Thompson, 3 SelU., 576. 2. The exemption exists by virtue of the judiciary act of 1789, ( acts of Congress of 1789, chap. 20, § 9,) and is not founded upon the law of nations or treaty. Id. g. The fact that the consul is impleaded with a citizen, upon a joint contract, will not give jurisdiction to the state courts. Id. 4. It may be alleged as error in fact after judgment, that the defendant was a consul of a foreign government, and whenever the fact appears that the court have no jurisdiction, it vrill stop the proceedings in a cause at anjr stage of its progress. Id. CONTRACT. I. What constitutes a valid contract or otherwise ; Consideration ; Illegality. II. By what law governed ; Lex loci, lex fori. III. Construction generally and of particular contracts. Fraud. IV. Alternative, conditional and executory agreements, v. Notes payable in specific articles. " VI. Parol evidence to vary, add to, or explain ; Merger. VII. Performance ; Tender ; Excuse ; Rescission ; Modification ; Damages. I. WHAT CONSTITUTES A VALID CONTEACT OR OTHERWISE ; CON- SIDERATION ; ILLEGALITY. 1. A subscription to a fund for the endowment of a literary institution, though by its terms inducing other subscriptions and labor and expense to fill up the list, is not founded upon a suffi- cient consideration, and no action lies thereon. And accordingly, where the defendant subscribed S800 to a fund for the payment of the salaries of the officers of Hamilton College, and a condition was annexed that subscribers were not to be bound unless the aggregate amount of subscriptions and contributions should be 140 COURT OF APPEALS DIGEST. $50,000 : Held, that there was no sufficient consideration for the undertaking, and that no action would lie upon it, although the evidence tended to show that the whole $50,000 had been sub- scribed or contributed according to the terms of the condition. Trustees of Hamilton College v. Stewart, 1 Comst., 581. 2. A prior debt is not sufficient to uphold a new illegal con- tract ; but the legal portions of such contract may be upheld if distinct or separable from the illegal portions. Per Beonson, J. Leavitt, receiver, v. Palmer, 3 Cornet., 19. 3. A proposition by mail, accepted by mail, is binding from the time of deposit of the letter of acceptance in the post-office, pro- perly addressed, though the letter never in fact reach the party proposing ; unless it be otherwise expressly stipulated. Vassar v. Camp, 1 Kern., 441. 4. A foreign corporation may make a valid loan on bond and mortgage in this state at seven per cent, although its.charter pro- hibiting it "to make any contract which by the existing laws amounts to usury" is granted by a state whose rate of interest is only six per cent. Bard v. Poole, 2 Kern., 495. 5. The party not in' pari delicto in an illegal contract of loan, allowed to recover his advances on it to the borrower, either on the contract itself and his collateral securities, or on an implied assumpsit : So held, where a banking association in this state bor- rowed money of a Philadelphia bank, and to secure its repayment gave time certificates, which if held to be promissory notes are prohibited under penalties upon the bank issuing them, by the act of May 14, 1840. Curtis v. Leavitt, 15 N. Y. Rep., pp. 94, 296. 6. The maxim " void in part void in toto " expresses no general principle of law. On the contrary the general rule is that the good shall stand although mixed with the bad. The exceptions are: First. When a statute expressly declares a whole deed or contract void on account of some unlawful provision in it ; Second. When there is some pervading vice which infects all parts of the agreement, as fraud, for example, so that no separation can be made. Per Comstock, J. Id. COURT OP APPEALS DIGEST. 141 7. The plaintiifs' articles of association provided for the con- struction of its plank road from Fort Edward to Fort Miller, with the privilege of extending the same to Saratoga Bridge, two and a half miles further, and a large majority of the stockholders became such by subscribing the articles, leaving such extension optional with the directors. The defendant subsequently signed an agree- ment, on the books of the company, to take twenty-five shares of stock, provided the directors would extend the road to Saratoga Bridge : Held, that such agreement was void by reason of such condition. The Fort Edward, Sec, Plank Road Company v. Payne, 15 N. Y. Rep., 583. 8. Where, by the terms of an agreement between A. and B., in consideration that A. will pay certain notes upon which he is an indorser, B. agrees to pay him a certain sum, although there be no obligation upon A. to pay the notes, and therefore no mutuality in the contract, yet if he does pay them he furnishes a considera- tion for the agreement, and may enforce it against B. L'Amoreux V. Gould, 3 Seld., 349. 9. The rule laid down in Chitty on Contract, that if one party to an agreement was never bound on his part to do the act which forms the consideration for the promise of the other, the agree- ment is void for want of mutuality, is too broadly stated. It is confined to cases where the want of mutuality would leave the party without a valid consideration for the promise at the time it is to be performed. Id. 10. An agreement by an indorser to pay a note not yet mature is a valid consideration for an agreement to pay for the money paid by him on it. Id. 11. An agreement entered into for the purpose of preventing competition at a sale of property under execution or distress for rent is void as against public policy. Per Shankland, J. Bris- bane V. Adams, 3 Comst., 129. 12. An agreement between two applicants to~ the governor of this state for appointment to the same office, that one withdraw to aid the other, who shall share with him the fees of the office, when appointed, is illegal and void at common law. No covenant 142 COURT OF APPEALS DIGEST. founded either wholly or in part on such an agreement, whether sealed or unsealed, can be upheld, even though in part founded on a legal and valid consideration. Gray v. Hook, 4 Comst., 449. 13. Where a broker sells for his principal shares of a certain stock which neither owns at the time of the sale, deliverable at the option of the principal, in thirty days, and the broker, within that time, and without the assent of his principal, delivers the stock at a loss, he does so at his peril; and money deposited with him to meet any difference against the principal on the contract at the end of the thirty days, might, if the difference at that time would have been in his favor, be recovered back by the principal but for the statute against stock-jobbing. Staples v. Gould, 5 Seld., 520. 14. Such transaction, however, being illegal by the statute referred to, (1 R. S., 710, sec. 6,) no action can be maintained upon it by either party, and section 8 of that act does not autho- rize an action to recover back the sum so deposited. Id. 14 a. An illegal object in the assignment of a valid mortgage is a good defence for mortgagor to a foreclosure by such assignee. A bond and mortgage, valid in the hands of the mortgagee, were assigned by him to bankers in Canada, as security that A. B. should pay to the bankers all sums of money which they might from time to time have advanced to him, " and for no other purpose." The sums of money, the repayment of which was thus secured, were by an agreement made in Canada between A. B. and the bankers, of which the mortgagee had knowledge, to be employed by A. B. in this state, in violation of its restraining law, such moneys con- sisting of evidences of debt intended for circulation as money, being in the similitude of bank bills, issued by such bankers in Canada, and which A. B. agreed " to employ at his own discretion and risk, in the discounting of notes and exchange business, at Buffalo, in the State of New York :" Held, that these facts constituted a defence to the mortgagor in an action for foreclosure by a person claiming title to the mortgage under such assignment ; and this notwithstanding the original assignees were foreigners, and as such prima facie, had no notice of the provisions of our restraining laws, the court holding them in this case chargeable with notice inas- COURT OF APPEALS DIGEST. 143 •much as the contract was by its terms to he jperformed in this state. DeWitt V. Brisbane et al., 16 N. Y. Rep., 508. II. BY WHAT LAW GOVEENED ; LEX LOCI, LEX FORI. 15. Insurance was effected by a resident of Ohio with a mutual fire insurance company in this state, through an agent in Ohio, acting as such in violation of the laws of Ohio, which required agents to first procure a license there and enacted that "no policy of insurance shall be signed, issued or delivered" in that state by foreign insurance companies except by such licensed agent. The application and premium note were signed in Ohio and forwarded to the office of tiie company in this state, and the policy was returned by mail. In an action on the premium note, held that the contract was made in the State of New York at the office of the company, and not in the State of Ohio, and was valid as not within the prohibition of the Ohio statute. Hyde, receiver, v. Goodnow, 3 Comst., 266. 16. In general the rights of the parties to a contract, as distin- guished from their remedies, are to be determined by the law of the place where the contract is to be performed. Id. 17. An exception to this rule, however, exists where the con- tract is declared void by the law of the state or country in which it is made, but would be valid in the place where it is to be per- formed. In such a case the contract cannot be enforced in either place. Per Haeeis, J. Id. 18. Where a party seeks to enforce in the courts of this state, a contract which by its laws is forbidden and declared void, he must aver and prove where it was made, and that by the laws of that place it was authorized and valid. , Thatcher v. Morris, 1 Kern., 437. 19. And where the action was for prize money drawn at Balti- more, and legal by Maryland laws, a demurrer to the complaint was sustained because complaint did not expressly state that the tickets were purchased in Maryland, nor where they were pur- chased, on the ground that it stated no cause of action enforceable in the courts of this state. Id. 144 COURT OF APPEALS DIGEST. 20. Where an application for insurance in a mutual company in this state on personal property in a building in Canada, is made and signed in Canada by persons residing there, and transmitted to the company at its place of business in this state, and contains a provision that if approved the policy issued thereon shall bear the same date as the application, and take effect from that time, and the application is approved and a policy signed by the company at its place of business, and sent to the mutual agent of the par- ties in Canada, and by him delivered to the applicants, the contract of insurance is made and to be performed in this state, and its validity depends on the lav^s of this state. Western v. The Genesee Mutual Insurance Company, 2 Kern., 258. 21. The question as to what the laws of a foreign country are, is one of fact, and the finding of a referee thereon cannot be reviewed in this court. Id. 22. Contracts by foreign corporations, made in this state and to be performed in this state, are governed, as to the rate of interest properly chargeable, by the laws of this state, and not by the law of the state granting the charter of such corporation. Bard v. Poole, 2 Kern., 495. iii. construction generally, and of particular contracts; Execution: delivery; fraud. 23. Where parties deviate from the terms of a special contract to perform work and labor, in an action for the work done the contract price, will, so far as applicable, generally be the rule of damages. But where the contract is terminated by the employer, against the will of the contractor, the latter is not confined to the contract price of the work done, but may bring his action for a breach of the agreement, and recover as damages, the profits he would have made if allowed to complete the work ; or he may waive the contract, and bring his action on the common count for work and labor generally, and recover what the work done is actually worth. Clark v. The Mayor, ^c, of New York, 4 Comst., 338. COUUT OF APPEALS DIGEST. 145 24. But where the contractor elects to consider the contract as rescinded, and brings his action for work and labor generally, he cannot recover for profits upon the unexecuted part of the work. In such a case the rule of damages is the actual value of what has been done under the contract. Id. 25. Delivery in escrow can only be made to a stranger, not to the grantee or vendee himself; and in case of delivery to the latter, parol evidence cannot be received to qualify the delivery or show that it was conditional. And delivery tp an agent as such, is in effect a delivery to the party. Worral v. Murm, 1 Seld., 229. 26. To enable an agent to properly execute a sealed instrument} his authority must be under seal. But if there be no such authority, the sealed instrument will nevertheless bind the principal as a simple contract. Id. 27. A contract for the sale of lands need not be under seal. It is sufficient if it be in writing subscribed by the party or his lawful agent, and the authority of the agent may be conferred by parol. Id. 28. It seems that a contract for the sale of lands, executed by the vendor only, but delivered to and accepted by the purchaser and acted on by him, can be enforced against the purchaser. Id, 29. But whether binding on the purchaser or not, it is on the vendor, whose signature binds him as the party to be charged, under the statute of frauds ; and he is estopped from setting up a want of mutuality, the statute only requiring the signature of the " party to be charged." Id. 30. It is not a fraud in a vendor of lands sold by the acre, to insert in the deed the words " more or less," and take pay for " more," though he knows there is " less." And under a contract at $60 per acre, specifying a particular number of acres but con- cluding the description of premises with the words " more or less," the sale is a sale in bulk; and where the vendee accepts a deed following that description, and gives security for the payment of a price corresponding to the number of acres stated, he cannot be 19 146 COURT OP APPEALS DIGEST. relieved from paying the secured price, on account of a deficiency in the number of acres. Faure v. Martin, 3 Seld., 210. 31. In an action by a vendee for non-delivery of the property, proof of ability to provide funds at the day and place fixed for performance is sufficient, without proving that they were actually provided, paid or tendered. Branson v. Wiman, 4 Seld., 182. 32. False representations of plaintiff cannot be urged in defence unless it appear that the defendant was influenced by them ; and a subsequent affirmance after full knowledge of the facts is a good answer to a defence of fraud. And where the fraud set up in particular is the suppressing the contents of a letter, the letter may be introduced to repel it. Id. 33. In a contract by the owners of a steamboat used in towing boats upon the Hudson river, to tow a boat from New York to Albany for hire, " at the risk of tlie master and owners" the owners of the steamboat are liable for injuries arising from the gross negli- gence of their servants navigating it, although not occasioned by fraud or want of good faith. The words, " at the risk of the mas- ter and owners,!' have reference to those perils of navigation not arising from the gross negligence of the contractor. Wells v. The Steam Navigation Company, 4 Seld., 375. 34. If in any case a party can be exempted by contract from the consequences of his gross negligence, (which the court do not undertake to decide,) such exemption must be provided for in express terms, on the face of the contract. It will not be implied. Id. 35. A stipulation in a charter party to pay "freight at $4 per chaldron, Pictou mines measure of 30 cwt.," has reference to chaldrons weighing 30 cwt. Ward v. Whitney, 4 Seld., 442. 36. Where, by the terms of a charter party, the freight is to be paid in an approved acceptance of thirty days from the period of discharging the cargo, and the agents of the freighter decline to give the acceptance, the owner may commence his action for the freight without waiting the thirty days. Id. COURT OF APPEALS DIGEST. 147 IV. AIiTERNATIVE AND CONDITIONAL, AND EXECUTORY, AGREEMENTS. 37. A. agrees to sell to B. certain lands, and convey the same to him on a day named, within ten months, and B. pays down the purchase money. A. also agrees that at the expiration of a year, if B. shall desire it, and give thirty days' notice, he will pay back the money with interest. This agreement, being signed by both parties, it seems, is not void for want of mutuality or considera- tion, although it contains no express engagement on the part of B. to do anything. It is in effect an alternative agreement, either to sell and purchase land, or to b'orrow and lend money, at the elec- tion of B. at the end of the year ; and on giving the notice and reconveying, or offering to reconvey, if he have received his deed, he may sue on, the agreement to recover back the money. Eno v. Woodworth, 4 Comst., 249. 38. If the agreement be held void for want of mutuality, then B. may recover in that ca,se, for that reason. Id. 39. A condition precedent must be strictly performed, and in- evitable accident is no excuse for non-performance. Agreement to keep twenty milch cows during the daifying season and furnish the butter made from such dairy to M. at a certain price, is broken by a sale of five of such cows before the end of the season because they had become nearly dry, and useless for dairying purposes. It was plaintiff's duty to supply their places, and there being no proof of waiver by defendant of the strict performance of the condition : Held, that in an action for the price of the butter furnished, it was the duty of the court to nonsuit the plaintiff. Oakley v. Morton, 1 Kern., 25. 40. See The Fort Edward, ^c, Plank Road Company v. Payne, 15 N. Y. Rep., 583, {ante No. 6,) to the effect that a condition annexed to a subscription to plank road stock, that the road be extended on a certain route at all events, renders such subscrip- tion void, as against public policy, and as depriving the directors of the exercise of judgment and discretion on the subject which is required for the interests of all the stockholders. 41. A contract for the purchase of a quantity of cotton at a specified price per pound, deliverable thirty days from date, and 148 COURT OF APPEALS DIGEST. payable on delivery, the buyer to pay storage, insurance, and in- terest after ten days, and to deposit five dollars per bale with the vendor, the cotton not having been weighed ready for delivery, is an executory agreement, and the title remains in the vendor. The deposit in such case is an advance towards the price, and in case the cotton is destroyed by fire before the time of delivery, such advance may be recovered of the vendor. Joyce v. Adams, 4 Seld., 291. V. NOTE PAYABLE IN SPECIFIC AETICLES. • 42. Where the payee has the right of selection of the articles and prior to time of payment instructs the maker not to send articles until he gives notice what he wants, but delays to exer- cise his right of selection for two years after the note becomes due, such right is not lost unless the maker has in the meantime made his own selection and tender; and the maker refusing to deliver on payee's selection at the end of two years, becomes lia- ble for the amount in money. Case of a note in the following words : " For value received, I promise to pay Martin Gilbert three hundred and sixty-two dollars and fifty cents, in castings, such as said Gilbert shall select and direct, such as are cast at the Middleburgh furnace, which I agree to deliver at Gilbert's dwell- ing-house, at Ghent, in Columbia county, at 4 i cents per pound, to be delivered within or by the first day of March next, and agree to deliver some castings as it may be conve- nient for me to deliver soon ; said Gilbert to give timely notice what castings he will select or want, and in default thereof I agree to pay the money for such part as is not paid in castings. June 8th, 1843." (Signed) " Thomas P. Danforth." Gilbert v. Danforth, 2 Seld., 585. Aj^ ftMimv^^^tnA^4^'4A^ 5. See 1 Seld., Title, " Trial," 4, 5. COURT OF APPEALS. 1. It is no ground for ordering a re-argument, that it is alleged that in their consultations out of court, the judges were equally divided in opinion, in a case where judgment is pronounced in open court, and no member of it publicly dissents. The proceed- ings in the conference chamber cannot be inquired into for such a purpose. Mason v. Jones, 3 Comst., 375. 2. Where five judges do not concur', an affirmance follows under section 14 of Code of 1849, which, it seems, is not liable ,to any constitutional objection. LJ. And this court, in accordance with the former practice of the Court of Errors, may order judgment of affirmance where there is an equal division of opinion among the judges. Id. 3. Consanguinity of a judge to one of the parties, is a disqualifi- cation to sit in the cause, which consent cannot remove. And, in such a case, where the judge has sat by consent, motion for re-argument, properly granted by concurrence of four of the remaining seven members of the court. Beonson, Ch. J., and Jewett, J., dissented. Oakley v. Asjjinwall, 3 Comst., 547. 22 170 COURT OF APPEALS DIGEST. COURT OP A JUSTICE OP THE PEACE. 4. A justice of the Supreme Court while, ex-ojicio, a member of this court, may properly preside in a court of Oyer and Terminer, or discharge any of the ordinary duties of a justice of the Supreme Court. McCarron v. The People, 3 Kern., 74. 5. See, ante. Titles, "Appeal;" "Constitutional Law," 1. , I />/COUfiT OF A/USTICE^OF THE PEACK^ , 1. An objection not taken on the trial before a justice, as to the want of affirmative proof of regularity of filing a chattel mort- gage (e. g. in proper town), is not available in the Common Pleas on certiorari, the mortgage marked as filed having been read in evidence without objection. Jencks v. Smith, 1 Comst., 90. 2. Attachment. In a suit by attachment, prosecuted against two persons as joint debtors, the justice has no right to proceed and render judgment where the return of the constable only shows service on one of the defendants, but is silent as to service on the other, and where the defect is not cured by an appearance. Whether he should dismiss the proceeding, or should issue a summons (Statutes 1831, p. 404, §38), qtiere. McDoel v. CooTc, 2 Comst., 110. 3. Pleading. A declaration in a justices' court, which would be bad on demurrer, may yet be sufficient to uphold a judgment by default, where the proof is sufficient. As in case of omission to allege property in the plaintiff, in a declaration in trespass, the proof, however, showing it to be his. Copley v. Rose, 2 Comst., 115. 4. Entering judgment within four days. A memorandum of judg- ment made on the papers in the cause, within four days after the fiual submission, is sufficient, though the judgment was not actually entered in the docket until after four days. Walrod v. Shuler, 2 Comst., 134. 5. Appeal a nullity (under the Eevised St.atutes), unless allowed within ten days, and common pleas acquire no jurisdiction with- out an appearance. And their reversal does not make one liable who was surety for costs before the justice. Seymour v. Judd, 2 CoTnst., 464. COURT OF APPEALS DIGEST. 171 COPKT OP A JUSTICE OF THK PEACE. 6. Pleading; Sealed instruments; Proof. It is not necessary, in declaring on a sealed instrument in a justices' court, to state that it is sealed in order to let in proof under it. Smith v. Kerr, 3 Comst., 144. 7. Where the return of a justice to a certiorari does not state that he has returned all the evidence before him, his judgment will not be reversed, on the ground that some items of account, included in the judgment, do not appear to be sustained by proof. Low V. Payne, 4 Comst., 247. 8. Attachment. A bond, with security, must be given before issuing an attachment against a non-resident. The case of Clark V. Luce (15 Wend., 480), holding a contrary doctrine, overruled. Bennett v. Brown, 4 Comst., 254. 9. Declaring on justice's judgment. In declaring upon a judg- ment rendered by a justice in a suit commenced by long summons, it is not necessary to allege that the defendant was a resident of the county, nor (if it be alleged that the summons was duly issued and served) that the summons was returned to the justice; nor that the constable made a return thereon ; nor that any time of day was specified in the process; nor that a court was held at the time and place specified ; nor that the sum claimed was less than one hundred dollars. Long summons is the appropriate pro- cess against every defendant not a non-resident of the county, and issues on mere application; and, if defendant is in fact a non-resi- dent, he should appear and take that ex press .objection. It seems that the long summons may issue against a person who has no legal residence anywhere. Barnes v. Harris, 4 Comst., 375. 10. Power in respect to executions. A justice of the peace was not authorized by the Revised Statutes to issue an execution after two years from the rendition of the judgment. But he might renew one that had been duly issued and returned unsatisfied, .though two years had elapsed. Morse v. Goold, 1 Kern., 281. 11. Lien of docTceted judgments on real estate, not cut off by six years' limitation. The statute of limitations, (2 R. S., p. 295, § 18,) which barred an action on a justice's judgment after six years from the time of its rendition, whether transcript had been filed 172 COURT OF APPEALS DIGEST. OODETS OP THE UNITED STATES COVENANT. or not, did not extinguish it or destroy its lien after that time where it had been docketed, but the lien was coextensive in time, with that of judgments of the Court of Common Pleas. Accordingly where a transcript of a judgment recovered before a justice, July 25th, 1837, was filed and docketed in the county clerk's office on the 27th of the same month, and an execution was issued to the sherifi", July 10th, 1843, who in July, 1844, sold thereon real estate, and afterwards executed a deed to the pur- chaser : Held, that he acquired thereby the title of the judgment debtor. Waltermire v. Westover, 4 Kern., 16. 12. See 3 Comst., Title, "Pleadings," 9. COUKTS OF THE UNITED STATES. 1. See 1 Comsu, Titles, "Jurisdiction," 6, 7, 8. 4 Kern., "Evi- dence," 1, 2; "Stare Decisis." COURT OF CHANCERY. 1. See 3 Kern., Titles, " Specific Performance." 4 Kern., "Equity Jurisdiction." COURT OF OYER AND TERMINER. 1. See 16 N. Y. Rep., " Constitutional Law," 1, 2, 3, — ante, p. 132, No. 15. COURT OF SPECIAL SESSIONS. I. See 3 Kern., "Constitutional Law," 10 to 14, — ante, p. 133, No 21. COVENANT. I. Covenant of seisin. II. Tovenaflt for quiet enjoyment. III. Covenants running with the land or otherwise. IV. Covenant to repair. V. Covenants dependent and independent. VI. Miscellaneous cases. COURT OF APPEALS DIGEST. 173 I. COVENANT OF SEISIN. 1. The covenant of seisin ia broken immediately on delivery of the deed, if the grantor have in fact no title. Nor is it a defense to an action for such breach, that grantee has been dis- possessed under a mortgage which he assumed to pay. The true consideration paid is the measure of damages, and may be shown by parol, though the deed recite a different consideration and ac- knowledge its receipt. Bingham v. Weiderwax, 1 Comst., 509. 2. The covenant of seisin is broken, if the grantor do not own a rail fence standing on the premises. Mott v. Palmer, 1 Comst., 664. 11. COVENANT FOE QUIET ENJOYMENT. 3. Covenant for quiet enjoyment is implied in a lease under seal of right to collect wharfage. It is not within 1 Eevised Statutes, page 738, section 140, forbidding implication of covenant, since it is not " a conveyance of real estate." Lessor's mere trespass is no breach, but his interference under color of right is a breach of cove- nant for quiet enjoyment. The Matjor, Sfc, of New York v. Mabie, 3 Kern., 151. III. COVENANTS RUNNING WITH THE LAND, OR OTHERWISE. - 4. Lessee's covenant to pay assessments, runs with the land, and binds the assignee of the term. Post v. Kearney, 2 Comst., 394. 5. Covenant as to a thing not in esse, but to be done upon the land, does not, it seems, run with the land and bind the assignee, unless he be named. And where a lease for ten years contained a covenant of renewal for ten years longer, if the parties could agree on the rent, and the lessor covenanted, in case they did not so agree, to pay for improvements which the lessee should place upon the premises, and the lessee covenanted in like case that at the end of the term, "upon the lessor's paying for the improvements, as aforesaid," he would peaceably surrender the possession of the 174 COURT OP APPEALS DIGEST. premises to the lessors and his assigns : Held, that the lessor's right to demand possession at the expiration of the term, was not qualified by the obligation to "pay for the improvements, and therefore that his assignee (there being no renewal of the lease) could recover in ejectment, although the improvements were not paid for. The words " upon the lessor's paying," &c., did not constitute a condition precedent to the lessor's right to have posses- sion after the lease had expired. Tallman v. Coffin, 4 Comst., 134. 6. Covenant by the lessor to purchase permanent improvements, at an appraisal, at the end of the term, is broken by his refusal, and a right of action attaches against the lessor ; but such breach is not a continuous one, and a subsequent assignee of the lessor, does not take the land chargeable with the covenant, though he have notice. Coffin v. Tallman, 4 Seld., 465. 7. Lessor and lessee's note to a third person, assumed by lessee in and by the written lease in part, payment of rent cannot be collected of an assignee of the term. The lessee's agreement to pay the note does not run with the estate in the land. Dolph v. White, 2 Kern., 296. IV. COVENANT TO EEPAIE. 8. Grantor of right of way covenanted to erect a gate at the entrance, and grantee covenanted to keep it in repair. The gate was taken and carried away by some person unknown : Held, that grantee was bound to replace it ; also, that it was a continuing covenant, and that successive suits were maintainable by grantor against grantee, for damages by cattle, as often as they broke in through the gateway on to his premises ; and that his measure of damages was the actual injury sustained, and not the cost of making and putting in a new gate. Beach v. Grain, 2 Coinst., 86. V. COVENANTS DEPENDENT AND INDEPENDENT. 9. Purchase of lands ; Deper.dent covenants, A covenant which goes only to a part of the consideration is not necessarily iAdependent. Nor is it conclusive, in this respect, that the COURT OP APPEALS DIGEST. I75 consideration is divisible in its own nature, or that part of it has been received ; nor will the circumstance that one or more covenants in an agreement are independent, render others so ; but the dependence or independence of covenants is deter- mined *y the order of time in which, by the terms and meaning of the contract, their performance is required. Where a contract was made in August, 1845, for the sale of lands, the purchaser covenanting to pay therefor $950, $200 in April, 1846, $200 in April, 1847, g,nd the remainder in two annual payments thereafter, the seller covenanting to deliver possession in November, 1845, and a deed in May, 1846 ; in an action by the seller to recover the second installment : Held, that the delivery of a deed was a con- dition precedent to the payment of the second installment, and that the plaintiflF, not having delivered or tendered a deed, could not recover. Grant v. Johnson, 1 Seld., 247. 10. The acceptance of possession by the purchaser did not render his covenant to pay the second and subsequent installments independent of that of the selle^r to convey. The terms of the contract did not require him to pay those installments lefore obtaining a deed. Id. ' 11. Covenant of vendee to pay for land a certain sum in five installments, and covenant of vendor to convey, " upon the express condition that the said party of the second part (vendee) shall perform his covenant to pay," &c. Nothing having been paid, the vendor, after the last installment had become due, sued for the whole five : Held, that he could not recover, not having ten- dered a deed before suit. Beecher v. Conradt, 3 Kern., 108. VI. MISCELLANEOUS CASES. 12. Right of action, who has. Covenant running to A. gives him a right of action on it, though he did not sign and seal the instrument containing it, but the same was between other par- ties. Smith V. Kerr, 3 Const., 144. 13. Renewal 0/ lease. Covenant by lessor that lessee shall " have the refusal of the premises at the expiration of the lease," for a 176 COURT OF APPEALS DIGEST. COVENANT. specified term, is broken by a refusal to give such new lease except at increased, rent; and accepting under protest at the in- creased lent is no waiver of the breach. Nor does liability of lessee for back rent, on another covenant, excuse the. breach. Such renewal is demandable at any time before the expiration of the original term, and the lessor is bound to renew when the lessee makes his election and demands a renewal. Tracy v. Albany Exchange Company, 3 Seld., 472. 14. Literal compliance not necessary. Covenant by plaintiffs to subscribe for certain stock in a corporation, pay ten per cent on it, and then assign and transfer it to defendant, who, on his part, agreed to take it and pay the residue, when due, on the subscrip- tion, and indemnify plaintiffs against it. The plaintiff's made the subscription and paid the ten per cent. The by-laws of the cor- poration prescribed that the stock was transferable, on the books of the company, by the owner or his attorney, but that no stock should be transferred on the books until thirty per cent had been paid thereon, without the consent of the directors. The plaintiffs, having applied to the directors for leave to transfer this stock to the defendant, which was refused, tendei'ed to the defendant an instrument whereby they assigned and transferred to him the stock, and constituted him their attorney to transfer it on the books ; this he refused as not a compliance with the covenant. In an action by plaintiffs, for damages, against defendant for not fulfilling on his part: Held, that the plaintiffs had offered to assign and transfer the stock within the meaning of the covenant. And the plaintiffs having in the meantime been compelled to pay the corporation the balance due on the subscription, held fu7ther, that they were entitled to recover this balance and interest of defendant, and were not confined to this amount less the market value of the stock at the time of the refusal on trial. Orr and Orr v. Bigelow, 4 Kern., 556. 15. See also, 4 Comst., Titles, "Contract," 16. 1 Seld., " Penalty." 1 Kern., " Deed." 2 Kern., «' Contract," 1 to 3 ; " Indemnity ; " " Mortgage." 3 Kern., " Landlord and Tenant." COURT OF APPEALS DIGEST. I77 CEEDITOE'S bill — CHIMIN AL LAW. CREDITOR'S BILL. 1. See 4 Comst., Titles, " Parties to Actions." 2 Sdd., " Debtor and Creditor;" "Receiver." 3 Kern., "Debtor and Creditor." CRIER. 1. See 1 Seld., Title, "Marine Caurt of the City of New York." CRIMINAL LAW. 1. Jurisdiction. A citizen of Ohio is indictable here for crime ■ committed ia this State, through an innocent agent, though never himself within this State, prior to his arrest. It is no defense that he owes allegiance to another sovereign. Adams v. The People, 1 Comst., 173. 2. Lotteries. It ia an indictable offense to advertise here the drawing of a lottery in another state, though one which is autho- rized by law in that state. (1 R. S., 665, § 28.) Charles v. The People 1 Comst., ISO, 3. Writ of error. The people are not entitled to a writ of error after judgment for defendant in a criminal case. The People V. Corning, 2 Comst., 9. (But see chap. 82, Laws 1852.) 4. Recognizance. It is not a defense to debt on recognizance conditioned for appearance, that no indictment was found at the court where the accused was bound by it to appear, since the discharge of the accused does not depend on the failure to find a bill, but on the discretion of the court, where none is found. Champlain V. The People, 2 Comst., 82. 5. Declaration in debt on recognizance taken by a Supreme Court commissioner, need not state the special facts giving the officer jurisdiction. Id. 6. What recitals necessary or not in recognizance to appear; Duress; Pleading. A person arrested for a criminal offense may insist on an examination before he can be compelled to enter into a recog- nizance. But he may waive that privilege, and if he does so, a 23 178 COURT OF APPEALS DIGEST. OKIMIMAL LAW. recognizance entered into without such examination is valid. A recognizance, therefore, need not show on its face that there is probable cause for believing the accused guilty of the oiFense charged, or that the magistrate has made any adjudication in the matter. If the recognizance was extorted from the accused in violation of his right to a previous examination, that fact should be set up by way of defense. Id. 7. Murder. Killing is not murder if done under reasonable appre- hension of impending danger from assault, &c., whether such danger really existed or not ; and 2 Eevised Statutes, 660, section 3, subdi- vision 2, has not changed this rule. But this principle will not justify one in returning blows with a dangerous weapon when he is struck with the naked hand, and there is no reason to apprehend a design to do him great bodily harm. Nor will it justify homicide where the combat can be avoided, as a killing after the assailant or fancied assailant begins to retreat. Shorter v. The Feople, 2 Comst., 193. The words of the section of the Eevised Statutes above referred to are as follows : " Such homicide is also justifiable (sub. 2) when committed in the lawful defense of such person or of his or her husband, wife, parent, child, master, mistress or servant, when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imrdinent danger of such design being accomplished." 8. An error in stating law in the charge to the jury, will afford no ground for a new trial on bill of exceptions, if the error was such that it could do no legal injury, and this in criminal as well as civil cases. The rule applied to a capital case, where the judge erred in his definition of "justifiable homicide," and exception was taljen, but the case was, on the facts, clearly murder, and called for no charge as to the law of justifiable homicide. Id. 9. Insanity ; Burden of proof . It is error in a judge to charge, in a criminal case, that insanity must be proved beyond a reason- ble doubt, in order to an acquittal. It is sanity and not insanity that must be proved beyond a doubt, in order to a conviction. If there be a doubt, it is the defendant, and not the people, that is COURT OF APPEALS DIGEST. 179 CRIMtKAL LAW. entitled to the benefit of it. The People v. McCann, 16 N. Y. Rep., 58. 10. Indictment; Evidence. In -case of indictment for grand larceny, the taking of property imperfectly described in the indictment may be proved on the trial to show what the transac- tion was, where that well described is of sufficient value to make out the offense charged. The People v. Haskins, 16 N. Y. Rep., 344. 11. Description of coin, notes, Sp;. In the case of the stealing of bank notes and coin, it is, it seems, sufficient where the owner is unable to specify with particularity, to describe them as " bank notes, and as gold or silver coin," with a statement of the owner- ship and an averment that a more particular description cannot be given. Per Denio, Ch. J. Id. 12. Venue. A prisoner may he convicted of burglary or larceny in any county into which he carries the goods stolen by means of the burglary. In the indictment for simple larceny, it is sufficient to allege the taking to have been in the county where the indict- ment is found ; but, it seems, that an indictment for the burglary, in a county other than that where the burglarious entry was made, must set out the facts specially, to bring it within 2 Revised Statutes, 727, section 50, which is as follows: "When property stolen in one county and brought into another, shall have been taken by burglary or robbery, the offender may be indicted, tried and con- victed for such burglary or robbery, in the county into which such stolen property was brought, in the same manner as if such burglary or robbery had been committed in that county." Id. 13. Wife of accomplice. Where an accomplice and his wife are witnesses against the prisoner, it is not error in the judge to instruct the jury that they may take the testimony of the wife into consideration, as corroborating that of her husband, the accomplice. Id. 14. Juror. A juror in a criminal case being challenged for principal cause, testified that he "had formed and expressed an opinion, but that he had no fixed opinion, none which could not be removed by evidence :" Held, that he was disqualified. Can- cemi v. The People, 16 N. Y. Rep., 501. 180 COURT OF APPEALS DIGEST. CROSS BILL — CUSTOM OF MERCHANTS. 15. Trial of challenge ; Evidence. The testimony of a juror on his challenge for favor, cannot be considered in determining whether a previous challenge of him for principal cause was pro- perly overruled. Id. 16. Good character is entitled to the same weight under all grades of imputed crime: Held, therefore, error to charge a jury that evi- dence of the prisoner's good character is entitled to far inferior weight, where the question is one of great and atrocious crimi- nality, than upon accusations of a lower grade. Id. 17. The general term, should pronounce Judgment in a criminal case, where the indictment is brought into the Supreme Court by ■certiorari and trial at the circuit. Id. 18.' See also 1 Comst., 2 Seld. and 3 Seld., Titles, "Indictment." 3 Seld., 5 Seld. and 15 N. Y. Rep., "Evidence." 3 Comst., *■• Pleadings," 3. 4 Kern., " Error, Writ of;" " Evidence," 13 to 15. CROSS BILL. 1. It is the character of the bill of complainant and of the re- lief sought, which determines whether it is an original or a cross bill, and it is immaterial whether it is called in the body of it a cross bill. PoUok v. The National Bcmk, 3 Seld., 274. CUSTOM. i. See 1 Seld., Title, "Usage." CUSTOM HOUSE. See 1 Comst., Title, "Money Had and Eeceived." CUSTOM OF MERCHANTS. See 3 Kern., Title, " Sale and Delivery of Chattels." COURT OF APPEALS DIGEST. 181 DAMAGES. I. Measure of damages. n. When liquidated and when not in an agreement under a penalty. III. Miscellaneous cases. I. MEAStfEE OF DAMAGES. 1. On unauthorized sale of pledged stock, quere, whetlier the value at the time of the wrongful sale, or the highest value down to the time of the trial, be the rule in general ; but where the pledgor offered to pay the debt and requested a return, and the pledgee having already sold, he was put off from time to time with promi- ses to replace the stock, and in the meantime ft rose in value : Held, in an action for wrongfully selling the stock, that the pledgor might recover the enhanced value. Wilson v. Little, 2 Const., 443. 2. On a wrongful sale by factor below instructions, the measure of damages is the injury actually sustained, and hence the factor may show that up to the day of trial the market value of the goods has been no greater than the price at which they were sold! This is the case as to articles having a market value, but as to articles having none, as antique paintings, statues or vases, it seems the principal may insist on the prices named in the instruc- tions, without regard to the market. Blot v. Boiceau, 3 Comst.-, 78. 3. On death of iifa.nt child by negligence, in father's action for loss of service, Sfc, doubted if he could recover anything beyond physi- cian's bill and funeral expenses. Fack v. The Mayor, Sf;c., of New York, 3 Comst., 489. 4. On contract with railroad company to build their road, where plaintiffs, who were the contractors, had made sub-contracts at much lower rates, this difference does not constitute the proper measure of damages in an action against the company for prevent- ing the construction of the road, and evidence of such sub-contracts is not competent in reference to the amount of damages. Story V. The New York and Harlem Railroad Company, 2 Seld., 85. 5. On contract for non-delivery of one hundred and fifty tons of madder, the measure of damages is the difference between the 182 < COURT OF APPEALS DIGEST. contract price and the market value of the same at the time and place specified for delivery, vnth interest thereon; and the interest must he allowed, and is not matter of discretion with the jury. And as to market value, the evidence must be confined to actual market value, and defendant cannot inquire into the probable efiect of adding to the market the quantity vehich he was to de- liver. And the inquiry is, at what price the vendee could have yurchased the commodity in market, not what he could have sold it for if it had been delivered. Dana v. Fiedler, 2 Kern., 651. 6. Range of inquiry relative to marJcet value as to quantity. Nor in such a case can defendant be permitted to inquire, as to its market value in quantities equal to that named in the contract, unless it is first shown as matter of fact that there was a market price for it in such quantities. Nor can he go into speculative inquiry as to the usual diflFerence between prices on large and small lots, unless it appear that it was or could be purchased at the time and place for delivery, in the quantity specified in the contract. Id. • 7. Range of inquiry, as to market value as to time. And where there were no sales in the market at the very time and place spe- cified in the contract, reference may be had, in order to ascertain its market value on that day, to sales made within a reasonable period before or after that day. And a witness having testified that he knew of no sales on the day specified, but did know of sales two weeks thereafter, the exclusion of a question put to him on cross-examination, as to the market value of the commodity during a period of three months before and after the day of de- livery, is not error. Id. 8. In a-ctionfor damages against a railroad company, for injury to the person of the plaintifi", resulting from a collision caused by negligence of the defendants' servants, the bodily pain and sufier- ing of the plaintiff, from the injuries, are proper subjects of com- pensation, as well as his medical expenses, and the direct pecu- niary loss from being deprived of the use of his limbs. Ransom V. The New York and Erie Railroad Company, 15 N. Y. Rep., 415. COURT OF APPEALS DIGEST. . igS 9. On failure to deliver steam, engine for ^planing mill on the day fixed lij the contract, the ordinary rent and hire which could have been obtained for the use of the machinery whose operation was suspended for want of the engine, may be recovered as damages, on the principle that although prospective profits are by the general rule excluded, yet, where they are capable of being ar- rived at wibh certainty, and are such as may be supposed to have entered into the contemplation of the parties, they are recoverable by way of damages. Griffin v. Colver, 16 N, Y. Rep., 489. 10. On breach of warranty as to the quality of goods, the measure of damages is the difference between their value, if as represented, at the time of the sale, and their actual value at that time with the defect complained of. Muller v. Eno, 4 Kern., 597. And this may be recovered by the purchaser, although he has resold the goods, and no claim has. been made upon him, and he is liable to none, on account of the alleged defect. Id. 11. See also 1 Comst., Titles, "Fraud," 2, 4, 5. 2 Comst., " Covenant," 3. 4 Cotnst., " Contract," 9 to 13, 16 to 19. 2 Seld., " Trover," 2. 3 Seld., " Seduction," 3 ; " Sheriff," 1, 2, 5, 6 ; " Charter Party," 3 ; "Insurance," 8. 4 Seld., "Agreement," 12, 13; "Lease," 4. 5 Seld., "Lien," 3; "Trustee," 6. 2 Kern., "Bills of Exchange and Promissory Notes," 1, 2; "Indemnity." 3 Kern., "Landlord and Tenant," 2 to 5. 15 N. Y. Rep., "War- ranty," 3, 4. II. WHEN LIQUIDATED AND WHEN NOT, IN AN AGREEMENT UNDEE A PENALTY. 12. Liquidated. Where the provision for the payment of a fixed sum on the breach of an agreement, is found in the condition of a penal bond, the presumption is that the sum named in the con- dition was designed as liquidated damages, and not as a penalty. In December, 1848, the plaintiff entered into an agreement with a company of persons, of whom G-. T. De Forest was one, by which, in consideration of the sum of $100 paid to himi by each of the individuals composing the company, the plaintiff agreed 184 COURT OF APPEALS DIGEST. to furnish them with a cabin passage to San Francisco, with sub- sistence for a year, and with the articles and tools necessary for carrying on mining operations in California. On their part, the company severally covenanted with the plaintiff that they would diligently devote themselves to obtaining gold and other precious metals, in the manner and under the superintendence and regula- tions specified in the agreement, a certain proportion of the earn- ings of each being agreed to be paid to the plaintiff; and that they would severally execute a bond with an approved surety or sure- ties to the plaintiff, conditioned for the payment to him, by the person executing the agreement and the bond, in case such person should fail to keep, or should break, the agreement, of "the sum of $500, as liquidated damages." In pursuance of this agreement, and at the same time, De Forest, with the defendant, as his surety, executed to the plaintiff a bond, commencing in the usual form, with a penalty of $1,000. Then followed, after a reference in general terms to the agreement, the further recital and condition: "And whereas it is agreed on the part of the above bounden Groyne De Forest, that in case he should fail to keep, or should break said agreement, there should be paid to said David Cotheal the sum of five hundred flollars, as liquidated damages ; now, therefore, the condition of this obligation is such, that if the above bounden Groyne T. De Forest and David Talmage shall well and truly pay, or cause to be paid to the said David Cotheal, his certain attorney, executors, administratqrs or assigns, upon the breach of said agreement as aforesaid, the just and full sum of five hun- dred dollars, without any fraud or other delay, then this obliga- tion to be void, or else to remain in full force and virtue." The action was commenced in the New. York Common Pleas, in De- cember, 1849. The complaint stated the agreement and bond, and alleged a breach of the agreement on the part of De Forest, in leaving the mineral district and refusing to devote himself dili- gently and exclusively to obtaining gold and other precious me- tals, pursuant to the articles, and claimed as damages the $500 mentioned in the instruments referred to. The answer and reply were such, that the court below, at the trial, held the breach to be COURT OP APPEALS DIGEST. 185 admitted by the pleadings, and a verdict was taken for plaintiff for the $500, and judgment thereon was affirmed by the same court at general term. On appeal to this court, in affirming the judgment, the court lay down the following general proposi- tions : 1. That where the damages resulting from the breach of an agreement are in their nature entirely indefinite and uncer- tain and the parties have mentioned a specific sum as liquidated damages, such sum will be regarded as damages and not as a penalty, unless the amount be greatly disproportioned to any probable estimate of actual damages ; 2. That the sum so fixed will be considered as damages, although by the terms of the agreement it is to be paid on the breach of any one of several stipulations of difierent degrees of importance, when the damages arising from the breach of each of them would be in their nature indefinite ; 3. The proposition above stated that where the fixed sum is found in the condition of a penal bond, it is to be presumed that it was not designed as a penalty, Cotheal v. Talmage, 5 Seld., 551. 13. Liquidated; Case of contract to serve gold-fen maker ; Cove- nant {among other things) not to reveal secrets of the tra.de. A bond declared the obligors to be bound, " in the sum of $3,000 as liquidated damages, and not by way of penalty or otherwise," for the performance of the covenants in a written agreement. None of the covenants were for the payment of money, or for the doing or omitting of any act the damages resulting from which could be computed from any data furnished by the instru- ment itself; but the damages from any breach were uncertain, and required evidence aliunde the instrument to establish their amount. One of the covenants was, not to reveal the secrets of a trade in which the principal obligor was to be employed, or any invention or improvement that might be made by his em- ployer, the obligee : Held, that a breach of this covenant involved damages so uncertain and difficult to be ascertained, as that the sum named in the bond should be deemed not a penalty but liquidated damages, recoverable upon a breach of any of the covenants, although the damages from the actual breach might 24 186 COURT OF APPEALS DIGEST. be readily determined by a jury. Bagley v. Peddle, 16 N. Y. Rep., 469. 14. Case'where it xvas held to he a penalty, though called in the agree- ment "liquidated damages.^' A contract (for the sale of a farm) provided, among other things, that one of the parties should give to the other, on a specified day, a promissory note for $200, and on a subsequent day a bond and mortgage for $2,000, with inter- est, and the parties agreed therein " to pay one to the other the sum of $500 as liquidated damages," upon failure to perform the contract : Held, that the sum named is to be regarded as wrongly named by the parties " liquidated damages," and to be deemed a penalty, it appearing to be inadequate compensation for a breach of some of the covenants, and more than enough for the breach of others. Lampman v. Cochran, 16 N. Y. Rep., 275. III. MISCELLANEOUS CASES. 15. Distinction between general and special damages. General damages are such as necessarily result from the injury complained of, and may be recovered without a special averment in the decla- ration. But such damages as are the natural but not necessary result of the injury are special, and must be stated in the declara- tion. And where, in an action for breach of contract, certain special damages were alleged and proved, but there was no proof of general damage, but the jury were charged that, besides the special damages, they might give such general damages as they supposed naturally resulted from the injury : Held, that the charge was erroneous. Vanderslice v. Newton, 4 Comst., 130. 16. Freight. Owner of goods demanding and receiving them from carrier's custody midway on the route, is liable for full freight for the entire route to its terminus, unless otherwise expressly agreed. Elli^ v. Willard, 5 Seld., 529. 17. In an action against several persons for an assault and battery the damages are not divisible; and should the jury erroneously assess different amounts against the defendants, the plaintiff" should have judgment against all who are convicted, for the largest COURT OF APPEALS DIGEST. 187 DAMAGES, EXCESSIVE — DEBTOR AND CBEDITOE. amount found against any one. Per Denio and Paekee, Js. Beal V. Finch, 1 Kern., 128. 18. See also the following Titles: 1 Seld., "Penalty;" " Slan- der." 2 Seld., "Amendments," 2, 3; "Evidence," 4, 6, 6 "Libel." 3 Seld., "Corporation." 4 Seld., "Corporation," 4, 6 Seld., " Contracts," 2. 1 Kern., " Slander." 3 Kern., " Parties,' 2. 4 Kern., "Contract," 14, 15; "Death by Negligence;' "Seduction." "Warranty of Chattels." 15 N. Y. Rep., "In- terest;" " Landlord and Tenant," 6. 16 N. Y. Rep,, " Action," 6. DAMAGES, EXCESSIVE. See 4 Kern., Title, " Appeals," 3, DEBT. See 3 Comsu, Titles, " Mortgage of Chattels," 1, 2. 1 Seld., " Pleading." DEBTOR AInD CREDITOR. 1. In the absence of fraud a debtor's contract binds all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract. Miller v. Lewis, 4 Comst., 553. 2. Creditor's hill. The provisions of 2 Revised Statutes, page 174, sections 38, 39 (providing for the filing of creditors' bills after the return of an execution unsatisfied, &c.), apply only to creditors' bills strictly so called, where the only claim to relief is, that the remedy of the creditor at law is exhausted ; and they leave untouched the common law powers of the Court of Chan- cery in reference to fraudulent trusts and conveyances. In all cases of fraudulent trusts the court could, in its discretion, direct a sale by a master, and compel the debtor and trustee to unite in a conveyance to the purchaser; or it might order an assign- ment to a receiver, to the end that the property might be disposed 188 COURT OF APPEALS DIGEST. DEETOE AJJD CEEDITOE. of under the special direction of the court ; or the fraudulent conveyance might be annulled and the creditor permitted to pro- ceed to a sale upon his execution. Per Gaedineb, J. The Chau- tauque County Bank v. White, 2 Seld., 236. 3. A creditor's bill, strictly so called, will not lie on a justice's judgment on the return of justice's execution unsatisfied ; nor in any case except where a lien on the property, legal or equitable, has been acquired. Crippen v. Hudson, 3 Kern., IGl. 4. Injunction cannot be obtained by a simple contract creditor, nor any action maintained by him against the debtor and his fraudulent assignee, to restrain the latter from disposing of the assigned property, and to have the assignment declared void and his debt paid. To sustain such action, the plaintiff must be a judgment creditor of the fraudulent assignor. Under section 219 of the Code, the debtor may be restrained, by injunction, from making such transfer to an assignee during the pendency of the action ; but where the transfer has already been made, none but a judgment creditor can restrain a disposition of the property by the fraudulent assignee. Reubens v. Joel, 3 Kern., 488. But see chapter 723, section 7, Laws of 1857, amending section 229 of the Code concerning attachments, so as to authorize that process against the property of the debtor, where he " has assigned, dis- posed of or," &c., " any of his property, with intent to defraud his creditors," to be issued in behalf of the creditor on commencing his action. 5. The lien of a creditor's bill does not relate back to the time of previous commencement of supplemental proceedings against the debtor, which have been either suspended or abandoned without appointment of a receiver. And where a judgment debtor had been served with an order requiring him to appear before a county judge, to be examined in proceedings supplementary to execution, and enjoining him from making any disposition of his property, and immediately thereafter he left the State and no further pro- ceedings were had under the order; and a person under contract, made before the recovery of the judgment, to pay the judgment debtor $300 whenever the debtor should surrender to him the COURT OP APPEALS DIGEST. 189 DECKBE — DEDICATION. possession of a house, paid the money to the debtor's wife, after the injunction order, and with notice of the facts before mentioned. It was held that such person could not be made liable to the credi- tor for the $300 thus paid. Edmonston v. McLoud, 16 N. Y. Rep., 643. 6. See the following Titles: 1 Comst., "Non-imprisonment Act;" "Assignment." 3 Comst., "Non-imprisonment Act," 2,3; "Res Judicata," 2. 3 Comst., "Trust," 1 to 4. 4 Comst., " Judgment and Execution." 1 Seld., " Absent and Absconding Debtors ; " " Insolvent Debtor." 2 Seld., " Imprisonment ; " " In- solvent ; " " Receiver." 2 Kern., " Insolvent Discharge ; " " Non- imprisonment Act." 3 Kern., " Fraudulent Conveyance ; " " In- junction Order;" "Judgment;" "Mortgage of Chattels." 4 Kern., " Evidence," 16 ; " Will." 15 N. Y. Rep., " Corporations," 1, 3, 4, 5, 7, 12; "Fraudulent Conveyances;" "Judgment and Execution;" "Statutes," 3; "Trusts." 16 N. Y. Rep., "As- signor and Assignee;" "Attorney and Client;" "Fraudulent Conveyances;" "Mortgagor and Mortgagee;" "Principal and Surety;" "Sales;" "Tender." DECREE. See 1 Comst., Titles, " Appeal," 8. 4 Comst., " Appeal," 2, 3, 4; "Usury," 13; "Res Judicata," 6, 6; "Mortgage," 4. 6 Seld., " Estbppel," 1, 2. DECLAEATIONS. See 1 Kerx., Titles, " Evidence," 1 to 7, 9. 2 Kern., " Evidence," 5, 6, 7. DEDICATION. 1. By the State; Streets and squares. Where lands are dedicated by the owner to public use as streets, they do not become public highways until accepted as such by the public authorities. The City of Oswego v. The Oswego Canal Company, 2 Seld., 267. 190 COURT OF APPEALS DIGEST. DEDICATION. 2. An act was passed by the Legislature, in 1811, directing the surveyor-general to lay out certain lands owned by the State, on the east side of the Oswego river, in the town of Fredericks- burgh (afterwards Scriba), into streets, house lots, public square, &c., and to make a map thereof, and authorizing the sale of lots so laid out. The streets were not declared by the statute to be, when laid out, public highways. The lots were laid out and the map was made in pursuance of the act, in which several streets were laid down, extended to the river ; and, in 1815, many of the lots were sold. In 1823 the defendants were incorporated, with power to construct, across the lands so laid out into lots and streets, a canal along the bank of the river, and to let and sell its waters for the use of mills, or other hydraulic purposes. They were authorized to enter upon and take the necessary lands, the damages caused thereby to be assessed and paid. The company constructed the canal, which was completed in 1826, crossing several streets laid down on the map, and no bridges were erected over the canal. In 1828 the village of Oswego was incorporated, embracing the canal and all the streets before mentioned, which were declared by the charter to be public highways, and the president and trustees were clothed with the powers of commis- sioners of highways over them. The village corporation built bridges over the canal, and afterwards (the defendants having refused to keep them in repair) made needful repairs, and brought this suit to recover their cost : Held, (1.) That the construction of the canal was lawful, and if any damages arose from it to the proprietors of the lands, they might have been assessed in the mode pointed out in the defendants' charter. (2.) That the streets, not having been declared, in the statute under which they were laid out, to be public highways, and not having been adopted as such by the town officers, before the construction of the canal, the defendants were not bound to build the bridges, or to keep them in repair. The canal was rightfully in existence when the plaintiffs were created a corporation, and as to them must be regarded, so far as respected the building of bridges over it, as if it had been a natural stream. Id. COURT OF APPEALS DIGEST. 191 3. See also 5 Seld., Titles, "Ejectment." 16 N. Y. Rep., " Highway." DEED. I. Execution and Delivery. II. Construction j Condition; Reservation. III. Parties. IV. Description. V. Location. VI. Proof and Recording. Vn. Other Matters. I. EXECUTION AND DELIVEET. 1. A deed of lands or any interest therein in this State, executed and duly acknowledged by a married woman, is valid, though her husband do, not Join therein. The only exception to this rule is where she is a non-resident, in which case it is provided by sta- tute that she must "join with her husband" in the conveyance of her lands situate within the State. Albany Fire Insurance Com- pany V. Bay, 4 Comst., 9. 2. Delivery of a deed or agreement in escrow, can only be to a stranger. If made to the party, the delivery is absolute, and the instrument takes effect presently, as the deed' or agreement of the party making the delivery. And in such case, parol evidence of conditions qualifying the delivery, being contrary to the terms of the instrument, is not admissible. Delivery to an agent of the party, as such agent, has the same effect in this respect, it seems, as delivery to the party himself. JVorrall v. Munn, 1 Seld., 229. II. CONSTEUCTION ; CONDITION ; RESEEVATION. 3. In the construction of deeds and other instruments, the in- tention of the parties is to govern, and where the language used is susceptible of more than one interpretation, courts will look at the surrounding circumstances existing when the contract is en- tered into, such as the situation of the parties and of the subject matter of the contract. French v. Carhart, 1 Comst., 96. 192 COURT OP APPEALS DIGEST. 4. A conveyance of real estate made in 1829, contained a clause referring to and adopting the reservations and conditions in a former conveyance of the same premises, made in 1793, and the reservation in such former conveyance was in these words : " Saving and always excepting to the said parties of the first part, their heirs and assigns, out of this present grant and release, all mines and minerals that are now, or may be found within the premises hereby granted and released, and all the creeks, kills, runs and streams of water, and so much ground within the same premises as they, the said parties of the first part, their heirs and assigns, may think, requisite and appropriate, at any time hereafter, for the erection of the works and buildings whatsoever, for the conve- nient working of the said mines, and also all such wood, fire- wood and timber as they may think proper to use in building, repairing, accommodating and working the said mines, with liberty to them, their heirs and assigns, and their and each of their servants, to dig through and use the ground for either of the said purposes, and to pass and repass through the premises, with their and each of their horses and cattle, carriages and servants, and to lay out roads therefor." And the hahmdum clause contained a condition that the grantee, his heirs, &c., should not erect, or permit to be erected, any mill or mill-dam upon the stream of water on the premises granted: Held, (1.) That the reservation of the stream was for all purposes, and not for mining purposes merely ; ( 2. ) That in aid of this construction it was proper to consider the evidence, which showed that when the deed in question was given, the grantor owned the premises immediately below, on which were situated and used a mill and dam, which set the water back on to the land conveyed, and that the grantee knew of the existence of such mill and dam, and of the manner in which the stream was affected by their use ; (3.) That the reservation was not merely of the bed of the stream, but of a right to use the stream in the same manner, and to set back the water to the same extent as when the grant was made, on the principle that whatever is necessary to the fair and reasonable use COURT OF APPEALS DIGEST. 193 of the thing excepted, is also reserved as incident to the excep- tion. Id. 5. Water power. Under a reservation, in a grant of lands and water privileges, of sufficient water to propel certain specified machinery, the grantor is entitled to the use of the water for any purpose not requiring a greater power than is reserved. As where the owner of lands upon a mill stream granted a portion thereof, together with water sufficient to operate a saw-mill at all times, when there should be more than enough to drive a grist-mill with three run of stone, and certain other specified machinery: Held, that the grantor in the deed, and those holding under him, were not restricted in the use of the water to the particular objects men- tioned in the deed, but might use the quantity reserved, for any other purpose. Cromwell v. Selden, 3 Comst., 253. 6. Gratiting words. The words "remise, release and quit- claina," in a deed to one not in possession, where an intent to convey the estate of the grantor is recited, and a pecuniary con- sideration appears, are effectual as worids of bargain and sale. Lynch v. Livingston, 2 Seld., 422. 7. Water power ; Instruments executed at the same time, not to he read as one contract, unless between the sam£ parties; Certain words in conveyances held void as a prohibition, and held not to be either a reservation, exception or condition. IS.., being the owner of premises situate on both sides of the Walkill, with mills situate thereon propelled by its waters, by separate deeds, executed at the same time, conveyed to his son Gr., in fee, land with a grist-mill, &c., thereon, situate on the east side of the stream, and to his son W., in fee, land on the west side, with a fulling-mill, &c., thereon. The deed to Gr. contained a clause excepting and prohibiting the right of carrying on, upon the premises granted to him, the business of fulling or dressing cloth, &c., and also the right of using the water of the stream for any purpose other than grind- ing grain, when the same should be necessary or useful to W., his heirs, &c., for the fulling, &c., of cloth, upon the premises conveyed to him by M., by deed of even date ; the deed to W. contained a clause excepting and prohibiting the right of using the 25 194 COURT OP APPEALS DIGEST. waters of the Walkillfor turning any wheel not used or useful in fulling, dyeing or dressing cloth. Simultaneously with the execution of these deeds, Gr, and W. executed each to the other his bond, con- ditioned for the observance of the exceptions and prohibitions contained in his respective deed. Subsequently, W. conveyed his premises by beed, containing no restrictions as to the use of the vpater, and his grantee converted the fulling-mill into a grist- mill, and used the vrater of the stream to propel it. On bill, filed by the heirs of Gr. to restrain him from so using the water : Held, (1.) That as against the defendant the deeds and bonds were not to be construed together as forming one instrument, because between different parties ; ( 2. ) That the clause in the deed to W., restricting the use of the water, did not create a condition, because the vesting or continuance of the estate did not depend upon it; nor an exceptim, because no right in that behalf was reserved to the grantor, nor a reservation, because nothing was "taken back" out of the general grant ; (3.) That it could not be construed as a covenant, limiting the use of the property con- veyed, because it did not run to the grantor, but was in favor of a stranger to the deed, but (4.) That it was a mere prohibition of the use of the thing granted, and as such void as inconsistent vnth the fee. Craig v. Wells, 1 Kern., 315. 8. Condition, specific performance of, cannot be compelled. A naked condition inserted in a grant, does not create any agree- ment on the part of the grantee accepting the thing granted to perform the condition. In such a case, specific performance cannot be enforced by action. The remedy for a breach of the condition is by a proceeding to recover the thing granted. Palmer v. Fort Plain and Cooperstown Plank Road Company, 1 Kern., 376. 9. See, ante. Title, "Action on the Case" No. 2; " Covenant," 5 Seld., "Watercourses," 1. III. PARTIES. 10. Husband and wife. It is no objection to the validity of a deed by husband and wife, purporting to convey lands held in COURT OF APPEALS DIGEST. I95 right of the wife, that its object is declared by its recitals to be, to vest the fee simple of the lands in the husband, by an imme- diate reconveyance from the grantee to him. Lynch v. Livingston, 2 Seld., 422. 11. Municipal corporation. A municipal corporation having power by its charter " to purchase, hold and convey any estate, real or personal, for the public use of said corporation," is not thereby authorized to hold lands beyond its boundaries, to be used as a highway ; and a conveyance to such corporation, of lands beyond its boundaries, for the purpose of a street, is void. Riley v. The City of Rochester, 5 Seld., 64. IV. DESCRIPTION. 12. In the attorney-general's deed, the premises intended to be conveyed were described as the "remainder" of that part of lot No. 150, Onondaga Reservation, for which a new account was opened in the comptroller's books, in the name of Bildad Barber, being forty-nine and a half rods wide, extending across the east end of said lot, and containing sixty-two and a half acres. It appeared that the "remainder" mentioned in the deed, contained only about thirty- six acres, and that the attorney-general had in fact advertised such " remainder" only, without any particular description : Held, That the particular description in the deed "forty-nine and a half rods wide, extending, &c., and containing sixty-two and a half acres," should be taken as applying to the entire part for which a new account had been opened, and not to the "remainder" of that part, and therefore that the deed on its face did not profess to convey the whole sixty-two and a half acres. Cox v. Clift, 2 Comst., 118. 13. Parol evidence inadmissible to change boundaries. Where lands are described in a deed by certain known monuments, such description must prevail, and an understanding between the par- ties that the lands shall be bounded by certain other monuments, cannot control the terms of the deed ; and where a grantor at the time of the execution of a deed, put the purchaser in possession, 196 COURT OF APPEALS DIGEST. and pointed out boundaries, but the boundaries so pointed out embraced lands not included in the deed, occupation with the consent of the grantor for a less period than required by statute to bar a right of entry, was held to give the purchaser no title to the lands not covered by the deed. Clark v. Baird, 5 Seld., 183. 14. See, ante, " Boundary Line." 1 Comst., Title, "Surrogate," 3. v. LOCATION. 15. See, ante, *' Boundary Line." VI. PEOOF AND EECOEDING. 16. County clerKs certificate. Notwithstanding the act of 1833 (Laws of 1833, chap. 271, § 9), in relation to the proof and acknowledgment of written instruments, a conveyance of a real estate acknowledged before a commissioner, &c., in a foreign county, not a counselor at law, &c;, cannot be read in evidence or recorded out of the county where the commissioner resides, without the certificate of the county clerk of the county where the commissioner resides, that he is such commissioner, &c. Wood V. Weiant, 1 Comst., 77. 17. Taking an acknowledgment of a deed is not a judicial act. It may therefore be done by one who is so related to the parties as to be disqualified as a judge or juror. And the county clerk, in certifying to the commissioner's signature, acts ministerially, and the act may be performed by a deputy. Lynch y. Livingston, 2 Seld., 422. 18. Sheriff's deed. The recording of the sherifi"'s deed is not notice thereof to a party who entered into possession of the land under contract of purchase, made with the judgment debtor, be- fore the judgment was recovered. Moyer v. Hinman, 3 Kern., 180. 19. Subscribing witness. A deed may be proved by proving the handwriting of the subscribing witness, and that such witness is dead, although the deed has upon it a certificate of acknowledg- ment by the grantor, purporting to have been made before such COURT OF APPEALS DIGEST. I97 ■witness, as a commissioner of deeds of a county different from that in -which the deed is offered in evidence, and there being no clerk's certificate of the authority of such commissioner. None of the common law rules of evidence and proof of the execution of instruments have been abrogated by the statutes on the subject. Borst V. Empie, 1 Seld., 33. VII. OTHER MATTEES. 20. Lost deed; Parol proof. A title to lands duly authenticated by written evidence, will not be set aside on the assumption of a previous lost conveyance, except upon clear proof of the existence and execution of the supposed deed, and so much of its contents as will enable the court to determine the character of the instru- ment. Such proof is admitted from necessity, but it must show the contents or substance of the contents of the operative parts of the instrument with clearness. And although when this is done, the parol declaration of the supposed grantor may be admissible, as corroborative evidence of the execution and existence of the instrument, yet such evidence of itself cannot operate to confer a title, or to confirm one otherwise defective. Metcalfv. Van Ben- thuysen, 3 Comst., 424. 21. The supposed grantee in a lost deed entered upon the land, which was wild and uncultivated, cut timber, ran the boundaries with a pocket compass, executed a conveyance to other parties, and then left the country. There was no other account of him, nor any evidence that he and the supposed grantor were known to each other. One of the persons to whom he conveyed, testified, that at the time he exercised these acts of ownership, he saw in his possession a deed purporting to be executed by the supposed grantor to him, and this was the only evidence of the existence, genuineness and contents of the lost deed : Held, That the evidence was not sufiicient to make out a defense in opposition to a hostile title clearly established by written evidence. Id. 22. Master'' s foreclosure deed subsequent to sale, relates hack to date of sale, so as to cut off insurable interest of mortgagor. A mortgagor 198 COURT OF APPEALS DIGEST. has no insurable interest remaining in buildings covered by the mortgage, after a sale of the mortgaged premises by a master in Chancery under a decree of foreclosure, and payment of part of the purchase money; although the decree may not have been enrolled, and no deed executed by the master at the time of the sale. A deed subsequently executed by the master, operates by way of relation, as a transfer of the title at the time of the sale. McLaren v. The Hartford Fire Insurance Company, 1 Seld., 151. 23. A mortgage sale by a single loan commissioner is void under act of April 4, 1837 ; and though both commissioners afterwards exe- cute a deed of the premises to the purchaser, in pursuance of such sale, the deed confers no right to the purchaser, and does not even operate as an equitable assignment of the mortgage so as to give him the rights of a mortgagee in possession, but if he goes into possession he is a mere intruder. Olmsted v. Elder, 1 Seld., 144 ; Fowell v. Tuttle, 3 Comst., 396, reaffirmed. 24. Administrator's deed under surrogate's order. A mistake in reciting the order of sale in a deed made by an administrator in pursuance of a sale under a surrogate's order, will not vitiate the deed, where other parts of the deeds furnished of themselves obvi- ous means of correcting the error. Sheldon v. Wright, 1 Seld., 497. 25. Comptroller's deed on tax sale (prior to act of April 6, 1850, chap. 183) containing the usual recitals, is not even prima fade evidence of the existence of the facts authorizing him to make the sale. It is conclusive evidence of the regularity of his pro- ceedings on the sale, &c., but not of any prior proceedings con- cerning the assessment and demand of payment, &c., of the tax. Beekman v. Bingham, 1 Seld., 366. 26. Conditions in leases and deeds in fee affecting grantee's power of alienation. In this State, in a lease in fee or a deed in fee there can be no valid restraint imposed by the grantor upon the gran- tee's power of alienation. At common law, this could be done only by persons having at least a possibility of reversion. But in this State, the reversion on failure of heirs is to the State itself, and not to any intermediate grantor, since the acts of October COURT OF APPEALS DIGEST. I99 22, 1779, and of February 20, 1787, transferred the seigniory and right to escheats as to all lands, from the king to the people, and abolished feudal tenures. A fee simple estate a,ni a restraint upon its alienation, cannot in their nature co-exist. And it is equally inconsistent with a grant in fee, and equally a restraint upon alienation, that the grantee or his assigns be required, under penalty of forfeiture of the whole estate, to render and pay to the grantor a certain proportion of the purchase money in case of sale, as if he were under an express covenant not to sell or convey at all. Therefore, held, that a condition in a lease in fee " that every sale, renting or otherwise disposing of the premises, or any part or parcel thereof, shall be void and to all intents and purposes of non-effect, and the premises revert to the lessor, his heirs, execu- tors, administrators or assigns, * * * unless the seller or pur- chaser shall well and truly pay unto the said lessor, his heirs, executors, administrators or assigns, the one equal fourth part of the money, it shall so be offered for as aforesaid," (fee, with a clause of, &c., entry for default of such payment, was void. De Peijster v. Michael, 2 Seld., 467. 27. See, seq.. Titles, "Estoppel;" "Powers;" "Trusts;" " Will." 28. See 1 Comst., Titles, "Dower." 3 Comst., "Chancery." 1 Seld., " Action on the Case," 1,2; " Will," 8. 2 Seld., " Con- dition," 2, 3. 5 Seld., "Evidence," 8, 9; "Fraud," 1, 2, 3 ; "Watercourses," 1. 2 Kern., "Conditions;" "Corporations," 2, 3, 4. 3 Kern., "Disclaimer;" "Covenant," 3, 4; "Judg- ment;" "Mortgage of Real Estate ; " "Rivers and Creeks." 4 Kern., " Contract," 3, 4. 15 N. Y. Rep., " Election under Q-rants and Wills;" "Estoppel." DEFAULT. 1. Practice in this court. Where a default is regularly taken in a calendar cause, the court will impose the payment of counsel fee, besides taxable costs, as one of the conditions of setting it aside at a subsequent term, Slade v. Warren, 1 Comst., 431. See 200 COURT OF APPEALS DIGEST. BEPICIENCT DEMAND BEFOEB SUIT. also Spoore v. Freeman, 16 N. Y. Rep., 620. Also Rules 7, 11, 17, 18 and 20 of Rules of Court of Appeals, adopted August 2, 1854. DEFICIENCY. 1. In qtianiity of land sold. See 3 Seld., Title, " Agreement, " 1. 5 Seld., " Fraud," 1, 2, 3. 4 Kern., " Contract," 3, 4. DELIVERY. 1. Warehouse receipts, 3 Seld., Titles, "Principal and Factor." Deed and moHgage, id., " Mortgage, " 3, 4. DEL CREDERE COMMISSION. See i Kern., Title, "Frauds, Statute of," 1. DEMAND BEFORE SUIT. 1. Illegal wager. An action to recover money deposited on an illegal wager may be maintained without demand. RucTunan v. Pitcher, 1 Comst., 392. 2. In trover. A demand and refusal are only evidence of conver- sion, and their effect as such evidence may be repelled by proof showing that a compliance with the demand was impossible. And, therefore, in trover, wliere a special verdict found a demand and refusal, but did not show the property in the possession of defendants at the time of the demand, and there was other evidence tending to show it was not in their possession at the time : Held, not sufficient to entitle plaintiff to judgment on th verdict. Hill v. Covell, 1 Comst., 522. 3. Summary proceedings j Landlord and tenant. A demand of rent of one tenant, where two hold jointly, is sufficient in tha respect as a foundation of the proceedings. Geisler v. Acosta, 5 ^eld., 227. COURT OF APPEALS DIGEST. 201 DEMUKBES — DEPOSITION. 4. Money received to 'plaintiff's me. No demand is necessary be- fore suit where it was the duty of the defendant to remit the money ; and interest is recoverable from the time it should have been remitted. Stacy v. Graham, 4 Kern., 492. DEMURRER. 1. See 1 Seld., Title, " Code of Procedure," 3 ; " Partnership," 4. What is admitted by demurrer, 4 Seld., " Libel," 1. 2 Kern., " Appeal," 18, 19. Quo warranto, " Pleading," 4 to 10. 3 Kern., " Parties ; " " Pleadings." DEPOSIT. 1. See 2 Seld., Title, " Banks and Banking," 1. DEPOSITION. 1. Testimony taken by commission; Practice. A motion at the trial to suppress the whole of a deposition, on the ground that some of the interrogatories, and parts of the deposition are im- proper, should be denied. If any part of the deposition is com- petent, the objection should be confined to that which is not so. And where pertinent evidence is given in answer to the general interrogatory, to which the attention of the opposing counsel was not called by the special interrogatories, if he desire to cross- examine the witness as to such evidence, he should apply to the court "for relief before the trial; it is not a ground for suppressing the whole deposition on the trial. If any part of the evidence so given is incompetent or impertinent, such part may be excluded. The Commercial Bank of Pennsylvania v. The Union Bank of New York, 1 Kern., 203. 2. Documents and fapers. Copy may be annexed to commission, and original produced on the execution of the commission and shown to the witness. Per Allen, J. Id. 26 202 COURT OP APPEALS DIGEST. DEPOSITION DE BENE ESSE, 3. Laboring with witness before his examination. The refusal to suppress the deposition of a witness at the trial, where it was proved that the attorney of the party examining him, at the request of the witness, and before he was sworn, wrote down for him, at his dictation, the substance of what he afterwards testified to in answer to the interrogatories, is not error ; it goes only to the credibility of the evidence. Id. 4. What relief might be granted in such case. If the witness was imposed upon, or any fact was mis-stated, colored or concealed, the court on motion for that purpose, might set aside the deposi- tion, and order the commission to be executed anew, or grant other appropriated relief. Per Allen, J. Id. ' 5. Manner of returning commission and depositions. Where the direction as to the return of the commission required it to be in- closed in a wrapper, and deposited in the post office at Toronto, by the commissioners, directed to W. B., at Buffalo, " and a cer- tificate thereof indorsed upon the wrapper by the commissioners," and the commission was received from the post office at Buffalo, postmarked " Toronto :" Held, that it was not requisite that the certificate on the wrapper should state that the commission was deposited in the post office by the commissioners. BrumsJcill v. James, 1 Kern., 294. 6. Identification of notes jrroved on commission. It is a sufficient identification of such notes that they were marked A and B, had the names of commissioners and witness written on them, and the witness in his deposition stated, and the commissioners in their return certified, the dates, amounts, &c., corresponding to the notes annexed, and that they were so produced and marked on the examination. Id. DEPOSITION DE BENE ESSE. 1. A witness whose testimony de bene esse has been taken, can- not be impeached on the trial, in his absence, by proving that after his testimony was so taken, he made inconsistent statements COURT OF APPEALS DIGEST. 203 DEPCTT OLERK — DEVASTAVIT. concerning the same matter, or that he stated what he had sworn to on his examination was false. Before such statements can be given in evidence to impeach him, he must himself be asked on the stand whether he made such statements. Stacy v. Graham, 4 Kern., 492. DEPUTY CLERK. 1. See Comst., Titles, " County Clerk." 4 Kern., "County Clerk;" "Mortgage Foreclosure." DEJPUTY SHERIFF. 1. See 2 Comst., Titles, "Agent;" "Sheriff." DESCENT. 1. See, ante. Title, " Alien." 2. Blood and half-blood relatives. Where, by the statute, lands descend to the brothers and sisters of the father of the intestate (1 R. S., 752, ^ 10, subd. 1) ; those of the half-blood take equally with those of the whole blood. The terms "the blood" of the ancestor, in the 15th section of the statute (IB. S., 753), include his relations of the half-blood. Beehe v. Grifing, 4 Kern., 235. DESCRIPTION. 1. See 3 Seld., Titles, "Charter Party," 1; "Insurance," 1, 2,7. 2. See, ante, Title, " Deed," IV. DEVASTAVIT. 1. See 1 Comst., Title, "Executor," 3. Seq., "Executor." 204 COURT OF APPEALS DIGEST. DEVISE — DISOOVEET OF BOOKS AHB PAPEES. DEVISE. 1. See, ante, Titles, "Alien;" seq., "Will." 5 SeM., "Dower," 1 ; " Statute of Limitations," 10. 4 Kern., " Charitable Uses." DEVISEE. 1. A testator devised his real estate to his seven children, and bequeathed his personal estate to his three sons, charged with the payment of his debts. The personal estate being insufficient to pay the debts, a portion of the real estate was sold for that pur- pose under a surrogate's order : Held, that the devisees were entitled to reimbursement out of assets subsequently discovered and received by the executors. Cotich v. Delaplaine, 2 Comst., 397. DISCHARGE. 1. See 3 Seld., Titles, "Bankrupt's Discharge," 1,2. Ante, " Bankrupt's Discharge." 3 Seld., " Insolvent Laws," 4, 6. DISCLAIMER. 1. In the absence of proof to the contrary, a devisee of pro- perty in trust is presumed to accept the trust estate. But he cannot be vested with such an estate against his will ; and where he declines to accept it, his disclaimer need not be in such form as to pass an estate in the property devised. Burrett v. Silliman, 3 Kern., 93. DISCOVERY OF BOOKS AND PAPERS. 1. The Supreme Court is still authorized by 2 Eevised Statutes, 199, to compel a defendant to make discovery of books, &c., under his control and relating to a pending cause, and necessary to enable plaintiff to prepare for trial. Section 388 of the Code is not in lieu of, but in addition to the provisions of the Eevised Statutes. Gould v. McCarthy, 1 Kern., 575. COURT OF APPEALS DIGEST. 205 BISTKESS FOB RENT — DIVOKOE. 2. The Superior Court of the city of New York, by the statute of 1841 (p. 22), has the same powers to compel a discovery of books, &c., by a defendant, as are conferred upon the Supreme Court by the Revised Statutes ; and where a defendant refuses to discover in such case, to enable plaintiff to prepare for trial, may strike out his answer, and render judgment against him as though no answer had been made. Id. DISTRESS FOR RENT. 1. See 2 Comst., Titles, "Landlord and Tenant," 3, 4, 5; " Penalty," 2 ; " Statute." 3 Kern., " Constitutional Law," 5, 6, 7. 4 Kern., " Constitutional Law;" " Mortgage of Chattels," 1. DIVORCE. 1. Effect of, on dower. Where a divorce is granted on the appli- cation of the wife or otherwise for the adultery of the husband, the wife is not thereby deprived of her right of dower. A divorce under our statute is prospective in its operation, and has no other eiFect upon the marriage relation and its incidents than such as is declared by statute. And by the statute, it is only when divorce is granted for her adultery, that she is deprived of dower. Wait V. Wait, 4 Comst., 95. 2. At common law, an absolute divorce was not granted for adultery or other causes happening after the marriage, but only for causes that went to avoid the contract ah initio; and it was for that reason that at the common law the effect of a decree was to deprive the wife of dower. For causes happening after marriage, including adultery, the divorce at common law was a limited one ; a mensa et thoro merely. Id. 3. Effect of, on right to marry again. Neither under the act of 1813 (2 E. L., 197, sec. 4) nor under the Revised Sta.tutes (2 R. S., 139, sec. 5) could the husband or wife, on account of whose adultery a divorce had been decreed, lawfully contract marriage 206 COURT OF APPEALS DIGEST. DOITATIO MOETIS CAITSA — DOWEE. after the decree, during the lifetime of the other party; no matter •whether the former marriage was before or after the Revised Statutes took effect. And where a marriage contract in this State was dissolved in 1822 by the Court of Chancery, for the adultery of the husband, and he in 1825, and again after January 1, 1830, and during his former wife's lifetime, was in due form married to plaintiff, with whom he lived and cohabited as his wife until his death in 1847 : Held, that each of these marriages with the plaintiff was void, and that she was not entitled to dower in the lands whereof he died seized. Cropsey v. Ogden, 1 Kern., 228. 4. As to what constitutes a valid marriage or otherwise, see, seq,, Title, " Husband and Wife," case of Cheney v. Arnold, 15 N. Y. Rep., 345. DONATIO MOETIS CAUSA. See, seq., Title, " Gift." Also 3 Comt., 93. DOWEE. I. Wliat a widow is dowatle of, and when rights exist or otherwise. II. When and how barred or otherwise, ni. Assignment of and action for dower. rV. other matters. I. WHAT A WIDOW IS DOWABLB OP, AND WHEN, OR OTHERWISE. 1. Growing crops. If lands on which fruits and grass were growing at the time of the husband's death, intestate, be assigned to the widow for her dower, she is entitled to such grass and fruits as are ungathered at the time of such assignment. But if dower has not been assigned, and she takes the grass and fruits, she is liable to the heir for their full value, and cannot retain a third, either as dowress or distributee. Kain v. Fisher, executor, SfC, 2 Seld., 597. 2. See, ante, Title, " Divorce," 3. See also 3 Seld., 201. 3. Husband's grantee by quit-claim deed, is not estopped by the deed and his claiming thereunder, to show, in the widow's action COURT OF APPEALS DIGEST. 207 of ejectment for dower, the true nature of the husband's estate, as that, it was leasehold only, and thus to show her not entitled to dower. Sparrow v. Kingman, 1 Comst., 242 ( overruling Sher- wood V. Vandenhurgh, 2 Hill, 303 ; and Bown V. Potter, 17 Wend., 164). II. WHEN AND HOW BAEEED OR OTHERWISE. 4. Surrogate's sale of land for husband's debts. Before assignment of dower, the widow has no estate in her husband's lands; but her interest is a mere chose in action or claim, which is extinguished by a sale under a surrogate's order. But after assignment, the seisin of the heir is defeated ab initio^ and the widow is in of the seisin of her husband as of the time when that seisin was first acquired or held during the coverture, and the statute does not authorize the surrogate to order a sale of the estate which she has Bifter such assignment. Lawrence v. Miller, 2 Comst., 245. 5. Surrogate's sale; Widow whose dower has been assigned not a iproper party to proceedings ; Her rights not affected by. The widow, after assignment of her dower, has no right to appear before a surrogate to show cause why the real estate of deceased should not be sold to pay debts ; that right is given by statute only to heirs and devisees and those claiming under them. If the surro- gate order a sale of the whole estate, including the part assigned to her as dower, the order is void as to such part. And though the widow may have appeared in such proceedings, under a mis- taken notion as to her rights, and although after the sale of the whole estate she buys out the interest of creditors in the proceeds and receives the whole purchase money, upon the representation to the creditors that such purchase money is subject to a deduc- tion of one-third to be set apart and invested for her benefit as dowress, yet she is not concluded by such sale or proceedings, from claiming the rents and profits of §uch portion of the pre- mises sold as had previously set apart to her for her dower. And an attornment by her tenant of the dower lands to the purchaser, under the surrogate's order, is void. Lawrence v. Brown, 1 Seld., 394. 208 COURT OP APPEALS DIGEST. 6. Ante-nupticd agreement. Where such agreement requires the husband, by his will, to secure to the wife an annuity for her life, with an interest in certain portions of his real estate, in lieu of dower or any part of his estate, it is no compliance with such agreement to secure such annuity to her during her widowhood only; and in such case the widow is not precluded from claiming the articles to be set apart by statute to the widow without appraisal ; and this, notwithstanding she is in possession of real estate and personal property held by her before marriage, and secured to her by the agreement. Provisions in a will in favor of a wife will not be construed to cut off her statute rights, by implication. Sheldon Laws V. Bliss 4. Seld., 31. 7. Lands taken pursuaTit to statute for public use, by a municipal corporation, upon an appraisement and payment of their value to the owner of the fee, become the absolute property of the cor- poration, divested of any inchoate right of dower existing in the wife of such owner. So held of lands taken by the corporation of the city of New York for a public market, under chapter 75 of the Lows of 1811. Moore v. Mayor, &fc., of New York, 4 Seld., 110. 8. Inchoate right ofd-ower defined. The inchoate right of dower of a married woman exists, not as a part of the marriage contract, but as a positive institution of law, incident to the marriage relation. It is not an estate, but a mere contingent claim, not capable of sale on execution, nor the subject of grant or assignment. And after assignment, it is a continuation of the estate of her husband, a part of the fee he held while living ; and this is entirely divested by proceedings to appropriate the land to public use. Id. (Com- pare in this connection, as to the right of dower being " not a part of the marriage contract, but a positive institution of law, inci- dent," &c. ; the reasoning in the case of Lawrence v. Miller, 2 Comst., 245, ante, "Constitutional Law-," and in the case of Wes- tervelt v. Gregg, 2 Kern., 2.02, seq., " Husband and Wife.") 9. Devise of whole estate of testator to widow for life, with remainders over, is not a provision in lieu of dower, unless such intention is to be implied from other terms of the will, and she may take one- COURT OF APPEALS DIGEST. 209 third as dowress, and the remainder as devisee. * Lewis v. Smith, 5 Seld., 502. 10. Effect of foreclosure of husband's mortgage is not to cut oif dower where he executed it alone during coverture, though the widow was Hiade a party to the foreclosure suit and the bill, which was taken as confessed against her, alleged, in pursuance of the 132d rule of the late Court of Chancery that she claimed some interest in the premises " as subsequent purchaser, incum- brancer, or otherwise." Such a decree bars only rights in the equity of redemption, not those rights which are prior and paramount to the title both of mortgagor and mortgagee. III. ASSIGNMENT OF, AND ACTION FOE, DOWER. 11. Parties defendant in action for. In the action of ejectment brought by the widow under the Revised Statutes (2 R. S., 303, sees. 2, 4, and 304, sees. 10, 13), she must make defendant the actual occupant of the land of which she is dowable, and not only the tenant of the freehold as was required in the former action of dower. And where she is entitled to dower in a block of lots in a city, the action may be maintained against the occupant of a single floor of a store erected on one of the lots, who has hired it of the former owner for a single year. But ( per Rdggles, Ch. J.) a judgment against him alone would not bind his landlord. ElUcott V. Hosier, 3 Seld., 201. 12. It is not a bar to her action, for dower that for several years after her husband's death, she has been in receipt of one-third of the rent of lands leased by him, in lieu of dower. Id. 13. No demand of her dower is necessary to be made by the widow before bringing her action. Id. IV. OTHER MATTERS. 14. Legacy in lieu of dower. The fact that a general legacy of bank stock is made to a widow in lieu of dower, will not give her the income which may have accrued upon such stock from the 27 210 .COURT OF APPEALS DIGEST. DKAWBAOK — EJECTMENT. time of the testator's death until its transfer to her. Tifft v. Porter, 4 Seld., 516. 15. Constitutional law. Quere, whether a statute would not be unconstitutional which should authorize a sale, under a surrogate's order, of a widow's estate in dower, where the marriage and seisin of the husband occurred prior to the passage of such statute. Lawrence v. Miller, 2 Comst., 245. But see No. 8, ante, 4 Seld., 110. DRAWBACK. 1. See 1 Comst., Title, "Money Had and Eeceived." EASEMENT. 1. See 1 Comst., Titles, "Adverse Possession." Ante, "Ad- verse Possession," 1. 5 Seld., "Ejectment," 1, 2. 2 Kern., "Pre- sumption of Grant." 4: Kern., "Pleadings," 4. 15 N. Y. Rep., "Party Wall." 16 N. Y. Rep., "Highway." ECCLESIASTICAL CORPORATIONS. I. See, seq., Titles, " Eeligious Societies." 1 Kern., 9, 10, " Reli- gious Societies," EJECTMENT. I. For what, and by and against whom, it lies. II. Parties ; Pleadings. III. Evidence. IV. Defense. ^ V. Other matters. I. FOE WHAT, AND BY AND AGAINST WHOM, IT LIES. 1. Ejectment only lies for something tangible, of which pos- session may be delivered by the sheriff to the plaintiff. Accord- ingly held, that it did not lie to recover a claim of right to use a wharf along a canal basin for the purpose of loading and unload- COURT OF APPEALS DIGEST.. 211 EJECTMENT. ing boats, carrying wheat and flour to and from the mill of the claimant adjoining the wharf, as an easement appurtenant to the mill, in common with a similar right in others, and which the claimant had occasionally used and exercised. Child v. Cha/p;pel, 5 Seld., 24:6. 2. For non-payment of rent. Ejectment does not lie except where a right of reentry for the breach is expressly stipulated for between the parties to the lease. Per Jewett, Ch. J. Van Rensselaer v. Jewett, 2 Comst., 141. 3. Tenants in common. By the common law, as well as by statute (2 R. S., 307), a tenant in common cannot recover in ejectment against his co-tenant, without proof of actual ouster, or some act amounting to a total denial of his right. The denial must amount to an actual disseisin of the co-tenant, or establish an adverse possession on the part of the wrong-doer. Accord- ingly, where the defendant, who was a tenant in common with the plaintiff of the title, " admitted himself to be in possession claiming the premises in question as oivner in fee thereof under a quit-claim deed" from a grantor who had owned an undivided share, and which deed purported to remise, lease, and forever quit-claim, unto the defendant, his heirs and assigns forever, the same premises, describing them by metes and bounds : Held, that the defendant was not guilty of any ouster or denial of his co-tenant's right, so as to subject him to an action of ejectment ; since, by claiming title under such a deed merely, the defendant, it seems, only asserted his right to the share which his grantor held, and not to the whole premises. Edwards v. Bishop, i Comst., 61. 4. Lessee having mere right of entry. A contract, dated at a future /day, leasing lands for a term commencing at such day, gives to the lessee, when the day arrives, the right of possession and to maintain ejectment against a stranger wrongfully with- holding; e.g., a person to whom the landlord, after his agreement of lease to plaintiff" and in violation thereof, leased the same pre- mises and put him in possession. But the plaintiff is not bound to resort to ejectment, but may at his option bring his action 212 .COURT OF APPEALS DIGEST. EJECTMEKT. against the landlord for damages for breach of the agreement to lease to plaintiff. Trtdl v. Crranger, 4 Seld., 115. II. parties; pleadings. 5. Liability of landlord not a party to the record. A landlord or other person entitled to be, but not actually, substituted for or made a party on record with the defendant, but who defends in fact, unsuccessfully, in defendant's name, will be ordered to pay plaintiff's costs, after the return of an execution against the de- fendant unsatisfied. Farmers' Loan and Trust Company v. Kursch, 1 Seld., 558. 6. Ejectment for dower must be brought, under the Eevised Statutes, against the actual occupant, and not as formerly against (only) the tenant of the freehold. Ellicott v. Hosier, 3 Seld., 201. 7. Several defendants, some of them occupying distinct parcels. Where, in an action against four defendants to recover pos- session of land, the complaint stated that one of them unjustly ■claimed title to the premises, and the others were in possession under him, and that the defendants unjustly withheld the pos- session from the plaintiff, the answer merely denied the allega- tion as to withholding possession, and alleged that one was the •owner of and entitled to the premises ; and on the trial it was proved by the defendants, subject to objection, that they occupied severally ■distinct parcels of the premises : Held, that under the pleadings the plaintiff was entitled to recover against all the defendants ; •and that if there was an improper joinder of parties (which the court do not decide), the objection should have been raised by de- murrer or in the answer. Fosgate v. The Herkimer Manufacturing •and Hydraulic Company et al., 2 Kern., 580. III. EVIDENCE. 8. Estoppel. In ejectment for dower against a grantee of the (husband by quit-claim deed, or a person holding under such granteer COURT OF APPEALS DIGEST. 213 EJECTMENT. the defendant is not estopped from showing that the husband was not seized of such an estate in the premises as to entitle his widow to dower. Such deed does not on its face define the estate or in- terest conveyed, or intended to be conveyed, and was never held to estop the grantor to show that no title passed, or to recover the premises in opposition to it, under after- acquired title. Nor, since estoppels must be mutual, could it estop the grantee, either in a controversy with the grantor, or with parties whose interest, like that of dower, depends upon his estate. Sparrow v. Kingman, 1 Comst., 242 (overruling in this respect, 2 Hill, 303, and 17 Wend., 164). 9. Forfeiture. The denial, orally, by a tenant for life or years, of his landlord's title, and the assertion that he owns the fee and owes no rent, cannot work a forfeiture of the term, or authorize the land- lord to maintain ejectment for the lands demised. Mere words spoTcm can never work such forfeiture ; nor can default in payment of rent have that effect, where there is a covenant for its payment and no condition in the lease providing for reentry for such de- fault. De Lancey v. Ganong, 5 Seld., 9. 10. As to parol agreements, practical location, &c., see, ante, Title, " Boundary Line." 11. Surrogate's sales. In an action of ejectment brought prior to the act of March 23, 1850, chapter 82, by a purchaser of the lands, sold by an administrator under a surrogate's order for pay- ment of debts, to recover possession of such lands, the plaintiff, in order to show jurisdiction in the surrogate, produced an affi- davit of publication in the State paper for six weeks commencing March 20, 1849, of the surrogate's order to show cause, &c., but the order itself bore date March 22> 1849. The order to sell con- tained a recital that it was made upon proof of due publication of the order to show cause : Held, (I.) That inasmuch as the order could not be published before it was made, the affidavit only tended to show at most a five weeks' publication ; (2.) That the recital was a mere statement by the surrogate that he had acquired jurisdiction, and not being or claiming to be an adjudication that he found from the evidence the fact giving jurisdiction, such recital 214 COURT OP APPEALS DIGEST. EJECTMENT. was of no effect on that question. SMey v. Waffle, 16 N. Y, Rep., 180. IV. DEFENSE. 12. Equitable relief. In an action to recover the possession of lands founded upon the legal title held by the plaintiff, the de- fendant may now allege and prove as a defense, that he is equitably the owner of the premises, and entitled to a conveyance thereof. Crary v. Goodman, 2 Kern., 266. 13. Presumption of payment. Where the vendor, by an instru- ment under seal, contracts to sell and convey land on the pay- ment of the purchase price, which the vendee covenants to pay in a specified time, and more than twenty years after the purchase money becomes due, the vendor, treating the contract as forfeited for non-payment, brings ejectment against the vendee to recover possession of the land : Held, That the presumption of payment arising from the lapse of time, is not sufficient to uphold an equitable title in the defendant to the land. To establish such defense, payment in fact of the purchase money must be proved. Lawrence v. Ball, i Kern., 477. 14. The statute (2 R. S., 301, sec. 48), as to the presumption of payment after twenty years, is in the nature of a statute of limitations ; available as a bar to an action to recover on the instrument, but not as a ground of affirmative relief, based on the fact of payment. Id, V. OTHER MATTERS. 15. Ejectment as a remedy on non-payment of rent. Where a right of reentry is reserved for breach of covenant to pay rent, the land- lord, before he can exercise such right or bring ejectment, at the common law, must make an actual demand of the exact amount of rent due, on the very day it becomes due, at a convenient time before sunset, and at the particular place where it is made payable ; or, if no place is specified in the lease, then at the most COURT OF APPEALS DIGEST. 215 ELECTION OF EIGHT OE EEMEDT — ELECTION; TOTEE. notorious place on the premises. Van Rensselaer v. Jewett, 2 Comst., 141. 16. See, ante. Title, "Deed," VII. 17. Mortgagor in default may still maintain ejectment against a mere intruder, since the right of possession is given him by statute as a legal right. Olmsted v. Elder, 1 Seld., 144. 18. Notice to quit. A tenant for life or lives, vrho continues in possession, without the consent of the owner, after the determi- nation of the life estate, is not entitled to notice to quit. The statute (1 R. S., 747, § 7) declared him a trespasser, and eject- ment will lie without a previous notice to quit. His so holding over does not create a tenancy at sufferance, within the meaning of the statute (1 R. S., 745, § 7), requiring a month's notice to quit. Livingston v. Tanner, 4 Kern., 64. 19. Appeal. An order of the Supreme Court, vacating a judg- ment in an action to recover the possession of lands, and granting a new trial on payment of costs, under 2 Revised Statutes, 309, respecting new trials in ejectment, is not the subject of appeal to this court. Evans v. Millard, 16 N. Y. Rep., 619. 20. See also 2 Comst., Titles, " Sheriff's Deed," 3. 4 Comst., "Limitations, Statute of," as to action by the people. 1 Seld., " Loan Commissioners." 5 Seld., " Landlord and Tenant," 5. 4 Kern., " Husband and Wife." ELECTION OF RIGHT OR REMEDY. 1. See, ante, Titles, "Agent," 1. 1 Comst., "Mortgage," 4, 5; " Extinguishment," 3. 3 Comst., " Replevin," 8. 15 N. Y. Rep., 365. ELECTION; VOTER. 1. Perjury. A challenged voter swearing falsely before a de facto board of inspectors, is liable to the same punishment as if the oath had been administered by inspectors de jure. The People V. Cooi, 4 Seld., 67. 216 COURT OF APPEALS DIGEST. BMINEST DOM AIIT EQUITABLE OWNEK. 2. Election of Justices of Supreme Court. See, ante, Title, " Con- stitutional Law." 3 Kern., 350. EMINENT DOMAIN. 1. See 3 Seld., Titles, "Municipal Corporations," 1, 2. 4 Seld., 472. 5 iSeM., "Corporations," 3 to 6. ^w WBIT OF EBBOB. be reversed if jurisdiction did not appear on the face of their pro- ceedings, such judgments are not nullities which in a collateral suit may be disregarded. Their jurisdiction is presumed until the contrary is shown. Chemung Canal Bank v. Judson, 4 Seld., 254. 8. What errors below are available on writ of error or otherwise. An error committed by the Supreme Court in discharging on cer- tiorari, two out of four tenants proceeded against, is not available on- a writ of error to this court brought by those against whom judgment was rightfully pronounced in that court. Geisler v. Acosta, 5 Seld., 227. 9. What errors not ground of reversal. The court will not reverse a judgment for an erroneous refusal to non-suit, where the defect in proof is supplied during the trial. Per Johnson, J. Schenec- tady and Saratoga Plank Road Company v. Thatcher, 1 Kern., p02. / 1^4^ 10. Refusal of a judge to charge a jury as particularly requested, is not error, where he had previously charged them in substance as requested. Holbrook v. The Utica and Schenectady Railroad Company, 2 Kern., 236. 11. Averaging testimony as to value. A jury have no right to arrive at the value of property by taking the arithmetical average of the sums at which it was estimated by the witnesses ; and it is error to instruct the jury that such is the correct mode of ascer- taining its value. Thomas v. Dickinson, 2 Kern., 364. 12. See Titles, " Appeal," ante. Also 4 Kern., " Evidence," 6; "Exceptions." 13. Judgment must dispose of whole indictment and a writ of error will not lie to review a judgment on some of the counts while others are undisposed, of. Nor has the act of 1852, chapter 82, altered this rule. The People v. Merrill, 4 Kern., 74. 14. Question of fact in criminal cases. On a writ of error to review the judgment of the Supreme Court in a criminal case, where the conviction was by a justice of the peace, sitting as a court of special sessions without a jury, and his judgment was removed into the Supreme Court by certiorari, this court is not concluded by the decision of the court below on questions of fact, COURT OP APPEALS DIGEST. 221 ESCAPE — ESTATES. but is authorized to review the case upon the evidence. Bar- ringer v. The Feople, 4 Kern., 593. V ESCAPE. 1. See, seq., Titles, "Execution." 3 Cormt., "Execution." 5 Seld., "Execution," 1,2. ESCHEATS. 1. A person dies " seized" within the meaning of the acts con- cerning escheats, who, at his death, is the holder of a sheriif's certificate of sale of real estate under judgment and execution, and the commissioners of the land office may therefore release lands thus situated. These acts (authorizing releases), it seems, were designed to embrace every interest which the State can acquire in lands by escheat. Englishbee v. Helmuih, 3 Const., 294. • E8CE0W. 1. Delivery of deed or agreement as an escrow can only be made to a stanger. If it be made to the party it is absolute, and the instrument takes immediate efiect as the deed or agreement of the party delivering it ; and parol evidence in such case cannot be received of conditions qualifying the delivery. And, per Paige, J., delivery to agent of the party, as such agent, has the same effect in this respect as delivery to the party himself. Wor- rall V. Munn, 1 Seld., 229. ESTATES. 1. See 1 Comt., Titles, " Will." 2 Const., " Trusts and Trus- tees;" "Will." 4 Consit., ^' Will," 1, 2, 3, 4, 5, 8. Kern., "Con- dition," 4. Ante, " Condition." 222 COURT OF APPEALS DiaEST. ESTATE FOE MPB. ESTATE FOR LIFE. * 1. Words of inheritance. Where lands are devised by will which took effect prior to the Revised Statutes, and there are no words of inheritance, the devisee takes a life estate only. Nor is such estate in that case enlarged into a fee by the fact that it is charged by the will with a legacy unless the charge is imposed upon the person of the devisee in respect to the lands devised. A testator by his will, made in 1821, devised to his son Nathaniel, without words of inheritance, certain lands designated as the " Powers' lot." To another son he gave a legacy of $1,000 to be paid out of his^er- sonal estate if sufficient after paying debts and other legacies, but if not sufficient, then to be paid in land from the " Powers' lot," to be appraised by the executors, so as to make up the sum of $1,000 : Held, that the legacy was not charged upon Nathaniel, personally; and, therefore, that he took only a life estate in the " Powers' lot." Olmstead v. Olmstead, 4 Const., 56. See also Mesick v. New, 3 Seld., 163. 2. The words " to be eqiLolly divided," not equivalent to words of inheritance. Where a testator, before the Revised Statutes, de- vised a lot of land to his wife during her widowhood, and on her death to be " equally divided," between his two sons, and there were no words of inheritance in the will, held, that the sons took a life estate only. Edwards v. Bishop, 4 Comst., 61. The provision of the Revised Statutes in respect to words of inheritance, &c., above referred to, is as follows : " § 1. The term ' heirs' or other words of inheritance, shall not be requisite to create or convey an estate in fee ; and every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant." 2 R. S., 33, § 1. COURT OP APPEALS DIGEST. 223 ESTATES TAIL. ESTATES TAIL. 1. Operation of act of 1786 on estates tail in remainder. A remainder in fee limited by will to the eldest son of the first taker, to whom an intermediate life estate is given, is contingent until the birth of such son ; but on the happening of that event before the termination of the life estate, it becomes a vested estate in remainder. And where an estate tail in remainder was so limited, and became vested by the birth of a son prior to the act of 1786, abolishing entails : Held, that by the operation of that act, the estate tail in remainder was converted into a fee simple in remainder, which, on the death of the remainderman without issue in 1809, and before the termination of the intermediate life estate, descended to his father as his heir-at-law ; the remainderman in such case, his estate being acquired by purchase, i. e. by devise and not by descfent, having sufficient seisin in law to constitute him a stirps or stock of descent. Wendell v. Crandall, 1 Comst., 491. 2. Operation of the act of 1786 on estates tail in remainder and limitations over on failure of issue. A testator, by his will, which took efiect in 1801, devised his real estate to his four sons and the heirs of their bodies, share and share alike ; if any one of them should die without issue, his share was to go to the survivors, to be equally divided among them ; and if all the sons should die without issue, the estate was to go to the children of the daugh- ters : Held, (1.) That by the primary devise to the sons, they took estates tail, with contingent cross-remainders, which, by the statute of 1786 abolishing entails, were converted into abso- lute estates ; (2.) That the limitations over to the survivors among the sons, and to the children of the daughters, were cut off by that statute. Lott v. WyJcoff, 2 Comst., 355. 3. Operation- of act of 1786 on expectant remainders in tail, and limitations over on failure of issue. A testator by his will, made in 1805, devised the use and improvement of his farm to B. during his life, and after his death to James, the eldest son of B., and to the heirs of his body and their heirs and assigns forever; but in 224 COURT OF APPEALS DIGEST. ESTOPPEL AND FOEMEE ADJUDICATION. case James should have no such heirs, then to Cyrus, the brother of James, and his heirs : Held, that James took a vested remainder in tail expectant on the termination of the life estate of B., which, by the operation of the statute abolishing entails v?as con- verted into a fee simple, and that the limitation over to Cyrus was cut off by the operation of that statute. Barlow v. Barlow, 2 Comst., 386. ESTOPPEL AND FORMER ADJUDICATION. I. Estoppel in pais, n. Estoppel by deed or will. III. Former adjudication. I. ESTOPPEL IN PAIS. 1. A party is not estopped by his admission or assertion of a conclusion of law upon undisputed facts. Brewster v. Stryker, 2 Comst., 19. 2. Obligor consenting to assignment of bond, when estopped to set up defense to bond. Where the obligor in a bond, to which an equi- table defense existed, consented to its assignment by the obligee to a third person as security for an existing debt, and for further advances made at the time to such obligee by such third person who agreed also to give further time of payment to the obligor : Held, that although such third person knew of the existence of such defense when he took the assignment, yet that the obligor was estopped by his consent to such assignment, from setting up such defense, and his bill filed to restrain the prosecution of the bond at law and to have the same canceled, was dismissed. Lamoreuxv. Vischer, 2 Comst., 278. 3. Joint contractors who are not partners, are not estopped by each other's admissions. Where two persons gave their note payable in specific articles, and one of them admitted its validity: Held, That the other was not estopped from setting up that the note was without consideration and void, although the plaintiff in in- terest, or the person from whom he received it, had purchased the note on the faith of the admission. Lewis v. Woodworth, 2 Comst., 612. COURT OF APPEALS DIGEST. 225 ESTOPPEL AND FORMEE ADJODICAIION. 4. Receipt in full for debt, given by a creditor of a firm to their agent in exchange for the certificate of the agent that the firm owes him so much, balance " on settlement," does not estop the creditor from asserting his claim against the principals, unless they have settled with the agent on the faith of the receipt and upon the supposition that the agent has actually paid the debt. Davis V. Allen, 3 Comst., 168. 5. Owner of goods allowing another to treat them as his own is es- topped from setting up his title afterwards as against a purchaser in good faith from that other thus assuming the credit of owner- ship. Thus where a manufacturer of cloth sells his wool or some portion thereof, but the buyer voluntarily allows the manufac- turer to retain the wool in his possession and carry on the business as before in his own name, to manufacture the wool into cloth, and to deal with it as his own, such buyer cannot afterwards set up his title to the cloth against a subsequent pur- chaser in good faith. Thompson v. Blanchard, 4 Const., 303. 6. Estoppel in pais defined. In order to create an estoppel in pais, it must appear that the party asserting the estoppel has been induced by the acts or declarations of the party sought to be estopped, to believe the existence of the facts to which the es- toppel relates, and that he has in good faith acted upon such belief. Lawrence v. Brown, 1 Seld., 394. 7. Sale of property under execution. A party is not estopped from denying that an oflBcer had power to sell his property under execution, unless it appear that, having knowledge of the facts invalidating the power, he misled the purchaser. Carpenter v. Stillwell, 1 Kern., 61. 8. A subscribe to stock in a proposed company, who is present at the first election, is there elected as director and afterwards acts as one of the board, cannot, when afterwards sued by the com- pany on his subscription, object to the validity of its organization for want of notice of the election or that some of the subscribers did not attend. The Schenectady and Saratoga Plank Road Com- pany V. Thatcher, 1 Kern., 102, 29 226 COURT Of APPEALS DIGEST. ESTOPPEL AND FOKMEK ADJtTDICATIOH. 9. Fraudulent issue of stock certificates by president, and transfer agent of a corporation does not create an estoppel in pais against the corporation in favor of a party who lent money to the holder of such certificates on a pledge thereof. Mechanics^ Bank v. New York and New Haven Railroad Company, 3 Kern., 599. 10. A sheriff's return of nulla bona on an execution, after it has been canceled by order of the court, does not conclude or estop the sheriff as against parties who did not act upon the faith of it. Accordingly where a deputy sheriff levied upon the debtor's pro- perty, which was in the life of the execution, converted wrongfully by a third person, and the deputy afterwards returned the execu- tion nulla bona, but was then permitted by the court to with- draw the execution from the files and cancel the return, and then brought an action for the conversion : Held, That he was not estopped from proving the levy, and that the property be- longed to the debtor ; and that the return did not divest the title acquired by the levy or discharge the right of action for the con- version. Barker v. Binninger, 4 Kern., 274. II. ESTOPPEL BY DEED OE WILL. 11. Grantee of lands by quit-claim deed, and those claiming under him, are not estopped by the grant to show, in subsequent action for dower brought by grantor's widow, that grantor had not such an estate in the lands as would entitle the widow to dower. Sparrow v. Kingman, 1 Comst., 242 (overruling in this respect 2 Hill, 303, and 17 Wend., 164). 12. A partition of real estate among devisees, by action, and occu- pying under it, claiming as owners in fee, does not create an es- toppel, as against one of said devisees in favor of his judgment creditor, who purchased the share of such devisee at a sale under his own execution, so as to prevent such devisee from showing, in order to defeat such purchaser's action of ejectment, that by the devise the legal estate was vested in the executors and not in the devisees, at the time of the docketing of such judgment, and COURT OF APPEALS DIGEST. 227 ESTOPPEL AND FOEMEK ABJUDICATION. therefore that such judgment was not a lien on the share of such devisee, and the purchaser acquired no right or title by his pur- chase at such sale. Bretvster v. Striker, 2 Comst., 19. 13. By partition deed. Two tenants in common make partition of their lands, and execute to each other releases in fee. One of them had only a life estate, but after the division the fee descends to him, and he subsequently sells and conveys in fee the part allotted to him in the partition. This, it seems, confirms the par- tition, so that he who held only the life estate cannot claim any interest in the part allotted to his cotenant. Baker v. Lorillard, 4 Comst., 257. 14. See, ante. Title, " Absent and Absconding Debtors," 3. 15. Municipal corporation cannot impeach its , own records. The trustees of the village of Lockport cannot impeach a record of their acts in appropriating lands for a street, where they had jurisdiction of the proceeding. Buell v. Trustees of Lockport, 4 Seld., 55. 16. A tenant cannot controvert the title of one under whom he holds, and whose title he has recognized. Ingraham v. Baldwin, 5 Seld., 45. 17. Lessee after term has expired. The acceptance of a lease and the payment of rent for the use of a wharf, where it appears that the lessee acted in ignorance of his legal rights, do not, after the expiration of the term, estop the lessee from asserting a right to use it without the consent of the lessor. Child v. Chappell, 5 Seld., 246. 18. Usurer estopped to claim contract void for usury. The usurer is not allowed to show that an obligation, which he has taken in satisfaction of a prior demand, is usurious, and therefore void, in order to avoid the effect of such obligation as a satisfaction of the prior demand. La Farge v. Hester, 5 Seld,, 241. 19. Grantor in a deed in fraud of creditor. The defendant in ejectment cannot impeach a grant to the plaintiff, made by the party under whom both claim, and overreaching the defendant's title, by showing that such grant was made in fraud of creditors, the defendant not being himself a creditor nor claiming under any 228 COURT OF APPEALS DIGEST. ESTOPPEL AHB POBMER ADJUDICATION. proceedings instituted by creditors to avoid the deed. Such de- fendant can claim no right which his grantor would be estopped from setting up. Moseley v. Moseley, 15 N. Y. Rep., 334. 20. An indorser of a promissory note which was niade by a firm of married women, is estopped to deny that the makers were com- petent to make a contract; since his indorsement imports a guaranty that they were competent. Erwin v. Downs, 15 N. Y. Rep., 575. 21. A party cannot be held estopped to deny a fact which he never admitted. Despard v. Walhridge, 15 N. Y. Rep., 374. 22. Obligor in replevin bond estopped to deny its recitals. Where the defendant, as surety for a plaintiff in replevin, executed a replevin bond which had previously been executed by other sureties, without the knowledge or consent of the previous sure- ties, and in order to comply with an order of a circuit judge who made it a condition of putting the cause over the circuit, that such additional surety should be fnrnished by the plaintiff: Held, in an action upon such bond, that the defendant was estopped by his execution of the bond from denying the recitals in it which imported that it was executed upon the institution of the replevin suit, and taken by the sheriff at a time when it was lawful and proper to take the same, and his defense that it was taken colore officii was therefore overruled. Decker v. Judson, 16 K. Y. Rep., 439. III. FOEMEE ADJUDICATION. 23. Conclusive on the same question involved, though the subject matter of the first and second suits he different. Where A. took from B. a bill of sale of certain personal property, and C. after- wards levied upon the property, by virtue of attachments in favor of B.'s creditors, and A. subsequently took and converted to his own use a part of the property, for which C. sued him and recovered judgment in a justice's court, on the ground that the bill of sale was fraudulent and void as to the creditors : Held, That the judgment was conclusive upon the question of fraud in an action of replevin brought afterwards by A against C in the COURT OP APPEALS DIGEST. 229 ESTOPPEL AND FOEMEK ADJUDICATION. Supreme Court, to recover the residue of the property. Doty v. Brown, 4 Comst., 71. 24. Evidence. And held further, that parol evidence was ad- missible in the second suit for the purpose of showing what questions were controverted in the first action, and the grounds upon which it was determined. Id. 25. Pleading by public officer. And also held that a party sued for acts done by him as a public officer, may, under the statute (2 R. S., '353, sees. 28, 29), insist upon a former adjudication as conclusive, without pleading it. Id. 26. An interlocutory order of the Court of Chancery, affirmed in the Court of J^rrors, allowing a plea, or overruling it on a tech- nical ground, but ordering it to stand for an answer, is an adjudi- cation that the matter of the plea, if true, is a good defense to the bill, and the parties to such order are conclusively bound by that determination in all the future proceedings in the cause. Thus, where to a creditor's bill one of the judgment debtors put in a plea alleging that he was a surety merely, and was discharged from the debt by reason of an agreement, made after judgment, between the creditor and the principal, extending the time of payment ; and on argument of the plea, the Court of Chancery overruled it on a technical ground, but held the matter of the plea a good defense, and allowed it to stand for an answer, and the order was afterwards affirmed by the Court of Errors : Held, that on the final hearing of the cause, on pleadings and proofs, after the truth of the plea had been established, the effect of the agree- ment on the rights of the surety was not an open question, but had been conclusively determined in his favor by the previous order. Bangs V. Strong et ah, 4 Comst., 315. 27. Malicious prosecution. A recovery by the plaintiff in an action for a malicious prosecution, is a bar to a subsequent action of slander for the accusation uttered for the purpose of having the arrest made, and on the occasion when it was made ; since the injury to plaintiff's fame and reputation, occasioned by the accusa- tion, was a proper ground for a claim of damage, and one of the 230 COURT OF APPEALS DIGEST. ESTOPPEL AHD FORMER ADJUDICATION. elements of damage in the action for the malicious prosecution. Sheldon v. Carjienter, 4 Comst., 578. 28. See, ante, Title, " Appropriation of Lands," 9. 29. Summary 'proceedings. The verdict of a jury, in summary proceedings by a landlord to remove a tenant for default in the payment of rent, finding that no rent is due to the landlord, is conclusive upon that question in a replevin suit, brought by the tenant against the landlord, to recover property subsequently dis- trained by the landlord to satisfy the same claim of rent. White V. Coatsworth, 2 Seld., 137. 30. A judgment cannot he collateralhj inquired into or impeached. The defendants undertook the collection of a bill for the plaintifij and advanced him the amount thereof; violated their duty, by which means the bill wa.s not collected ; falsely stated to him that they had used due diligence to collect it, and could not, and sued him for the repayment of the advance. He, relying on these false statements, made no defense, and permitted a judgment to be recovered, which he paid : Held, that he could not maintain an action against them for the injury, as it would enable him collaterally to impeach the judgment. White v. Merritt and WheO" ton, 3 Seld., 352. 31. Representatives of parties to a chancery suit are estopped from litigating in a new suit a question as to the validity of a conveyance determined in a former suit. Burhans et al. v. Van Zandt et al, 3 Seld., 523. 32. In summary proceedings to remove tenants from demised premises, on account of their holding over without the per- mission of their landlord after demand and non-payment of rent due, an affidavit of the tenants, stating that the landlord had previously, by a similar proceeding, impleaded the tenants, before a magistrate on account of the non-payment of the same rent, and that the parties appeared, and after their proofs and allegations were heard, the magistrate gave judgment in favor of the tenants, is not sufficient to bar the landlord's claim, as it does not show what issue, or whether any, was joined, or COURT OF APPEALS DIGEST. 231 ESTOPPEL AKD POKMEK ADJUDICATION. upon what ground the judgment proceeded. Geisler v. Acosia, 5 Seld., 227. 33. In trespass quare clausum fregit for entering and cutting timber, describing the close by metes and bounds and as contain- ing about one hundred acres ; plea that that part where the trespass was committed was defendant's soil and freehold, and judgment on that issue for plaintiff; the judgment record in that case is not evidence that the title to the entire close was adjudged to be in the plaintiff. Dunckle v. Wiles, 1 Kern., 420. 34. In an action upon an agreement wherein the plaintiff's right to recover depended upon his proving full performance alleged in the complaint and denied in the answer, a recovery therein by plaintiff is a bar to a subsequent action by defendant against plaintiff for damages for an alleged non-performance ; and this though in the first suit the defendant had, in his answer, also alleged breaches and claimed to recoup, but on the trial expressly withdrew such claim and gave no evidence touching the alleged breaches, and the second suit was to recover damages for such breaches. Davis v. Tallcott, 2 Kern., 184. 35. See, ante, Title, " Bailment," 15. 3G. Parlies and privies ; Subject matter different, but issue the same. Where, in an action to recover the possession of personal property, the plaintiflF claims under a chattel mortgage, alleged by the defendant, who is a purchaser under an execution against the mortgagor, to have been fraudulent as to creditors, a judgment against the now defendant, in a former suit in which he was plain- tiff and a servant of the now plaintiff was defendant, and in which the validity of the same chattel mortgage was in question, estops the defendant in this action. And it is immaterial that the former judgment was based upon other grounds than the validity of the mortgage, to wit, on the ground that the plaintiff in the former action failed to prove the judgment on which the execu- tion issued. It was essential that the former plaintiff should have shown himself a judgment creditor before he could attack the mortgage for fraud ; and that question, to wit, his own title as a 232 COURT OF APPEALS DIGEST. ESTOPPEL AND FORMER ADJUDICATION. creditor, was within the former issue which was determined against him. Castle v. Noyes, 4 Kern., 329. 37. Former suit must have embraced the same issue- to he a bar. A defendant is not estopped by the record of a judgment in a former action, wherein he and others were plaintiffs, and the plaintiff in the subsequent suit was defendant, from disproving an allegation contained in the complaint in the former suit, the truth of which was not involved in the judgment rendered in that action. Sweet V. Tattle, 4 Kern., 465. 38. Mere sureties are not estopped by judgment against their prin- cipal, but in an action against them are at liberty to prove, in their own defense, matters constituting a defense which the principal neglected to set up. So held in a case -where there had been a recovery against a sheriff for an alleged neglect or miscon- duct of a deputy, of which suit the deputy had notice, and which he was requested but neglected to defend ; and the sureties of such deputy, who had no such notice or request , were sued by the sheriff on the deputy's bond : that they were at liberty to- prove facts which would have constituted a good defense in the action against the sheriff. Thomas v. Hubbell et al., 15 N. Y. Rep., 405. 39. Debtw and creditor ; Release in insolvent proceedings. Where a creditor united with his debtor in a petition for insolvent dis- charge and made the usual affidavit verifying the indebtedness, and thereupon executed to the debtor a general release; and subsequently the debtor presented the petition to the proper officer, with his own and the creditor's affidavit of indebtedness, and applied for a discharge : Held, in an action afterwards brought by the creditor upon such debt, that the debtor was not estopped by such proceedings under the insolvent act, to set up the general release in bar of the action. Maybee v. Sniffen, 16 N. Y. Rep., 660. 40. Mortgagee and prior mortgagee. A mortgagee of land is not estopped by judgment in an action, or the award of arbitrators between his mortgagor and a prior mortgagee, rendered in an action commenced after the execution of the second mortgage and COURT OF APPEALS DIGEST. 233 EVIDENCE. to which the second mortgagee was not a party, but may litigate the amount due upon the prior mortgage, notwithstanding such judgment or award. Camj/hell v. Hall and others, 16 N. Y. Rep., 575. EVIDENCE. I. Presumptions and matters of whioli courts take notice without proof. II. Statutes ; Public documents ; Judicial proceedings, domestic and foreign. III. Deeds, wills and private writings generally, including books of account. IV. Recitals ; Confessions and declarations. V. Opinions of witnesses ; Testimony of a party as to his own intent in a parti- cular act. VI. Rule requiring the best evidence to be produced ; Proof as to lost instruments ; Notice to produce papers. VII. Parol evidence to explain, &c., written instruments, signs and marks. VIII. Other matters. 1. Handwriting. 2. Usage. 3. Impeaching and sustaining testimony. 4. Former testimony of a witness. 5. Evidence generally in civil and criminal cases. I. PRESUMPTIONS AST) MATTERS JUDICIALLY NOTICED. 1, It seems that where one party receives money from another, and there is no explanation of the fact, the presumption is that he receives it because it is his due, and not by way of loan. But where a witness testified that he asked the defendant if he had had any money of the plaintiff, and the defendant replied that he had had twenty dollars of him, and the witness then told the defendant that the plaintiff had requested the witness to speak to him about it, to which the defendant made no reply, hut turned away : Held, that a jury might infer from this evidence that the money was received by way of a loan, and the jury having so found, that their verdict in a justice's court was conclusive. Bogert v. Morse, 1 Comst., 377. 2. The giving of a promissory note is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker was indebted to the payee upon such statement to the amount of the note. Lake v. Tysen, 2 Seld, 461. 30 234 COURT OF APPEALS DIGEST. EVIDENCB. 3. Usurious agreement may be inferred from the fact, that twenty- two days after the loan, the borrower paid and the lender re- ceived a sum equal to more than seven per cent for the use of the money from the time of the loan, although there is no direct evi- dence of an original usurious agreement. Catliu v. Gunter, 1 Kern., 368. 4. Foreign laws are regarded as facts, to be alleged and proved like other facts, of which the courts do not take judicial notice. But in the absence of such allegations and proof, our courts will presume that foreign laws are like our own. Monroe v. Douglass, 1 Seld., 448. 5. Presumption of payment. A presumption arises that a mort- gage is paid after the expiration of twenty years from the time the amount secured thereby becomes due. And an uncanceled mort- gage sixty years old is not a valid objection to the title of the land covered thereby, where there is no evidence to rebut the legal presumption that it has been satisfied. Belmont et al. v. O'Brien, 2 Kern., 394. II. statutes; public documents; judicial proceedings, DOMESTIC AND FOREIGN. 6. Ejectment ; Receipt of damages assessed in proceedings talcen to widen streets. In an action of ejectment, where the question is whether the corporation of the city of New York has acquired title to lands by virtue of proceedings, taken under the charter, for the purpose of widening a street, the papers used on the application to the Supreme Court for a confirmation of the report of the com- missioners of estimate and assessment, are competent evidence for the purpose of sustaining the proceedings, and may be used to show that the party assailing the proceedings consented to relinquish to the corporation the residue of a lot, where the whole is not taken for the public use. And the receipt by the owner of the damages assessed for such residue, is evidence, it seems, that he assented to the proceedings. Embury v. Conner, 3 Comst., 512. 7. Jurisdictional facts asserted in a record. Where the jurisdic- tion of a court of limited authority depends on a fact which must COURT OF APPEALS DIGEST. 335 be ascertained by such court, and such fact is asserted in the record of its proceedings, a party who appeared and had an op- portunity to controvert the jurisdictional fact and did not, but con- tested on the merits, cannot afterwards in a collateral action impeach the record, and show that the jurisdictional fact, did not exist. Per Foot, J., in Dyckman v. The Mayor, &jc., of New YorJc, 1 Seld., 434. See also Sheldon v. Wright, Id., 497. 8. The charter of the city of New YorJc may be read as prima facie evidence, for all purposes, from a volume printed by author- ity of the common council, whether it was printed prior, or sub- sequent, to the act of April 17, 1832. Howell v. Ruggles et al., 1 SeU., 444. 9. See, ante. Title, "Former Adjudication," No. 40. 10. Judgment record from a court of a sister State. A duly authen- ticated copy of a judgment record of a court of a sister State, in a suit where it had jurisdiction of the parties and the subject mat- ter, is conclusive evidence in a suit in the courts of this State between the parties or their privies concerning the same subject matter, on all questions litigated and decided in the foreign court. Accordingly, where a judgment originally recovered in this State was sued over, in Connecticut, and the defendant filed a bill in equity in that state to restrain such suit for alleged fraud in the procuring of the judgment originally, and such bill was sustained after issue and trial, and an assignee of the plaintiff then brought an action on such judgment in this State: Held, that a duly authenticated copy of the record and proceedings in the Connecticut court, was conclusive evidence that the judgment - was procured by fraud. Dohson v. Pcarce, 2 Kern., 156. f^uf\J ■"" 11. See ante, Title, " Absent and Absconding Debtors," 6. 12. See, ante, Title, " Bankruptcy," No. 14. III. DEEDS, WILLS, AND PEIVATE WEITINGS GENERALLY, INCLUDING, BOOKS OF ACCOUNT. 13. See, ante. Title, " Deed." 14. A party who relies upon the account books of his adversary to prove items in his favor, must also take them as evidences of 236 COURT OF APPEALS DIGEST. such charges as they contain against him. Low v. Payne, 4 Comst., 247. 15. The account books of a party are not evidence in his favor to prove charges of cash lent to his adversary. But vsrhere his adversary introduces such books, or insists on them as evidence in his favor, they then become proper evidence of the vsrhole ac- count, it seems, including the items of cash lent. Id. 16. Deed ; Subscribing vntness. A deed may be proved by proving the handwriting of the subscribing witness, and the death of such vdtness, notwithstanding it has also attached to it a de- fective certificate of acknowledgment. The common law method of proof is not superseded by the statute. Borst v- Empie, 1 Seld., 33. 17. Subscribing witnesses to a will or deed, whether experts or not, but no others not experts, may give their opinion as to the sound- ness or unsoundness of mind of a testator or grantor at the time of executing the same. De Witt v. Barley and Schoonmaker, 5 Seld., 371. 18. Declarations of a testator accompanying an alleged act of revocation are competent as part of the res gestce, on the question of revocation. But where a will is disputed on the ground of fraud, duress, imposition or other like cause not drawing in ques- tion the testator's mental capacity at the time of its execution, neither his prior or subsequent declarations are evidence. Per Selden, J., in Waterman v. Whitney, 1 Kern., 157. 19. But where the will is resisted on the ground that the tes- tator was not of sound mind, or that it was procured by undue influence which involves his mental condition at the time it was executed, his subsequent statements touching the disposition of his property and inconsistent with the will, in connection with other evidence tending to prove a want of mental capacity, are competent. And it seems that his prior as well as subsequent declarations are, under the same restrictions, competent evidence, but only as tending to prove the testator's mental condition, when the will was executed, and if so remote as to have no legitimate bearing on that point, they should be excluded. Id. COUET OP APPEALS DIGEST. 237 20. Bank-booh and pass-booh. Entries in the books of a bank, and in the pass-book of the maker of a promissory note held by the bank, made while the bank was the owner of the note, are competent evidence in a suit on the note brought by one to whom it was transferred after it became due, to show that it had been paid ; and also to show prima facie the time of such payment. They are not the mere declarations of a former holder of the paper, but are the acts of the parties, and in the nature of receipt and vouchers of payment made and delivered in the course of business. Jermain v. Denniston, survivor, Sfc, 2 Seld., 276. 21. BanJc check and bank-booh. A check drawn upon and paid by a bank, is not evidence of indebtedness of the drawer to the bank, the legal presumption being that it was drawn against funds. The books of account kept by a bank are not of them- selves evidence, against its customers, of the facts indicated by their entries. White, receiver of the Canal Bank of Albany, v. Ambler, 4 Seld., 170. 22. Waiver of production of subscribing witness. Where a docu- ment, attested by a subscribing witness, has been proved by secondary evidence, without objection, in an examination of a, witness conditionally, it is too late, upon the trial, to object to its being read from the deposition. Ward v. Whitney et al., 4 Seld., 442. IV. RECITALS ; CONFESSIONS AND DECLAKATIONS. 23. The declarations of a former owner of personal property are not admissible in evidence to prove a sale of such property to a party claiming under him. Worrall v. Parmelee, 1 Comst., 619. 24. Possession of real estate. The declarations of a person in possession of lands are competent evidence against himself and all persons claiming under him, for the purpose of showing the character of his possession and by what title he claims. Pitts v. Wilder, 1 Comst., 625. 25. Trespass. In an action of trespass in a justice's court, the proof was that the defendant admitted that he had levied on the 238 COURT OF APPEALS DIGEST. property, at the same time exhibiting the execution, and stating whom it was against ; and when asked whether he would disclaim the levy, he refused to do so : Held, sufficient to charge him as a trespasser, and that the admission involved no justification under the process. Copley v. Rose, 2 Comst., 115. 26. Declarations of the master of a vessel concerning an injury to the goods, made before he has discharged his duty by delivering the goods according to the bill of lading, are competent evidence for the plaintiffs in an action against the ship owner. Price v. Powell, 3 Comst., 322. 27. Declarations of testator. See, ante, Nos. 18, 19. 28. Complaints of pain and distress by an injured person at the time of the alleged injury, are competent evidence in his own behalf as to whether the injury was serious, in connection with other testimony as to his condition. Caldwell v. Murphy, survivor, Sfc, 1 Kern., 416. 29. Declarations of an intestate, touching the title to personal property, though evidence against his administrator, are not com- petent evidence against other parties deriving title from him. Accordingly, where the plaintiff, as survivor, sought to recover the proceeds of personal property sold by the defendants on com- mission, alleging that he and the deceased owned it as copartners ; and the defendants denied that the plaintiff had any interest in the property, or that he and the deceased were copartners, alleging that the latter was the exclusive owner of the property, and that the proceeds belonged to and were claimed by his administrator : Held, that the declarations of the deceased that he and the plaintiff were copartners, and owned the property as such, were not evidence against the defendants. Brown, survivor, Sfc, V. Mailler et al., 2 Kern., 118. 30. Recital in a deed, whereby the receipt of the purchase money is acknowledged, is prima facie evidence that the grantee is a purchaser for a valuable consideration under the recording act. Wood V. Chapin, 3 Kern., 509. COURT OF APPEALS DIGEST. 339 31. The statements of a deputy sheriff, not made in the perform- ance of an official act, are not evidence against the sheriff. Barker V. Blnninger, 4 Kern., 270. 32. Admissions made while under duress. The sworn examination of a prisoner, arrested without warrant by a constable, before a coroner, while "holding an inquest on the body of the murdered person, held inadmissible as evidence on the subsequent trial of such prisoner on indictment for murder, on the ground, not of immunity or privilege, but for the reason that the mind cannot be supposed to be free, when agitated and disturbed by a criminal charge, to give utterance to the truth. There is no voluntary mental action, and hence the testimony cannot be considered as truth. The People v. McMahon, 15 N. Y. Rejp., 384. 33. Signing a partnership name. The fact that a firm, one branch of whose business was that of common carriers on the Erie canal, and another that of buying and selling grain for their own account, had been in the habit of allowing their clerk occasionally to make bills of lading, &c., of property shipped for others by them as forwarders, is not such an admission of general authority to sign the firm name as to warrant its being submitted to a jury, on the question whether he was not authorized to sign the firm name to a paper transferring a quantity of corn, belonging to the firm, from it to a third party, and to a contract to transport such corn, for such party, to New York. Dows v. Perrin and another, 16 N. Y. Rep., 325. 34. Account rendered not always conclusive on the party by whom it is rendered. The presentment, by a party to his debtor, of an account in which he charges a gross sum for services for which he is entitled to be paid quantum meruit, there being no payment nor settlement of the account, does not preclude the creditor from showing what the services were reasonably worth, and recovering a larger sum than that at which they were so charged by him. Williams v. Glenny, 16 N. Y. Rep., 389. 35. The declarations of a deceased mortgagee, made while he was the owner of the security, are not evidence for the mortgagor on the question of usury, in a foreclosure suit, brought by the assignee 240 COURT OF APPEALS DIGEST. of such mortgage, who took his assignment and a guaranty of collection from the executors of the mortgagee, pending an action of foreclosure brought by such executors but discontinued after the assignment. Tousley v. Barry, 16 N. Y. Rep., 497. V. OPINIONS OF WITNESSES ; TESTIMONY OF A PAETT AS TO HIS OWN INTENT IN A PAETICULAB ACT. ■36. As to amount of damages in a given case, no witness can be allowed to give his opinion, whether founded on facts within his own knowledge or detailed in the testimony of others; except where a question of value is concerned. And then, the inquiry must be as to value or specific facts forming the elements of damage, and not as to the amount of damage. Moreho-use v. Mathews, 2 Comst., 514. 37. As to necessaries for a minor. Where one has promised to pay what was needed for the support of a minor, beyond his wages, he is not liable for money paid to or for the use of the minor, without proof that it was needed. And the opinion of a witness, upon the question whether the payments were proper for a young man in his situation, is not admissible. Merritt v. Seaman et al., 2 Seld., 168. 38. As to the value of real estate which is in dispute, the opinions of witnesses acquainted with real estate are competent. ClarJc v. Baird, 5 Seld., 183. 39. As to the mental cotidition of a person charged with crime, it is not competent for a medical witness who has not heard all the testimony, to give an opinion founded on the portions of testipaony heard by him. And even where he has heard it all, the opinion to be given should not be whether the prisoner is or was sane or insane, but whether the facts proved, or claimed to be proved, indicate a sound or unsound mental condition. If the physician has had personal knowledge of the conduct and habits of the prisoner, his opinion is competent as to whether he was sane or insane. And where he has testified on direct examination that, in his opinion, the prisoner was sane, it is competent, on cross- examination, to inquure of the witness whether, in his opinion, COURT OF APPEALS DIGEST. 241 specified facts claimed to be proved indicate insanity. The People V. Lake, 2 Kern., 358. 40. Distinction between facts and opinions. On an issue as to whether the defendant, or he and others, employed the plaintiff, it is competent, on direct examination, to ask a witness, " On the part and behalf, and for whom were the services rendered?" The question calls for a fact, and not for a conclusion or opinion. Sweet V. Tuttle, 4 Kern., 465. 41. As to whether a person was intoxicated, it is competent to ask a witness who saw and observed him on the occasion referred to, whether, in his judgment, he was then under the influence of intoxicating liquor. The People v. Eastwood, 4 Kern., 562. 42. Testimony of a party or witness as to his own intent in a parti- cular act. On an issue of fact as to whether an assignment or transfer of property was made to hinder, delay or defraud credi- tors, it is competent, where the assignor is a witness, to inquire of him whether, in making the assignment or transfer, he intended to delay or defraud his creditors. Seymour, receiver, v. Wilson and another, 4 Kern., 567. VI. RULE EEQDIKING THE BEST EVIDENCE TO BE PRODUCED ; LOST INSTRUMENTS ; NOTICE TO PRODUCE PAPERS. 43. Lost execution. Where the original execution had been lost and the court ordered another to issue in all respects like it, and a like certificate of levy to be indorsed thereon, such substituted execution is admissible as primary evidence to prove and justify the levy, without proving the loss of the original. Burkle v. Luce, 1 Comst., 163. 44. See, ante, No. 22 45. Inferior evidence read without objection has the full force and effect of primary evidence. As where, on a trial before a referee, the plaintiffs read a part of defendant's answer, without objection, as proof of certain facts, those facts were properly regarded by the referee as established, although they were denied by the reply, and the answer could not, therefore, if objected to, have been read as evidence of them- The People v. Norton, 5 Seld., 176. 31 242 COURT OP APPEALS DIGEST. EVIDENCE. 46. The best evidence to be produced in the power of the party. In an action against a railroad company, to recover the value of a building which was burnt, and which is alleged to have been set on fire by sparks from one of the defendant's engines, which passed shortly before the fire was discovered, and is claimed to have been carelessly managed and unskillfully constructed, evidence that engines of the company, passing near that place on other occasions, emitted sparks and coals, which fell further from the track than the building in question, is competent, after the plaintiif has given evidence tending to exclude the probability that the fire was communicated by any other means. Sheldon v. The Hudson River Railroad Company, 4 Kern., 218. 47. Lost Deed; Case of insufficient evidence. The supposed grantee in a lost deed, entered upon the land, which was wild and uncultivated, cut timber, ran the boundaries with a pocket com- pass, executed a conveyance to other parties, and then left the country. There was no other account of him, nor any evidence that he and the supposed grantor were known to each other. One of the persons to whom he conveyed testified, that at the time he exercised these acts of ownership he saw in his possession a deed purporting to be executed by the supposed grantor to him, and this was the only evidence of the existence, genuineness and con- tents of the lost deed : Held, that the evidence was not sufficient to make out a defense in opposition to a hostile title clearly established by written evidence. Metcalf v. Van Benthuysen, 3 Comst., 424. VII. PAEOL EVIDENCE TO EXPLAIN, &C., WRITTEN INSTRUMENTS, MARKS AND SIGNS. 48. A receipt in writing may be explained by parol. Where a sum is receipted upon contract as paid in money, it may be shown by parol that it was not paid in money. Battle v. The Rochester City Bank, 3 Comst., 88. (See, seq., No. 61.) 49. The acts of the parties under a contract the language of which has a clear and fixed meaning, cannot be received in evidence with a view to its construction. As where, by the terms of a lease, COURT OB" APPEALS DIGEST. §43 the rent was " one thousand dollars a year, payable quarterly in advance," and the tenant was evicted before a quarter expired, by a foreclosure of a prior mortgage; it was held, in an action brought to recover the quarter's rent, that the practice of the parties to collect and receive the rent at the end of each quarter, and not in advance, could not be allowed for the pui-pose of showing the rent 7wt due until the end of the quarter, with a view to establish the defence of eviction hefore due, Giles, receiver, ^■., v. Comstock, 4 Comst., 270. 50. Cotemporaneous agreement to indemnify a surety. An agree- ment made between parties prior to or cotemporaneously with their executing a written obligation as sureties, by which one promises to indemnify the other from loss, does not contradict or vary the terms or legal effect of the written obligation, and it may be proved by parol evidence. And such promise, although not in writing, is a bar to an action by the party making it, against his cosurety for contribution. Barry v. Ransom, 2 Kern., 462. 51. Receipt in writing in the nature of a contract. Although the terms of such a receipt cannot be varied by parol evidence, yet parol evidence of the circumstances under which it was executed was held competent in this case. The receipt was as follows : "New York, May 24t:th, 1849. " Received from A. L. Scovill & Co., in good order, pn board the G-riffith's line, bound for Albany, marked : S. S. H. Greenman, care of Ainsworth & Northrup, No. 15 State Street, Albany, 9 boxes mdse. (Signed) "Wilson." In an action of trover brought by the shippers against the owners of the line, for an alleged conversion of the property by taking it to Troy and neglecting for some six weeks to deliver it at Albany, the defendants were allowed on the trial to show, under objection by plaintiffs, that Wilson, the captain, informed the clerk of plaintiffs, in substance, that that boat did not touch at Albany, and that he declined at first to receive the goods on 244 COURT OP APPEAXS DIGEST. board for that reason, but finally took them upon the clerk's insisting that he should do so, and saying that Greenman, the consignee, could as well receive the goods at Troy. The evidence was held admissible to repel the inference of a conversion of the goods. Scovill V. Griffith, 2 Kern., 609. 52. The consideration expressed in a deed, cannot be disproved for the purpose of invalidating the deed. Per Denio, J. Wood v. Chiijnn, 4 Kern., 509. 53. A written assignment of a claim, absolute on its face, cannot be varied by proof of a cotemporaneous agreement between the assignor and assignee to share equally whatever the latter should ■collect, for the purpose of insisting that the assignor is a necessary party. Durgin v. Ireland, 4 Kern., 322. 54. Latent ambiguity ; Policy of insurance. Where there is no ambiguity apparent on the face of an instrument, extrinsic evidence is admissible to explain a doubt raised by extrinsic evidence intro- duced by the opposing party, and which it required such evidence to raise. Burr v. The Broadway. Insurance Company, 16 N. Y. Rep., 267. 55. Delivery as a collateral. Parol evidence is admissible to show that a bond for the payment of money, absolute in its terms, was delivered under an agreement by which it was to be held by the obligee as collateral to a debt of third parties, and to be can- celed upon his obtaining payment from them. Chester v. The Bank of Kingston, 16 N. Y. Rep., 336. 56. Characters and marks used in trade. Parol evidence is admis- •sible to explain the meaning of characters, marks and technical terms used in a particular business, and which are unintelligible to persons not acquainted therewith, where they occur in a written instrument, and the proposed explanation is consistent with its terms. Dana et al. v. Fiedler, 2 Kern., 40. Vin. OTHER MATTERS. !1. ) Handwriting 2. ) Usage. 3. ) Impeaoliing and sustaining evidence. 4. j Former testimony of a witness. 5. ) Evidence generally in civil and criminal courts. COURT OP APPEALS DIGEST. 245 ' (1.) Handwriting. 57. Comparison of hands. Where in an action against the defend- ant as the indorser of a note, the defense set up is forgery, the defendant cannot give in evidence other instruments executed by him to enable the jury to compare the signatures to them with the signature in question. Nor, on the cross-examination of a witness who has testified as to a signature, the genuineness of which is in issue, is it competent, with a view to test his knowledge, or impeach him, to show him signatures of the party to papers not connected with the action, and examine him as to their genuineness ; and where such examination is permitted, the party will not be allowed to contradict or prove the witness mistaken as to the signatures not in issue in the action. Van Wyck V. Mcintosh, 4 Kern., 439. • (2.) Usage. ^ 58. Evidence of usage or custom as to the meaning of a con- tract is not admissible, where its terms are plain and unam- biguous. Wadsworth v. Allcott, 2 Seld., 64 ; Vail and Adams v. Rice, 1 Seld., 155. ( 3. ) Impeaching and sustaining evidence. 59. Where the cross-examination of the principal witness for the people tended to impair her credibility, and to show that the prosecution was the result of a conspiracy in which she was con- cerned : Held, that it was competent to sustain the witness by showing that another person, to whom the facts had become personally known, wrote to the public authorities, and was the cause of the prosecution being instituted. Lehman v. The People, 1 Comst., 380. 60. A party cannot be allowed to impeach his own witness, either by general impeaching testimony, or by proof of particular statements of the witness inconsistent with his testimony. But he may nevertheless prove, on the merits, by independent testimony, the truth of any particular fact in direct contradiction to the testi- mony of the witness. Thompson v. Blanchard, 4 Comst., 303. 246 COURT OF APPEALS DIGEST. EVIDENCE. 61. Character cannot he sustained until it is attacJced. Accordingly held, in an action for crim. con., that the plaintiif could not give evidence of the good character of the wife previous to the adul- tery, there being no evidence on the other side impeaching her previous general character, or her conduct with any other person than the defendant himself. But vs^here her character has been attacked, either on cross-examination of plaintiff's witnesses or by the testimony of defendant's witnesses, evidence in support of her character will be received, unless such assailing evidence be confined to proof of particular acts of misconduct ; in which case, quere, if sustaining testimony by proof of general good character be admissible. Pratt v. Andrews, 4 Comst., 493. 62. Facts which bear directly on the credibility of witnesses, are material to the issue. On cross-examination, a witness for plaintiff was asked the following question: "Have you said that the defendant in this suit should be beat, if swearing could do it?" Answer. "No, I have not said so." Defendant then called a witness and offered to prove by him that plaintiff's witness had said "that the defendant would be beat in this suit; that he would be beat if swearing could do it." Objected to, on the ground that the first question was as to an immaterial matter not within the issue, and hence defendant was bound by the answer to it, and could not contradict the witness, and objection sustain- ed : Held, that this ruling was erroneous and that the evidence offered should have been received. Newton v. Harris, 2 Seld,, 345. (See also No. 63, seq.) 63. Statements of witness out of court, inconsistent with his testimony. A witness may be asked, on his cross-examination, with a view to his credibility, whether he had not made statements touching a material issue in the cause, at variance with his testimony in chief, and if he denies having made such statements, the party against whom he is called may show by other witnesses that he did make them. Patchin v. The Astor Mutual Insurance Company, 3 Kern., 263. 64. The witness himself must be first interrogated as to his incon- sistent statements, before they can be given in evidence to impeach COURT OP APPEALS DIGEST. 247 him. A witness wliose testimony has been taken de bene esse, cannot be impeached on the trial, in his absence, by proving that, subsequent to his examination de bene esse, he made state- ments inconsistent with his testimony, or said that what he had sworn to was false. Stacy et al. v. Graham, 4 Kern., 492. 65. Admissions of adverse party that witness is worthy of credit. Where the cross-examination of a witness tends to impeach his credibility, it is competent for the party calling him to give in evidence letters of the adverse party tending to show the witness deserving of credit. Id. 66. Notes of the testimony of a witness on a former trial, taken by the judge who presided, cannot be read to discredit the witness on a subsequent trial, where the judge is unable to testify to their correctness. Huffy. Bennett, 2 Seld., 337. 67. Minutes of the testimony of a living witness on a former trial, taken by counsel who produces them and swears that he has no doubt of their correctness, but has no recollection, independent of the minutes, may be read in evidence to sustain such witness, after the opposing party has assailed the credit of the witness by attempting to prove that he swore differently on such former trial from his testimony on the pending trial. Halsey v. Sinse- baugh, 15 N. Y. Rep., 485. (5.) Evidence generally in civil and criminal cases. 68. Evidence of non-residence of witness, preliminary to reading his deposition. Where, in a case under statute of 1844, page 476, section 11, providing for taking depositions of non-resident wit- nesses, the only proof preliminary to reading the deposition was the evidence of a person' employed by the district attorney to serve subpoenas, who testified that a subpoena was issued to him for the witness whose deposition was offered to be read ; that he called at two of the hotels in the city, where, as he v?as informed by the district attorney, the witness stopped when he was in the city ; that he inquired of the bar-keepers at each of those places, and was informed that the witness was not at either, and did not live in New York to their knowledge ; that he could not find the 248 COURT OF APPEALS DIGEST. EYIDENCE. witness in the city, and did not know where he resided : Held, insuiScient to authorize the deposition to be read. Barron v. The People, 1 Comst., 386. 69. In an action of slander, it is not competent for the plaintiff to introduce evidence of his good character in reply to evidence introduced by the defendant tending to prove the truth of the charge. Houghtaling v. Kilderhouse, 1 Comst., 530. 70. In an action of assault and battery, evidence of provocation is proper in mitigation of damages, only when so recent as to in- duce the presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited. But such evidence is not competent, where the allegation is, that the provocation was given by a third person, and the blow was intended for such person, but accidentally fell on the plaintiff. Nor can the bad character of the plaintiff in such an action be shown, to reduce the recovery. Corning v. Corning, 2 Seld., 97. 71. Making profert of burglar's tools. The tools with which a burglary is supposed to have been committed, may be exhibited to the jury in connection with evidence tending to show them to have been used in its commission, and to connect them with the pri- soner. The People v. Larned, 3 Seld., 445. 72. Defendants jointly indicted cannot be witnesses for each other, where they are tried separately in accordance with their own demand. Mclntyre v. The People, 5 Seld:, 33. 73. Husband and wife. A husband is not a competent witness for or against the trustee of his wife's separate estate, in a suit between the trustee and a third person in relation to the trust estate. HasbroucJc v. Vandervoort et ah, 5 Seld., 153. 74. One who has indemnified the sheriff for taking property by virtue of an execution, is not a competent witness for the sheriff in defense to a suit against him for such taking. The suit is "for his immediate benefit," within section 399 of the Code of Procedure. Howland v. Willetts, 5 Seld., 170. (But see chap. 353, Laws of 1857.) 75. Voire dire. It is a matter of right to a party against whom a witness is offered, and not of discretion in the court, to have the COTJET OF APPEALS DIGEST. 349 preliminary oath administered to the witness, and to examine him touching his competency, hefore he is sworn in chief. Seeley v. Engell, 3 Kern, 542. 76. Mortgagee of chattels. In an action by the mortgagee of chattels, for their seizure upon an execution against the riiortgagor, it is not competent for the defendant, with a view to impeach the validity of the mortgage, to prove that subsequent to its execu- tion, the mortgagor, while in possession of the property, but without the knowledge or privity of the mortgagee, executed other incumbrances upon it, which were fraudulent. Ford v. Williams, 3 Kern., 577. 77. Policy of insurance ; Warranty. Proof that there was no force pump in a building destroyed by fire, is admissible under an allegation in the answer that plaintiff in his application for insu- rance, warranted that the building contained such force pump, and a further allegation that he removed it before the fire. The substantive ground of defense in such case is a breach of such warranty; and the allegation that it was removed before the fire, though implying that it must have been there in order to its removal, yet does not conclude the defendant, or prevent him from showing that there was no force pump in the building at any time. McComher v. The Granite Insurance Company, 15 N. Y. Rep., 495. 78. Payment cannot he proved unless pleaded. Under a general denial in an answer, evidence of payment as a defense to the action, or of partial payment in mitigation, is inadmissible on the trial. McKyring v. Bull, 16 N. Y. Rep., 297. 79. Where an assignor was examined as a witness in behalf of the assignee, and testified to the delivery, by himself, of bricks at a certain house, without defining the quantity thereof, the adverse party was entitled, under section 299 of the Code of Procedure, to give his own testimony as to the quantity so delivered. Cow- ing v. Geib, 16 N. Y. Rep., 600. J«^ /t ^^t St^ 80. See also the following Titles: 1 Comst., "Action on the Case;" "Adverse Possession;" "Bankruptcy," 3, 4, 5; "Con- tract,".!, 2; "Error;" "Indictment," 4; "Insurance," 2; "Ju- 32 250 COURT OP APPEALS DIGEST. risdiction," 3, 4; "Juror;" "Parol Evidence," 1, 2; "Slander;" "Trover;" "Witness." 2 Comst., " Agent," 6 ; "Bailment," 3; "Officer," 2; "Pleadings in Equity," 1,2; " Pleadings and Evi- dence;" "Eelease;" " Res Judicata," 2; "Sales for Taxes and Assessments," 1,2; "Supervisor," 2, 3; "Surety," 4; "Tres- pass;" "Trover." 3 Comst., "Corporations," 21, 22; "Execu- tion;" "Mortgage of Chattels;" "Pleadings and Evidence;" "Witness." 4 Comst., "Arbitration," 6; "Perjury;" "Presump- tion;" "Slander," 2; "Witness." 1 Seld., "Agreement," 2; "Alien," 4; "Chancery;" "Foreign Laws," 2, 3, 4; "Tax Sale;" "Trial," 6, 7; "Will," 1 to 4. 2 Seld., "Bailment," 1, 2, 4; "Bills of Exchange and Promissory Notes," 7 to 11; "Dam- ages;" "Estoppel;" "Fraud," 2, 3; "Indictment;" "Judgment," 5; "Libel;" "Pleading;" "Principal and Surety," 3, 4; "Surro- gate's Court," 1 to 4; "Trial." 3 Seld., "Bills of Exchange and Promissory Notes," 3, 9 ; "Seduction," 2; "Witness," 1, 2. 4 Seld., "Agreement," 4, 5; "Bankrupt," 1 ; "Bills of Exchange," 4; "Check," 1; "Common Carrier," 2 to 5; "Constitutional Law," 6, 8, 10, 15; "Jurisdiction," 1, 2; "Lease," 8, 10; "Libel," 3; "Mortgage," 11 to 15; "Partnership and Partners," 3, 4; "Quo Warranto," 4, 7. 5 Seld., "Bills of Lading," 1, 2, 3; "Exceptions," 3, 4; "Foreclosure," 1; "Fraud," 2; "Pleading." 1 Kern., "Account Stated;" " Religious Societies," 15, 16; "Wit- ness," 2. 2 Kern., "Constitutional Law," 5; "Contract," 11, 12, 13; "Insolvent Discharge;" "Negligence," 6. 3 Kerre., " Com- mon Carrier," 3, 4; "Corporations;" "Payment;" "Witness." 4 Kern., "Death by Negligence;" " Error, Writ of ; " "Estop- pel;" "Payment, Presumption of;" "Plank Road Companies," 5, 8; "Pleadings," 4, 5; "Res Adjudicata;" "Witness." 15 N. Y. Hep., "Betting and Caming;" "Corporation," 4; "Estop- pel;" "False Pretenses;" "Judgment and Execution," 5; "Land- lord and Tenant," 1, 4 to 8; "Notice;" "Principal and Agent;" "Witness." 16 N. Y. Ilcp., "Attorney and Client;" "Boundary Line;" " Criminal Law," 1, 2, 5 ; "Estoppel;" "Landlord and Tenant;" "Legacy," 2, 6, 13; "Libel;" "Mortgagor and Mort- gagee;" "Pledge," 3; "Railroad Corporation," 6,7; "Statute COURT OF APPEALS DIGEST. 251 » EXCEFTIONB. of Limitations;" "Surrogate," 2 to 5; "Tender;" "Will;" "Witness." EXCEPTIONS. 1. See, ante, Title " Bill of Exceptions." 2. When an exception will be disregarded. Where the bill of exceptions showed that on the trial of the cause a verdict was directed for the plaintiffs, with leave to the defendant to move that a nonsuit be entered, and to the plaintiffs to except in the same manner as if the nonsuit was granted at the trial, and the court, after argument at bar upon the questions raised on the trial, set aside the verdict and directed a nonsuit to be entered, to which decision the plaintiffs excepted: Held, that inasmuch as the exception was not raised at the trial, it must be disregarded. Onondaga County Mutual Insurance Company v. Minard, 2 Comst., 98 ; also, McCracJcen v. Cholwell, 4 Seld., 133. 3. A verdict will not be set aside on bill of exceptions, although there was error on the trial, if the error was such that it could do no legal injury ; and the rule in this respect is the same in crimi- nal as in civil cases. This rule applied in a capital case, where there was an error in the charge as to the law of homicide, but the facts ,in the case did not call for a charge on that point. Shorter v. The People, 2 Comst., 193. 4. Refusal to charge as requested is not available on bill of excep- tions, where such refusal was not excepted to on the trial, not- withstanding there was an exception to the charge as given. Nichols V. Dusenhury, 2 Comst., 283. 5. Where an exception is taken to a charge generally, though it be erroneous in one of several particulars to which attention is not called, the error will be disregarded. Hunt et al. v. Mayhee, 3 Seld., 2G6 ; Hart v. Rensselaer and' Saratoga Railroad Company, 4 Seld., 37 ; Decker v. Matthews, 2 Kern., 313 ; Howland v. Willetts, 5 Seld., 171 ; Haggart v. Dunn, 1 Seld., 422. 6. Alleged erroneous assumption of fact. Where it becomes necessary to review the question whether a fact assumed by a jus- tice at tlie circuit, in the disposition of a case, was warranted by 252 COURT OP APPEALS DIGEST. EXCEPTIONS. the evidence, the non-existence of the fact should be made a point in the Supreme Court, either in a case containing the evi- dence, or in a bill of exceptions. The People v. Cook, i Seld., 67. 7. Admission of evidence. An exception to the decision of a judge admitting testimony objected to, is not available unless material testimony was admitted, which would be embraced in the objection. Howla.nd v. Willetts, 5 Seld., 170. 8. A general exception is available to the decision of a judge on the trial, drawing a single conclusion of law from an undisputed state of facts. Pratt v. Foote, 5 Seld., 463. 9. An objection of variance between complaint and proof, is not available on review, where it was not raised at the trial. Barnes V. Perine, 2 Kern., 18. 10. A general olyection to the reading an instrument in evidence is not available on review, where the defect was in the certificate of its proof or acknowledgment, and was not pointed out. Mabbett V. White et ah, 2 Kern., 442 ; Brown et al. v. The Cayuga and Susquehanna Railroad Company, 2 Kern., 486. 11. Duty of judge on requests to charge. A judge is bound to instruct the jury on each proposition of law submitted to him by counsel bearing upon the evidence. But where numerous distinct propositions are submitted, and his charge covers them generally, his attention should be particularly called to any proposition on which more particular instructions are desired. Zabriskie v. Smith, 3 Kern., 322 ; but the proposition on which the judge is asked to charge, must be good in all its parts, both as to law and facts, or the judge may refuse to give the instruction asked for, and need not qualify his refusal by pointing out the good and bad parts of the proposition. Doughty v. Hope, 1 Comst., 79. 12. Exceptions do not bring up the question whether the dama- ges are excessive, nor whether the verdict is against the weight of evidence. Oldfieli, administrator, v. The New YorJc and Harlem Railroad Company, 4 Kern., 310. 13. See, ante. Title "Appeal," No. 42. 14. See also the following Titles: 1 Seld., "Will," 3, 8. 2 Seld., " Evidence," 10 ; » Practice," 2 to 5. 4 Seld., " Practice," COURT OP Appeals digest. 253 EXECtTTION. 4, 5. 1 Kern., " Practice," 1, 4 to 9. 2 Kern., "Error." 4 Kern., " Pleadings," 1, 2, 3, 5. EXECUTION. I. Issuing ; Amending ; Returning ; False return. II. Execution against the body ; Escape. III. Against property ; What may be levied on, and what is a sufficient levy. IV. Miscellaneous ; When process prptects ; When levy is a satisfaction ; Pri- ority ; Dormant executions. I. ISSUING ; AMENDING J KETUENING ; FALSE EETUEN. 1. Where after levy the execution is lost, the court (of record) from which it issued has power to order a substituted execution to issue, and the same indorsement of levy made thereon, and the latter becomes an original for all purposes. BurJcle v. Luce, 1 Comst., 163. 2. Issued for too much. Where any sum whatever is due upon a judgment, it seems an execution will not be void, although it be issued for too much. It may be amended or set aside on motion. If that be not done, and a sale take place, the sale will be wrong- ful for any amount beyond the sum actually due. Peck v. Tiffany, 2 Coinst., 451. 3. Issued too soon afier judgment ; False return. Where an exe- cution is issued within the thirty days provided by statute as the time after which execution might issue, it is only voidable at the instance of the defendant therein. It is not void, and the irregu- larity is no defense to an action against the sheriff for a false return. Bacon v. Crojpsey, 3 Seld., 195. 4. A Justice of the peace could not, under the Revised Statutes, issue an execution after two years from the rendition of the judg- ment ; but he might renew it after that time, where it had been duly issued and returned unsatisfied. Morse v. Goold, 1 Kern., 281. 6. Amendment of return. The Supreme Court has power to authorize a sheriff to withdraw an execution from the files, and to cancel a return of nulla bona. And after it has been thus can- celed, it does not conclude or estop the sheriff as against parties 254 COURT OF APPEALS DIGEST. EXECFTIOIf. who did not act upon the faith of it. Barker v. Binninger, 4 K&rn., 270. II. EXECUTION AGAINST THE BODY; ESCAPE. 6. Tort and contract united in the same complaint, if plaintiff succeeds in the action and has a general verdict and judgment, will not authorize 'an execution against the body of the defend- ant. But if plaintiff fails in the action, he is liable to be impri- soned for costs, on the ground that he is deemed to have conferred upon the defendant the most beneficial remedy for the collection of such costs. Miller v. Scherder, 2 Comst., 262. 7. Escape. In an action against an officer who has taken the body of the defendant in the execution, for the escape of his pri- soner, it is not competent to show in defense that the evidence before the court which rendered the judgment failed to make out a cause of action in tort, and so, that the judgment and execution against the body were erroneous. The judgment cannot be col- laterally attacked. Wesson et al. v. Chamberlain, sheriff, Sfc. ; 3 Comst., 331. 8. Retaking defendant after escape. Where a sheriff suffers a defendant whom he has taken on execution, to go at large on the undertaking of a third person to pay the debt or surrender the prisoner, the plaintiff, unless he consented to the arrangement, may issue a new process and retake the defendant ; nor is the plaintiff's consent to the escape made out by evidence showing that he subsequently called upon the third person to perform his undertaking. Id. 9. Deht fravdidently contracted. To justify the arrest and im- prisonment of a defendant upon an execution, under the provi- sions of section 288, of the Code of Procedure, it is not necessary that the record should show the liability of the defendant to arrest. It is sufficient if an order for his arrest in pursuance of sections 179 and 181 has been obtained and remains in force. Whether such arrest could be justified where the action is one in which the defendant might have been arrested by virtue of an COURT OP APPEALS DIGEST. 255 XEOUTIOir. order under sections 179 and 181, but in which no such order had in fact been obtained, quere. Corwin v. Freeland, 2 Seld., 560. (See No. 11, seq.) 10. Sufficiency inform, of execution against the body. An execution against the person, reciting the judgment as prescribed in section 289 of the Code, and commanding the sheriff to commit the defendant "to the jail of the said county of M., until he shall pay the said judgment according to law," the words "or be dis- charged," from subdivision three of that section, being omitted, is valid; and a sheriff discharging a prisoner arrested upon such execution, is liable as for an escape. Hutchinson v. Brand, 5 Seld., 208. 11. Recitals. It is not necessary to recite, in an execution against the person, the facts which authorize the arrest, viz., the nature of the action, and the return of an execution against pro- perty unsatisfied ( Code, section 288 ) ; it is sufficient if those facts exist. Id. 11. AGAINST PEOPEETT; WHAT MAT BE LEVIED ON, AND WHAT IS A SUFFICIENT LEVY. 12. The interest of a mortgagor of personal property who has no right of possession for a definite 'period reserved to him in and by the mortgage, is, it seems, a right of redemption merely, and is not subject to levy and sale on execution. Mattisony. Baucus, 1 Const., 295. 13. Pledge. The judges being equally divided on the question whether a sheriff can, on execution against a pledgor, take the pledge out of the pledgee's hands, and sell the pledgor's interest therein, the judgment of the Supreme Court holding that he may do so, was affirmed. But the court also held that after the sale by the officer in such case, the pledgee is entitled to the possession of the property until the purchaser redeems it from the pledge. Stief V. Hart, 1 Comst., 20. 14. Sale, on execution, of lands held under contract, ' is prohi- bited by 1 Revised Statutes, page 744, section 4 ; and therefore held that a purchaser, at an execution sale, of the interest of a 256 COURT OF APPEALS DIGEST. EXECUTION. grantee by quit-claim deed from one who held by contract, acquired no title or interest in the lands. Sage v. Cartwright, 5 Seld., 49. 15. To constitute a valid levy upon chattels, an actual manual interference therewith is not requisite. It is sufficient that the property is present, and subject to the control of the officer having the execution, and that he then states openly that he levies upon the property, and asserts his authority over it by virtue of such levy. Barker v. Binninger, 4 Kern., 270. IV. MISCELLANEOUS ; WHEN PROCESS PROTECTS j WHEN LEVY IS A SATISFACTION ; PRIORITY ; DORMANT EXECUTIONS. 16. A valid discharge in bankruptcy extinguishes a judgment, so that a creditor who seizes the bankrupt's goods by virtue of the judgment and execution thereon, may be charged as a tres- passer, even if he have no knowledge of the discharge. Per Bronson, J. But it is otherwise as to the officer making the levy. He is protected by process regular on its face. Ruckman V. Cowell, 1 Comst., 605. 17. A process, regular on its face, and issuing from a court or body having jurisdiction of the subject matter, protects a minis- terial officer in the execution thereof; and ordinarily he need only prove the process. But where he is sued by a person claiming prior title from the defendant in an execution, through a sale which the officer alleges to be fraudulent as to creditors, he must prove the judgment as well as the execution, before he is in a position to attack the sale for fraud. Sheldoti v. Van Buskirk, 2 Comst., 473. 18. Where a sheriff levies upon sufficient property to satisfy the execution, and through his misconduct or negligence the pro- perty is lost, destroyed, or disposed of, so that the defendant is deprived of the benefit thereof, it is a satisfaction of the debt, and the plaintiff must seek his remedy against the officer. But where the debtor has neither paid the debt nor been deprived of his property, a levy is not a satisfaction. So held, where an alias Ji. fa. had been levied on sufficient property to satisfy it, but the COURT OP APPEALS DIGEST. 257 EXECUTORS AND ADUtNISTRATOBS. property was not all sold or removed, and afterwards aphriesjl, fa. was issued for the residue. Peck v. Tiffany, 2 Const., 451, 19. One levy is good for several executions subsequently issued, even though the senior execution has become dormant by reason of instructions for delay ; and in such case the sheriff still retains his right to the custody and control of the property. Id. 20. Though an officer sell under a particular execution, he may, at any time before the return of the process, apply the proceeds upon another execution which he, subsequent to the sale, discovers to be jprior to that under which the sale was made. Id. 21. Where property has been levied on and sold under a junior execution, it cannot under the statute (2 R. S., 366, sec. 14) be levied upon or sold by virtue of a senior execution ; but it seems that in such a case the senior execution is entitled to be first paid out of the proceeds of the sale. Id. EXECUTORS AND ADMINISTRATORS. I. Letters testamentary and of administration. II. What are assets or otherwise. III. Powers and duties ; Sales of real estate ; Payment of dehta and legacies. IV. Actions by and against. V. Settlement of their accounts ; Compensation. I. LETTERS TESTAMENTARY AND OF ADMINISTRATION. 1. Gambler disqualified. The fact that a man is a professional gambler, is presumptive evidence of such improvidence as to render him incompetent to discharge the duties of executor or administrator. And where an applicant is shown to have been such, it will not be presumed, from the mere lapse of time, at the end of twenty months, that his employment has been changed. McMahon v. Harrison, 2 Seld,, 443. 2. The decision of a surrogate upon the question of competency of an applicant for letters, is subject to review on appeal. Id. 3. Superseding letters. That an executor is illiterate, and a person ot small pecuniary means, and that he has-been guilty of misconduct or mismanag.eraentin administering the trust estate, do not authorize the surrogate to supersede the letters testamentary 33 258 COURT OF APPEALS DIGEST. EXECUTOSS AND ADMIITISTEATOBS. (under 2 E. S. 71, sees. 18 to 21, and id., 69, sec. 3), on the ground that the executor is legally incompetent to serve. The term " im- providence" refers to such habits of mind and conduct as render a man generally, afld under all ordinary circumstances, unfit to serve ; and the facts proved in this case might have warranted an order (under 2 R. S., 72, sec. 20) requiring security, but did not make out a case for superseding the letters testamentary. Emerson v. Bowers, 4 Kern., 449. II. WHAT AEE ASSETS OE OTHERWISE. '' 4. Grass and fruits growing upon lands belonging to an intestate at the time of his decease, are not assets belonging to the adminis- trator, but descend with the land to the heir. And where a widow has received the same, she is liable to the heir for their full value, and cannot retain one-third on account of her right of dower in the lands. Kain v. Fisher, 2 Seld., 597. 5. Property to he set apart by appraisers. When the appraisers of an estate omit to set apart to the widow, the property exempted for her use by the statutes, and the executors sell the whole at auction, the surrogate having jurisdiction may, upon cause shown, decree the payment to the widow of a sum of money in lieu thereof. It is not discretionary with the appraisers to set apart or not to set apart the property mentioned in chapter 157, Laws of 1842 ; the words " in the discretion of the appraisers," refer to the kind of property to be selected, not to the question whether, to the value of $150, it shall or shall not be set apart at all. Sheldon v. Bliss, 4 Seld., 31. III. POWERS AND DUTIES ; SALES OF REAL ESTATE ; PAYMENT OF DEBTS AND LEGACIES. 6. See, ante, Title "Assignment," No. 3. 7. Statute of limitations. One who is the surviving partner, and also the executor of his deceased partner, cannot in either relation by a new promise, revive against the deceased partner's estate a debt of the copartnership. The doctrine in Mountsteghen v. COURT OP APPEALS DIGEST. 259 EXECUTORS AKD ACMINISTBATOBS. BrooJce {3 B. Sf Aid., 141), and Clark v. Hougham (2 Barn. Sj- Cress., 149), doubted ; and that in Bell v. Morrison (1 Pet., 351), approved. Bloodgood v. Bruen, 4 Seld., 362. 8. Duty as to sales made by testator or intestate, with intent to defraud creditors. It is the right and duty of an executor or administrator of a deceased person whose estate is insolvent, to impeach a sale of personal property made by the deceased vyith intent to defraud creditors, and recover the same from the fraudulent vendee. Per Denio, J. Bates v. Graham, 1 Kern., 237. 9. Merger. The executor of the mortgagee purchases the equity of redemption of the mortgaged premises. It depends upon his election whether there shall be a merger of the mortgage title with the title in fee. And where his acts showed that he intended it should remain a lien on a portion of the mortgaged premises : Held, that as to this portion the mortgage was not extinguished, although he evinced an intention that other portions should be regarded as discharged from the lien. Clift v. White, 2 Kern., 519. 10. Lands in another state. Although an executor appointed in this state cannot act as such beyond our jurisdiction, yet he may convey land situate in another state, where the power to do so is contained in the will. Newton v. Branson, 3 Kern., 587. Hi Power to sell real estate, how executed. An executor or other trustee empowered to sell lands in his discretion, cannot authorize an agent to contract for their sale. The power is a personal trust which cannot be delegated, and a contract by an agent is void. But where such contract has been executed by an agent, the prin- cipal may render it valid by ratifying it with full knowledge of all the facts. In ratifying it he exercises the personal qualities essen- tial to the due execution of the trust. Newton v. Bronson, 3 Kern,, 587. 12. Administrator's sale in parcels. Upon judicial sales of real estate, it is the duty of the officer conducting them to sell the property in such parcels as will be best calculated to produce the highest aggregate price. And an administrator selling real estate under a surrogate's order, may sell in subdivisions, although the 260 COURT OF APPEALS DIGEST. EXECUTOES AHD ArMINISTRATOES. order of sale describes the property as one parcel. Delaplaine v. Laurrence, 3 Comst., 301. 13. Dower interest in case of sale under surrogate's order. One- third of the gross amount of proceeds of sale of real estate under surrogate's order, must be set apart and invested for the widow, in lieu of dower : not one-third of the net amount after deducting expenses. And where there are accumulations of interest before distribution of proceeds, one-third thereof belongs to the widow. Higbee v. tVestlake, 4 Kern., 281. 14. Legacies are not payable until the expiration of one year from the granting of letters testamentary, unless the will otherwise direct, and they do not draw interest until after that time. Brod- ntr V. Faulkner, 2 Kern., 472. 15. An administrator, in his representative capacity, has nothing to do with the rents and profits of the real estate of the intestate, and he can make no agreement respecting them with third persons which can affect the rights of the widow and heirs of the dece- dent, one way or the other, they not being parties to such agree- ment. Hillman v. Stephens, 16 N. Y. Rev., 278. V. SETTLEMENT OF THEIE ACCOUNTS ; COMPENSATION. 16. For what executor can be called on to account before a surrogate. Where real estate is devised and personal property bequeathed to an executor in trust, to sell if he sees fit, and with authority to lease and convert the whole into a fund, to be divided into certain equal portions, and to convey four equal parts to children then of age, and to hold the remaining five portions until five minor children should become of age, and to pay over and convey their several portions to them as they should become of age : Held, that the whole is to be deemed personal assets for the purposes of an accounting, and that the executor could be compelled to account before the surrogate, not only for the personal estate bequeathed to him, but also for the rents and profits of the real estate, and for the proceeds of such real estate as he had sold pur- CO.URT OF APPEALS DIGEST. 261 EXECUTOKS AND ADMINISTEATOnS. suant to the directions contained in the will. Stagg v. Jackson, 1 Comst., 206. 17. Administrator's accounts ; Effect of final decree of surrogate on such accounting. A surrogate's decree, made on the final settlement of an administrator's accounts, does not bar the claim of a credi- tor of the estate, which was not presented on such accounting by the creditor, nor by any one in his behalf. Such decree is con- clusive only so far as it is expressly made conclusive by statute. And where, after publication of citation to account as required by statute, the holder of a note given by the deceased, which had been transferred to such holder by the payee, neglected to appear or present his claim, and the administrator was allowed in the decree to retain the amount of the note on the statement of the payee, who appeai'ed and claimed it, pretending that the note had been lost : Held, in a suit by the holder of the note against the administrator to recover the money so retained, that the payment by the administrator of the amount of the note to the payee was no defense, and that it was a payment in his own wrong, the non-production of the note by the payee being of itself evidence of his want of right; that the decree did not conclude the plain- tiff; that the money retained was to plaintiff's use at their election; and that they might proceed against the defendant for the money so retained, or against the estate for the amount of the note. Bank of Poughkeepsie v. Hashrouck, 2 Seld., 216. 18. The statute of limitations may be set up by an executor cited to account before a surrogate, in bar of any claim presented against the estate, in the same manner as in a suit at law or in equity on such claim. Nor will a general devise of real estate to the executor for payment of debts, without specifying them, prevent the running of the statute against debts which were due prior to the decease of the testator. Martin v. Gage, 5 Seld., 398. 19. Commissions. Where executors invest a fund at interest, in pursuance of the will of the testator, and collect and pay over such interest annually to one to whom it is directed by such will to be paid for life, they are limited to the statute rate of compen- 262 COURT OF APPEALS DIGEST. EXTINGUISHMENT. sation ; and it seems that in such case the commissions are to be paid out of the estate generally, and not out of the income of the particular fund. DraJce v. Price, 1 Seld., 430. 20. Per diem allowance. To entitle administrators selling real estate under a surrogate'^ order to a per diem allowance for the time spent in making the sale, it should be proved that the num- ber of days for which it is claimed, were necessarily so occupied. And they are entitled to but two dollars for preparing and execu- ting each deed. Higbie v. WestlaJce, 4 Kern., 281. 21. Paying counsel. The statute (Laws of 1S44, 447) directing an allowance to be made to administrators for their expenses of conducting the sale, authorizes the payment of a reasonable amount for professional services in applying for and making it ; but the fee bill of the forrr.er Court of Chancery for services in litigated cases, is not applicable to such proceedings. Id. EXTINGUISHMENT. 1. A judgment talcen as collateral, for a debt also secured by a chattel mortgage, does not work an extinguishment of the latter. And quere if it would have that effect even if there were no agreement to take it as collateral. But where the judgment creditor issues execution, and levies on the mortgaged property, and after a sale of it under another execution issued by other creditors, applies to the court for an order that the proceeds of such sale be applied on his execution : Held, in an action of trover by the mortgagees against the sheriff who made the sale, that these acts were repugnant to any claim under the mortgage, and precluded the plaintiffs from so claiming the property. Butler, v. Miller, 1 Comst., 496. 2. See 1 Comst., Title, " Bankruptcy," 6. 3. A devisee's bond, he being also executor, given to and received by the legatee in full of a legacy charged upon the lands devised, is no extinguishment of the lien or charge upon the real estate ; but should, it seems, be construed simply as in that behalf dis- COURT OF APPEALS DIGEST. 263 EXTINGUISHMENT. charging the devisee from any other personal liability than on the bond. Kclsey v. Western, 2 Comst., 500. 4. A judgment upon a contract, though it technically merges the demand, does not in so complete a sense as to preclude the courts from looking behind the judgment to see on what it is founded, for the purpose of protecting the equitable rights connected with the original relation of the parties. Clarlc v. Rowling, 3 Comst., 216. 5. Principal and surety. A judgment, it seems, does not extin- guish the relation of principal and surety between the debtors, nor destroy the surety's right of subrogation. Bangs v. Strong, 4 Comst., 315. 6. A valid award of arbitrators merges the original cause of action. Coleman v. Wade, 2 Seld., 44. 7. See, ante, Title, " E.xccutors and Administrators," No. 9. 8. Receiving the debtor''s promissory note for a debt, does not merge or extinguish the demand. Hill v. Beebe, 3 Kern., 556. 9. A second chattel mortgage on the same property and to secure the same debt mentioned in the first, does not extinguish the first morigage. And where the first mortgage was to secure a debt evidenced by the note of the mortgagor, and after default the note was surrendered and a new note given for its amount and some additional indebtedness, and a second mortgage on the same pro- perty executed to secure the amount : Held, that the first mort- gage was not extinguished. Id. 10. Where a collateral security, in the form of a note executed by a judgment debtor and his surety, is itself got into judgment and collected of the surety on execution, the original judgment to which such note was collateral is thereby extinguished, and no effectual sale of the debtor's property can be made, even on an execution issued previous to the payment of the second judgment. Craft v. Merrill, 4 Kern., 456. 11. An executory contract for the sale of land is not mei^ged or extinguished by the giving of a deed thereunder, a portion of purchase money still remaining unpaid, and no fresh security being taken therefor, so but that a provision in such contract may 264 COURT OP APPEALS DIGEST. still be enforced, which provides for an increase or rebate of pur- chase money in proportion to any excess or deficiency which might exist in the quantity of land. Witbeck v. Waine, 16 N. Y. Rep., 532. FACTOR, 1. A factor to whom goods are sent for sale without instructions as to time or terms, may sell on such time or terms as, in the exercise of a sound discretion, he may think to be for the interest of the principal. Per Cadi, J. Marfield v. Goodhue, 3 Comst., 62. 2. But he is bound by the subsequent instructions of his prin- cipal as to sale, although after the receipt of the goods he has made advances thereon, unless the principal fail to repay such advances after reasonable notice. Whether special circumstances, such as the insolvency of the principal, or the impracticability of giving him notice, may not justify a sale contrary to previous instructions, quere. Id. 3. The plaintiff, residing in Ohio, consigned to the defendants, who were commission merchants and factors in New York, a large quantity of pork for sale. The defendants, on the receipt of the property, paid the freight and charges, and subsequently made advances on the property to the plaintiff. The plaintiff, after the advances were made, in anticipation of a rise in the market, gave the defendants instructions not to sell : Held, that the defendants were bound by the instructions, and had no right to sell the pork without calling on the principal to repay the advances, or giving him notice of their intention to sell. Id. 4. Limiting pice. The factor has no right to sell at a price below his instructions, to cover advances, without first calling on the principal to repay such advances. But if he does so sell, he will only be liable for the actual injury sustained, and may show in an action against him that the goods were worth no more in maiKvet, from the time of the sale until the trial, than the price at which he sold. But if the articles consigned have no fixed mar- COURT OF APPEALS DIGEST. 265 ket value, as antique paintings, statues, or vases, it seems the principal may insist on the price named in the instructions, without regard to the market. Blot v. Boiceaw, 3 Comst., 78. 5. Factor^s lien. A mere consignment of goods to a factor gives him no lien thereon for advances on previous consignments, until such goods actually arrive and come to the factor's possession ; and does not prevent the consignor from transferring the goods while on the way, to a third person, by assignment or delivery of the bill of lading, with intent to pass the title. A., the owner of two hundred barrels of flour, delivered the same to a for- warder at Rochester, and took a receipt expressing that the flour was to be sent to the defendant at Albany ; the defendant being the factor to whom A. usually consigned flour for sale, and A. being indebted to him for advances upon previous consignments. A. on the same day drew upon the defendant against the flour, and procured the plaiutifi''s bank at Rochester to discount the draft, on delivering to the bank the forwarder's receipt, and agreeing that the bank might hold it as security for the accept- ance of the draft.. The defendant refused to accept the draft, but subsequently received the flour and converted it to his own use, having notice of the transaction with the plaintiff's bank : Held, that the defendant was liable to the plaintiffs in trover for the flour. The defendant, as factor, acquired by the consignment no right to the flour, except on condition of accepting the draft, and having refused acceptance, he became a wrongdoer by taking and converting the flour. The Banlc of Rochester v. Jones, 4 Comst., 497. 6. Factor^s lien for general balance. Factors who receive from their principals a bill of lading of property shipped to them to sell, with a letter requesting them to insure, and informing them of a draft on account of the proceeds, acquire no lien upon it until they have accepted the consignment upon the terms of the letter. Winter v. Coit, 3 Seld., 288. 7. They acquire no lien for their general balance before the property is actually received by them, unless in pursuance of an express agreement, or one implied from their dealings with their 34 266 COURT OF APPEALS DIGEST. FACTOK. principal. The existence of such an agreement is a question of fact. Id. 8. Where they have refused to comply with the terms of the letter of consignment, and upon a demand of the property they refuse to deliver it, claiming to hold it for their general balance, they cannot, in an action for its recovery, defend on the ground of a lien for actual expenses and charges upon it. Id. 9. Warehouse receipts. Where a warehouseman, receiving j3our for shipment, gives receipts from time to time for the quantity in store not previously receipted, to be delivered to the owner's factor, upon which the factor accepts the owner's drafts, no title to the flour receipted passes, unless it was actually separated from the mass by actual delivery, or by some mark or designation by which it could be specifically known. The only effect of the receipt in such a case is, to give the factor a right to demand from the receiptor the delivery of the flour. Gardiner v. Suydam, 3 Seld., 3-57. 10. Bound by instructions to sell "on arrival." Where a principal consigns property to his factor, with instructions to sell it upon its arrival, the latter is bound to follow the instructions, and sell for the current price ; and if he do not, he will become liable for the damages his principal may sustain in case of a fall in the market. And it is no excuse that the market was dull, if the property might have been disposed of at a reduced price. Evans V. Root, 3 Seld., 186. 11. Advances. Where a commission merchant makes advances upon the faith of goods consigned to him for sale, by the payment of a sight draft drawn upon him by the consignor, the proceeds of tlie consigned property, where it has come to his hands, are the primary fund to which the acceptor must look for reimburse- ment ; and it is incumbent upon him to show that fund to be insufficient, before he can recover against the consignor personally. Gihon V. Stanton, 5 Seld., 476. 12. Del credere commission. The contract of a commission mer- chant, whereby he assumes the responsibility of a factor upon del credere commission, is not within the statute of frau(^s relating to COURT OF APPEALS DIGEST. 267 FALSE PRETENCES — FIXTURES. promises to answer for the debt, &c., of a third person, and is therefore valid though by parol. Sherwood v. Stone, 4 Kern., 267. FALSE PRETENCES. 1. See 1 Comst., Title, " Criminal Law," 1 ; ante, id. ' 2. The representation by the owner of a house that there was no claim or incumbrance thereon, is not shown to be false by proving that he had previously filed the notice required by chapter 260, Laws of 1850, to exempt such house, as his homestead, from sale on execution. Robinson v. Wiley, 15 N. Y. Rep., 489. FALSE RETUEN. See 3 Seld., Titles, "Execution," 1 ; " Sheriff," 1. FIXTURES. 1. Fence rails built into a fence by a tenant, under an agree- ment with his landlord that he may remove them, are, it seems, as between such tenant and the owner of the fee (in this case a subsequent grantee of the landlord), personal property. Moti v. Palmer, 1 Comst., 564. 2. Hop-poles, used necessarily in cultivating hops, which were taken down for the purpose of gathering {he crop, and piled in the yard with the intention of being replaced in the season of hop raising, are a part of the real estate. So held, where the executrix of a mortgagor of real estate, sued the maker of a note given for the price of hop-poles sold to him by the executrix, but which, after the making of the note, as was claimed in defense, became the property of the mortgagee under foreclosure, and there being thus a case of failure of consideration of the note. Bishop v. Bishop, 1 Kern., 123. 3. Mortgagor and mortgagee. Permanent erections and fixtures made by the mortgagor after the execution of the mortgage, upon the land conveyed by it, became a part of the mortgaged premi- 268 COURT OF APPEALS DIGEST. POEOfflLB ElfTKT AMD DETAHTEE — FOEEIGK COEPOEATIONS. BBS. And in determining as between mortgagor and mortgagee whether such erections and fixtures are real or personal property, the rules prevail which are applicable between grantor and grantee. And held, that a stone statue weighing about three tons^^and stone dial weighing about three hundred pounds, each resting upon blocks of stone on a foundation, without other fastening than their own weight, ornamental erections made upon grounds after the giving of a mortgage thereon, became a part of the realty so as to be embraced within the mortgage. Snedeker et al. v. Warring, 2 Kern., 170. FORCIBLE ENTRY AND DETAINER. See 1 Kern., Title, " Religious Societies," 1, 2, 3. FORECLOSURE. See, seq., Title, " Mortgage." FOREIGN CORPORATIONS. 1. A foreign corporation may make and enforce within this state contracts which it is competent by its charter to make, and which are not forbidden by the laws or contrary to the policy of this state. Bard v. Poole, 2 Kern., 495. 2. Prima facie. A foreign corporation may recover in the courts of this state, on a promissory note executed to it. So, where it appeared that the plaintiff was a foreign life insurance company, and that the note was for premium : Held, that it was to be presumed that the insurance was such as the company was authorized to make, until the contrary was shown. The Mufual Periefit Life Insurance Company v. Davis, 2 Kern., 569. 3. Receivers or trustees of the effects of an insolvent corporation of another state, appointed under the laws of such state, with power to take possession of all the effects of such corporation, "and to sell, convey or assign its real and personal estate," have COURT OF APPEALS DIGEST. 269 FOEEIGN LAWS — FOEMEB EECOVEKT. power to sell and assign a debt due to the corporation from a citizen of this state ; and such sale and assignment give to the purchaser the equitable right of action, as against the debtor, in the courts of this state. Hoyt v. Thompson, 1 Seld., 320. 4. See, ante, Title, " Corporations." FOREIGN LAWS. 1. Real estate. Conveyances, or testamentary dispositions, affect- ing real estate, are to be construed v?ith reference to the laws of the country where the estate is situated. Monroe v. Douglass, 1 Seld., 448. 2. Proof of. Foreign laws are regarded as facts, and should be alleged and proved like other facts of which the courts do not take judicial notice. And in the absence of proof, it will be presumed that the foreign law, in a particular case, is like our own. Id. 3. See 2 Kern., Titles, " Contract," 4 to 8 ; "Usury," 4, 5, 6 ; " Evidence," 8, 9. 1 Kern., " Pleading," 2, 3. 5 Seld., " Banks and Banking," 1,2; " Bills of Exchange and Promissory Notes," 2 ; «' Contracts," 1. FORFEITURE. See 2 Comst., Titles, " Corporations," 3 to 7. 5 Seld., "Land- lord and Tenant," 1 to 6. 4 Kern., " Corporations," 6. FORGERY. See 1 Com«^, Titles, " Bills of Exchange and Promissory Notes," 1 to 6. 3 Comst., " Bills of Exchange and Promissory Notes," 1 to 5. 4 Comst., "Bills of^ Exchange and Promissory Notes," 1 to 4. 3 Seld., " Corporation," 3. 4 Kern., " Evidence," 8. FORMER RECOVERY. See, ante, Title, " Estoppel," &c. 270 COURT OF APPEALS DIGEST. POEWAEDEE — PEAUD. FORWAEDER. See, ante, Title, " Common Carrier." FRAUD. I. Assignments, &o., fraudulent as to creditors. II. Fraud in vendor of real or personal property. III. Fraud in purchaser ; Representations as to solvency or credit. IV. Miscellaneous cases. I. ASSIGNMENTS, &C., FEAUDULENT AS TO CREDITORS. , 1. Chattel mortgage. It seems that the question of fraud in a personal mortgage should be submitted to the jury, although no change of possession accompanies the mortgage ; and the verdict of the jury in favor of the bona fides of the transaction v?ill be as conclusive as upon any other question of fact. Butler et al. v. Miller, 1 Comst., 496 ; Thompson v. Blanchard, 4 Comst., 303. (See No. 7, seq. ) 2. Reservations to the use of the assignor. An assignment by an insolvent debtor of all his property in trust to pay certain specified creditors, and then, vnthout making provision for other creditors, in trust to reconvey the residue to the debtor, is fraudulent and void as to creditors not provided for in the deed. And it is void on its face, and cannot be helped by proof that there will be no surplus. Barney v. Griffin et al., 2 Comst., 365. (See No. 5, seg.) 3. Authority to the assignee to sell on credit renders the assignment void. Per Bronson, J. Id. Also, Nicholson et al. v. Leavitt et al., 2 Seld., 510 ; Porter v. Williams et al, 5 Seld., 142. (See No. 12, seq.) And authority to convert the property into " money or available means," renders it void. Brigham v. Tillinghast, 3 Kern., 215. 4. Chattel mortgage. To shovp good faith in a subsequent mort- gage of personal property, so as to enable the holder thereof to avoid a prior mortgage on the ground of fraud, it must be proved by evidence dehors the instrument itself that the second mortgage was given for a valuable consideration, or to secure the pajonent of an honest debt. And evidence showing that about a year COURT OF APPEALS DIGEST. 271 FEADD. before the subsequent mortgage was given, the mortgagor became indebted to the mortgagee, but not connecting the two transac- tions, is not sufficient. BasJcins v. Shannon, 3 Comst., 310. 5. Assignment of specific property or choses to the creditors themselves. Where an insolvent debtor assigned a chose in action to certain of his creditors for the purpose of securing their demands, reserv- ing the surplus to himself, there being no extrinsic evidence of an intention to defraud other creditors : Held, that the assignment was valid. It is not within 2 Revised Statutes, 135, section 1, declaring conveyances, transfers, &c., in trust for the use of the person making them void as to creditors ; but is in legal effect a pledge or mortgage, the reservation being merely incidental. Leitch V. Hollister et al., 4 Comst., 211. See also, Curtis v. Leavitt, 15 N. Y. Rep., 9 ; ante, " Banks and Banking." 6 Bill of sale, when a mortgage and necessary to be fled. A., a manufacturer, purchased wool to be paid by his note indorsed by B. The note was made accordingly, and indorsed by B. for A.'s accommodation. At the same time A. executed to B. a writing, reciting that B. had indorsed the note to be used in purchasing the wool, and declaring that the wool and the cloth to be manu- factured therefrom should belong to B. until the note was paid : Held, that the writing was a mere mortgage, and not having been filed as such in the proper town clerk's office, that it was void as against a subsequent purchaser in good faith from A. Thompson v. Blanchard, 4 Comst., 303. 7. Chattel mortgage ; Change of possession ; Presumptions of fraud. Upon a question of fraud in a mortgage or sale of goods where the possession is left in the mortgagor or vendor, the proper instruction to a jury, it seems is, that the mortgage or sale ia presumed in law to be fraudulent and void, and that the party claiming under the transfer must disprove the fraud. Where there is no evidence of good faith to rebut the statute presumption of fraud, the question is one of law. But where there is any mate- rial and pertinent evidence of good faith, the question is one of fact for the jury. Per Mullett, J. Griswold v. Sheldon and Payne, 4 Comst., 580. 272 COURT OP APPEALS DIGEST. 8. Where a chattel mortgage by its terms permitted the mort- gagor to retain possession of the goods, and on its face conferred on him the power to sell and dispose of them as his own ; such mortgage is fraudulent and void in law as to creditors, and in an action brought by the mortgagee against a creditor who had levied on the goods, the court should have nonsuited the plaintiff on the trial. Per Bronson, Ruggles, Jewett and McCoun, Js. Contra per M0LLETT, GrAEDiNEK, GrEAT and Paige, Js. Id. ( See No. 10, seq.) 9. Usurious debt. It is not a fraud upon other creditors for a debtor to pay or provide for the payment of a usurious debt, by assignment or otherwise. Murray v. Judson et al., 5 Seld., 73. 10. Chattel mortgage void in law, where. Where the purchaser of a stock of goods in a retail store executed to the vendor a mortgage upon the entire stock, by schedule, the mortgage including also in its terms all articles of a like nature which might be in the store at the time of a default in its condition, the mortgagor to continue in possession, but being forbidden by a clause in the mortgage from selling on credit, it was held, that the mortgage was, in its terms, fraudulent as against creditoi'S, and that there was no question to be submitted to a jury in regard to it. Edgell V. Hart, 5 Seld., 213. 11. A sale of personal property, though fraudulent as against creditors, is valid as between the parties to the sale. Waterbury V. Westervelt, 5 Seld., 598. (But see, ante, "Attorney," 6.) 12. What is an authority to sell on credit. An assignment will not be construed as conferring an authority to sell on credit, when its language is consistent with a different interpretation which makes it legal and valid. Accordingly, where it authorized trustees to take possession of the property and sell and dispose of the same Mpore lueh terms and conditions as in their judgment might appear best and most for the interests of the 2}arties concerned, and convert the same into money : Held, that it was valid. Kellogg et al. V. Slausson et al., 1 Kern., 302. (See, ante, No. 3.) 13. Subsequent fraudulent mortgages or incumbrances put upon the property by the mortgagor, without the privity of the mort- COURT OP APPEALS DIGEST. 273 gagee ia the first mortgage, cannot be shown to impeach such first mortgage. Ford v. Williams, 3 Kern., 677. 14. Assignor as a witness. On an issue of fact as to whether an assignment or transfer of property was made to hinder, delay or defraud creditors, it is competent, where the assignor is a witness, to inquire of him whether, in making the assignment or transfer, he intended to delay or defraud his creditors. Seymour, receiver, ^c, V. Wilson et al., 4 Kern., 567. 15. Assignments hy partners ; Reservations. The members of an insolvent mercantile firm assigned their partnership property, and also certain real estate which they owned, not as partners but as tenants in common, in trust for the payment of their partnership debts, reserving any surplus which should remain to the assignors : Held, That this reseryation rendered the assignment void as to the individual creditors of the assignors. Though such a reservation might not avoid the assignment if it embraced only partnership property, yet when it applies to individual property, and there are individual debts not provided for, it raises a conclusive pre- sumption of an actual fraudulent design to hinder and delay creditors. Collomh et al. v. Caldwell et al., 16 N. Y. Rep., 484. II. FRAUD IN VENDOR. 16. Fraudulent representation as to territorial extent of leased pre- mises. The defendant, in February, executed to plaintiff a writing under seal, stating that he had hired of the plaintiff a certain water lot, and his right to a wharf in the city of New York, for one year from the first of May next, at $1,000 rent. He was induced to make the contract through the fraudulent representa- tions of the plaintiff that the right mentioned in the lease com- prehended a parcel of land which in fact belonged to the corpo- ration of the city of New York. The defendant discovered the fraud before the first of May, and obtained from the corporation a lease for that parcel, at an annual rent of $1,000- On the first of May he took possession of the whole, and occupied during the year. In covenant for rent: Held, that he was entitled to a deduction by reason of the fraud, of the sum which he was obliged 35 274 COUET OP APPEALS DIGEST. in good faith to pay for the corporation lease. That although his taking possession and occupying after the discovery of the fraud was a waiver of his right to rescind the contract, it was not a waiver of his right of action for the fraud. Whitney v. Allaire, 1 Comst., 305. 17. Judicial sales. Erroneous representations made by a receiver at the time of the sale of lands by him, and by the attorney under whose directions the sale is made, in regard to the value of the lands, and to incumbrances thereon, unless made in bad faith, do not invalidate a purchase of the lands at such sale. The Chau- tauque Count]! Bank v. White, 2 Seld., 236. 18. Misrepresenting boundaries. An action on the case may be maintained by the purchaser of lands against the seller for fraud- ulently misrepresenting the boundaries of the lands; and the intent to defraud may be made out by circumstantial or presump- tive evidence. The vendor is guilty of fraud, if, knowing that he has no title to a portion of the lands sold, he willfully suppresses that fact from the purchaser. Clark v. Baird, 5 Seld., 183. 19. Executory contract for purchase of land. Where a party con- tracted to purchase,' at the price of $14,000, premises described by metes and bounds, and as containing about eight acres more or less, and which were chiefly valuable for subdivision and sale as city lots, when the actual quantity was only about four acres, and the vendor, though not fraudulently, represented the premises as containing, eight acres ; on bill filed by the purchaser to rescind the contract, held, that he was entitled to the relief, on the ground that the mistake so essentially affected the value of the premises, that it was apparent the contract would not have been made had not such mistake existed. Belknap v. Sealy, 4 Kern., 143. in. FEATJD IN purchaser; representations as to solvency OR CREDIT. 20. It seems, that where a vendee, being actually insolvent, but not knowing the fact, represents to a vendor that he is able to pay one hundred cents on the dollar, and something more, and thereby COUET OP APPEALS DIGEST. 275 induces him to sell him goods, the sale is not void for the misrep- resentation. McCrackan v. Cholwell et al, 4 Seld., 133. 21, Must have induced the credit to he actionable. If a vendor is not induced to enter into a contract by false representations of the vendee, the fact that the latter made such representations during the negotiation of the contract, v?ill not avoid it. And the declar- ations of the vendor, made subsequently, may be proved to show Ms affirmance of the contract after a full knowledge of all the facts. Branson et al. v. Wiman, 4 Seld,, 182. 21. Negligent false statement as to credit of a third person. A party is liable to an action for damages, who with a view of inducing others to credit a merchant, represents " that he has examined into his affairs and thinks that what they should sell him would be all right, and if anything did happen they would be taken care of; that he has talked with him, and is satisfied he is solvent and is going on well," when in fact such merchant is insolvent at the time ; owes defendant $2,500 ; has a note running to maturity for $1,500, on which defendant is indorser ; and defendant has not examined his afiairs except to look into his cash book once ; knows nothing of his real condition except his debt to defendant, and the bank note ; and is informed by the merchant that he .can go on in business without any trouble, provided defendant keeps the bank note renewed. ZabrisJcie v. Smith, 3 Kern, 322. 23. Extent of liability. The responsibility of a party for false and fraudulent representations, is not necessarily limited to the credit obtained thereby at or immediately subsequent to the time the representations were made. And where they were made in April, and the plaintiffs then, and at various times afterwards until November, sold the party recommended, merchandise on credit: Held, that it was for the jury to decide whether the credits given during the summer and fall were induced by the representations. Id. 23. Evidence. The representation by the owner of a house, that there was no claim or incumbrance thereon, is not shown to be false, by proving that he had previously filed the notice required 276 COURT OF APPEALS DIGEST. by chapter 260, Laws of 1850, to exempt such house as his homestead, from sale on execution. Robinson v. Wiley, 15 N. Y. Rep., 4S9. rV. MISCELLANEOUS CASES. 24. Fraud and undue injluenceupon a testator. Feeble and depend- ent state of testator, from the character of his disease and long continuance, bringing him under control and dictation of his wife, held sufficient ground for setting aside a will containing bequests dictated by the wife. Clarke et al. v. Sawyer et al., 2 Comst., 498. 25. Motive for false representation not necessary. A false repre- sentation made with intent to injure one, and in relying on which he is injured, is a good cause of action, although no benefit accrues to the party making it, from the falsehood. White v. Merritt ct ul., 3 Sbld., 352. 26. Not predicable of a mere emotion. Fraud, in judicial pro- ceedings, can never be predicated of a mere emotion of the mind, disconnected with an act occasioning injury. When imputed to the acts of inspectors of election, it implies an illegal and wrong- ful act purposely committed. The People v. CooJc, 4 Seld., 67. 27. Decree obtained by collusion. Equity will entertain a suit to vacate a decree obtained by collusion between trustees and the tenants in possession of a trust estate, to defeat the rights of persons entitled to equitable interests therein in remainder. Wright Y. Miller, 4 Seld., 9. 28. Misrepresentation by mortgagor as to boundaries and improve- ments. Where an applicant for a loan proposed to secure its repay- ment by a mortgage upon premises which he stated had been conveyed to him by a party named, and by false and fraudulent representations induced the lender to believe that certain valuable erections, which were situated on adjacent premises owned by the applicant, were upon the premises so conveyed to him, and the lender made the loan and accepted a mortgage executed by the applicant, containing a description which included only these premises, believing, and the applicant assuring him, that the erec- COURT OF APPEALS DIGEST. 277 FEAtJDS, STATUTE OP. tions were embraced ; and the mortgagor soon after conveyed the land on which the erections were situate, without consideration, in trust for his wife : in an action by the mortgagee, against the mortgagor, his wife and her trustee, the trust deed was adjudged invalid against the mortgage, the latter was reformed so as to embrace the land with the erections thereon, and a decree of foreclosure and sale was made as to all the premises. De Peyster V. Hashrouck et al., 1 Kern., 582. 29. Fraud amounting to a felonij. Though a defendant act in entire good fliith and without notice, in making advances upon property for which genuine delivery receipts are at the time put into his hands by the party receiving the advances, he cannot hold the property as against the true owner, from whom such receipts were stolen. No title can be made through an act of fraud amounting to a felony. Brewer v. Fealodij, 3 Kern., 121. 30. Surrogate's sale of real estate for fictitious and fraudulent debts. It seems that evidence that a debt, for the payment of which the application to a surrogate for an order to sell land was made, was fictitious and fraudulent, and that the plaintiff when he purchased, knew the fact, is inadmissible to impeach his title, without proving further that the administrator knew that the debt was fictitious, and that the plaintiff conspired with him to subject the land to sale fraudulently. Per Bowen, J. Sihleij v. Wa§.ey 16 N. Y. Rep., ISO. 31. See, ante, Title, "Attorney," 6. FRAUDS, STATUTE OF. I. Sales, &c. , with intent to hinder and delay creditors. II. Agreements for sale of interest in lands. III. Agreements not to lie performed within one year. IV. Promises to answer for the debt, default, &o., of a third person. V. Contracts for the sale of goods, chattels, and things in action. I. SALES, &C., WITH INTENT TO HINDER AND DELAY CEEDITOES. See, ante. Title, "Fraud." II. AGKEEMENTS, &C., FOE SALE OF INTEEEST IN LANDS. 1. Whether the mere payment of money will, in equity, tali* a verbal contract for the sale of lands out of the operation of the 278 COUET OP APPEALS DIGEST. FKAnBS, STATUTE OF statute of frauds, qiiere. But where a party has paid money upon a contract within the statute, and a recoveiy of the money will not restore him to his former situation, he is entitled in equity to a specific performance of his contract. Malins v. Brown et al., executors of Munroe, 4 Comst., 403. 2. Where A. agreed to purchase land of B. on condition that a mortgage, on the same and other lands held by C, should be discharged from the land intended to be purchased, and it was thereupon verbally agreed between A. B. and C. that a part of the consideration to be paid on the purchase should be paid on the mortgage to C, who should at the same time execute a release of that part of the mortgaged premises, and the purchase was completed accordingly, A. paying down the consideration money, of which C, the mortgagee, received the sum agreed on, but C. excused himself from executing the release at that time, saying that he would give it at any time when called upon : Held, that A., notwithstanding the statute of frauds, was entitled in equity to a specific performance from C. of the agreement to execute the release, since a recovery from C. of the money paid to him would not restore A. to his former situation ; and this would operate as a fraud upon him, unless the agreement were carried into com- plete execution. Id. 3. Want of mutuality cannot be set up as a defense by the party to be charged. It is enough under the statute of frauds, that the agreement for the sale of lands is signed by him, and delivered to the other party. Worrall v. Munn, 1 Seld., 229. 4. Laijing out highways. A parol consent to the laying out of a road through a building, given to highway commissioners by the owner of the land and building through which the road is to pass, is, it seems, valid, provided it be acted upon immediately by the commissioners, and the road laid out before any revocation of such consent. The statute of frauds has no application to such a case. Such consent, however, is revocable, and is revoked by a sale and conveyance of the land in good faith, prior to the laying out of the, road. And such sale and conveyance, though made during the pendency of an appeal to the county court from a decision of COURT OF APPEALS DIGEST 279 FRAUDS, STAiniE OP. the commissioners in relation to such road, amount to a revoca- tion. The People v- Goodwin, 1 Seld., 568. 5. A promise to pay for lands sold and conveyed is not within the statute of frauds, and is not required to be in writing. Thomas V. Dickinson, 2 Kern., 364. 6. Authority of agent. Although the statute requires a contract for the sale of land to be in writing, subscribed by the party, or his agent lawfully authorized, it is not necessary that the agent should have written authority. And where a party, without authority, executes a contract for the sale of lands in the name of the owner, a ratification by the latter, although by parol, makes the contract valid, within the statute, as one originally made by him, Newton v. Bronson, executor, ^c, 3 Kern., 587. 7. Ratification. But where the principal could not delegate his authority, as in the case of a trustee whose personal judgment, &c., was required in the proper execution of the powers conferred on him, then the ratification must be in writing subscribed by the principal, and in such a form as to render the contract valid within the statute as one originally made by him. And where such an instrument of ratification is once subscribed in such case, the original contract becomes operative under the statute ; it not being indispensable that the latter should be subscribed by him. Id. 8. Sale of lands by auctioneer. A memorandum of the contract for the sale of land, made and signed at the time of the sale by the auctioneer who sold it for the owner, is sufficient within the statute requiring contracts for the sale of land, or a note or memorandum thereof, expressing the consideration, to be in writ- ing, and subscribed by the party by whom the sale is made or his agent. And where the auctioneer pinned a letter from the owner of lots to be sold, addressed to the auctioneer, which stated the terms of sale, on a page of his sales book, and then made the residue of the entries requisite to constitute a m,emorandum of the contract of sale on the same page of the book, and subscribed his name to it : Held, that the letter was to be taken as a part of the memorandum subscribed by the auctioneer, and rendered it suffi- cient within the statute. Tallman et al. v. Franklin, 4 Kern., 584. 280 COURT OF APPEALS DIGEST. FRAUDS, STATUTE OF. 9. Location of the lands. Althougli the memorandum must contain what is necessary to show what is the contract between the parties, yet the property mentioned in it may be ascertained and located by extrinsic evidence, especially where the memoran- dum refers to such extrinsic evidence. Id. III. A6EEEMENTS NOT TO BE PERFORMED WITHIN ONE TEAE FROM THE MAKING THEREOF. 10. A parol lease of lands for the term of one year, to com- mence at a period subsequent to the day on which the contract is made, is valid under our statutes. The provisions of the second section of the title of the Revised Statutes in reference to "fraud- ulent conveyances and contracts in relation to goods and chattels and things in action," have no application to contracts concerning lands or any interest therein. Young v. Dake, 1 Seld., 463. IV. PROMISES TO ANSWER FOR THE DEBT, DEFAULT OR MISCAR- RIAGE OF A THIRD PERSON. 11. Guaranteeing third ferson'snote turned out in payment of defend- ant's own debt. Where the payee and holder of a promissory note transferred it to his creditor in exchange for his own note held by such creditor, and at the same time executed on the back of the note transferred a guaranty of the payment thereof: Held, that the guaranty was not within the statute of frauds, and was there- fore valid, although it expressed no consideration. Such an under- taking, although in form a promise to answer for the debt of another, is, in substance, an engagement to pay the guarantor's own debt in a particular way, and would be good without any writing. It falls within the third class of cases mentioned by Kent, Ch. J., in Leonardv. Vrcdenburgh (8 John., 38), where there is a new and distinct consideration moving between the parties to the new promise. Brown, 'plaintiff in error, v. Curtiss, defendant in error, 2 Comst., 225. See reporter's note (a.), 2 Comst., 553. 12. A negotiable promissory note was transferred by the payee in part payment for a ciiattel, with a guaranty indorsed thereon, signed by himself and another, in these words: "We guaranty COURT OF APPEALS DIGEST. 281 FKAUDS, STATUTE OP. the payment of the within note." The Supreme Court held that the undertaking was not within the statute of frauds, and was therefore valid, although it expressed no consideration. Tlie deci- sion was affirmed in this court, four of the judges being for affirmance, three for reversal, and one not having heard the argu- ment. Durham v. Manrow, 2 Comst., 533. See, also. Hall v. Farmer and Doolittle, 2 Comst., 553, where in a similar case the Supreme Court had held the other way, and that judgment was also affirmed for the reason that the judges of this court were equally divided in opinion. See 4 Seld., 207 ; seq.. No. 15. 13. Letter of credit promising to guarantee drafts. Where A. by a general letter of credit, undertook to accept and pay drafts to be drawn by B. to a given amount, and C, at the foot of the let- ter, at the same time, wrote and signed a guaranty in these words : "I hereby agree to guarantee the due acceptance and payment of any draft or drafts issued in virtue of the above ci'edit :" Held, that the letter and guaranty should be read and considered toirether, that the consideration of the guaranty was sufficiently expressed in the writing, and therefore that the guaranty was a valid undertaking within the statute of frauds. A promise to do an act in consideration of some act to be done by the promisee, implies a request, and such a promise is made upon sufficient con- sideration. And if the promise be in writing, the consideration therefor is expressed so as to uphold the contract within the statute of frauds. The performance of the acts to be done by the promisee may be proved by parol. Union BanJc v. Coster's executors, 3 Comst., 203. 14. Undertakings on appeal are valid as to sureties, though not expressing any consideratian and not under seal. And it seems, the statute of frauds only applies to common law agreements, and not to, instruments deriving their obligation from special statutes, without reference to the acceptance or assent of the party for whose ultimate benefit they are given. Thompson v. Blanchard, 3 Comst., 335. 15. A contract to guarantee the debt of a third person must be in writing and express the consideration upon which it is made, 36 282 COUET OF APPEALS DIGEST. eRAXTDS, STATUTE OP. or it will be void. The consideration cannot be supplied by parol proof. And where the action is on the contract to guarantee, void by the statute of frauds, a fact found in the special verdict, which in a proper action would have rendered the defendant liable as a principal debtor and not a guarantor, is not a cause for reversing a judgment correctly rendered on the contract of guaranty. Brewster v. Silence, 4 Seld., 207. 16. Guarantor of a note not a joint maJcer. A guaranty written beneath a promissory note of a third person, and delivered with it upon a previous agreement, is not a part of the note, and the guarantor is not a joint maker with the maker of the note. It is a distinct contract, and must comply with the requirements of the statute of frauds. Id. 17. A parol promise by the owner of a lot to pay for building materials, furnished by plaintiff to a party holding a contract for the land, and put into a house erected on the land by such party, is within the statute of frauds and void. Loovie et al. v. Hogan, 5 Seld., 435. 18. Agreement of one surety to indemnify another. An agreement made between parties prior to or cotemporaneously with their executing a written obligation as sureties, by which one promises to indemnify the other against loss, does not contradict or vary the terms or legal effect of the written obligation, and it may be proved by parol evidence. It is a bar to an action by the party making it against his cosurety for contribution, and (per Denio, J.) is not required by the statute of frauds to be in writing to render it valid. Barry v. Ransom, administrator, 2 Kern., 462. 19. Expressing consideration. The defendant wrote to the plain- tiff, a dealer in leather, in behalf of M. E. McKee, a shoemaker, the following letter : " Sir, I will be responsible for what stock M. E. McKee has had or may want hereafter, to the amount of five hundred dollars: Held, a continuing guaranty, and not exhausted by purchases of and payments for stock to the amount mentioned : Held, also, that ( according to the rules laid down in Union Bank v. Coster's executors, 3 Comst., 203) it expressed the COURT 01" APPEALS DIGEST. 283 ' FKAUBa, SXATnTE OF. consideration- within the requirement of the statute of frauds. Gates V. McGee, 3 Kern., 232. 20. Del credere commission. The contract of a commission mer- chant, whereby he assumes the responsibility of a factor upon del credere commission, is not within the statute of frauds relating to promises to answer for the debts, &c., of third persons, and is therefore valid, though by parol. Sherwood v. Stone et al., 4 Kern., 267. V. CONTRACTS FOR THE SALE OP GOODS, CHATTELS, AND THINGS IN ACTION. 21. Cumbrous articles ; Mere words not enough to constitute delivery and acceptance. Plaintiff and defendant bargained respecting the sale, by the former to the latter, of a quantity of lumber, piled apart from other lumber, on a dock, and in view of the parties at the time of the bargain, and which had before that time been measured and inspected. The parties having agreed as to the price, the plaintiff said to the defendant, ^Hhe lumber is yours." The defendant then told the plaintiff to get the inspector's bill, and take it to one House, who would pay the amount. This was done the next day, but payment was refused. The price was over fifty dollars : Held, in an action to recover the price, irhat there was no delivery and acceptance of the lumber, within the mean- ing of the statute of frauds, and that the sale was therefore void. The case of cumbrous articles is not an exception to the rule that in order to constitute a delivery and acceptance within the statute, something besides mere words is necessary. Superadded to the language of the contract, there must be some act of the parties, amounting to a transfer of the possession and an acceptance thereof by the buyer. Shindler v. Houston, 1 Comst., 261. 22. Subsequent fart delivery and acceptance sufficient. A verbal agreement for the sale of personal property exceeding fifty dollars in value, is valid, where a part of the property has been delivered to the purchaser and accepted by him under the agreement, although such delivery and acceptance took place several months after the making of the verbal agreement. The plaintiff, by verbal 284 COURT OF APPEALS DIGEST. PBADDS STATUTE OP. agreement, in June, 1844, purchased five thousand bushels of barley malt of the defendant, at a fixed price, to be paid for by the plaintifi''s note, whenever $1,000 worth of the malt should be delivered. The defendant, in August and September, delivered about fourteen hundred bushels in pursuance of the agreement, and refused to deliver the residue : Held, that the contract was valid, and that the plaintiff was entitled to damages for the non- delivery of the residue of the five thousand bushels. McKnight V. Dunhp, 1 Seld., 537. 23. The note or memorandum must he subscribed " at the end thereof." The note or memorandum in writing required by the statute of frauds, in order to bind the party to be charged therewith, must be subscribed by such party underneath, or at the end of such note or memorandum. Accordingly, where a memorandum of sale was made in the handwritmg of the defendant, as follows : Albant, March 12th, 1847. "Mr. Thomas James, " Bought of M. & S. Patten, for the relief com- mittee, three thousand bushels yellow corn (fifty-six pounds per bushel), to be delivered at the opening of the Hudson river navi- gation, at our store in Albany, at eighty-one cents per bushel, $2,430." Held, in an action for damages for non-delivery of the corn, after tender of the price, demand and refusal to deliver, that the memorandum was insufficient to charge the defendants. James v. M. ^ S. Patten, 2 Seld., 9. 24. Entire contract may he enforced, after "part performance. A vendor who by parol sells for cash and delivers a quantity of dam- aged raisins, agreeing, as part of the bargain, that the purchaser shall have the return duties, if any, upon them, is liable to him, in an action for any such duties which he may receive. The agreement that the purchaser shall have the return duties is not void by the statute of frauds. It forms a part of the contract of sale, which was partially fulfilled by the delivery of the raisins and the payment for them. Allen et al. v. Aguirre et al., 3 Seld., 543. COURT OF APPEALS DIGEST. 285 FEEIGHT — GIFT. FREIGHT. 1. Bee, ante, Titles, "Charter Party;" "Damages;" "Bills of Lading." GENERAL BANKING LAW, 1. See, ante, Title, "Banks and Banking." 2. See 5 Seld., Title, "Foreclosure," 2. GENERAL RAILROAD LAW. 1. See, ante, Title, " Corporations." GIFT. 1. Donatio mortis causa. The executory promise of the donor, c. g., his own draft upon a third party in favor of the donee, intended as a donatio mortis causa, is not valid, and the donee cannot maintain an action upon it against the donor's representa- tives. The case of Wright v. Wright (1 Cow., 698), holding a contrary doctrine, overruled. An instrument executed by the donor to the donee, operating as an assignment or transfer of the donor's funds in the hands of a third party, constitutes, it seems, a sufficient delivery to uphold a gift mortis causa. But a draft of the donor, not accepted, for a specific sum, upon a third person who has in his possession funds of the donor, does not operate as an assignment or appropriation to the donee of the sum mentioned in the draft, and therefore is not valid as a gift causa mortis. Har- ris v. Clark ct al., executors, Sfc, 3 Comst., 93. 2. Delivery essential in all gifts. To render a gift valid, the thing given must be delivered to the donee, or it must be placed in his power by delivery of the means of obtaining possession. And in this respect there seems to be no distinction between gifts inter vivos and gifts mortis causa. Id, 286 COURT OF APPEALS DIGEST. GOVEEirOB, APPOINTMENT BT — QUAEAMTT. 3. Husband and, wife. A gift by a husband to a wife will be upbeld, when the rights of creditors are not in question. Borst V. Spelman, 4 Comst., 284. 4. Parent and child. Where a father transfers to an adult son who has occasionally performed services for him for which no charge was made, a quantity of bank stock, reciting in the trans- fer that it is "for value received," the transaction is a gift and not a sale. And such a gift, if made while the donor has sufficient mental capacity to transact business with his own family, although not to transact business generally, if fairly made, is. valid. Fan, Deusen v. Rowley, 4 Seld., 358. GOVERNOR, APPOINTMENT BT. 1. See, ante, Title, « County Clerk." GRANT. • 1. See, ante. Title, "Deed," and 2 Kern., Title, "Presumption of Grant." GROWING CROPS. 1. See 1 Comst., Title, "Property." GUARANTY. I. Of promissory notes. U. Letters of credit. I. OP PEOMISSORT NOTES. 1. Indorser not a guarantor. The fact that a party indorses a note for another, under a previous arrangement with the holder that the debt for which it is given shall be extended in considera- tion of such party's becoming surety for the debtor, does not render him liable in the character of joint maker or guarantor, but only as indorser. Sj^ies y. GUmore, 1 Comst., 321. COURT OF APPEALS DIGEST. 287 2. Guarantor not an indorser. Where one contracts in the form of a guaranty upon the back of a promissory note, he cannot be treated as an indorser, nor can he set up in his defense the want of demand and notice. Brown v. Curtiss, 2 Comst., 225. 3. As to the necessity of a guaranty's expressing a consideration, when the note is turned out in payment of a debt, or in part pay- ment of the price of a chattel purchased by him at the time, see the contradictory cases of Durham v. Manrow, 2 Comst., &33, and Hall V. Farmer, id., 553. 4. Guarantor not a joint maker. A guaranty written beneath a promissory note of a third person, and delivered with it upon a previous agrieement, is not a part of the note, and the guarantor is not a joint maker with the maker of the note. It is a distinct contract, and must comply with the requirements of the statute of frauds. Brewster v. Silence, 4 SeM,, 207. 5. Implied guaranty. The indorsement of a promissory note imports a guaranty by the. indorser, that the makers were compe- tent to contract in the character in which, by the terms of the paper, they purported to contract. And knowledge of one who, before maturity and for a valuable consideration, became the holder of a note made by two married women as partners, that they were married women, and hence not in fact competent to make a note as such partners, does not deprive him of the right to rely upon the implied guaranty of the indorser that the makers were compe- tent to contract as partners, nor of the character of a bona fide holder. Frwin v. Downs, 15 N. Y. Rep., 575. 11. LETTERS OV CREDIT. 6. The terms of a guaranty must he strictly complied with, or the guarantor will not be bound. Thus where J., being desirous of purchasing goods of the plaintiff on credit, procured a letter of guaranty from the defendant to the plaintiff, by which the defend- ant promised to be surety for the amount of the goods, to be paid January 1, 1840 ; and the plaintiff sold the goods to J. and took his note, payable December 25, 1839 : Held, that the defendant 288 COURT OP APPEALS DIGEST. GITABDU.N. was not bound by his guaranty, although the plaintiff did not require payment from J. until after the 1st of January, 1840. Walrath v. Thompson, 2 Const., 185. 7. A general letter of credit authorizes any person to whom it is presented, to act upon the proposition therein contained ; and when any person does act thereon, a contract arises between him and the maimer of the instrument, in the same manner as if it had been addressed to him by name. And such a letter of credit, if it authorize more than a single transaction with the party to whom it is granted, may be honored by several persons successively, keeping within the aggregate limit specified in the instrument. And where A., by a general letter of credit, undertook to accept and pay drafts to be drawn by B., to the amount of $25,000, and C, at the foot of the letter, at the same time wrote and signed a guaranty in these words: ,"I hereby agree to guarantee the due acceptance and payment of any draft or drafts issued in virtue of the above credit : " Held, that the letter and guaranty should be read and construed together; that the consideration of the guaranty was sufficiently expressed in writing, and therefore that the guaranty was valid within the statute of frauds; and that it created a liability to successive holders of drafts of different dates and amounts, in the aggregate not exceeding the amount specified, negotiated to different parties without notice to the guarantor. Union Bank v. Coiler^s executors, 3 Ccmst., 203. 8. Continuing guarantij. See case of Gates v. McKee, 3 Kern., 232; ante, "Statute of Frauds," IV. GUARDIAN. 1 . Cannot purchase for himself where his ward is concerned. A testa- mentary guardian of an infant devisee has no right to purchase the real estate of the testator at a sale under a surrogate's order. The sale, however, is not absolutely void, but voidable at the election of the ward. BostwicJc v. Atkins, 3 Co r,st., 63. 2. Discharge of infant's mortgage by guardian annulled. Where a general guardian of infants, appointed by an order of the Court COURT OP APPEALS DIGEST. 289 HABJTUAIi DEUNKAED — HEIES. of Chancery, authorizing him to discharge and cancel a bond and mortgage belonging to the infants, "upon receiving abend and mortgage upon unincumbered real estate of sufficient value to be ample security for the amount due to them," &c., executed and caused to be recorded, without receiving any new security, a dis- charge, reciting that the amount secured to the infants by the mortgage had been paid and satisfied to him as guardian of such infants : Held, that such discharge did not protect subsequent mortgagees against the claim of the infants by virtue of their mort- gage, and must be annulled. Swarthout v. Curtis, 1 Seld., 301. 3, See 1 Kern., Titles, "Infant," 8, 9, 10 ;-" Specific Perform- ance ;" " Surrogate's Court." 4 Kern., Title, " Equity Jurisdiction," 4, 5, 6. See also same titles herein. HABITUAL DRUNKARD. 1. Cannot maJce valid contract after inquisition, although sober. After one has by inquisition been found a habitual drunkard, he cannot, until it is vacated or a commission thereon superseded, even in his sober intervals, make contracts to bind himself or his property ; and all persons are bound to take notice of the pro- ceedings. Accordingly, where the indorser of a bill of exchange, who had, prior to its maturity, been found a habitual drunkard, by a written instrument made after such finding and before the appointment of a committee, and while sober, waived notice of protest, in consequence of which the holder omitted to have notice served : Held, that the waiver was void. Wadsworth v. Sharpsteen, 4 Seld., 3S8. HANDWRITING. See, ante, "Evidence;" and in 4 Kern., 8, 9. HEIRS. 1. Parties to creditor's suit for dAt of deceased. It seems that the heir and the personal representative cannot be joined in a suit 37 290 COURT OP APPEALS DIGEST. brought by a creditor of deceased under the statute (2 K. S., 452), to charge the heir in respect to lands descended. But all the heirs must be joined, and in order to charge them it must be shown either that the personal assets of the deceased were not sufficient to pay the debts, or that after due proceedings in the proper sur- rogate's court and at law, the creditor has been unable to collect the debt or some part thereof, from the personal representative, and where it is not shown that the personal assets were insufficient, the non-residence of the administrator is no excuse for not taking the proceedings in the proper surrogate's court. And where, in a suit against the heir, the pleadings and proofs did not make out a proper case under the statute: Held, that astipulation for a reference to state an account between the parties, and to take proof "on other points in issue," did not waive the objection. Mersereau v. Ryerss, 3 ComsU, 261. Heir and executor; Rents. The plaintiff's testator rented farms to different tenants, their several terms ending in April. The tenants had the privilege of taking the growing crops after the expiration of their respective terms, and of paying their rent in wheat in the month of August following. The testator died in June, after the expiration of the terms, and before the crops matured or the rents became payable : Held, that the executors, and not the heirs, were entitled to the wheat delivered in payment of the rents. Wadsworth v. Allcott, 2 Seld., 64. 3. See, ante, Title, " Alien," and in 3 Kern. 4. See, ante, Title, "Descent," and in 4 Kern. fflGHWAYS. I. Laying out and keeping in repair ; Bridges. , , . n. Rights of the public, and of owner of the soil; Encroachments and obstruc- tions. TTT Proceedings on appeal in highway cases. I. LAYING OCT AND KEEPING LN BEPAIE ; BEID6ES. 1. Though a parol consent of the owner to the laying out of a highway through his land, and a building thereon, may be sufficient, COURT OF APPEALS DIGEST. ggi if acted on before revocation, yet it may be revoked. It is revoked by a sale and conveyance af the land in good faith prior to the laying out of the road, notwithstanding the pendency of an appeal to the county court from a decision of the commissioners in rela- tion to the road. The Feo^le v. Goodwin, 1 Seld., 56S. 2. Dedication. Where lands are dedicated by the owner to public use as streets, they do not become public highways until accepted as such by the public authorities. The City of Oswego V. The Oswego Canal Company, 2 Seld., 257. 3. Repairing public bridges. The common law rule, incorporated into the English statutes (22 Henry VIII, chap. 5), which made it the duty of counties to repair public bridges, does not prevail in this state. The general system enacted by our statutes, makes the towns primarily liable for the maintenance of highways and bridges. Per Johnson, J. Hill v. The Supervisors of Livingston County, 2 Kern., 52. 4. The act of 1848 (chap. 314) authorizes the board of super- visors of the county to raise money by taxation to aid in the reparation of bridges, and to apportion the tax among the towns of the county, as to the board appears equitable. Whether, under this act, any of the towns can properly be entirely exonerated, quere. But where the board of supervisors caused a portion of the money expended under its supervision in repairing a public bridge which crossed a stream dividing two towns, to be levied upon the whole county, and the residue upon the two towns : Held, that the tax upon the two towns was legally imposed. Id. 11. EIGHTS OF THE PUBLIC, AND OF OWNER OF THE SOIL; ENCKOACHMENTS AND OBSTRUCTIONS. 5. PlanJc road companies and the jjvhlic. Although a plank road company has acquired, pursuant to the statute (Laws of 1847, 223, sec. 26) the right to construct its road upon a highway, the public may lawfully continue to travel thereon while the company is building the plank road. The rights and duties of the company towards the public, while the construction is going on upon the site of a highway, are similar to those of commissioners or over- 292 COUET OF APPEALS DIGEST. seers when repairing highways. They are bound to exercise reasonable care and diligence to render public travel convenient and safe ; and if by the negligence of the company it becomes unsafe and a traveler exercising ordinary care sustains damage, the company is responsible therefor. Ireland v. The Oswego, Hannibal and Sterling Plank Road Company, 3 Kern., 526. 6. Nuisance. Any unauthorized continuous obstruction of a public highway or street is a public nuisance. But that which is authorized by competent legal authority cannot, in law, constitute a nuisance. Per Denio, Ch. J., in a case involving the question whether the common council of the city of New York had power to license the laying of a railroad in the public streets of the city: Held, by the court, that they had no such power, and that the reso- lution of the council purporting to grant it was wholly void. Davis v. The Mayor, Sfc, of New York, 4 Kern., 506. 7. Turning to the right or left on meeting vehicles. The plaintiff's cart was struck by the car of the defendants, as" the plaintiff was turning off from the track to the left : Held, that this of itself did not put him in the wrong ; the statute requiring carriages, when meeting in the highway, to turn to the right, has no application to the meeting of railroad cars with common vehicles in the streets of a city. Hegan v. Eighth Avenue Railroad Company, 15 N. Y. Rep., 380. 8. Rights of owner of the soil. The dedication of land to the tise of the public as a highway, does not preclude the owner of the fee, subject to the public easement, from maintaining an action against a railroad company, which without his consent or an appraisal of his darliages, enters upon and occupies such highway with the track of its road. Such an appropriation of the highway by the railroad company is the imposition of an additional bur- den upon, and taking the property of, the owner in fee, within the meaning of the constitutional provision which forbids such taking without compensation. The company can, therefore, derive no title under acts of the legislature, and the license or consent to a use, inconsistent with the public easement, of municipal or other authorities, who represent the public as to such easement. COURT OF APPEALS DIGEST. 293 without the consent of the owner of the fee, or the appraisal and payment of his damages in the mode provided by law. Williams V. The New York Central Railroad Company, 16 N. Y. Rep., 97. III. PROCEEDINGS ON APPEAL IN HIGHWAY CASES. 9. Referees appointed by tlie county court to hear an appeal from the decision of commissioners in relation to laying out a road, hear and decide the appeal, not on the facts existing at the time of the original application for the road, but on the facts existing at the time of the hearing before them. In this respect such hearing is in the nature of a new proceeding. And therefore where, at the time of the original application, the owner of the land and buildings through which a road was proposed to be laid verially consented thereto, but when the appeal was tried such consent had been revoked by the Sale and conveyance of the land to the relator, who refused to allow the road to be laid : Held, that the referees had no power to order the road to be laid. The People v. Goodwin, 1 Seld., 568. 10. Power of referees on appeal, aiid their duty. Upon an appeal from a determination of commissioners of highways refusing to lay out a highway, the referees have all the powers and are charged with all the duties formerly possessed by the three judges of the court of common pleas under the provisions of the Revised Statutes. On reversing the determination of the commissioners, they should make such order in relation to the laying out the highway, as in their judgment the commissioners should have made. And where they simply reverse an order refusing to lay out a highway, with- out giving further directions, the commissioners are not bound to lay out the highway, and a mandamus will not be granted to compel them to proceed and do it. The People v. Commissioners of Cherry Valley, 4 Seld., 476. HOMICIDE See 2 Comst., Titles, " Criminal Law," 8, 9, 10. Ante, same title. 294 COURT OF APPEALS DIGEST. BODSOlr KIVEE EAILBOAD — HUSBAND AHD WIFE. HUDSON RIVER RAILROAD. 1. ConstriCclion of charter. The defendants constructed their road across a deep bay upon the Hudson river, about nineteen hundred feet distant from and in front of the plaintiff's wharf, placing in their structure a sufficient draw, as required by the 15th section of the act incorporating them (Laws of 1846, 279) : Held, that the plaintiff's wharf was not "cut off" by the raili-oad within the meaning of that section ; and that an action would not lie to compel the defendants to extend the wharf across the line of the road, or to otherwise improve the same ; that the provision of that section requiring the defendants, in case any wharf or dock should be cut off by the railroad, to extend or so improve tlie same as to restore it to its former usefulness, was applicable only to wharves other than those within the bjiys, streams and inlets to which the defendants were required to furnish access by means of a draw. Tillotson V. Hudson River Railroad Company, 5 Seld., 675. HUSBAND AND WIFE. I. The contract of marriage. II. Husband's rights and liabilities. III. Wife's rights and liabilities. IV. Actions by and against them ; Their declarations as eTidenoe. V. Miscellaneous cases. I. THE CONTEACT OP MAEEIAGE. 1. Marriage is a civil contract, . and all that is essential to its validity is a present agreement, between competent parties, to take each other for husband and wife. And this agreement may, like any other fact, be proved either by direct or circumstantial evi- dence. Circumstances, however, such as the cohabitation of the parties, their reception among friends, common reputation, &c., do not of themselves constitute marriage. They are evidence merely of a marriage contract, and are liable to be rebutted by other testimony. And the presumption of marriage which arises from cohabitation, it seems, is repelled by proof that the connection of COURT OP APPEALS DIGEST. 295 nnSBAND AND WIPE. the parties was illicit in its origin. Clayton and wife v. Wordcll et at, executors, Sfc, 4 Comst., 230. 2. C. was the daughter and only issue of the marriage of M. and Y. Upon a question of her legitimacy, it was alleged that the marriage was void on the ground of a former marriage of Y., the mother, with one S., who was still living. In respect to the alleged prior marriage, it appeared that S. was arrested under the bastardy act as the putative father of a child with which Y. was pregnant, and entered into a recognizance to answer the charge, but no further proceedings were had. Y. was afterwards delivered of the child, which lived eleven months and then died. While the child lived, S. and Y. cohabited together, Y. living with her mother. It was understood among the friends of S. that they were married, and Y. was received among them as his wife. Soon after the death of the child they ceased to cohabit with each other, and an instrument was executed between them, in which they were described as husband and wife, and by which they agreed to a separation ; and \yithin a month afterwards, Y. mar- ried with M. There were some other circumstances of minor importance : Held, that the evidence of the prior marriage was not sufficient to invalidate the marriage of Y. with M., and that C. was entitled to a legacy as the lawful issue of M. A mere presumption from circumstances in favor of a prior marriage, it seems, is at least neutralized by the presumption against the com- mission of crime in contracting a subsequent marriage. Id. 3. Where there has been a divorce for adultery. Where a marriage contracted in this state, was in the year 1822, dissolved by the decree of the Court of Chancery on account of adultery by the husband, and afterwards in 1825, and again subsequent to the first of January, 1830, during the lifetime of his former wife, a marriage was solemnized in due form within this state, between him and the plaintiff, with whom he cohabited as his wife till his death in 1847 : Held, that each of these marriages with the plaintiff was void, and that she was not entitled to dower in the lands of which he died seised. Both the act of 1813 concerning divorces (2 R. L., 197, sec. 4), and the Revised Statutes (2 R. 296 COURT OF APPEALS DIGEST. HUSBAND AND WIFB S., 139, sec. 5 ), prohibit a person from contracting a valid mar- riage during the lifetime of any former husband or wife, where the former marriage was dissolved on account of the adultery of, such person. Cropsey v. Ogden, 1 Kern., 228. 4. Per verha de futuro. A contract io /narrj/iwyMiwre, though fol- lowed by cohabitation, does not amount to marriage in fact. The dictum of CowEN, J., in Starr v. Peck (1 Hill, 224), to the con- trary, disapproved. Such a contract, with cohabitation upon the faith of it, was ground for a decree enforcing performance by formal solemnization, in the ecclesiastical courts, and was for some purposes regarded as a valid marriage by the canon law, but it seems, never constituted a valid marriage at common law. Cheney V. Arnold, 15 N. Y. Rep., 345. II. husband's eights and liabilities. 5. Real estate jjaid for in part by Mm, deeded to wife's trustee. Where real estate was purchased and paid for in part with the money or funds of the husband, and with his assent, the convey- ance was taken to a trustee who simultaneously gave a mortgage on the estate for the residue of the purchase money, and also with the husband's assent executed a declaration of trust to the eifect that the premises were held to the sole and separate use of the wife, subject to the mortgage : Held, the rights of creditors not being in question, that the declaration of trust was binding on the husband, and that the husband had no interest in such estate. Mary Martin, by her next friend, v. Norris L. Martin, 1 Comst., 473. 6. Proceeds of sale of wife's real estate; Husband's common law rights. Where the real estate of a wifewhkh is held subject to the marital rights of her husband is sola,^^the proceeds of such sale, being money or personal property, belong to the husband, subject only to the equitable right of the wife to a support there- from ; and equity will not interpose in such a case in her favor, where suitable provision is otherwise made for her, or where she is living in a state of unjustifiable separation from her husband. Id. 7. Such proceeds cannot be used for wife's benefit without his assent. Accordingly, where the wife owned a dower interest in four-sixths COURT OP APPEALS DIGEST. 297 HUSBAND AND WIFE. of certain real estate of which her former husband died seised, and owned in fee the remaining two-sixths, and the husband and wife united in a sale, and out of the proceeds of such sale the sum of $3,000 was paid, without the husband's assent, upon a mortgage which encumbered the wife's separate estate : Held, that the husband had a claim upon such separate estate to that extent. Id. 8. But another sum of $2;000 out of such proceeds appearing to have been paid upon the same mortgage, with the husband's unqualified assent : Held, that such payment was a valid appro- priation of that sum to the wife's separate use, and that in respect to it the husband had no claim upon the separate estate. Id. 9. When hound by acts of wife as his agent. A husband who is present at the execution of a mortgage, by his wife, of his personal property, and who assents to the execution, is as effectually bound by the mortgage as if executed by himself. It is in effect his mortgage. Edgerton v. Thomas, 5 Seld., 40. 10. Whether in a given case she acted as his agent, is a question of fact fur the jury. Where the wife of a farmer, who was in the habit of directing the business of the farm, renting lands, pur- chasing tools, stock, merchandise, &c., purchased a span of horses for which she gave a note in her own name : Held, in an action against the husband to recover the value of the horses, that it was a question for the jury whether the wife did not act, in making the purchase, as the agent of her husband ; that the giving of the note was not conclusive evidence to the contrary; that the act of 1848, in regard to the rights of married women, did not affect the case ; and that it was error in the justice at the circuit to nonsuit the plaintiff. Gates v. Brewer, 5 Seld., 205. 11. Husband had vested interest in a legacy bequeathed to the wife but not reduced to possession, prior to the act of 1848, for the more effectual protection of the property of married women, and that act could not deprive him of it, or make it the sole and sepa- rate property of the wife. And so far as the act purported so to do, it was unconstitutional/ The testator, who died in 1840, bequeathed $5,000 to his daughter, then a married woman, and in 38 298 COURT OP APPEALS DIGEST. HUSBAND AND WIPE. 1S4G her husband presented a petition to the surrogate, in the name of himself and his wife, praying that the executor account and pay the amount of the legacy to them; the accounting was completed in 1849, when the surrogate made an order that there were sufficient funds in the hands of the executor to pay the legacy, and the wife then claimed the same as her separate pro- perty under said act : Held, that it was not her separate property, and that her husband was entitled 'to demand and receive the amount, the same as though the act had not been passed. Wes- tervelt, executor, ^c, v. Gregg, 2 Kern., 202. III. wife's eights and liabilities. 12. As to the common law liability of her separate estate for her debts contracted before marriage. A feme sole, having conti'acted a debt, and owning some shares of bank stock, married. After marriage, the stock, with the consent of the husband, was trans- ferred to a third person for the purpose of having it transferred back to her for her sole and separate use, which was accordingly done. She also held other shares of bank stock which had been transferred to her separate use by the executor of her father's estate. The creditor sued the husband and wife at law, and being met by a plea of the husband's bankruptcy, discontinued. He then filed a bill in equity for the purpose of reaching the bank stock. No fraud in the transfer to the wife's separate use being alleged, nor any act of the wife after marriage indicating an inten- tion to charge this fund : Held, that the bill could not be sustained; that the separate estate of a married woman is not liable at com- mon law for her debts contracted before marriage ; that the only ground on which it can be reached in equity, is that of appoint- ment, i. e., some act of hers after marriage indicating an intention to charge the property; and that the bankruptcy of the husband, although it extinguishes the debt as to him, and suspends the legal remedy as to her during the coverture, does not aflbrd any ground for proceeding in equity to ciiarge her separate estate. Vandcrheyde?i and ivife v. Mallory and Hunter, .1 Comst., 4-52. COURT OF APPEALS DIGEST. 299 H0SBAND AND WIPE. 13. It seems that when a debt is contracted by a woman during coverture, either for herself or as surety for her husband, this will be prima facie evidence of an appointment or appropriation of her separate estate to the payment of the debt. But this doctrine has no application where the debt was contracted by the woman before marriage. The act of marriage does not raise an appoint- ment ; nor does a promise by her and her husband to pay the debt out of some other fund not conveyed to her separate use, e. g., a legacy or distributive share in her former husband's ed;ate, enable ^ ^ - the creditor to reach her separate estate. Id. *M^U^> /ti'^^f V / * 14. Conveying her lands by deed in which the husband does not join. By the common law, a married woman could not convey her lands by deed, either with or without the concurrence of her husband. But by the usages and laws of the colony and State of New York, a married woman may convey her lands, or any interest she may have in lands, by deed duly acknowledged ; and such conveyance is valid, although her husband do not join therein. The Albany Fire Insurance Company v. Bay et al., 4 Comst., 9. 15. Dower after divorce. A divorce dissolving the marriage con- tract on the ground of the adultery of the husband, does not deprive the wife of her right of dower in his real estate. It is prospective in its operation, and has no other effect upon the mar- riage relation than such as is declared by the statute. Wait v. Wait, 4 Comst., 95. 16. Survivorship. Where an obligation is taken to the husband and wife, or to the wife alone, with the liusband's assent, it sur- vives to the wife, as against the representatives of the husband, and this is the rule at law as well as in equity. In such cases, the form of the security implies a design on the part of the*hus- band to benefit the wife, and the law will give effect to the inten- tion, where the interests of creditors are not affected. The defend- ants executed to E., a married woman, a receipt expressing that they had received various demands from her for collection, and agreeing to account to her when they should be collected. In an action brought by R., and her second husband, to recover the pro- ceeds of the demands : Held, that the receipt was evidence against 300 COURT OP APPEALS DIGESJ. HUSBAND AHD WIPE. the defendants, either that the securities belonged to R. in her own right, or that the contract was made by them with her, with the knowledge and approbation of her husband. Borst and wife V. Sptlman and Fraser, 4 Comst., 284. 17. Antenuptial agreement. Where by an antenuptial agreement a provision is made that the husband shall provide by will for an annuity to his widow^or her life, with an interest in a certain part of his real estate, in lieu of dower Or any portion of his estate, and the husband by will gives her an unnuity during her widowJiood only, he has failed to perform on his part, and his widow is not precluded from claiming the property which, by the statutes of 1829 and 1842, is to be inventoried and set apart to her use. Sheldon v. Bliss, 4 Seld., 31. 18. Power to make a will of personal estate. Prior to the statute (2 R. S., 60, sec. 21 ), a married woman could make a will of her separate personal estate which would be valid in a court of equity. But after the enactment of the Revised Statutes, and prior to the act of 1849, page 528, amending the act of 1848 for the more effectual protection of the property of married women, she could not do so, although authorized by an antenuptial 'agreement " to enjoy, control and dispose of it during coverture in the same man- ner and with the like effect as if she were a feme sok." Wadhams et al. V. The American Home Missionary Society, 2 Kern., 415. 19. Where the husband pays for land conveyed to her, his creditors at the time cannot reach his interest by sale on execution. A pure trust is created in their favor, enforceable only in equity. Garfield v. Hatmaker, 15 N. Y. Rep., 475. 20. Execution of a power. Section 110 of the article of the Revieed Statutes in relation to powers (1 R. S. 732, 735), com- pletely takes away the disability of coverture in respect to the execution of powers. A married woman may, without the con- currence of her husband, execute any power which may lawfully be conferred upon any person, unless its execution during coverture be expressly or impliedly prohibited by the terms of the power. Wright v. Tallmadge, 15 N. Y. Rep., 307. COURT OF APPEALS DIGEST. 301 HDSBAND AND WIFE. IV. ACTIONS BY AND AGAINST THEM; THEIE DECLAEATIONS AS EVIDENCE. 21. Ejectm.ent; Acts of 1848 and 1849. The demise to a married woman, by a person other than her husband, of a term for years in land, by a lease reserving rent but containing no covenant or agreement on her part for its payment, is a valid grant, by which she may take and hold the premises to her sole and separate use, under the acts for the protection of the property of 'married women. And where a married woman had actual possession of land, held by her for separate use, and has been wrongfully ejected therefrom, she may, under the Code of Procedure, main- tain an action in her own name to recover the possession, without joining her husband. Darby v. Callaghan, 16 N. Y. Rep., 71. 22. Husband's declaratio7is. Defendants gave a receipt to a married woman of certain demands as received of her for collec- tion. In an action brought by her and her second husband to recover the proceeds of the demands, it was held that the receipt was evidence against the defendants of her ownership of the demands, and -that the letters and declarations of the former hus- band to the defendants, subsequent to the date of the receipt, were not competent evidence to prove that he " acted as owner of the securities, there being no offer to show that he repudiated the arrangement, or discharged the defendants from their engage- ment to account to the wife." Borst v. Spelman, 4 Comst., 284. V. MISCELLANEOUS CASES. 23. Deed. It is no objection to the validity of a deed by hus- band and wife, purporting to convey lands held in right of the wife, that its object is declared by its recitals to be, to vest the fee simple of the lands in the husband, by an immediate reconveyance from the grantee to him. Lynch and wife v. Livingston, 2 Seld., 422. 24. Deed of lands to husband and wife; Nature of the estate. Where land is conveyed to husband and wife, they do not take as joint tenants, or as tenants in common ; both are seized of the entirety ; 302 COURT OF APPEALS DIGEST. ILLEGAL BAKKIHG IMPEACHMENT. neither of them can dispose of any part without the assent of the other, and the whole goes to the survivor ; and the effect is the same whether the land be limited to the two during their joint lives, with remainder to the survivor during his or her life, or to the two and their representatives during the life of the survivor. Torrey v. Torrey, 4 Kern., 430. 25. A. and his wife conveyed lands to their son, the defendant, who in consideration of such conveyance, demised the same pre- mises to A. and his wife, during their natural lives and the life of the longest liver of them, free of rent. Afterwards the defend- ant went into possession of the lands under a verbal agreement with A. and his wife to support them, and to receive the profits of the lands over what should be necessary for such support. A. died during the continuance of this agreement. In a suit between his widow (the plaintiff) and the defendant for possession of the lands : Held, that the plaintiff was entitled to recover ; that the defendant's interest in the lands, under the verbal agreement, ter- minated on the death of A., as that agreement conferred no right which could affect the estate of the plaintiff as survivor of her husband : Held further, that the defendant, on holding over after the death of A., and without the plaintiff's consent, became a trespasser under 1 Revised Statutes, 749, section 7, and was not entitled to notice to quit. Id. ILLEGAL BANE3NG. See, ante, Title, " Banks and Banking." ILLEGAL CONTRACTS. See, ante, Title, " Contracts." IMPEACHMENT. See, ante. Title, " Evidence." COURT OF APPEALS DIQEST. 303 IMPLIED COVENANT — IMPRISONMENT FOR DEBT. IMPLIED COVENANT. See, ante, Title, " Covenant." IMPRISONMENT FOR DEBT, 1. Non-imprisonment act. The assignment which the debtor executes under sections 16 and 17, of the act of 1831, is for the benefit of the creditor who institutes the proceeding, and not of creditors generally. And, therefore, where pending pro- ceedings against a debtor under the act, he made a voluntary assignment to an assignee of all his property for the benefit of his creditors, so that nothing was left to pass to the statutory assignee : Held, on a bill filed by the creditor against the debtor and the voluntary assignee, that the voluntary assignment was a fraud upon the proceedings, and the voluntary assignee was decreed" to hold the property as trustee for the creditor to the extent of his demand : Held, also, that as nothing passed to the statutory assignee, he was not a necessary party to the bill. Sycar v. Wordell, 1 Com'st., 144. See, also, Hall et al. v. Kellogg, 2 Kern,, 325. 2. Non-imprisonment act ; Demand of choses in action. The demand need not specify the particular choses in action which the creditor requires to be applied to the payment of his judgment. And where the debtor refuses absolutely to apply any of his choses in action, he cannot afterwards object that no proper person was present at the time of the demand, to receive the property. The attorney of record has power, under his general retainer, to make the demand and to institute the proceedings, without further authority from the creditor. Steward v. Biddlecum, 2 Const., 103. 3. Imprisonment on execution. See, ante, Title, "Execution." 4. Arrest. See, ante. Title, "Arrest." 5. Deht fraudulently contracted. To justify the arrest and impri- sonment of a defendant upon an execution under the provisions of section 288 of the Code of Procedure, it is not necessary that the record should show the liability of the defendant to arrest. It 304 COURT OP APPEALS DIGEST. is sufficient if an order for his arrest, in pursuance of sections 179 and ISl, has been obtained and I'emains in force. Whether an arrest on execution could be justified where the action was one in which the defendant might have been arrested by virtue of an order under sections 179 and ISl, but in which no such order had in fact been obtained, i^were. Corwin v. Freeland, 2 Seld., 560. INDEMNITY. 1. When damage must be actually suffered before there is a right of action. Unless the contract be to perform some specific act, or to save the obligee from a charge or liability, there can be no right of action until damage or molestation is actually sustained. A deputy sheriff and his sureties executed to the sheriff a bond, con- ditioned that the deputy should so demean himself in all matters touching his duty that the sherilST should not sustain any damage or molestation by reason of any act done or liability incurred, by or through such deputy. The sheriff was sued and judgment re- covered against him, for a default of the deputy in not returning an execution. Other judgments were also recovered against him and his sureties, upon bonds given to discharge himself from arrest under attachments issued against him for not returning other ex-e- cutions in the hands of the deputy. No part of the judgment having been^aJfZ by the sheriff, and no actual damage being shown, held, that there was no breach of the bond of the deputy and his snipties, and that the sheriff could not maintain an action thereon. Gilbert v. Wyman, 1 Comst., 550. 2. Damages, Where the plaintiff bought land of the defendant, to be paid for in six years, and at defendant's request gave his bond and a mortgage on the land for the price, to a third person, payable one-half in three and the other half in six years, and the defendant covenanted to pay the first installment and to indemnify the plaintiff against all damages, costs and expenses, by reason of its enforcement before the expiration of the six years ; and the defendant omitted to pay the first installment when due, and the plaintiff being threatened with foreclosure, and not having the COURT OF APPEALS DIGEST. 305 money, was obliged to and did pay a person $G0 for his services in procuring a party to advance the amount secured by the mort- gage on its being assigned to him : Held, that the plaintiff could not recover the $60 on the covenant of the defendant; that the terms "damages, costs and expenses," in a covenaut of indemnity against the payment of a demand, do not cover a pre- mium or bonus which the party is compelled to pay to raise the amount of the demand. Low v. Archer, 2 Kern., 277. 3. Illegal levy. A surety in an indemnity bond given to a sheriff to induce him to make a levy and sale of property, is liable to an action of trespass, where the levy is illegal, without further proof of his interference in the subsequent levy and sale by the sheriff. Herring v. HoppocJc, 15 N. Y. Rep., 409. INDIANS. 1. Jurisdiction. Under the statute (2 R. L., 153, sec. 2) de- claring that no person shall sue or maintain an actton upon a contract made with any Indian belonging to certain tribes within this state (including the Onondaga), a judgment upon contract rendered against an Onondaga Indian, without appearance on his part, is void. An Indian may appear and plead his exemption from suit upon his contract, but he is not obliged to do so. The courts have no authority to render judgment against him. Has- tings V. Farmer, i Comst., 293. 2. Right of action; Seneca nation; Intrusion on Indian- lands. A native Indian of the Seneca nation, in the actual and separate occupation of lands upon the Tonawanda Reservation, had, under the treaty of May 20, 1842, between the United States and the Seneca Nation ( U. S. Statutes at Large, vol. 7, p. 556), a right of occupancy until the amount which he was entitled to receive "as an individual Indian," for his improvements, should be determined and awarded in the manner provided in the fourth article of the treaty. This determination was a condition precedent. He may maintain an action for trespass upon the lands so occupied by him 39 306 COURT OF APPEALS DIGEST. separately, and not in common with the rest of the nation. Blaclcsmith v. Fellows, 3 Seld., 401. 3. The acts of " a band " of Indians forming a part of the Seneca nation, in resisting the entry upon their reservation by the ai"bitrators appointed under the treaty, to appraise and determine the value of their improvements, did not excuse the grantees under the treaty from a compliance with the condition precedent before entering upon the lands, because (1) the "band" were not, as individuals, parties to the treaty; and (2) in this case it was not shown that the appraisement and award might not have been made without any actual entry upon the reservation. Id. 4. Removal of intruders ■on Indian lands. In a proceeding to remove intruders upon Indian lands, under chapter 204 of the Laws of 1821, it is necessary that the persons proceeded against be summoned to appear and answer the complaint, in order to give the county judge jurisdiction of the case. And in order to authorize a warrant of removal provided by the act, it must appear that the lands intruded upon were owned or occupied by a nation of Indians. The People v. Soper, 3 Seld., 428. 5. The act of 1821 (chap. 204) respecting intrusion on Indian lands, is constitutional. A citizen who enters before the Indian title is extinguished, or before the Indian nation have removed or have been removed by government, acquires no such right of property or possession as is within the protection of those provisions of the constitution securing trial by jury, and forbidding the divesting of property and personal rights otherwise than by proceedings ac- cording to the course of the common law. And the order of removal determines no right ; it is a mere police regulation. The People V. Dibble, 16 N. Y. Rep., 203. 6. Consent of an individual Indian does not make the entry rightful. An entry by a person not an Indian, upon land included within the bounds of an Indian reservation, which is in the general occu- pation of a band of Indians, is an intrusion, subjecting the offender to summary removal under the act of 1821, notwithstanding the intruder entered peaceably, and with the assent of the individual Indian to whose possession he succeeded, under a title claimed to COURT OP APPEALS DIGEST. 307 INDICTMENT. have been acquired by citizens th'rough a deed of cession recog- nized by a treaty made between the United States and the Indian nation, to which the Indians occupying the reservation belong, and' although the lands occupied by the intruder are in a portion of such reservation which is occupied by other citizens having contiguous possessions, forming a white settlement, all claiming ownership under the same "title. Denio, Ch. J., and Johnson, J., dissented. Id. INDICTMENT. 1. Lottery; Descrijition. Where the indictment charged the defendant with publishing an account of an illegal lottery, and set forth in hoec verba, the lottery scheme, which showed that the prizes consisted of sums of money, held good, although it was not other- wise averred that the lottery was set on foot for the disposing of money, land, &c. Charles v. The People, 1 Comst., 180. 2. Surplusage. Mere surplusage in an indictment will not vitiate, and, therefore, where an indictment alleges facts which constitute a misdemeanor, it will be good for that offense, although it state other facts which go to constitute a felony, provided all the facts alleged fall short of the charge of felony in consequence of some other facts essential to that charge, e. g., the intent of the party accused not being averred. Lohman v. The People, I Comst., 379. 3. Good for misdemeanor though drawn for felony ; Conviction for the misdemeanor a bar to the felony. By statute (Laws of 1845, chap. 260, sec. 2), it is a misdemeanor to administer drugs, &c., to a pregnant female with intent to produce a miscarriage ; and by statute (Laws of 1846, chap. 22, sec. 1), it is manslaughter to use the same means with intent to deMroy the child, in case the death of such child be thereby produced. The indictment charged all the facts necessary to constitute the crime of manslaughter, except the intent with which the acts were done, and in its conclusion it charged the crime as manslaughter ; but the only intent charged was an intent to produce a miscarriage : Held, that the indictment was 308 COURT OF APPEALS DIGEST. ISDICTMEST. fatally defective for the felony, but good for the misdemeanor, and that the accused was properly convicted of the latter offense. It seems that a conviction for a misdemeanor, under such an indict- ment, v?ould be a bar to a subsequent indictment for the felony. The record would be conclusive evidence that the acts were done with the intent alleged in the indictment, and therefore the people could not allege a different intent so as to constitute a different offense. Id. 4. Larceny; Second offense. A certificate of conviction, made by a court of special sessions, in the form, and filed in the county clerk's office within the time prescribed by statute, is conclusive evidence of the facts therein stated. The People v. Powers, 2 Seld., 50. 5. Defects of form may be waived by omitting to object. Ajx indict- ment for the second offense of petit larceny, should state facts showing that the court before which the first conviction was had, possessed jurisdiction of the person chai'ged, and of the ofiense. But where, instead of such statement of facts, the indictment con- tained only an allegation that the person before whom the convic- tion was had, had full power and authority to hold such court, and to try and convict the prisoner for such offense : Held, that the defect was one of form, and could not be made available on writ of error to reverse the conviction, no objection having been made to the indictment in the court below. Id. 6. Venue. An indictment cannot be found in the county of New York, for an offense committed on board of a steamboat, close to the Long Island shore, in Suffolk county, upon a trip from the city of New York to Norwich, in the State of Connecticut. Manley v. The People, 3 Seld., 295. 7. It seems, that where an indictment contains a single count for stealing in the city of New York, it will not be sustained by evidence that goods were stolen elsewhere and brought there. Id. 8. Joint defendants; Evidence. Where one of two defendants, jointly indicted for felony, is separately tried in accordance with his own demand, his co-defendant is not a competent witness in his favor. Mclntyre v. The Peo-ple, 5 Seld., 38. 9. See, ante, Title, "Criminal Law." COURT OP APPEALS DIGEST. gQQ INDIVIDUAL LIABILITY — INFANT. INDIVIDUAL LIABILITY. See seq., and 1 Kern., Title, "Stockholders." INEVITABLE ACCIDENT. See, ante, Title, "Contract," No. 53. INFANT. 1. Sale of real estate by surrogate's order for payment of an in- testate's" debts, under the statute (1 R. L., 444, sec. 23, &c.), is void as to infant heirs for whom no guardian ad litem was ap- pointed. Schneider v. McFarland, 2 Comst., 459. 2. Infant maj/ arffirm, a voidable sale and jjurchase of his real estate, by omitting to repudiate it after coming of age. Where a sale of an infant's real estate was made under a surrogate's order, and his testamentary guardian became the purchaser, the ward being present at the sale, which was beneficial to him, and the infant suffered eighteen years to elapse after he became of age, without impeaching the conveyance, during which time the title had passed into the hands of innocent parties : Held, that although the sale was originally voidable at the ward's election, yet that he must be deemed to have waived the objection, and to have affirmed the Bale. Bostwick v. Atkins, 3 Comst., 53. 3. Sale of real estate by order of the Court of Chancery. The jurisdiction of the Court of Chancery to order the sale of infants' real estate, is derived wholly from the statute, and it has no power to direct such sale unless they are seised of the property. But the court, it seems, may order the sale of a vested remainder belonging to infants. Baker v. Lorillard, 4 Comst., 257. 4. Discharge by guardian of infant's mortgage. Where a general guardian jvas appointed by the Court of Chancery under an order specially authorizing him to cancel and discharge a bond and mortgage belonging to an infant, " upon receiving a bond and 310 COURT OF APPEALS DIGEST. mortgage upon unincumbered real estate, of sufficient value to be ample security for the amount due," &c., and without receiving any new security, a discharge was executed by him and recorded, reciting that the amount, secured to the infants by the mortgage, had been paid and satisfied to him as guardian : Held, that such discharge was void, and did not protect subsequent mortgagees against the claim of the infant, by virtue of his mortgage. Swari- hout V. Curtis, 1 Seld., 301. 5. Necessaries. One wlio has promised to pay what was needed for the support of a minor beyond his wages, is not liable for money paid to, or for the use of the minor, without proof that it was needed. Merritt v. Seaman, 2 Seld., 168. 6. Legislative power to authorize sale of lands devised id mfants. See, ante. Title, " Constitutional Law," No. 29. 7. Affirming award, of arbitrators. Where one in his minority submitted a claim to arbitration, and on an award being made in his favor, the money was paid to his guardian ; his receiving the money from his guardian after his obtaining his full age is an atfirmance of the submission, and bars his claim. Two years acquiescence after coming of age, held sufi&cient. Jorus v. The Phoenix Bank, 4 Seld., 228. 8. Order for sale of their real estate must be strictly followed, or purchaser is not bound to accept deed. Where the order directed infants to convey all their interest in certain real estate, the deed to be executed by Josiah S. Mitchell, their guardian, ad litem, in the name and behalf of the infants: Held, tiiat a deed reciting the appointment of Mitchell, as their guardian, in which they were named as parties of the first part, without the guardian's name being mentioned, and which was executed and acknowledged by the infants, and by Josiah S. Mitchell, without any addition to his signature, indicating the character in which he executed, was not in pursuance of the order, or one which the purchaser was bound to accept. In the matter of Hyatt v. Seeley, 1 Kern., 52. 9. When yroceeds of sale of their real estate are to be treated as land, and when as personal estate. The object of the statute (2 R. S., 195, sec. ISO,) which declares that the proceeds of an infant's COURT OF APPEALS DIGEST. 311 INrOEMATIOK — INJUXOTIOJT. lands, sold by an order of the Court of Chancery, shall be deemed real estate, was to preserve, during his minority, the character of the property in reference to the statutes regulating descents and distributions, and the character impressed upon the proceeds by . the statute, ceases on the infant attaining his majority, and obtain- ing possession thereof. Accordingly, where the real estate of an infant was sold under the direction of the court, and a bond and mortgage thereon were executed to his special guardian to secure the purchase money; and the infant, after his majority, settled the guardian's account touching the trust, and discharged him therefrom, took from him, individually, a receipt for the bond and mortgage, and constituted him his attorney to collect and reinvest the amount occurred thereby in iiis discretion, and before payment of any jj|irt of the amount died intestate : Held, that the bond and mortgage and the n.oneys secured thereby, were personal estate, and to be distributed as such. Forman v. Marsh, 1 Kern., 644. INFOPvMATION. 1. The remedy by information, so far as it was a common law remedy, is as available here as in England ; but it must bo modi- lied so as to conform to our different iviodes of proceeding. Per Selden, J. Owens v. The Missionary Socictij of the Methodist Ejmco- pal Church, 4 Kern., 380, INJUNCTION. 1. Whether a temporary injunction shall be granted is matter of discretion, and no appeal from an order granting, continuing, or dissolving a temporary injunction lies to this court. Van Der- water v. Kelseij, 1 Comst., 533 ; Selden v. Vermihjea, id., 534. 2. Proceedings for contempts. An action commenced in' the Superior Court of the city of New York, by individual corporators of that city, against the mayor, aldermen and commonalty, asking for an injunction restraining the defendants from granting the right to construct a certain railroad in the city, is within the juris- 312 COURT OF APPEALS DIGEST. IXJUNCTIOS. diction of that court both as to parties and subject matter ; and that court has also jurisdiction to grant the injunction sought. And on an appeal from a commitment for contempt in disobeying an injunction so granted, the question of jurisdiction does not involve the inquiry whether tlie case made by the complaint entitled the plaintifis to relief, but only whether the court had power to decide whether it entitled them to relief or not. Feoph V. Sturtevant, 5 Seld.; 263. 3. Must be obeyed till set aside. An injunction granted in a case in which the court has jurisdiction, if erroneously granted, is voidable only, not void: and until set aside, it is entitled to obedience. Id. 4. Mode of service on a municipal body. Where in such action, the injunction prayed for was granted, service upon the mayor, of the complaint and copies of the affidavits on which the injunction was issued, was sufficient under section 220 of the Code of Pro- cedure, without serving them upon the members of the common council. All the members of the common council upon whom such injunction was served were bound to observe it. An injunc- tion against a corporate body is binding upon ail individuals acting for the corporation, to whose knowledge the injunction comes. Id. 5. What amounts to a violation of the injunction in such a case. The passing of a resolution by the common council granting the right which they were forbidden by the injunction to grant, on condition that the grantees should accept the terms of the resolu- tion, was a violation of the injunction by those who voted for it, whether the terms were accepted or not, the resolution itself doing all that the council could do on their part to make the grant effectual. Such an act was not one of municipal legislation, but in substance a grant upon condition, and the effect of the injunc- tion could not -be avoided by giving to an act, not legislative in its character, the form of an ordinance or resolution. And so far as such resolution was an executive act, by actually making the grant, it was a clear violation of the injunction, even though the legislative powers of the board could not be arrested by the order of the court. Id. COURT OP APPEALS DIGEST. 313 INN-KEEPEK — INSOLVENCY. 6. See, aMie, Title, "Debtor and Creditor." 7. Tax-payers. Whether one or more of the tax-payers of a city can maintain a suit brought to restrain the municipal autho- rities in the exercise of their corporate powers, quere. Ketchum V. The City of Buffalo and Austin, 4 Kern., 356. iZt^'ilS^ 8. A suit does not lie in favor of a resident and tax-payer of the city who does not own real estate on the street where a rail- way is proposed to be laid, and to whom it will not be specially injurious, to prevent its construction. Davis v. The Mayor, Sfc, of New YorTc, 4 Kern., 606. / f o^H' I ^^ INN-KEEPER. See 2 Comst., Title, "Bailment," 6. INSANITY. See, ante, Titles, "Arrest." 5 Seli., " Evidence," 8, 9; id., ante: ' Mortgage," 2 ; id., seq. 2 Kern., " Evidence," 10 to 13. INSOLVENCY. I. Insolvent corporations. II. Insolvent debtors. I. INSOLVENT COEPOEATIONS. 1. By statute (2 R. S., 4G4, sees. 41, 42; id., 469, sees. 67, 68, 72; id., 43, sec. 12), whenever a receiver of an insolvent corpora- tion "shall show hy his own oath or other competent proofs' that any person is indebted to the corpoi"ation, or has property of the corporation in his custody or possession, the officer to wliom an application is made shall issue a warrant to bring such person before him for examination. Under this statute it is sufficient for the receiver who applies for the warrant, to swear to the facts on, information and belief. Accordingly, where the receiver of an insolvent corporation procured such a warrant upon such an 40 314 COURT OF APPEALS DIGEST. IXSOLVESCY. affidavit, upon which the person proceeded against was arrested and brought before the officer: Held, in an action* brought by such person against the receiver and others acting under the warrant, for an assault and battery and false imprisonment, that the warrant was a good justification : Held, also, that a person having in his custody, as administrator of a deceased person, eifects of the corporation, or indebted as such administrator, is liable to be proceeded against under the above statute, and that a petition was good, which charged him " either individually or as adminis- trator," &c., in the alternative. Noble v. HalUday, 1 Comst., 330. 2. Payment and transfms of property made by a moneyed corpo- , ration when actually, thougli not avowe(^ly, insolvent, or in con- templation of insolvency which actually ensues, with intent to give a preference to creditors, are void within section 9 of the act "to prevent the insolvency" of such corporations (1 R. S., 591), even though knowledge of the pecuniary condition of the com- pany be not brought home to the party receiving the transfers and payments. Brouwer v. Harheclc, 5 Seld., 5S9. 3. See, ante, Title, " Banks and Banking," and 15 N. Y. Rep., 9. II. INSOLVENT DEBTORS. 4. Discharge from imprisonment ; Petition and inventory ; Jurisdic- tion. Where a prosecuting creditor appears before the judge to whom his debtor has applied for a discharge under the 12th and subsequent sections of the "Act to abolish imprisonment for debt," &c., and opposes such discharge, without objecting that the notice, petition, &c., have not been served as required by sec- tion 14, he will be presumed to have waived such objection. An objection that the ^^ proof of such service," required by the same section is, insufficient, will not be available to the party appear- ing, if he fails to allege that service was not in fact made. The People V. Bancker, 1 Seld., 106. 5. Petition. The petition of the debtor for such discharge must show a case of which the officer to whom it is presented has jurisdiction, and which, if true, would entitle the petitioner to the COURT OP APPEALS DIGEST. 315 INSOLVENCY. relief sought. It is not enough for the petitioner to state, in the words of the* statute, "that a suit has been commenced against him in a court of record, in wiiich, by the act to abolish imprison- ment for debt, &c., he could not be arrested or imprisoned ; " but he should sliow that the suit was commenced for a cause of action described in the first section of the act. He must state the facts which show that he could not be arrested, and not the conclusion of law to that effect. And if the application be made on the ground that the petitioner has given the bond specified in the 4th subdivision of section 10, tlie petition must show that the warrant was issued, and the proceedings had against the petitioner, under the 4th and subsequent sections. Id. 6. Inventory. The inventory annexed to such petition should contain an account of the petitioner's estate, real and personal, and of all charges affecting the same, both as such estate and charges existed at the time of his arrest, and as they exist at the time of preparing his petition. Id. 7. Jurisdiction. Where the petition was defective in the par- ticulars above mentioned, the officer to whom it was presented acquired no jurisdiction, and his decision granting a discharge was therefore reversed. Id. 8. What will bar a discharge. An assignment by a debtor of all his estate to trustees for the payment of his debts, is, as against the debtor, conclusive evidence of his insolvency at the time of its execution ; and such assignment giving preferences to some credi- tors in the payment of tlieir demands, is a bar to tlie discharge of the debtor, under the insolvent laws, from his debts which existed at the time the assignment was made. Morewoodct al. v. Hollister, 2 Seld., 309. 9. Petitioning creditors having collateral securities. Where credit- ors who join with an insolvent debtor in a petition under the insolvent laws for his discharge, liave collateral security for any part of the debts due them, and neglect to sign a declaration that they relinquish to the assignees to be appointed, such security for the benefit of all the creditors, they cannot be regarded as peti- tioners on account of the debts so secured, and when, after reject- 316 COURT OP APPEALS DiaSST. INSOLVENCY. ing such debts, less than two-thirds in amount of the creditors of the insolvent as shown by the petition, have joined hi signing and presenting it, the officer to whom it is presented obtains no juris- diction to grant a discharge. Per Edmonds, J. li. 10. Validity of state insolvent laws. A state law by which a debtor is discharged from his debts, is valid as respects contracts made after its passage between citizens of the state, but invjilid as to all contracts made elsewhere, where a citizen of another state is a party. Donelhj, survivor, v. Corhett et al., 3 Scld., 500. 11. Lex loci contractus, S^'c. Where a contract is made in one state, between one of its citizens and a citizen of another state, to be performed in the latter state, the law of the place of con- tract, as well as the place of performance, becomes an element of the agi-eement. Id. 12. Where, on a purchase of goods of merchants in New York, by a citizen of South Carolina, a note was given payable in the latter state, upon which a judgment was subsequently obtained in its courts and the debtor imprisoned, and he was subsequently discharged from his imprisonment and the debt, under an insolvent law of South Carolina, passed in 1759, and reenacted in 1788 : Held, that the discharge was invalid. Id. 13. Of what the discharge is or is not conclusive evidence, in respect to the proceedings to obtain it. By force of the statute (2 R. S., 38, sec. 19), a discharge granted on the application of an insolvent and two-thirds in amount of his creditors, is conclusive evidence of the statutory proceedings and facts recited therein, except those which were necessary to confer jurisdiction upon the officer grant- ing it. But as to jurisdictional facts it is not conclusive, although such facts are therein recited to have been proved before him. Stanton v. Ellis, 2 Kern., 575. 1>1 . A blank in the schedule of amounts owing to each creditor is a jurisdictional defect which renders the discharge void, notwithstanding the discharge recited that two-thirds in amount of the creditors united in the petition, and that it satisfactorily appeared to the officer that the insolvent had in all respects complied with the requirements of the statute. Id. COURT OF APPEALS DIGEST. 317 IKSTKHCTIONS — INSCKANCE. INSTRUCTIONS. See, ante, Titles, "Factor;" and 3 (SeZ^., "Principal and Fac- tor," 6, 7. INSURANCE. I. Life insurance. 11. Fire insurance. III. Marine insurance. IV. Mutual insurance companies. V. Other matters ; Reinsurance ; Eeceivers, &o. I. LIFE INSURANCE. 1. Suicide by insured while insane. In a life policy of insurance, a provision that it should be void if the assured " shall die by his own hand," has reference to an act of criminal self-destruction. The self-destruction of the insured while insane and incapable of discovering between right and wrong, is not within the provision. Breasted v. The Farmers' Loan and Trust Comjjany, 4 Sold., 299. 2. Premium note. A mutual life insurance company, the charter of which declares that all persons insured shall be deemed mem- bers, and provides that its officers may take the notes of the members for premiums, in proportion to the amount insured, is not authorized to take the note of a person other than the party insured for the premium. The policy of the charter is, that the person obtaining the insurance shall be liable on the note executed for the premium. The Mutual Benefit Life Insurance Company v. Davis, 2 Kern., 569. > 3. Life policies are assignable. A valid policy of insurance effected by a person upon his own life, is assignable like an ordi- nary chose in action. And the assignee for value of such a policy, is entitled, on the death of the party whose life is insured, to recover the full sum insured, without reference to the amount of the consideration paid by him for the assignment. The contract of life insurance is not, it seems, one of indemnity merely. St. John V. The American Mutual Life Insurance Company, 3 Kern., 31. 318 COURT OJ APPEALS DIGEST. INSURANCE. II. FIRE INSUEANCE. (1.) Insurable interests. (2.) Construction of policy. (3.) Description; Warranty; Alteration of subject ( 4. ) Assignment of policy. ( 5.) Loss and proceedings thereon. ( 1 .) Insurable interests. 4. Mortgagor after sale in foreclosure. A mortgagor has no insurable interest remaining in buildings covered by the mortgage after a sale of the mortgaged premises by a master in Chancery under a decree of foreclosure, and payment of part of the purchase money, although the decree may not have been enrolled, and no deed be executed by the master at the time of the sale. A deed subsequently executed by the master, operates by way of relation, as a transfer of the title at the time of the sale. From the time of such sale the property is at the risk of the purchaser. Mc- Laren V. The Hartford Fire Insurance Company, 1 Seld., 151. (2.) Construction of policy. 5. Fire by lightning. A building was insured generally against loss by fire, and in a separate clause the policy declared that the insurers would be liable for fire by lightning. The building was struck by lightning, prostrated and destroyed, but no ignition or combustion took place : Held, that the insurers were not liable for the loss. The insurance, it seems, was against fire, in the ordinary or popular meaning of the term, i. e., actual ignition or burning, and not against the mechanical efiects of lightning ; and therefore it was held unnecessary to determine whether lightning is fire, scientifically considered. Babcoch v. The Montgomery County Mutual Insurance Comjiany, 4 Comst., 326. 6. Explosion of a steam boiler. A policy by which property was insured against loss or damage by fire, contained a condition that the insurer would not be liable for any loss occasioned by the explosion of a steam boiler ; and there was an explosion of a steam boiler in use in the building where the property was situated, whereby fire was brought in contact with and consumed the COURT OP APPEALS DIGEST. gjg property : Held, that the loss was within the exception created by the condition, and the insurer not liable. St. John v. The Ameri- can Mutual Fire and Marine Insi^rance Covijpany, 1 Kern., 516. 7. Barque on the stocks. A policy of insurance against loss by fire, which describes the subject matter as a barque on the stocks near a ship in a ship yard, being built for Howes, Godfrey & Co,, does not cover timbers not united to the keel or structure thereon of the contemplated barque, although they are intended and com- pletely prepared to be used in its frame work, are lying in the yard in the proper place to be conveniently applied to that use, and are valueless for any other vessel. Houd v. The Manhattan Fire Insurance Company, 1 Kern., 532. 8. Such a policy covers the structure made from time to time on the stocks, which, when completed, will constitute the barque. Id. ( 3.) Description ; Warranty ; Alteration of subject. 9. Other buildings in the vicinity. In an application for insurance, referred to in the policy as forming a part thereof, the marginal inquiry in relation to the premises was in these words : How hounded, and distance from other buildings if less than ten rods, and for what purpose occupied, and by whom ? " The answer stated the 7iear- est buildings on the several sides of the insured premises, but did not state all the buildings within ten rods : Held, that such answer was not a warranty that there were no other buildings within that distance than those mentioned ; that whether the inquiry does or does not, in its fullest sense, call for more than the answer gives, yet at all events, if the applicant answered it as he understood it, and the insurers accept the application and issue the policy, they cannot after a loss, resist the payment thereof on the mere ground that the answer was not full. Gates v. The Madison County Mutual Insurance Company, 2 Comst., 43. Same case, 1 Seld., 469. 10. If there be a false warranty of a matter of fact in respect to contiguous buildings in such a case, it seems it avoids the policy, whether the fact warranted against be material to the risk or not. But where there is no warranty, and a suppression of 320 COURT OF APPEALS DIGEST. IKS7EANCE. facts is relied on to dejeat an action for loss, the information with- held must be material to the risk, and the question of its material- ity should ordinarily be left to the jury. Id. 11. Conditions of insurance annexed to policy and delivered with it, prima facie form a part of it, although the policy do not contain ' any express reference to the paper containing them. And where one of such conditions is, that if the risk shall be increased by any means within the control of the assured, the insurance shall be void, the insured has no right to erect other buildings on his own premises so as to increase the hazard ; and if he does so, it avoids the policy. MurdocJc v. The Chenango County Mutual Insurance Company, 2 Comst., 210. 12. An application signed by the insured is also to be deemed a part of the contract of insurance, where it is expressly referred to in the policy, " as forming a part thereof." Id. 13. What amounts to a warranty in a given case. In an applica- tion for insurance referred to in the policy as fonuingpart thereof, it was stated thus : " There is one stove (in the building insured), pipe passes through the window at the side of the building. There will, however, be a stove chimney built, and the pipe will pass into it at the side." It seems that this amounted to a warranty that the chimney should be built within a reasonable time, and that a violation of the engagement would avoid the policy. Id. 14. Consent of company must he explicit, in order to amount to a waiver of such warranty. And where after the insurance the stove was removed to another part of the building, and the pipe passed through a stove fixed in the roof, and the secretary of the com- pany signed a written consent in these words : " Consent is given that the within policy remain good, notwithstanding the stove has been removed :" Held, that this was no waiver of the undertak- ing to build the chimney. Id. 15. What does not amount to a warranty in a given case. In an application for fire insurance, and in the policy issued, the premi- ses were described as occupied hj a certain individual as a private residence: Held, that this did not amount to Ot warranty of the continuance of the occupation during the risk, and therefore that COURT OF APPEALS DIGEST g21 the insurers were liable, although before the loss the occupant had removed and left the premises vacant. In cases of express warranty, it is of no importance whether the fact warranted be or be not material to the risk. But where a matter is sought to be included bj"^ implication in the warranty, it must be plainly material to tlie risk ; otherwise an intention to warrant in respect to the matter cannot be imputed to the parties. O'Niel v. The Buffalo Fire Insurance Company, 3 Comst., 122. IG. Temporary introduction of hazardous articles for purposes of repairs, not a breach of a condition in respect to trading in, or storing c such articles. In the conditions of insurance annexed to a fire ~- policy, certain trades were specified as hazardous or extra-hazard- ^ ous, and houses building or repairing were mentioned as insurable Cc only at special rates ; and oils and turpentine were classed among '^ articles hazardous or extra-hazardous. The policy, by its terms, '* was to become void, if the building should be used for any trade or purpose AenomiaSitedi hazardous or extra-hazardous, or specified in the special rates of insurance annexed, or for the purpose of stoiin. 15. Assignee of lease may sue for rent in his own name, where he has been recognized as such by the tenant, although he has no interest in the reversion. Thus, where the lessor had assigned the lease without the reversion, and the lessee paid rent to the assignee : Held, that this created such a privity of contract between the tenant and the assignee, that the latter might sue in his own name, for rent subsequently accruing under the lease. Id. 16. When the lessor may sue and recover of undertenant of original lessee for rent. Although there is neither privity of estate nor of contract between the lessor and the undertenant of the lessee, so as to make such undertenant liable to the lessor on the lessee's covenant to pay rent ; yet where a lease was executed for a year at a quarterly rent, and the defendant, who entered under the lessee at the commencement of the term, and occupied for the COURT OF APPEALS DIGEST. 369 LANDLORD >JID TENANT. whole year, paid the three first quarters' rent to the agent of the lessor, and took receipts from l;im as such agent : Held, that a jury might infer an agreement to pay the rent to the lessor so as to sustain an action in his name for use and occupation during the last quarter of the term. McFarlan v. Watson, 3 ComsU, 2SG. 17. Right of suht&iant to pay rent to the original lessor. Where the tenants of lands under a lease containing a right of reentry fur default in paying rent, sublets a part thereof, the subtenant, in order to protect his possession, may pay his rent to the original lessor, though the latter neither threatens suit, nor even demands such payment. Tlie right of reentry for default is of itself com- pulsory in such a sense as to render the payment valid as a pay- ment to and for the use of his immediate lessor. Peck v. Ingcrsol, 3 Sbld., 52S. IS. What is sufficient to create a privity of contract between an assignee of a lessee and the latter' s subtenant; Evidence, The plain- tiff being the owner, by assignment from the original lessee, of the residue of a term of three years, gave notice to the defendant, who was a subtenant, holding under such original lessee, and whose term was then expiring, that in case such subtenant should hold over, the plaintiff would consider the premises as taken by the defendant for the term of one year, at the rent of $1,500 per annum, payable quarterly; at the same time giving him notice of ills title as assignee of the lease. The defendant made no reply, but held over and continued to occupy the premises : Held, that this was a virtual assent to the terms of the notice, and created a privity of contract between the parties ; that inasmuch as the defendant, if liable at all, was liable under the contract, he could not be allowed to prove on the trial, that the premises were worth less than $1,500 a year; but held further, that he had not by liia silence when the notice was served, precluded himself from show- ing that the plaintiff took his assignment from the lessee merely as security for a debt, and that such debt had been fully paid at the time of such notice, and that under the Code of Procedure parol evidence was admissible to show as an equitable defense 47 370 COURT OF APPEALS DIGEST. LANBLOKD AND TENAHT. that the assignment, though absolute on its face, was intended as a mortgage. Despard v. Walbridge, 15 N. Y. Rep., 374. III. sueeender; foefeituee; fixtuees. 19. A surrender of demised premises after a distress made for rent due, will not render the distress unlawful. Nichols y. Dusen- bury, 2 Comst., 283. 20. Presumption as to payment of rent on surrender. Where one Indebted to another upon a lease, the term of which is unexpired, enters into a special contract to surrender the remainder of his term, and assigns to the lessor a land contract on which money had been paid, and the lessor agrees to pay him therefor a certain sum at a future day, there is no presumption that the accrued rent due the lessor is extinguished. Sperry v. Miller, 4 Seld., 336. 21. The release of the remainder of the term of a lease, does not discharge the lessee from the payment of the rent due. Id. 22. And where the defendant owed the plaintiff $65 for rent, and held a contract by which the plaintiff agreed to pay him upon a day certain $550, a receipt for the $550 indorsed upon the con- tract and signed by the defendant is prima facie evidence that the $550 was paid. It affords no presumption that the $65 had been deducted from it. Id. But taken in connection with other evi- dence, held to lay a foundation for presuming the fact of payment of the rent, which a jury might consider, and their verdict find- ing it had been paid, is conclusive. Same case, 16 N. Y. Rep., 415. 23. Forfeiture. The denial, orally, by a tenant for life or years, of his landlord's title, and the assertion that he owns the lands in fee, and owes no rent for them, does not work a forfeiture of the term, or authorize the landlord to maintain ejectment for the lands demised. Mere ivords can never work a forfeiture of an estate for life or years. De Lancey v. Ganong, 5 Seld., 9. 24. Default in the payment of rent will not work a forfeiture of ike term, where there is a covenant for its payment and no condition in the lease providing for reentry on default. The words, " yield- ing and rendering," in a lease, import a covenant but not a condi- COUET 01" APPEALS DIGEST. 371 LANDLORD AND TENANT. tion, unless the landlord would otherwise be without remedy in case the rent should not be paid. Id. 25. Fixtures. It seems that rails built into fence by a tenant, under an agreement that he may remove them from the land, are, as between such tenant and the owner of the soil, personal pro- perty. Mott V. Palmer, 1 Comst., 564. 25a. See, ante, Title, " Fixtures." IV. RENT ; EIGHTS AND REMEDIES j DEFENSE ; SUMMARY PRO- CEEDINGS. 26. Breach of lajidlord's covenant to improve or repair. Where A., before the first of May, leased to B. a store and dwelling for one year from that date, for $450 annual rent, payable quarterly in advance, the store and dwelling to be erected and completed by A. by the said first day of May, the upper story to be finished into a dwelling; and B. entered into possession and remained until after the second quarter's rent fell due, and then abandoned the premises : Held, to be no objection to a distress for that quarter's rent that the premises were untenantable in consequence of the building not being completed by A. according to agreement. The breach, it seems, is available to the tenant by way of recoupment, but not by way of set-off; and it is not available at all under a plea of eviction. Nichols v. Dusenbury, 2 Comst., 283. 27. Demand of rent. Where a right of reentry is reserved for breach of covenant to pay rent, the landlord, before he can exer- cise such right, or bring ejectment, at the common law, must make an actual demand of the exact amount of rent due, on the very day it becomes due, at a convenient time before sunset, and at the particular place where it is made payable, or, if no place is speci- fied in the lease, then at the most notorious place on the premises demised. Van Rensselaer v. Jewett, 2 Comst., 141. 2S. By a grant made in 1813, there was reserved to the grantor the yearly rent of eighteen bushels of wheat, four fat hens, and one day's service with carriage and horses, payable on the first day of February in each year, which the grantee covenanted to pay " at the time and in the manner aforesaid." Then, after other 372 COtTRT OP APPEALS DIGEST. LANDtonD AND TEIfANT. clauses, followed a proviso, that if the rent so reserved should remain unpaid for the space of twenty-eight days after the time specified for the payment, it should be lawful for the grantor to prosecute or distrain for such rent. And then followed a further proviso, that if no sufficient distress could be found to satisfy the rent, or if either of the covenants contained in the instrument should be hroJcen, it should be lawful for the grantor, his heiis, Sjt., to reenter, &c. : Held, that the covenant was broken by non-payment of the rent on the first day of February, although the right to distrain might be postponed for twenty-eight days thereafter ; and further held, that a demand of the rent made at the expiration of the .twenty-eight days, was too late to give a right to reenter, or bring ejectment. Id. 29. After a proper demand of the rent on the first day of Feb- ruary, ejectment would lie at common law, although there might be a sufficient distress on the premises. Per Jewett, Ch. J. Id. 30. The remedy by ejectment to enforce the payment of rent; is never allowed, except where a right of reentry is expressly stip- ulated for between the .parties to the lease. Per Jewett, Ch. J. Id. 30a. Premises out of rejjair, no defense, when. Where there is no agreement on the part of the lessor to repair, the lessee cannot, when sued for the stipulated rent, set up the want of repairs, either as a defense, or in reduction of the claim. Moffat v. Smith, 4 Comst., 226. 31. The right to recover for rent in covenant on a sealed lease where there is no eviction by the lessor, does not depend upon the occupation or e:?joyment of the demised premises. In the action "for use and occupa- tion," it is otherwise. Where a tenant by lease under seal abandons the demised premises, and resists the payment of rent subsequently accruing, on the ground that other apartments in the same build- ing adjoining or below his are occupied as a place of riot and prostitution, he must show that his landlord created the nuisance by leasing such apartments for that purpose, or that it existed by Ills connivance and consent. In an action upon a lease under teal, to recover a quarter's rent payable in advance, and becoming due COURT OF APPEALS DIGEST. . 373 LANDLOKD AND TENANT. after the tenant had abandoned the premises, it appeared that before tlie execution of the lease, the landlord had let the lower apartments of the building to another person whose name was not shown. These apartments were occupied as a place of prostitu- tion, driuliing, &c., whereby great noise and disturbance were made, but it was not shown that the landlord had leased tliem for any such purpose, or that they were so occupied with his conni- vance or consent, nor was there affirmative evidence to show that the person so occupying held under the landlord. The defendant, after quitting the premises, and before the quarter's rent in ques- tion fell due, gave notice to the landlord of the existence of the nuisance, but the landlord took no steps in the matter. The court below having given judgment in favor of the landlord for the rent demanded, the same was affirmed in this court. Gilhooleij v. Waslunglon, 4 Corns!., 217. 32. Eviction, to he a defense to claim for rent, must take place before the rent falls due. And the rule is the same, although the rent is payable in advance, and the eviction occurs before the expiratioQ of the period in respect to which tlie renJ; claimed accrues: Held, therefore, that a landlord was entitled to recover a quarter's rent payable in advance, on the first day of February ; although before the quarter expired, a mortgage prior to the lease was foreclosed in Chancery, the premises sold, and the tenant attorned to and paid the same rent to the purchaser. The latter was not entitled to such rent, and the payment to him was erroneous. Giles v. Comstoclc, 4 Comst., 270. See also, Vernam v. Smith, 15 N. T. Rep., 327. 33. Place of payment nf rent. Where rent reserved in a lease is made payable at such place witiiin a certain county as the lessor may direct, and in an action for the non-payment he in his pleading alleges that he had directed it to be paid at a particular place, and the allegation is controverted by tiie defendant, a material issue is raised upon the fact of such direction. Upou such a lease, after the direction is given, the lessee must be pre- pared to pay his rent according to it. And it seems if a portion of the rent be personal service, as " two days' riding," the land- 374 COURT OF APPEALS DIGEST. LANBLOBD AND TENANT. lord must designate where it is to be rendered. (But as to the latter proposition see next number, 34.) Livingston v. Miller, 4 Seld., 2S3. 34. Place of payment of rent need not he designated by the landlord in order to a right of action, although the rent be payable in wheat, fowls and services, on a day named in each year during the term, "at the North river, within the county of Columbia, or within lot No. 3 (situated in said county), as the lessor shall from time to time direct." And, per Selden, J., if under such a lease the landlord omits to direct at what particular place the rent shall be paid and services rendered, it is, it seems, the duty of the tenant to seek him out and request him to designate a place ; but at all events, the tenant must, in the absence of any designation, pay or tender the rent on the demised -premises on the day it is due, or he is liable to an action. And in such action, interest is recoverable on the value of the rent, from the time it became payable. Liv- ingston V. Miller, 1 Kern., 80. 35. A wrongful eviction of the tenant by the landlord from any part of the demised premises, suspends the rent of the whole until the possession is restored. Where premises were demised by an agreement not under seal, for a year, at the rent of $200, payable quarterly, and the landlord, before any rent became payable, wrongfully entered and evicted the tenant from a part of the premises, but the latter voluntarily occupied the residue to the end of the term, when the landlord brought an action for use and occupation : Held, that he could not recover. Christopher v. Austin, 1 Kern., 216. 36. Eviction by title paramount from a portion of the demised premises, will not, it seems, prevent a recovery by the landlord for the remaining portion enjoyed by the tenant. Per Paekee, J. Id. 36a. Liability of executors of a tenant from year to year. Where premises are leased "for the term of one year and an indeiinite period thereafter," at an annual rent which the tenant agrees to pay, and he enters and occupies several years and dies in posses- sion, his estate passes to his personal representatives, and they hold it by virtue of the demise to him. And where the executors of COURT OF APPEALS DIGEST. 375 LANDLOKD AND TENANT. the tenant omitted to terminate the tenancy, and continued to occupy the premises from year to year : Held, that they were lia- ble in their representative capacity for the rent accruing during such occupancy by them; and that a demand for this rent was properly united with a demand for rent accruing during the life- time of the tenant, in a suit against the executors. Pugsley v. Aikin, 1 Kern., 494. ^ 37. Want of title hi the lessor. In an action to recover rent alleged to be due by the defendant's agreement contained in a written lease not under seal, the defendant is estopped from dis- puting his lessor's title, where his answer discloses the fact that he had entered upon and enjoyed the demised premises, although the plaintiff counts upon the contract, and not upon the use and occupation. The agreement implied by the demise, that the lessee shall quietly enjoy the premises, is a sufficient consideration for the latter's agreement to pay rent. Whether under an unsealed lease, the lessee would be at liberty to show want of title in the lessor as a defense, where he had not entered upon the demised p-emises under it, quere. Vernam v. Smith, 15 N. Y. Rep., 327. See also, Ingraham v. Baldwin, 5 Seld., 45. 38. Summary proceedings; Restitution on reversal. Where the landlord obtains possession of the demised premises by summary proceedings which are reversed in the Supreme Court upon cer- tiorari, that court should not award restitution to the tenant, if the term has expired before the judgment of reversal is rendered. Chretien v. Doney, 1 Comst., 419. 39. Summary.proceedings; Jury ; Certiorari. In case of summary proceedings to recover the possession of lands, before a county judge (art. 2, chap. 8, 2 R. S., 512), the judge has no authority to try the issue without a jury. The Code (sec. 471) exempts such proceedings from its operation, and the waiver of trial by jury under the Code (sec. 26S) has no application to cases of this nature. At all events it cannot be waived by merely omitting to demand a jury, nor without express consent. Per McCouN, J. Benjamin v. Benjamin, 1 Seld., 303. 'i f p 876 COURT OF APPEALS DIGEST. lASDLOKD AND TENAKJ. 40. The certiorari allowed by the statute in such cases, is not an ordinary common law certiorari to correct the proceedings of an inferior tribunal, but a statutory writ, upon which tlie merits involving such parts of tlie evidence as is material, may be ex- amined by the court of review. Id. 41. To entitle a party to the remedy by summary pvceedings to get possession of lands, it must appear that the conventional relation of landlord and tenant, created by agreement and not by mere operation of law, exists between tlie parties. Id. 42. Jurisdiction to take summary proceedings, cannot he conferred uyon the ojfficer by a provision in the lease, in a case of defaidt not pro- vided fm- by statute. Where a lease contains a clause, that in case of a violation of any of its conditions, the relation of landlord and tenant, at the option of the former, shall wholly cease, and the landlord shall be entitled to recover immediate possession of the premises, under the statute for holding over after the expiration of the term, without any notice other than by the usual summons; default in the payment of rent does not constitute such a holding over as to authorize' summary proceedings to recover the premises under the statute referred to. Such a clause creating a condition only, and not a conditional limitation, the estate is not absolutely determined by the breach. And the statutes not having given to any officer jurisdiction to r.emove the tenant by a warrant in such case, it cannot be given by the consent of the parties. Beach v. Nixon, 5 Scld., 35. 43. Former 'proceedings in bar. In summary proceedings to remove tenants from demised premises on account of their holding over without permission of their landlord, after demand and non- payment of I'ent due, an affidavit of the tenants, stating that the landlord had previously, by a similar proceeding, impleaded the tenants before a magistrate on account of the non-payment of the same rent, and that the parties appeared and after their proofs and allegations were lieard, the magistrate gave judgment in ftivor of the tenants, is not sufficient to bar the landlord's claim, as it does not show what issue, or whether any, was joined, or upon what ground the judgment proceeded. Geislcrv. Acosta,5 Seld.,227. COURT OF APPEALS DIGEST. 377 LANBLOKD ASD TENANT. 44. Whether a defense in such proceedings can be interposed by plea, qucrc. Id. 45. Joint tenants must deny demand, !fc., of rent of them or any or either of them, to form an issue. Where two tenants are jointly charged in the affidavit of the landlord with holding over after demand and non-payment of rent, the affidavit of one of them stating that the rent had not been demanded of him, is not suffi- cient to make an issue requiring the summoning of a jury. A demand of rent of one tenant, where two hold jointly, is suffi- cient to authorize the proceedings. /(/. 46. Summary proceedings against judgment debtor holding after sale on execution. A judgment debtor, continuing in the possession of real estate after title thereto has been perfected under a sale on execution against him, is a tenant within the meaning of that word, as used in the statute of summary proceedings to recover the possession of land (2 R. S., 512), and is entitled to deny the facts upon which the summons against him was issued, to have a trial by jury, and to stay the issuing of a warrant to remove him, by giving the undertaking or bond mentioned in the amendment of that statute, in section 5 of chapter 193 of 1849. Tiie vvoi'd rent, as used in said chapter, is to be construed, where tlie pro- ceedings are between a judgment debtor and the purchaser of his lands on execution, as meaning the value of the use and occupa- tion. Spralcer v. Cook, 16 A''. Y. Rep., 567. V. MISCELLANEOUS. 47. Where A. occupied land under H., and by the terms of their agreement the grass belonged to A. : Held, that A. might transfer such grass while yet growing, by a personal mortgage. Jencks v. Smith, 1 Comst., 90. 48. Writ of error. An error committed by the Supreme Court in discharging on certiorari two out of four tenants proceeded against, is not available on a writ of error to this court brouglit by those against whom judgment was rightfully pronounced in that court. Geisler v. Acosta, 5 Seld., 227. 48 378 COURT OF APPEALS DIGEST. LAKCENT — LEASE. 49. Estoppel. The acceptance of a lease, and the payment of rent for the use of a wharf, do not, after the expiration of the term, estop the lessee from asserting a right to use it without the consent of the lessor. And in this case the court held that the defendant established his right to the easement claimed, both by direct grant, and upon the principle of dedication. Child v. Chapr yell, 5 Seld., 246. 50. See, ante. Title, " Covenant," 7. 2 Kern., 296. 51. Notice to quit. A tenant for life or lives who continues in possession, without the consent of the owner, after the determina- tion of the life estate, is not entitled to notice to quit. The stat- ute (1 R. S., 749, sec. 7) declares him a trespasser, and ejectment without previous notice to quit, will lie. It is not a tenancy at sufferance requiring one month's notice to quit, under 1 Revised Statutes, 745, section 7. Livingston v. Tanner, 4 Kern., 64. ' 52. See 1 Comst., Titles, "Fraud," 1 to 7. 2 Comst., "Plead- ings," 2 to 5 ; " Statute." 4 Comst., " Contract," 15. 1 Seld., "Ejectment;" "Insurance," 13, 14. 2 Seld., "Constitutional Law," 4,5; "Estoppel." 4 Seld., "Covenant," 1,2; "Mort- gage," 1, 2, 3. 3 jBTerw., " Constitutional Law," 5, 6, 7; "Cove- nant," 3 to 7; "Recoupment." 4 Kern., "Constitutional Law;" "Husband and Wife." 15 N. Y. Rep., "Assessors and Assess- ment," 4, 5, 6. 16 N. Y. Rep., "Husband and Wife." LAECENY. 1 See 3 Comst., and seq.. Titles, "Trespass." See, ante, "In- dictment." LEASE. 1. See, ante. Title, " Landlord and Tenant," I. 2. Parol lease; Statute of frauds. A parol lease of lands for the term of one year, to commence at. a period subsequent to the day when the contract is made, is valid under our statutes. The pro- visions of the second section of the title of the Revised Statutes in reference to "fraudulent conveyances and contracts in relation COURT OF APPEALS DIGEST. §79 to goods and chattels, and things in action," have no application to contracts concerning land, or any interest therein. Young v. Lake, 1 Seld., 463. LEGACY. I. Description of legatee and who may take ; Charitable uses. II. General, specific, and demonstrative legacies ; Fund for payment. III. Legacies vested, contingent, and in remainder. IV. Void legacies ; Legacy to subscribing witness. V. Ademption and abatement of legacies ; When payable, and remedies of legatee. I. DESCRIPTION OF LEGATEE AND WHO MAY TAKE; CHARITABLE USES. 1. Charitable uses. The testator died on the 24th of November, 1841, leaving a will executed on the 9th of the same mouth, by which among other things, he bequeathed : (1) " To the trustees of the Presbyterian church and congregation in the village of Huntmgton (Suffolk, county) and their successors, in trust for the support of a minister of said church as now const iiated, the sum of six thousand dollars, to be managed in the following manner, to wit: The principal to be loaned on good landed security of twice the value of the sum loaned, and one-half of the interest annually accruing to be added to the principal until the fund shall amount to ten thousand dollars. The other half of said interest to be applied to the support of a minister of said church ; and as soon as the whole fund, by the addition of the interest as aforesaid, shall amount to the sum of ten thousand dollars, the whole interest annually accruing, to he annually applied to the suppo?-t of the gospel minister in said, church as now constituted."' The will then provided that a pew, free of rent in the church, should be reserved for that part of the testator's family which might reside in Hunting- ton; that no part of the fund should be applied to building or repairing the church ; and that any diversion of the fund from the purposes for which it was given, should operate as a forfeiture in favor of his residuary legatees. (2.) The testator then made another bequest in the following language : " With a desire to raise the standard, of intellectual and 380 COURT OF APPEALS DIGEST. moral improvement among the poor, I constitute and appoint (A. B. and C.) of the village of Huntington, and their successors (to be appointed in the manner hereinafter authorized), a board of trustees of a fund, which I hereby constitute for the exclusive education of the children of the poor; and in order to maintain the number of the said trustees in perpetuity, I hereby authorize the surviving or remaining trustees to fill up any vacanqy as often as it shall occur by death, re- signation, or removal from the village of any one of the said trustees, by the choice of another, to be entered upon the minutes of their proceedings. I give and bequeath to the above named trustees ■ and their successors, appointed as aforesaid, the sum of six tliou- sand dolhu'S, in trust, for a periwtual find for the education of the children of the poor, who shall he educated in the academy in the village of Huntiiiglon; or in case of the destruction of the academy by fire or otherwise, then in the school-house next west of the academy, until it sliall be rebuilt. No part of this fund shall be ever appropriated to the erection or repair of buildings." Tiie will then provided as to this bequest for alike accumulation as in the first, to ten thousand dollars, and then perpetually devoted the interest on that sum to the object of the trust as above speci- fied. It limited the instruction to be given, to a good English education, to be extended " to tiie poor of every description, with- out discrimination of denomination or complexion." The children to be educated, were to be " those whose parents' names are not on the tax list ; and if the interest annually accruing shall be more than sufficient for this purpose, in such case the surplus shall be expended in the education of children whose parents stand lowest on the tax Ijst, until the whole is absorbed." For- feiture to residuary legatees in case of diversion. Executors enjoined to apply to the legislature for special act of incorpora- tion, if powers given by the will should prove insufficient to the execution of the duties of tiie trust. Tiie will also gave to two nephews and a niece certain real and personal estate, and to the , niece the interest for life of $2,000 and so much of the principal as lier necessities should require. It provided tiiat the children and grandchildren of the nephews and nieces should be educated COURT OF APPEALS DIGEST. 381 LEG AC*. out of the education fund. It also provided that on the death of his niece, the $2,000 or the surplus of it, should be added to the education fund, but that the interest of $1,000 of it should be annually appropriated "«o the aid and relief of such necesiitous per- sons as are not on the town" forever. On a bill filed by some of the residuary legatees asking the judg- ment of the court on the validity of the tvsro legacies, it was admit- ted by the pleadings, among other things, that the Presbyterian church in Huntington had been incorporated as a religious society, by the name mentioned in the will, under the act providing for the creation of religious corporations. The complainants submitted that the two legacies were void on account of a perpetual suspension of the power of alienation contrary to law, and of the alleged illegal trusts for accumulation, and they prayed for a decree that the rights of the residuary legatees to the moneys so attempted to be be- queathed, might be settled and declared. The vice-chancellor of the second circuit held the two legacies valid ; the general term in Kings county, in May, 1850, reversed his decree, and declared them void. On appeal to this court from the last mentioned decree, held, that the said two legacies were valid bequests. That as to the first legacy "for the support of a minister of the said church," it was within the provisions of section 4 of the gene- ral act for the incorporation of religious societies (3 R. S., 3d ed., p. 244), as being (1.) "for the use of such church, congregation or society, or other pious uses," and (2.) as not exceeding the limit in said section authorized, to wit : " so as the whole real and per- sonal estate of, &c., shall not exceed the annual value or income of three thousand dollars." And (3.) as the object of such corpora- tions is to perpetuate the uses of the property acquired by them, that it was lawful for the donor to prescribe as a condition of his gift that it be preserved in a particular manner, in order to render it subservient to the object for which he gives it. (4.) That the provisions of the Revised Statutes " of accumulations of personal property and of expectant estates in such property," do not apply to gifts in perpetuity to religious corporations. (5.) That if appli- cable as to the direction to accumulate, still the legacy v^^as valid as 382 COURT OE APPEALS DIGEST. authorized by such general act, and the direction only would be void. That as to the second legacy " for the education of the children of the poor:" (1.) That the law of charitable uses as it existed in England at the time of the Revolution (except as to gifts to chanty generally, no particular object being pointed out), and the juris- diction of the Court of Chancery over it, became the law of this state upon the adoption of the Constitution of 1777, and has not been repealed. (2.) That under that law, devises and bequests for charitable uses, although defective for the want of a grantee or donee capable of taking, are supported by courts of equity, where the gift to the charitable use is sufficiently definite to enable such courts to execute it by a judicial decree. (3.) That the said second legacy was of that description ; and (4.) That gifts for charitable uses are also exempt from the above mentioned provisions of the Eevised Statutes against perpetuities. Henry Williams et ah v. Nathaniel Williams et al., 4 Seld., 525. See also TucTcer et al. v. The Rector, Church Wardens and Vestrymen of St. Clements Church, id., 558, where a lot of land in New York city was deeded to the defendants, its rents, and the interest of the proceeds of its sale, if sold, to be applied "to the maintenance and support of the rector or minister for the time being of the said church, and for no other purpose whatsoever : " Held, a valid conveyance. See also the case of Andrews et al. v. The General Theological Semi- nary of the Protestant Episcopal Church et al., id. 559, where bequests for founding scholarships in aid of theological educa- tion, creating funds for sustaining theological lectures, &c., were sustained as gifts to religious and charitable uses, under the prin- ciples laid down in the above cited case of Williams v. Williams, decided at the same term. 2. Charitable uses ; Bequests held invalid. The testator, by his will made in 1832, and which took effect in 1834, bequeathed, after certain legacies, the residue of his estate "to the Methodist General American Missionary Society, appointed to preach the gospel to the poor, L. C," a voluntary association then existing, and which subsequently to his death, merged in and became incor- COUET OP APPEALS DIGEST. 3gg porated as " The Missionary Society of the Methodist Episcopal Church. In a suit between the incorporated society and the next of kin to the testator, held, that the bequest was invalid and the next of kin entitled to the residue. The following grounds are taken by the different members of the court, in arriving at such conclusion : (1.) It was not a valid bequest to the association for its own benefit, for want of a capacity to take. (2.) Nor as a charitable or religious use, because not in terms limited to any such use ; and because the mere name of the association would not im-ply a trust to devote it to the objects indicated by its name; and because where there is no trustee competent to take, named, our Court of Chancery has not jurisdiction to uphold a bequest for a charitable or religious purpose ; or (3.) if a trust he implied in the name, and in the avowed objects of the corporation, which were " to diifuse more generally the blessings of education, civili- zation and Christianity throughout the United States and else- where;" yet it could not be sustained as a charitable bequest on account oithe generality of the object : Held, further, that this case is distinguished from Williams v. Williams (4 Seld, 525, supra), inasmuch as there the fund was bequeathed to trustees competent to take in the first instance, while none such have been named here. And the decision in this case is not intended to deny the powers of courts of equity in this state, to enforce the execution of trusts for public and charitable purposes, where the fund is given to a trustee competent to take, and where the charitable use is so far defined as to be capable of being specifically executed by the authority of the court, although no certain beneficiary other than the public at large be designated. Owens v. The Missionary Society of the Methodist Episcopal Church, 4 Kern., 380. 3. Charitable uses. It seems that the law as to charitable uses, as it existed in England at the time of the American Revolution, is only so far in force in this state as to give our courts only such jurisdiction over trusts for charitable and religious purposes as was exercised by the Court of Chancery of England, independ- ently of the prerogatives of the crown and the statute, 43 Elizabeth (oh. 4). Id. 384 COURT OF APPEALS DIGEST. 4. Bequest in perpetuity to a chai'tered Theological Seminary held valt£. The trustees of the Auburn Theological Seminary being declared, by the charter of that institution, capable of taking and holding real and personal estate, and managing the same for the purpose of benefiting the funds of the institution, and applying the avails of such funds for the purpose of such institution, which is declared to be the education of pious young men for the gospel ministry, and such charter providing for the appointment of tutors and professors : Held, that the trustees could take a bequest for the purpose of endowing a professorship, and, being for pious uses, that it is no objection that the bequest may create a per- petuity. Auburn Theological Seminary v. Kellogg, 16 N. T. Rep., S3. II. GENERAL, SPECIFIC, AND DEMONSTRATIVE LEGACIES ; FUND FOR PAYMENT. 5. General and speci^c bequests. A legacy is general and not spe- ctre, unless by its terms it indicates a particular part of the testa- tor's estate as the subject of the bequest. Accordingly, where the testator owned 360 shares of Cayuga County Bank stock, and he bequeathed 240 shares to one legatee, and 120 shares to another, but without indicating that the shares bequeathed were to be taken from those which he owned at the time of his death : Held, that the legacies were general. Tifft v. Porte?; ^ Seld., 516. 6. The fact that a general legacy of bank stock is given to a widow in lieu of dower, will not give her the income which may have accrued upon such stock from the time of the testator's death until its transfer to her. Id. 7. Demonstrative legacy. The bequest of "the sum of $1,200 and interest on the same, contained in a bond and mortgage " described in the will, with a subsequent provision importing that the same is given to the legatee for life, with a limitation over, is not a specific but a demonstrative legacy, giving the income'ofthe $1,200 for the life of the legatee, and is not subject to ademption by the assignment or extinction of the bond and mortgage in the lifetime of the testatrix. Giddings v. Seward, 16 N. Y. Rep., 365. COURT OF APPEALS DIGEST. 385 8. See, ante. Title, " Estate for Life." 9. Fund for ^payment. The general rule is, that the personal estate of a testator is the primary fund for the payment of lega- cies, and a testator is presumed to act upon this legal doctrine, unless a contrary intent is distinctly manifested by the terms and provisions of the will. Where the personal estate is not in terms exonerated, and is not specifically given away by the will, it will be deemed the primary fund for the payment of legacies, notwith- standing such legacies, by the terms of the will, are expressly charged upon the persons to whom the real estate is devised. The charge upon the devisees in such a case will be deemed in aid and not in exoneration of the primary fund. Hoes v. Van Hoesen, 1 Comst., 120. 10. A testator gave to his wife the use of his real and personal estate during her widowhood ; to two of his sons he devised the reversionary interest in his real estate, and directed them to pay legacies to his other son and to his daughters ; but made no dispo- sition of the reversionary interest in the personal estate : Held, that such reversionary interest in the personal estate was the primary fund for the payment of the legacies. Id. 11. Fund for payment. Although a legacy is charged upon lands devised, yet the personal estate of the testator is the primary fund for the payment thereof, unless a contrary intention is manifested in the will. And if the devisee accept the devise, he is in equity personally liable for the payment of the legacy after exhausting the personal estate. And if the devisee sell the land thus charged, the purchaser can insist that both remedies, i. e., against the personal estate and the personal liability of the devisee, be ex- hausted before coming upon the land. Kelsey v. Western, 2 Comst., 500. 12. But where a bill was filed by the legatee against the devisee and executor, and against the purchaser of the real estate charged, and on the death of the devisee and executor, an order was made that the suit proceed against the purchaser alone, and there was no appeal from that order : Held, that the purchaser, on appeal from the general decree in the cause, could not complain that such . 49 38G COURT OF APPEALS DIGEST. I^EQACT, decree was absolute for the sale of the land for the purpose of paying the legacy. Id. LEGACIES VESTED, CONTINGENT, AND IN EEMAINDEE. 13. Vested legacy. Where a testator by one clause of his will, gives in absolute terms a legacy to his wife, to he paid out of the avaih of the sale of his real estate, and by a subsequent clause directs his executors to sell such real estate after the death of his wife, the legacy becomes vested on the testator's death although not paya- ble until after the death of the legatee, and the latter has the same right to sell or dispose of it that she has in respect to any other property ; and on her death, if undisposed of by her, it goes to her personal representative, who may enforce the payment against the executors. Sweet v. Chase, 2 Const., 73. 14. When vested and when contingent. It seems that where the payment of a legacy charged upon real estate is postponed by the will, with reference to the circumstances of the legatee, as where it is given to be paid when the legatee shall arrive at the age of twenty-one years, the charge is contingent, and fails unless the legatee live to the time of payment. But where the postpone- ment is with reference to the situation and convenience of the estate charged, the legacy vests immediately. Id. 15. Contingent and conditional legacy, A will gave " to the Associate Reformed Church of Broadalbin, five hundred dollars, provided the Eev. David^Caw continued to be their pastorfor seven years to come, but if not, then it must be paid over to said David Caw, with interest : " Held, that the condition annexed to the bequest was valid ; and the pastoral relations between said Caw and the church having been dissolved by mutual consent within the seven years, that no interest whatever vested in the church, but that said Caw was entitled to the legacy. Caw v. Robertson, 1 Seld., 125. 16. Executory gifts. The testator, by will executed in 1844, gave his wife twenty dollars per annum, to be paid in equal por- tions by his four daughters ; he bequeathed to each daughter a legacy of a thousand dollars, "to be paid in six months after his COTJET OF APPEALS DIQEST. 387 LEG^CT. decease out of his personal estate ; " he then bequeathed the one- half of certain moneys owing to him to his two sons, and the other half to his four daughters. He bequeathed the remainder of his personal estate to the two sons equally, and in case either should die before he attained the age of twenty-one, and without lawful issue, he gave his personal estate to his surviving sisters in equal shares. In the event that either of the daughters died before attaining the age of twenty-one, and without lawful issue, he gave the estate of the daughter so dying to her surviving sisters equally. The testator died in 1844; Catharine, one of the daughters, died during his life, and one of the sons soon after his death, each under age and without issue ; Isabella, another of the daughters, married in 1846, and died in December, 1848, under the age of twenty-one and without issue, and her husband was appointed her administrator. On bill filed by the executor of the will to settle its construction, held, 1. That the limitations over of the bequests made by the will directly, were valid ; and that on the decease of Isabella, the legacy of $1,000 and the portion of the money due the testator bequeathed to her, passed to her two surviving sisters and not to her administrator. 2. That although Catharine died before the testator, the legacies given to her, vested on his decease in her surviving sisters, without further limitations over, and that the administrator of Isabella was enti- tled to her portion of the bequests to Catharine. 3. That on the death of one of the sons, his share of the personal estate vested in his surviving sisters, and was not further limited over, and that the administrator of Isabella was entitled to her portion thereof. 4. That as the rights of Isabella in the bequests to her deceased sister and' brother, vested before the passage of the act of 1848, for the more efiectual protection of the property of married women, its provisions did not affect the rights of her husband to the same ; and if it were otherwise, it seems that act does not affect the hus- band's rights of succession to the personal estate of his deceased wife. 6. That the two surviving sisters, and the administrator of Isabella, were bound to pay the annuity to the widow of the testator, in the proportions in which they took and succeeded to 388 COURT OF APPEALS DIGEST. the legacies bequeathed to the four daughters by the will. Nor- ris, executor, Sfc, v. Beyea et al., 3 Kern., 27-3. 17. Bequest contingent wpon the death of another " vnthout lawful issue:" Held, to mean "issue living at her death," and not an indefinite failure of issue, and therefore not too remote. Avium Theological Seminary v. Kellogg, 16 N. Y. Rep,, S3. 18. Vested, but subject to he diminished in quantity by the birth of other children. A testator bequeathed his residuary personal estate to his execators, in trust, to invest the same, declaring that one- half, principal and interest, should be for the benefit of the child- ren of a grandson, the other half for those of a granddaughter, " and to be paid over in the following manner : " One-half of the income to be applied annually for the benefit of the children of each grandchild respectively ; and whenever either of the children of the grandson should become of age, to pay over to that child, his or her proportion of the one-half of said principal ; with the same provision for the children of the granddaughter ; Held, First. That each of the great-grandchildren living at the death of the testator, took an immediate vested interest in an equal share of the fund bequeathed to the children of his parent, subject to be diminished in quantity by the birth of subsequent children before the first child of the class became of age. Second. That if the uncertainty of the quantity of the interest of the children in being at the death of the testator would suspend the power of alienation (as per Paige, J., it does not), such suspen- sion could only endure for one life in being at the creation of the estate, that of the parent, at whose death the number of children to take would be determined. Third. That therefore the bequest involves no illegal suspension of the absolute ownership or power of alienation. Tucker v. Bishop, 16 N. Y. Rep., 402. IV. VOID legacies; legacy to subscribing witness to the will. 19. Void trusts for accumulation. 1. The testator left a legacy of $30,000 to trustees, out of which to pay an annuity of $700 to his Hsister for life, with remainder to her daughter for life, and to accumulate the residue of the income until the decease of the COURT OP APPEALS DIGEST. 389 LEGACY. daughter, when the fund should go to her issue, and in default of issue, to a nephew on his attaining full age, or to his issue if he died before his full age, and in default of issue, with remainder over to other beneficiaries: Held, void both as suspending the absolute ownership for more than two lives, and as providing for an accumulation not to terminate with the minority of the benefi- ciaries. 2. He left another legacy of $30,000 to the trustees out of which to support and educate his nephew, and to accumulate the residue of the income and to pay it over to him on his attain- ing the age of twenty-one years ; and in case of his death before that age, to his issue, and in default of issue, then on the death of Lucy Harris to her issue, if any, and if she died without issue, over to other beneficiaries : Held, void for the same reasons. 3. He left three other legacies of $5,000 each to accumulate during the minorities of the legatees, and to be paid to them on their attaining their full age, but in case of either of their deaths before their full age, the legacies were to accumulate until the death of his sister and her daughter, and then be divided between the issue of the daughter and his nephew, with remainder over : Held, void for the same reasons. Harris v. Clark, 3 Seld., 242. 20. Legacy to subscribing witness to a will. The statute on this subject is as follows (2 R. S., 3d ed., 125) : "Section 42. If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far only as concerns such witness or any claiming under him ; and such person shall be a competent witness, and compellable to testify respecting the execution of said will, in like manner as if no such devise or bequest had been made." " Section 43. But if such witness would have been entitled to any share of the tes- tator's estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will ; and he 390 COURT OF APPEALS DIGEST. shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them : " Held, that where there are three subscribing witnesses to the execution of a will, to each of whom a legacy or beneficial interest is given, and the will is satisfactorily proved before the surrogate by the oaths of two of the witnesses (the probate not being contested and the third witness not sworn), such third wit- ness, after the time from the surrogate's decree establishing the will has expired, is entitled to the legacy given him by the will. Caw V. Robertson, 1 Seld., 125. 21. The record of the testimony taken by the surrogate on the probate of the will before him, with his decree thereon, are com- petent evidence to show that the will was proved without the testimony of such third witness. And a general objection to such record "as improper and illegal," will not be available to the party objecting, although it should appear that one of several depositions contained in the record was not admissible for the party offering it. The objection should be limited to the incom- petent matter only. Id, 22. Two of the subscribing witnesses were examined and testi- fied to all the material facts required to establish the will, and the third was then sworn "to testify as to the questions which should be put to him by the surrogate touching the circumstances of the executing the said will, and how his name came to be attached thereto as a witness ; " and questions were addressed to him and answered, none of which were calculated to or did in fact elicit any facts material to show the due execution of the will, and the decree made by the surrogate declared the will duly proved by the oaths of the other witnesses : Held, that such third witness was not sworn or examined as a .subscribing witness to the will, and was not therefore deprived of his legacy. Id. 23. See, ante, I. COURT OF APPEALS DIGEST. 39] V. ABATEMENT AND ADEMPTION OP LEGACIES; WHEN PAYABLE, AND EEMEDIES OF LEGATEE. 24. Ademption and satisfaction ; Advancements in the lifetime of the testator. A testator may make his testamentary gifts dependent upon the happening of any event in the future, whether in his life- time or afterwards. He may therefore provide that a legacy shall not be payable, if in his lifetime he shall give to the legatee an amount equal to such legacy ; and he may add" to the condition the further requirement that any advance he may make shall, in order to be applied on account of the legacies, be charged, to the legatee on his books of account. Such entries made in the usual course of business, and at the time of parting with the subject of the advancements, are pai'cel of the res gestce, a feature of the transaction itself. But it is otherwise of an entry which is made relating to a gift to the legatee by a third person ; such a gift being res inter alios acta, and not having in its own nature any ope- ration in regard to the testator and his proposed testamentary provisions, the testator can give no effect to it, by way of qualify- ing his own bequest, by an unattested writing. Langdon v. Astor''s executors, 16 N. Y. Rep., 9. 25. Whether an advancement shall be deemed a satisfaction of a particular legacy is a question of fact, to be determined by a refe- rence to the intention of the testator ; and the express provision of the will, that a gift which is to have the effect of ademption will be found entered in the testator's books of account, makes such entry the highest evidence of his intention. Id. 26. Whether an advancement by the testator, intended by him to be in lieu of a legacy, but which intention was not made known to the legatee, in a case where the will had made no provision respecting advancements, and the relation of parent and child, either natural or conventional, did not exist, would adeem a leg- acy, quere. Id. 27. The satisfaction of a legacy, by an advancement made by the testator in his lifetime, if under any circumstances a revocation of the bequest or an alteration of the will by which the bequest is made, in the sense in which those terms are used in the statute 892 COURT OP APPEALS DIGEST. of wills (2 R. S., 64, 6w, sees. 42 to 48), is not so in a case where the testator has declared in the will itself that the legacy should not be payable in the event of an advancement, to be made and characterized in a specified manner, and that event has happened. Id. 28. Abatement of legacy. A testator bequeathed a legacy of $1,200 to his son Enoch, and ordered that it, with other legacies, should be paid to the legatees within one year after his decease, without directing by whom, or out of what fund. After this direction, the testator devised and bequeathed all his real and per- sonal estate to two other sons, Alvah and George, and their heirs, to be equally divided between them, and by a subsequent clause appointed Alvah and George his- executors. The personal estate was insufficient to pay the legacy of $1,200: Held, that it should abate in proportion to the deficiency, and that no part thereof could be charged on the real estate. Reynolds v. Reynolds' execu- tor, 16 N. Y. Rep., 257. 29. When payable; Presumption of payment from lapse of time. A testator by his will made in 1804, gave all his real and personal estate to his wife during her life, and after her death to his grand- son. To his granddaughter he gav« a legacy to be paid by his grandson "out of the estate," in one year after he should become of age. The grandson became of age in 1820, but the widow's life estate did not terminate until 18-32 : Held, that the legacy was not payable until the latter period, and therefore that a bill filed soon afterwards, to recover the legacy, was not liable to a pre- sumption of payment from lapse of time. Dodge v. Mannivg, 1 Comst., 298. 30. Personal liability of devisee of lands charged must he first re- sorted to as against mortgagees of the lands. The grandson, in 1826, mortgaged the real estate which he took under the will, and por- tions of it were purchased by the respondents, with notice of the legacy, at a sale upon the foreclosure of the mortgage. Upon bill filed by the legatee against the respondents and the grandson, further held, that the grandson, by accepting the estate, be- came personally liable for the legacy ; that the legacy was an COURT OP APPEALS DIGEST. 393 LETTEKS OP CREDIT — LEVT. equitable charge upon the real estate, but that the respondents should not be charged in respect to the real estate in their hands, except in case of a deficiency after the remedy should be exhausted against the grandson. Id. 31. Co-legatees not sureties for each other as to debts of the testator, each being liable only in proportion to the amount of his legacy. Wilkes V. Harper, 1 Comst., 586. 32. Waste iy executor, how it affects the remedy. Legatees whose shares of the personal estate have been wasted by the executor, have no lien upon the real estate devised to the executor, to make good their loss. Id. 33. When payable. Legacies are not payable until the expira- tion of a year from the time of granting letters testamentary, nor do they draw interest until that time, without an express direc- tion, or a clear and manifest intent of the testator in the will that it should be otherwise. Brodner v. Faulkner, 2 Kern., 472. 34. Executor of an executor, liable when. The executor of Daniel Hyde died, leaving the funds of the testator's estate, including more than the amount bequeathed to the plaintiffs, mingled with his own funds, and they passed so mingled into the hands of the defendant, who was his executor: Held, that the defendant was liable, after a proper demand, to an action by the plaintiffs, for the amount of their legacy. Auburn Theological Seminary v. Kel- logg, 16 iV. Y. Rep., 83. 35. See, ante. Titles, "Executors and Administrators;" seq., "Will." LETTERS OF CEEDIT. See, ante, Title, " Guaranty." LEVY. *L, See 2 Comst., Titles, " Evidence," 1, 2 ; "Execution." 2. What is sufficient to constitute a valid levy. A manual inter- ference with chattels is not requisite to constitute a valid levy 50 394 COURT OF APPEALS DIGEST. LEX LOCI ET FOBI — LIBEL. thereon. It is sufficient that the property is present and subject to the control of the officer having the execution, and that he then openly states that he levies upon it, and asserts authority over it by virtue thereof. Barker v. Binrdnger, 4 Kern., 270. LEX LOCI ET FORL See 3 Comst., Titles, " Contract,"' 6, 7, 8; "Jurisdiction," 3. 1 Kei-n., ".Pleading," 2, 3. 2 Kern., " Contract," 4 to 10. 3 Kern., " Bills of Exchange and Promissory Notes," 2, 3. 15 N. Y. Rep., "Conflict of Laws." LIABILITY OF STOCKHOLDERS. See 3 Seld., Title, " Corporation," 1. ^te, same title ; seq., " Stockholder." LIBEL. 1. Privileged communication; Pertinent statements in an affidavit used in opposing a motion. Words -spoken or vpritten in a legal proceeding, pertinent and material to the controversy, are privi- leged, and the truth of the statement cannot be drawn in question, in an action of slander or libel. An attorney sued his client for professional services. The client pleaded the general issue, and gave notice that he would prove, on the trial, that the attorney conducted the suit and attended to the other business, on account of which compensation is claimed, in " so careless, unskillful, undue and improper manner," as to render the services of no value. The attorney moved the court to strike out the notice as false, and the client, in resisting the motion, read and placed upon the files of the court an affidavit, stating that the plaintiif had revealed confidential communications made to him in his profes- sional capacity by the defendant, and relating to some portion of the business in question, for the pui'pose of assisting another person who had an interest adverse to the defendant, and that the COURT OF APPEALS DIGEST. 395 plaintiff combined and colluded with that person to injure the defendant. The attorney sued his client for libel, reciting these facts in his declaration, and charging the libel to be malicioiis and impertinent: Held, on demurrer to the declaration, that the matter stated in the affidavit was» pertinent to the motion, and therefore privileged, so that the action of libel would not lie. Garr v. Sel- den, 4 Comst., 91. 2. Privileged cotnmuni cation ; Collecting bankers to their correspoTi- dents. A written communication made by a banker in the country to a mercantile house in New York, in respect to the pecuniary responsibility of a customer of such house, whose note has been sent to him for collection, is privileged. In order to maintain an action for libel against him, express malice must be shown, and cannot be inferred from the mere falsity of the statement. Lewis V. Chapman, 16 N. Y. Rep., 369. 3. When the meaning of the alleged libel and the sense in which it is intended must be submitted to the Jury. A banker, by way of explain- ing his delay for a week after its maturity to remit the proceeds of a note sent to him for collection, appended to his letter, cover- ing the remittance, the words " Confidential. Had to hold over for a few days for the accommodation of the makers:" Held, that these words did not necessarily impute to the makers a want of ability to meet their paper at maturity, and that it was a question for the jury whether they were used in an injurious or an inno- cent sense. Id. 4. Malice in fact and malice in law differ not in nature, but only in the evidence by which they are established. Per Selden, J. Id. 5. Privileged communication; From " mercantile agency" to their principals, as to credit of country merchants, &jC.: Held, not to be privi- leged when made to those not having an interest in the question. One who undertakes for an association of merchants in New York, to ascertain the pecuniary standing of merchants and traders residing in other places, who are customers of some of the members of the association, and who furnish reports to all the members of the association, irrespective of the fact whether they have an interest 396 COURT OF APPEALS DIGEST. in the question of the standing of such merchants and traders, is liable for any false reports made by him, prejudicial to the credit of the subject of it, although made honestly and from informa- tion upon which he relied. Taylor v. Church, 4 Seld., 452. 6. Defendant's declarations admissible 'in certain cases to disprove actual malice. In an action for a printed libel, it is proper to admit evidence of what was said by the defendant in directing the printing, in order to disprove actual malice, and to influence the question of damages. Id. 7. What is the effect of a demurrer for insufficiency of an answer. In an action for libel, where the answer contained (1.) a denial of the publication and (2.) matter in justification and excuse, and the plaintiff demurred to the answer for insufficiency, specifying as grounds of demurrer, objections only to the matter of justification and excuse, and judgment was given for plaintifi" on demurrer: Held, that the demurrer had reference only to the portion of the answer objected to, and that by the judgment the denial of the publication was not stricken out. Matthews v. Beach, 4 Seld., 173. 8. Pleading; When allegation of malice n^ed not he denied. Where the alleged libel is contained in an affidavit of the defendant in a legal proceeding, pertinent and material to the matters in contro- versy, and hence is privileged so that the truth of its statement cannot be drawn in question in the action for libel, it is not neces- sary for the defendant in his answer to deny the allegations of malice contained in the complaint. Garr v. Selden, 4 Comst., 91. 9. Evidence; Libel ujpon an attorney. In an action for a libel upon the plaintiff's character as an attorney of the Superior Court of the city of New York, evidence that his application for admis- sion to practice as an attorney of the Supreme Court had been denied, is not admissible for any purpose. Huff v. Bennett, 2 Seld., 337. 10. See, seq.. Title, " Slander." COUET OF APPEALS DIGEST. 397 LICEKSB — LIEN. LICENSE. I. Parol license executed. A parol license to cut and carry away standing timber, when fully executed before revocatron, consti- tutes a good defense to an action of trover brought by the person giving the license, to recover the value of the timber. Accord- ingly, where an executory contract for the sale of lands contains a provision that the purchaser shall not " cut or suffer to be cut for sale any timber from the land without the consent or appro- bation of the vendor in writing,^* and consent thereto is given by parol, and timber cut and sold in pursuance of it : Held, that the vendor is bound by the license, and cannot maintain trover for the timber. Pierrepont v. Barnard, 2 Seld., 279. LIEN, I. Of judgments and mortgages ; Equitable liens. II. On ships and vessels. III. Mechanics' liens by statute. IV. Factors and other bailees. V. Miscellaneous oases. I. OF JUDGMENTS AND MORTGAGES ; EQUITABLE LIENS. 1. Priority as between equitable and legal liens. A specific equita- ble lien upon land, is entitled to a preference over a subsequent legal lien by judgment. But an equitable lien created to secure an antecedent indebtedness, e. g., an agreement by a debtor to execute a mortgage to his creditor, is not entitled to a preference over a lien by judgment where both attach upon the land at the same time. Accordingly, where A., holding a mortgage on real estate, and having obtained a decree of foreclosure and sale, did, in anticipation of his acquiring the title at the contemplated sale under the decree, agree with his creditor B. to execute to him a mortgage on the land within ten days after he should so acquire the title ; and A. acquired the title and gave the mortgage as agreed : Held, that B. was not entitled to a preference over another creditor of A. by judgment docketed before the agreement 398 COURT OF APPEALS DIGEST. to execute the mortgage was made. Dwight v. Newell, 3 Comst., 185. 2. Where the purchaser of land assumes the payment of a judgment supposed to he, but not in/act, a lien on the land. A debtor confessed a judgment to his creditor, but by mistake of the attorney, the judgment was not docketed in the county of Albany, where the debtor owned lands. The debtor afterwards sold the land, both he and the purchaser supposing that the judgment was a lien, and the latter undertaking to pay it, as a part of the consideration of his purchase. Afterwards, on learnmg that the judgment had not been docketed, he refused to pay it. The debtor was insol- vent: Held, on bill filed by the judgment creditor against the purchaser, that the latter held the lands charged with an equita- ble lien or trust for the payment of the judgment. And held further, that the premises were chargeable with the whole amount of the judgment, although it was larger than represented by the debtor at the time of the purchase, there being no fraud or wilful misrepresentations. Haverly v. Becker, 4 Comst., 169. 3. Equitable lien on land for its purchase money. When a vendor of lands takes the security of a third person for the purchase money, he has no equitable lien on the land. Vail v. Foster, 4 Comst., 312. 4. Discharge of a bond and mortgage does not destroy the equitable lien, when. Where the holder of a bond and mortgage assigns it to a third person as a security for a loan, and subsequently receives from the mortgagor a conveyance of the mortgaged premises, and at the time executes to him a discharge of the bond and mortgage, the land so conveyed continues subject to the mortgage in the hands of the assignee. If the conveyance was made and the dis- charge received without the production of the bond and mort- gage, this circumstance is a suspicious one, and sufficient to put the mortgagor upon inquiry, and unexplained to render him chargeable with knowledge of the fraud, and in equity still liable upon his bond. Brown v. Blydenburgh, 3 Seld., 140. 5. Judgment against vendor of real estate by prior contract; its lien is subject to the equitable rights of the purchaser, and the docket- COURT OF APPEALS DIGEST. 399 iag thereof is not notice to him, nor does it invalidate his subse- quent payments on the contract to the judgment debtor, made in good faith and without actual notice of the judgment. Moyer v. Hinman, 3 Kern., 180. 6. Lien of justices^ judgment docJceted on transcript is co-extensive with that of judgments of courts of record, and is not cut ofi' by the six years' limitation by statute to an action on such a judg- ment. Waltermire v. Westover, 4 Kern., 16. II. ON- SHIPS AND VESSELS. 7. Supplies must be actually delivered, in order to a lien. Under the statute in relation to " demands against ships and vessels," a " debt " is not " contracted " for goods furnished to a vessel so as to give the creditor a lien until they are actually delivered or fur- nished. An agreement to deliver the articles, without actual per- formance, is not sufficient. Veltman v. Thompson, 3 Comst., 438. 8. How the lien may he waived. The lien and the right to attach thei vessel accrue as soon as the goods are furnished, in pursuance of a previous agreement ; but the lien is waived if by the contract a credit is given extending beyond twelve days after the departure of the vessel from the port where she was when the supplies were furnished. The lien cannot exist, it seems, even by agreement of the parties, except in the manner and upon the conditions pro- vided for in the statute. Id. 9. Steamboats making daily trips. When goods are furnished from time to time to a vessel navigating the Hudson river, and making daily trips between New York and Albany, under a pre- vious agreement that the bills were to be paid at the end of the season : Held, under the second section of the statute, that after the expiration of twelve days from any time when the vessel left port, there was no lien for goods previously furnished under the contract. Id. 10. Charterer of a vessel may contract a debt which will be a lien, A charterer of a vessel who has been placed in its possession and control by its owner, and is designated as its captain, may con- tract a debt for which it will be liable under the provisions of the 400 COURT OF APPEALS DIGEST. Revised Statutes for the collection of demands against ships and vessels (2 R. S., 492). And it is sufficient in the application for a vs?arrant in such a case to allege that the debt was contracted by " E. S. D., master, owner or agent " of the vessel, without dis- tinctly specifying in which character he acted. Pendleton v. Franklin, 3 Seld., 508. 11. A steamboat enrolled and registered as a coasting vessel, is within the description of vessels contained in the statute. Id. III. mechanics' liens by statute. 12. When such a lien expires. A mechanic's lien, under the lien law for the city of New York. (Stat. 1844, p. 339), expires at the expiration of one year from the commencement thereof, and is not prolonged by obtaining a judgment against the owner of the pro- perty within the year. Free)ruin v. Crane, 3 Comst., 305. 13. Construction of the statute. Where the owner of a lot in the city of New York contracted with a purchaser to convey the lot to him for a certain sum, and to loan him money in installments for the erection of a building thereon, the price and the money lent to be secured by bond and mortgage upon the premises at the completion of the building, at which time the lot was to be conveyed, it was held, that the seller of the lot was not " the owner of the building," vdthin the meaning of the mechanics' lien act, although it was erected on lands of which he had the legal title ; and that persons furnishing materials for such build- ing could not, under that statute, compel payment for those ma- terials out of the money agreed to be advanced by the seller to the purchaser. Loomie v. Hogan, 5 Seld., 435. 14. Parol promise to pay, and to accept, for materials, void. And further held, that a parol promise by the seller of the lot to pay for the materials furnished to the purchaser, was void within the statute of frauds, and that a parol promise by him to accept a bill drawn on him by the purchaser for such materials was void within the statute requiring acceptances, &c., to be in writing. Id. 15. Filing notice by persons furnishing materials to a contractor. Where the owner pays the contractor for the erection of a build- COURT OF APPEALS DIGEST. 401 ing, pursuant to the contract, on or after its completioiij^a party who furnished materials to the latter acquires no lien by filing, subsequent to such payment, notice pursuant to the act (Laws of 1851, p. 953). It seems, that in order to acquire a lien in such a case, the party performing labor or furnishing materials for the contractor should file the notice prescribed by the act before the completion of the building. Carman v. Mclnrow, 3 Kern., 70. IV. FACTORS AND OTHER BAILEES. 16. See, ante, Titles, " Bailment," 1 and 14 ; " Common Carrier." 17. See, ante. Title, " Factor." 18. Advances by forwarders. Forwarding merchants who have made advances for prior charges on goods consigned to them to be transported and delivered to the ultimate consignees or owners, have such an interest in the goods as entitles them to maintain an action to recover the possession thereof against a third person to whom such goods have been wrongfully delivered by the carrier. The delivery of the goods by the consignor to the carrier in such case, under a special consignment to the forwarders, was virtually a delivery to them ; the carrier being regarded as their agent to receive, transport and deliver the goods to them. Fitzhugh v. Wiman, 5 Seld., 559. 19. Measure of damages. In such action, where the property, pi-ior to the time of the trial, has reached the hands of the general owner, the true value to be assessed and recovered is the value of the plaintifi"'s special property only, which value is ascertained from the amount advanced by them, together with the freight which would have accrued to them as profit upon the transporta- tion to the ultimate consignee. Id. V. MISCELLANEOUS CASES. 20. A devastavit by an executor does not give the legatees whose fund he has wasted any lien upon land devised to such executor. Wilkes V. Harper, 1 Comst.., 686. 21. An unaccepted bill of exchange gives to the holder no lien, legal or equitable, upon the funds of the drawer in the hands of the drawee. Winter v. Drury, 1 Seld., 525. 51 402 COURT OP APPEALS DIGEST, 22. iLien for purchase money of goods. Where goods, sold to be paid for on delivery, by notes, are delivered to the purchaser, without the notes being given or demanded, the presumption is that the condition is waived, and that a complete title vests in the purchaser. This presumption may be rebutted by proof of such declarations, or acts of the parties, connected with the circum- stances of the case, as show an intention that the delivery should not be considered complete, until performance of the condition. And the question with what intention the delivery in such case is made, where any doubt arises, is one of fact for the jury. Smith V. Lynes, 1 Seld., 41. 23. Burden of p-oof. If the actual delivery in such a case is complete, the burden of proof to establish the condition rests upon the vendor or person setting it up. Id. 24. A bona fide purchaser from the vendee after actual delivery of the property (although as between the parties to the sale such delivery may be conditional), gets a perfect title. Id. 25. Assessment for widening streets in New York. A sum assessed upon the owner of a lot for the purpose of widening a street in the city of New York, by virtue of the "Act to reduce several laws relating particularly to the city of New York, into one act," (2 R. L., 342) and the acts amending the same, is a lien upon the lot in respect to which the assessment is made, in the nature of a mortgage. Such lien is not discharged by an irregular and defec- tive sale, under the statute, of the premises for its payment, although the purchaser completed his purchase by paying the- money and taking a deed from the corporation, when the money was refunded on the defect being discovered. The owner is still liable to an action for such assessment ; and such action will not be barred by any lapse of time short of the period required to bar an action on a mortgage. The Mayor, Sec, of New York, v._Col' gate, 2 Kern., 140. COURT OF APPEALS DIGEST. 403 LIMITATION OP XCTIONS. LIMITATION OF ACTIONS. I . Actions hy the people. II. Proceedings in Surrogates' Courts. III. In equity, IV. When the statute begins or ceases to run, and how and to what it applies. V. Acknowledgment and new promise ; Bayments. VI. Pleading. VII. Other matters. , I. ACTIONS BY THE PEOPLE. 1. To recover lands. An action by the people to recover lands is not barred, it seems, by the statute of limitations (1 E. L., 184, sec. 1), unless it be shown that there has been an adverse possession, of forty years before the commencement of the suit. And it seems that the people are deemed to have received the rents and profits so as to prevent the running of the statute, unless the lands are held in hostility to .their title. And this is the case, although the lands are wild and uncultivated, or although they are occupied by one who makes no return for their use, provided he holds by permission of the people and in subordination to their title. The People V. Arnold, 4 Comst., 508. See Code of Procedure, sections 75, 76, 77, 98. 2. To recover lands. The statute of limitations of 1788 and 1801, may operate as a bar to an action by the people to recover the possession of lands claimed under letters patent issued in 1685 and 1704. And where the premises in question In such an action ,were an unoccupied portion of the manorial grant, and the defend- ants had regularly paid taxes therefor, and quit-rents to the state until commuted in accordance with the statute, and had maintained persons to protect the timber from trespassers, such possession was held to be sufficient to give effect to the bar of the statute as to that part. People v. Van Rensselaer, 5 Seld., 291. 3. Action for repeal of letters patent. To an action by the people for the repeal of royal letters patent, granting land in the province of New York, on the ground that the patent was obtained by fraud discovered since the issuing thereof, and also on the ground of breach of conditions by the grantees, the statute of limitations of 404 COURT OF APPEALS DIGEST. LIMITATION OP ACTIOITS. 17S8, chapter 43, reenacted in the revision of 1801, chapter 189, is applicable. In such an action the defendant is entitled to costs if he prevails ; and an extra allowance may be made on sufficient cause shovpn. People v. Clark, 5 Seld., 349. II. PROCEEDINGS IN SUEEOGATES' COUETS. 4. Pleaded by executor. An executor cited to account before a surrogate, may avail himself of the statute of limitations in bar of any claim presented against the estate, in the same manner as in a suit at law or in equity upon such claim. And a devise to an executor for payment of debts generally, not specifying par- ticular debts, or a power in trust given to an executor for that purpose, does not prevent the running of the statute against debts which were due prior to the decease of the testator. Martin v. Gage, 5 Seld., 398. in. IN EQUITY. 5. Fraud. The statute of limitations does not constitute a defense to a suit in equity instituted to set aside a deed on the ground of fraud, unless it be shown that the plaintiffs discovered the facts constituting the fraud, more than six years before the filing of the bill ; nor unless that defense be set forth by the defendants in their answer. Sears v. Shafer, 2 Seld., 268. 6. Action against estate of deceased partner. The equitable right to an action against the estate of a deceased partner of a firm, where the surviving partner is solvent at his death, and then becomes insolvent, arises at the time the survivor becomes insol- vent, and is barred in ten years therefrom. Bloodgood v. Brum, 4 Seld:, 362. 7. Equitable lien for purchase money of land. An action to enforce the equitable lien for the purchase money of land, is barred by the lapse of six years. after the debt has accrued. Although it is of equitable cognizance, the debt is the cause of action, within the 49th section of the statute " Of the time of the commencing actions" (2 R. S., 301), establishing the same period of limitation in cases where there is a concurrent jurisdic- COURT OF APPEALS DIGEST. 405 LIMITATION OF AOTIOKS. tion in the courts of common law and of equity. And the debt, and not the equitable lien, is also the principal and fundamental subject matter, within the 50th" section of the same statute, excepting from the operation of the previous section, suits, over the subject matter of which a court of equity has peculiar and exclusive jurisdiction, and which subject matter is not cognizable in the courts of common law. Borst v. Corey, 15 iV. Y. Rep., 505. IV. W'SES THE STATUTE BEGINS AND CEASES TO EUN, AND HOW AND TO WHAT IT APPLIES. 8. Mutual accounts. Where a mutual, open and current account exists between parties, and one of them purchases from a third person and holds an open account against the other, without notice to or any recognition of its validity by the latter, it does not become a part of the mutual account between them, within the provision of the statute as to actions upon such accounts. (2 E. S., 29G, sec. 23 ; Code, sec. 95.) The demand so purchased and held, becomes barred by the lapse of six years from the time it accrued to the assignor, notwithstanding it was assigned before the statute attached, and there existed then, and afterwards con- tinued, a mutual account and reciprocal dealings between the assignee and the debtor. Green v. Ames, 4 Kern., 225. 9. WorTc, labor and services jor a series of years. Where services in the management of a farm and household are performed under a general retainer, without any express agreement as to the terms or measure of compensation, or the term of employment, and such services continue for a series of years, no payments being made, the law, for the purpose of determining when the statute of limitations begins to run, will not imply an agreement that the payment of compensation shall be postponed until the termina- tion of the employment, but will regard the hiring as from year to year, and the wages as payable at the same time. Davis v. Gorton, 16 N. Y. Rep., 255. 10. Against stockholder on his indiyidzial liability. A suit against a stockholder of a corporation, to charge him individually with a debt contracted by it, pursuant to a provision in the act of incor- 406 COURT OF APPEALS DIGEST. LIMITATION OF ACTIONS. poration, is not an "action upon a statute, for a forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved," and therefore is noif barred by the three years' limita- tion prescribed in the statute (2 R. S., 298, sec. 31) for actions of that class. The period of six years is the only limitation in such case. Corning v. McCullough, 1 Comst., 47. 11. Debtor dying abroad who went abroad after debt became due. Where a resident of this state, indebted by simple contract, goes out of the state after such debt becomes due, and dies without returning to the state, the statute of limitations constitutes a bar to an action against the administrator of his estate for the reco- very of such debt, after six years from the time when the debt became due, excluding the time from the departure of the debtor from the state until eighteen months after his death. ChrisUyphers V. Garr, 2 Seld., 61. 12. Debtor dying abroad who went abroad, before debt became due and was non-resident when it became due. Where a debtor resides out of the state at the time the cause of action accrues, and until his death, the statute of limitations does not commence running against the demand until the time of granting letters of adminis- tration in this state. Davis v. Garr, 2 Seld., 124. 13. See, ante. No. 4. V. ACKNOWLEDGMENT AND NEW PROMISE ; PAYMENTS. 14. By one partner after dissolution. After the dissolution of a partnership, an acknowledgment and promise to pay, made by one of the partners, will not revive a debt against the firm, which is barred by the statute of limitations. The leading cases on this question reviewed, and those of Patterson v. Choate (7 Wend., 441), and Johnson v. Beardslee (15 John., 3), holding a contrary doctrine, and the dicta to the like effect in other cases, overruled. Van Keuren v. Parmelee, 2 Comst., 623. 15. A surviving 'partner who is also executor of the deceased partner, cannot in either relation, by a new promise revive against the deceased partner's estate a debt of the copartnership. ■ Bloodgood V. Brueji, 4 Seld., 362. COURT 01" APPEALS DIGEST. 407 LIMITATION OP ACTIONS. 16.' Acknowledmnent must he unconditional and not made to a stranger. An acknowledgment, in order to raise the presumption of a promise to pay a debt barred by the statute, must be uncon- ditional, and such a one as implied a willingness to pay it. It must also be made to the creditor or his agent, and not to a stranger. An acknowledgment of the indebtedness is not a pro- mise, but under certain circumstances is evidence from which a promise may be inferred. But when made in an answer to a bill in chancery filed by a third person, or drawn out from the debtor when testifying as a witness, no premise can be implied from it. Id.. And performance or happening of the condition must be shown, where a conditional promise is relied on. Wakeman v. Sherman, 5 Seld., 85. 17. Payments made by one of the joint and several makers of a note, and indorsed upon it, before an action upon it is barred by the statute of limitations, and within six years before suit brought, do not affect the defense of the statute as to the other. Where three made a joint and several note, payable in February, 1839, and payments were made by one and indorsed upon it in 1839, 1840, December, 1843, and January and September, 1849, and a suit was commenced upon it in July, 1850, to which one of the others pleaded the statute of limitations: Held, that the action was barred as against him. Shoemaker v. Benedict, 1 Kern., 176. 18. Verbal promise since the Code. A debt which was barred by the statute of limitations when the Code took effect, is not revived by a verbal promise to pay it, made after that time. Esselstyn v. Weeks, 2 Kern., 635. Section 110 of the Code, is as follows: " No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby ; but this sec- tion shall not alter the effect of any payment of principal or interest." And a previous section of the same title provides that, " this title shall not extend to actions already commenced, or to cases where the right of action has already accrued, but the 408 COURT OF APPEALS DIGEST. IIMITATIOH OP ACTIONS. statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form." VI. PLEADING. 19. Action by the people to recover lands. Although such an action is not barred by the statute of limitations, unless it be shown that there has been an adverse possession of forty years before the commencement of the suit, yet in pleading the statute it is sufficient to say, according to the language thereof in substance, that the title of the people did not accrue within the space of forty years before the commencement of the suit, and that neither the people nor those under whom they claim, have received the rents and pro/its of the land within the said space of forty years. The People v. Arnold, 4 Comst., 608. 20. In what manner new promise must he pleaded. In order to avoid the operation of the statute of limitations by a new pro- mise, it should be averred in pleading that it was made within the time limited by the statute. A general allegation that the debt had been repeatedly acknowledged, is not enough. Bloodgood v. Bruen, 4 Seld., 362. But in an action under the Code (where there is no reyly except to a counter claim), it seems the com- plaint may be upon the original demand ; and if the statute of limitations is interposed as a defense, the new promise or acknow- ledgment may be given in evidence without being alleged in the pleadings. Esselstyn v. Weeks, 2 Kern., 635. 21. See, ante, Title No. 5. VII. OTHER MATTEES. 22. Usury. Where a borrower, on obtaining a loan of money at an illegal rate of interest, assigns to the lender bonds and mort- gages in consideration of such loan, the assignment is void, and trover may be immediately maintained for them by the mortgagor. The statute of limitations is a bar to such action after six years from the time of such assignment. Schroeppel v. Coming, 2 Sdd*, 107. COURT OF APPEALS DIGEST. 409 LIMITATION OF ACTIONS. 23. Adverse possession, before the Revised Statutes, must have con- tinued for twenty-five years in order to bar a right of entry. Clark V. Baird, 5 Seld., 291. 24. Presumption of payment from lapse of time, under the statute, is not that the payment was made at the expiration of the time fixed by the statute as a bar, but at some prior indefinite time, or when the obligation became due. Martin v. Gage, 5 Seld., 398. See No. 25, seq. 25. Presumption of payment. No presumption from lapse of time, of the payment of a mortgage, can arise under our statutes within twenty years after the mortgage becomes due. Ingraham 'v. Baldwin, 5 Seld., 45. 26. Water-courses, twenty years' use. An assertion and exercise, for more than twenty years by the grantor and his successors, with the assent of the grantees and their successors, of the right to use water reserved for other purposes than those specified in a reservation in a grant of a water privilege, is sufficient to estab- lish the right so to use it. Olmsted v. Loomis, 5 Seld., 423. 27. See, ante, Title, " Judgment." Waltermire v. Westover, 4 Kern., 16. 28. Presumption of payment of money secured by a sealed instrument, after twenty years. The statute which declares that after the expi- ration of twenty years from the time a right of action accrues on a sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment (2 R. S., 301, sec. 48), is designed to shield defendants, and is not applicable in aid of the plaintiff in an action for affirmative relief in a court of equity. Accordingly, in an action by the vendee for the specific performance of a contract under seal, to convey land on payment of the purchase money : Held, that the presumption arising from the lapse of twenty years after the money became due, was not sufficient evidence of its payment, to entitle the plaintiff to the relief demanded. Morey v. The Farmers' Loan and Trust Com- pany, 4 Kern., 302. The same principle applied, where a vendor, treating the contract as forfeited for non-payment of the purchase money, after the lapse of more than twenty years brought eject- 52 410 COURT OF APPEALS DIGEST. LIMITATION OP APPEAL — LOAN COMMISSIONEBS. mm miu ment against the purchaser by contract ; and Held, that the pre- sumption of payment arising from the lapse of time, is not suffi- cient to uphold an equitable title in the defendant to the land, and plaintiff allowed to recover the possession. Lawrence v. Ball, 4 Kern., 477. LIMITATION OF APPEAL. 1. Supreme Court has no power to enlarge time to appeal, either directly or indirectly, by setting aside judgment and ordering it entered anew. Per Denio, J. Humphrey v. Chamberlain, 1 Kern., 274. LIMITATION OVER. 1. See, Titles, " Legacy;" " Will." . LIMITED PARTNERSHIP. 1. See, Title, " Partnership," seq., and 1 Kern., 1, 2, 3. LIQUIDATED DAMAGES. 1. See, ante. Title, " Damages," and 5 Seld., 2, 3, 4. LOAN. 1. See, ante, Title, " Evidence," and 1 Comst., 4, 5. LOAN COMMISSIONERS 1. A sale of mortgaged lands by one commissioner of United States deposit fund is void. Both must be present and concur in the sale ; and the defect is not aided by the fact that both unite in such case in the conveyance to the purchaser. (Stat., 1837, p. 121.) Powell V. Tut.de, 3 Comst., 396. See, also, Olmsted v. Elder, COURT OP APPEALS DIGEST. 4H LOCKPOKT, VIHAGB OP — LOTTEBY. 1 Seld., 144, reaffirming the last case, and holding further that the commissioners have no right of entry after default until the pre- mises have been offered for sale " at public vendue," as directed by the statute, and have failed to bring " the amount due together with the expenses of the sale," and that prior to a compliance with these conditions, the fee given by statute to the commis- sioners on default in payment, is not such an outstanding title as can be set up by a stranger in defense to an ^ejectment brought by one holding under the mortgagor. LOCKPOET, VILLAGE OF. 1. Damages in laying out and opening new streets. It is no de- fense to an action (given by the charter) by the owner of land appropriated for a street, against the trustees to recover the amount of his damages as assessed by a jury, that the precept for the jury did not name the owner whose damages were to be assessed. Although under the 43d section x)f the charter (Stat. 1829; p. 141), the precept should properly specify the name of the owner, yet the proceeding is not rendered void by the omis- sion. Buel V. The Trustees of the Village of Lockport, 3 Comst., 197. LOST DEED See, ante, Title, " Deed," VII. LOST INSTRUMENT. See, ante, Titles, " Jurisdiction of Chancery," and 2 Comst., Id., 1, and " Pleadings in Equity." LOTTERY. 1. Advertising drawing. Under the Revised Statutes (1 R. S., 665, sec. 28), it is a misdemeanor to publish in this state an ac- count of a lottery to be drawn in another state or territory, 412 COURT OF APPEALS DIGEST. LUNATIC ASTHTM — MAIHTENAKOE. although such lottery be authorized by the laws of the place where it is to be drawn. Charles v. The People, 1 Comst., ISO. 2. An indictment is good which sets forth the lottery scheme in h(Bc verba, and thereby shows the prizes to consist of money, although it contain no distinct averment, otherwise than by such description, that the lottery was set on foot for the purpose of disposing of money, land, &c. Id. 3. Art Union distributions. Held, (1.) To be lotteries within the meaning of the constitutions of 1821 and 1846. (2.) That the setting up of, or proposing to distribute among the members by lot, pictures and works of art purchased by their subscriptions, renders such pictures, &c., liable to the forfeiture provided in section 22 of the provisions of the Revised Statutes, entitled " OJ raffling and lotteries.'''' (1 R. S., 664.) Governors of the Almshouse v. The American Art Union, 3 Seld., 223. But held that sections 30 and 31 do not embrace such a case, but have reference only to the distribution of money, &c., by lot dependent on a drawing of a lottery over which the parties to the distribution have no control. The People v. The American Art Union, Id., 240. 3. Pleading ; Action for prize money. Where in a suit to recover prize money drawn by tickets owned by the plaintiff in a lottery alleged to be authorized by and established pursuant to the laws of Maryland, by the defendants, and drawn at Baltimore, the com- plaint did not state where the tickets were sold or purchased by the plaintiff: Held, on demurrer, that the complaint did not state a cause of action enforceable in the courts of this state ; inasmuch as it did not appear where the contract was made, and that by the laws of the place where it was made, it was authorized and valid- Thatcher v. Morris, 1 Kern., 437. LUNATIC ASYLUM. See, ante Titles, "Arrest," " Insanity." Id. 4 Comst. MAINTENANCE. 1. See, Titles, "Champerty," "Contract," 12, 13. 4 Kern., and ante. COURT OF APPEALS DIGEST. 413 MALICIODS PROSECUTION — MANDAMUS. MALICIOUS PROSECUTION. 1. Recovery in, a bar to slander for the false accusation. In the action for malicious prosecution, the plaintiff may recover not only for the unlawful arrest and imprisonment and the expenses of his defense, but also for the injury to his fame and reputation, occa- sioned by the false accusation. And a recovery by the plaintiff in that form of action on any ground, is therefore a bar to a sub- sequent action of slander for the accusation uttered for the pur- pose of having the arrest made, and on the occasion when it was made. And where the plaintiff has recovered a verdict and judg- ment in an action for malicious prosecution, and subsequently brings an action of slander for uttering the charge which led to the arrest, the record of the recovery will prove, as between the parties, that a state of facts existed which authorized a recovery in that action for such slander. Sheldon v. Carpenter, 4 Comst., 578. 2. Probable caus'e, a question of law. In an action for malicious prosecution, the question of probable or reasonable cause for the prosecution, however numerous or complicated the facts upon which it depends, is one of law and not of fact. And where the facts bearing on that question are disputed, it is the duty of the court to instruct the jury, what facts, if established, will consti- tute a probable cause for the prosecution, and to submit to them only the question as to the existence of those facts. Bulkeley v. Kcteltas, 2 Seld., 384. MANDAMUS. 1. See, seq.. Title, " Redemption of Lands," and 2 Comst., 11, 12. 2. Against boards of supervisors. When the supervisors of a county have neglected to perform any duty required of them at their annual meeting, they may be compelled by mandamus to meet again and perform it. They cannot by their neglect nullify a statute imposing duties upon them. The board of supervisors 414 COURT OF APPEALS DIGEST. MAUOBS — MAEIMB COCET OF THB CUT OP HEW TOBK. of Chenango county, at their annual meeting in 1851, neglected to issue warrants for the military commutation. The Supreme Court issued a mandamus requiring them to meet and issue the warrants : Held, that the mandamus was properly issued. The People V. Supervisors of Chenango, 4 Seld., 318. But it will not issue to compel them to refund a tax wrongfully assessed upon and collected of an individual. The party will in such case be left to his remedy by action at law. The People v. Supervisors of Che- nango, 1 Kern., 563. 3. See, ante, Title, " Highways ;" Id., 4 Seld. 4. See, seq., Title, " Marine Court of the city of New York," 1. MANORS. See, seq., Title, " Royal Patents," and 5 Seld. MANSLAUGHTER. See, awte. Title, " Indictment ;" Id., 3 ; 1 Comst. MANUFACTURING CORPORATIONS. See, ante. Titles, "Corporations; " seq., "Stockholders;" Id., 1, 2, 3, in 1 Kern. MARINE COURT OP THE CITY OF NEW YORK. 1. Crier''s fees. The chamberlain of the city of New York is not liable to an action for refusing to pay a sam certified by the clerk of a court of record in such city, to be due to the crier of such court for his services, unless it be shown that he had funds in his hands applicable to such purpose, not otherwise appropri- ated. And per McCoxjn, J., even if he had such funds, it seems an action would not lie, but the proper remedy would be by man- damus. Huff V. Knapp, 1 Seld., 65. COUET OP APPEALS DIGEST. 415 MAEEIASE — MASTER AHD BEBVANT. 2. The Marine Court of the city of New York, although for some purposes a court of record, has no power to appoint a crier to be paid by the city chamberlain under the acts of May 14, 1840, and April 11, 1842. Id. MARRIAGE. See, ante. Titles, " Divorce ;" " Husband and Wife." MARRIED WOMAN. 1. See, ante, Titles, "Divorce;" " Husband and Wife." 2. See, seq.. Title, " Powers ; " Id., 3, 4, 5, in 15 N. Y. Rep. MARSHALING OF SECURITIES. 1. The equitable doctrine in regard to marshaling securities is applicable only where one party has a lien upon or interest in two funds, with a right \o resort to either or both, and another party has alien upon or interest in only one of those funds. The Farm- ers^ Loan and Trust Company v. Walworth, 1 Comst., 433. MASTER AND SERVANT. 1. Seduction of a step-daughter, while in the service of a third per' son ; Step-father cannot maintain an action therefor. Where a step- daughter leaves the house of her step-father, and is seduced while in the service of a third person, the step-father cannot maintain an action for the seduction, although before the birth of the child she returns to his house, engages in his service, and is there nursed and attended during her confinement. The action for seduction is founded upon the loss of service, and in order to maintain it, there must be an actual or constructive relation of master and servant. And in order to constitute the constructive relation, the master must have the right to command the services of the female at pleasure. And although this constructive relation exists between 416 COURT OP APPEALS DIGEST. UECHANtCS' LIEK — METBOFOLII AN POLICE. the father and his infant daughter, though the latter be actually in the service of another, provided the former has a right to reclaim her services at any time, it does not exist in the case of a step-father and his step-daughter. He is neither entitled to her services, nor liable for her support. Bartley v. Richtmyer, 4 Comst., 38. But a father may maintain the action for the seduction of his infant daughter, although at the time she was in the service of another, notv^ithstanding there is no proof of any care of or expense for her during her confinement. Mulvehall v. Millward, 1 Kern., 343. 2. See, ante. Title, "Action on the Case," 3 to 8. 3. See, seq., Title, "Negligence;" Id., 4, 5, in 2 Seld. 4. Seduction ; Loss of service must be an immediate and not a remote consequence of the seduction, in 'order to sustain an action. Where defendant seduced plaintiff's daughter, but no pregnancy followed, nor was any loss of service sustained until three months after the seduction, when the daughter suffered some illness in consequence of being threatened with exposure in a suit against the defendant for the seduction : Held, that the action did not lie. Knight v. Wilcox, 4 Kern., 413. 6. See, ante, Title, " Limitation of Actions." MECHANICS' LIEN. See, ante, Title, "Lien." MERGER. See, ante, Titles, "Agreement;" "Arbitrament and Award;" " Bankruptcy ;" " Extinguishment ;" " Executor," &c. ; seq., "Payment." METROPOLITAN POLICE. See, ante. Title, " Constitutional Law." COURT OF APPEALS DIGEST. 417 MILLS — MONEY HAD AND KEOEIVED. MILLS. See, ante, Title, " Deed ;" Id., in 3 Comst. MISDEMEANOR. See, ante. Title, "Indictment;" Id., in 2, 3, 4, 1 Comst. MISTAKE. 1. Money paid by one party to another, through a mutual mis- take of facts, in respect to which both were equally bound to inquire, may be recovered back. Bank of Commerce v. Union Bank, 3 Comst., 230. 2. Land bought of a purchaser at tax sale, who in fact had no title. Where the owner of real estate which had been sold for taxes but regularly redeemed from the sale, under a mistaken representation of the purchaser that he had received a conveyance which had become absolute, purchases his title of the latter, the price paid may be recovered back as money paid by mistake. In such a case, the purchaser at the tax sale, having no title, his deed afforded no consideration to the owner of the land for the price paid. Martin V. McCormick, 4 Seld., 331. 3. See, ante. Titles, "Contract;" Id., 3, 4, in 4 Kern.; ante, "Chancery;" "Deed;" seg'., " Vendor and Purchaser." MONEY HAD AND RECEIVED. I. Cases where it was held there was a right of action. II. Where it was held there was no right of action. III. Miscellaneous oases. f. WHERE IT WAS HELD THERE WAS A RIGHT OP ACTION. 1. Where an agreement is void for want of mutuality, money paid under it may be recovered back in an action for money had and received. Eno v. Woodworth, 4 Comst., 249. 53 418 OOUET OF APPEALS DIGEST. MONET HAD AHD EECEIVED. 2. Land contract. The purchaser to whom a conveyance is due under a contract to give a good and sufficient deed of land free of all incumbrances, may recover back the purchase money paid by him and interest thereon, where the seller is unable to convey a good title. Fletcher v. Button, 4 Comt., 396. 3. Proceeds of note sent for collection. The action lies by the real owners of such note against the agent oi their agent for the pro- ceeds thereof, notwithstanding such sub-agent has given his prin- cipal credit therefor in general account, on a balance of his due from such principal who has become insolvent. Warner v. Lee, 2 Seld., 144. 4. Lies against an administrator by a creditor of the intestate, to recover an amount which the administrator, on final settlement , before the surrogate, was allowed to retain in his hands, to meet an outstanding note, in fact held by such creditor, but not pre- sented on such accounting before the surrogate. Bank of Pough- keepsie v. HasbroucJc, 2 Seld., 216. 5. Lies against a county for a tax illegally levied and caused to be collected of plaintiff" by the board of supervisors, and paid to the county treasurer. It is money had and received to plaintiff''s use. Per Allen, J. Hill v. Board of Supervisors of Livingston County, 2 Kern., 52. 6. Lies against a common carrier for excessive freight demanded by him as a condition of delivering the property to plaintiff", who was the owner, and who paid such freight under protest. Har- mony v. Bingham, 2 Kern., 99. 7. Lies without a previous demand for money received by defend- ant to plaintiff"'s use, where it was the duty of defendant to remit, Stacy V. Graham, 4 Kern., 492. II. WHEEE IT WAS HELD THEEE WAS NO EIGHT OF ACTION. 8. By purchaser of imported gooJs who paid the importer, the " long price," which included duties and the right to drawback to recover duties afterwards refunded to such importer under a decision of the secretary of the treasury, that such goods were dutyfree: Held, there being no fraud in the case, and no warranty COURT OP APPEALS DIGEST. 419 IIOXET HAD A:a> BECEITES. that the goods were dutiable, and no allegation that the plaintiff intended to export the goods, that he could not recorer each duties. Moore v. Des Arts, 1 Comst., 359. 9. Proceeds of a bill sent for collection and drawn against at the same time. In such a case the title to the bill passes to the col- lecting agent, the drawee, and the proceeds of the collection are bis, and he has the power to apply them in payment of his own debt to a creditor who has no notice of the equities of the case, and the drawer cannot recover such proceeds of the creditor, not- withstanding the agent becomes insolvent and does not pay the draft. Clark v. The Merchants' Batik, 2 Comst., 380. 10. It does not lie against a deputy shenff to recover money right- fully received by him in that character, although on demand of him while the money is yet in his hands, he refuses to pay it to the person to whom it belongs. The deputy's duty is to the sheriflF and not to the ultimate owner of the fund. Colvin y. EolbrooTc, 2 Comst., 126. 11. It does not lie against an attorney for moneys collected by him for, and credited to his client, by execution on a judgment afterwards reversed on certiorari, and restitution awarded. The client's title to the money was perfect until the reversal of the judgment, and he had a right to pay it to his creditor, and could give the latter perfect title to it. Langley v. Warner, 3 Comst., 327. m. MISCELLAXEOrS CASES. 12. Money deposited by a party ufider arrest, as security for his return, on being suffered to go at large. The policy of the law in declaring void bonds, agreements, &c., taken by sheriffs and other officers colore officii, not in conformity with the statute, is to guard against official oppression on the one side, and a lax performance of duty to the injury of the plaintiff in the process on the other. It will not, therefore, permit such officer to agree with a party under an arrest to permit him to go at large upon any terms other than those prescribed by statute ; and all such agreements with ths officer are void. This prohibition, however, does not extend to the plaintiff in the process. Therefore, where a party under arrest. 420 COURT OF APPEALS DIGEST. MOKEY LEKT — MOETOAGE. was permitted to go at large upon depositing with a third person the sum of money for which he was arrested, under an agreement that if he did not surrender himself at a given time, the money might be paid over to the plaintiff in the process : Held, in an action to recover back the money from the person with whom it was deposited, that the question was, whether the agreement was made with the officer, or with the plaintiff at whose suit the arrest was made. If made with the former, it was void ; but if with the latter, it was valid. Winter v. Kinney, 1 Comst., 366. 13. See, ante, Title, "Action." MONEY LENT. See, ante. Title, " Evidence ;" Id., 4, 5, in 1 Comst. MONEY PAID. See, ante, Titles, "Bills of Exchange and Promissory Notes," 1, 2, 3, and 21 ; " Mistake ;" seq., " Partnership ;" " Surety." MORTGAGE I. What is a mortgage. II. Who may mortgage ; Extent of lien, III. Assignments and rights, &c., of assignee. IV. Eegistry and priority. . V. Payment and satisfaction ; Discharge. VI. Redemption. VII. Foreclosure. (1.) By statute ; (2.) By action. VIII. Remedies other than foreclosure. IX. Miscellaneous. I. WHAT IS A MORTGAGE. 1, Parol evidence is admissible in equity to show that a deed is a mortgtrge. In an action by the assignee of a policy of insurance, to whom the insured premises have been conveyed by a deed abso- lute upon its face, it is competent to show by parol evidence that the deed was given as a collateral security. ( Such proof was al- lowed in this case, where the policy had been assigned, with the COURT OF APPEALS DIGEST. 421 MOBTQASE. consent of the company, " as collateral security.") Hodges v. The Tennessee Marine Insurance Comimny, 4 Seld,, 416. See also Truscott V. King, 2 Seld., 147. . 2. ■Sufficiency of consideration. Where one holding an executory contract for the purchase of lands, makes an arrangement with the contractor's agent to receive a deed for them as soon as it could be conveniently executed and returned to his office, and gives a mortgage for the price, and in pursuance of the arrange- ment he executes and leaves with the agent the mortgage, and the contractor executes and returns to the agent the deed for delivery, the mortgagor who has never called for it cannot insist that the mortgage is void for want of consideration. Under such circumstances, so far as the mortgagor is concerned, it is immate- rial whether there has been a delivery of the deed or not, unless it be shown that the mortgage was only to become effective upon the delivery of the deed. Farmers' Loan Company v. Curtis, 3 Seld., 466, II. WHO MAY MORTGAGE ; EXTENT OF LIEN. 3. Use executed hy statute; Mortgage by trustee. Where a con- veyance of lands is made to one person, in trust for the use and benefit of another, his, of her, heirs and assigns, without limita- tion, no estate or interest vests in the trustee, but the entire es- tate, legal and equitable, vests in the person to whose use the conveyance is made; subject, however, to such conditions as would have been attached to the legal estate, had the title vested in the trustee according to the terms of the deed. And where such conveyance was made in terms to a trustee, who, at the time of the conveyance, executed to the grantor a mortgage upon the premises conveyed, to secure a part of the purchase money : Held, that the person to whose use the conveyance was made, took the legal and equitable title, subject to the lien of the mortgage. Such deed and mortgage are to be construed together, as though both were incorporated in one instrument. Rawson v. Lamjpman, 1 Seld., 455. 422 COURT OF APPEALS DIGEST. 4. Mortgage bij a lunatic. A mortgage executed by a lunatic is voidable only, not void ; and no person, except one claiming an interest under the mortgagor, can set up his insanity as a defense against a title derived through the mortgage. Ingraham v. 'Bald- win, 5 Seld., 45. 5. By a wife in her husband's presence. A husband who is pres- eiit at the execution of a mortgage by his wife (in this case, of his personal property), and who assents to the execution, is as effec- tually bound by the mortgage as if executed by himself It is in effect his mortgage. Edgartonv. Thomas, 5 Seld., 40. 6. Extent of lien. A judgment may be confessed, or mortgage executed, as security for future advances, and will be an effectual security for such advances against subsequent incumbrances having noticeof the judgment or mortgage. PerjEWETT, J. But where, in such case, advances are once made to the amount of the judg- ment or mortgage, and afterwards faid, the judgment or mortgage is functus officio, and cannot stand as a continuing security for fur- ther advances, or for the final balance of a current account between the parties. Truscoit v. King, 2 Seld., 147. III. ASSIGNMENT, AND EIGHTS, &C., OP ASSIGNEE. 7. Foreclosure by. assignee who tooJc assignment as collateral security, and by his assignor, as co-plaintiffs; Assignee cannot purchase the lands for his own benefit, but is liable to the assignor for surplus ; Profits made by resale of the lands. In order to secure a debt due to M., H. assigned to him a mortgage, executed by a third party, of sev- eral villiige lots. An action for the foreclosure of the mortgage was afterwards commenced, in which H. and M. joined as plain- tiffs. At the sale under the decree in such action, M. became the purchaser of all the lots mortgaged, and claimed to hold the same for his own benefit, discharged of any trust or equity in favor of H. : Held, that H.'s equity of redemption in the mortgage assigned by him to M. attached to the lands purchased by the latter under the foreclosure, and to the proceeds of such lots as he sold, and that H. was entitled to any surplus which might be found, upon an account, to be in his hands, after satisfying the COURT OP APPEALS DIGEST. 423 indebtedness for which the mortgage was assigned to him as secu- rity ; that the effect of the foreclosure was simply to bar the equity of the mortgagor and his grantees in the land, and that it had no operation upon the rights of the plaintiffs as between themselves; and that, therefore, the equitable rule, which forbids a trustee, or person acting in a fiduciary capacity, from speculating out of the subject of the trust, applies as well after the foreclosure and sale as before. Hoyt v. Mariense, 16 N. Y. Rep., 231. 8. An illegal object in the assignment of a valid mortgage, is a good defense for mortgagor to a foreclosure by such assignee. (For the facts and statement of the case, see, ante, " Contract," 14a.) De Wittv. Brisbane et al., 16 A''. Y. Rep., 508. 9. Evidence; Usury. The declarations of a deceased mortgagee, made while he was the owner of the security, are not evidence for the purpose of establishing the defense of usury, in a foreclosure of such mortgage by an assignee thereof who took his assignment of the mortgage from the executors of the mortgagee. Tousley v. Barry, 16 N. Y. Rep., 497. IV. REGISTRY AND PRIORITY. 10. What is notice of an unrecorded mortgage. Although a party purchasing lands may have sufficient information or belief of the existence of a prior unrecorded mortgage thereon to put him upon inquiry as to its actual existence, yet that is only presumptive, and not conclusive evidence that he did acquire knowledge of its exist- ence, and such presumption may be repelled by proof that after the exercise of due diligence on his part in making and following up inquiry, he failed to discover such mortgage. Williamson v. Brown, 15 N. Y. Rep., 354. 11. Priority of liens. An equitable lien, created to secure an antecedent indebtedness, e. g., an agreement by a debtor to exe- cute a mortgage to his creditor, is not entitled to a preference over a lien by judgment, where both attach to the land at the same time. As where a judgment debtor, before he gets title to a piece of land, agrees with a creditor who has no judgment to 424 COURT OF APPEALS DIGEST. . MORTGAGE. give him a mortgage on it as soon as he shall acquire the title, and afterwards does acquire it. Dwight v. Newell, 3 Comst., 185. 12. See, ante, Title, "Deed;" seq., No. 15. V. PAYMENT AND SATISFACTION ; DISCHARGE. 13. Presumption of payment. A presumption arises that amort- ■ gage is paid after the expiration of twenty years from the time the amount secured thereby becomes due. Accordingly held, that an uncancelled mortgage, sixty years old, is not a valid objection to the title to the land covered thereby, vphere there is no evidence to rebut the legal presumption that it has been satisfied. Belmont V. O'Brien, 2 Kern., 394. 14. Merger. The purchase in fee by an executor, in his indi- vidual capacity, of lands on vphich he holds a mortgage as executor, does not merge or extinguish such mortgage. Cll/t v. White, 2 Kern., 619. 15. Discharge of infants'' mortgage by special guardian. Where a general guardian was specially authorized, by an order of the Court of Chancery, to discharge a mortgage belonging to his wards, "upon receiving a bond and mortgage upon unincumbered real estate of sufficient value to be ample security for the amount due to them," &c., and without receiving any new security, he executed a discharge, which was recorded, reciting that the amount secured to the infants by the mortgage had been paid and satisfied to him as guardian of such infants : Held, that such discharge did not protect subsequent mortgagees against the claim of the infants by virtue of their mortgage. Swarthout v. Curtis, 1 Seld., 301. 16. Discharge by one who has assigned his interest in a mortgage as collateral security. "Where the holder of a bond and mortgage assigns it to a third person as a security for a loan, and subse- quently receives from the mortgagor a conveyance of the mortgaged premises, and at the time executes to him a discharge of the bond and mortgage, the land so conveyed continues subject to the mortgage in the hands of the assignee. Brown v. Blydcnburgh, 3 Seld., 140. COURT OF APPEALS DIGEST. 425 MOBTOAGE. 17. Discharge of a mortgage hy a cleric in Chancery, without the order of the court. Held void, even, it seems, as to bona fide purchasers of the land. But held, further, that the parties in interest in the trust fund secured by it might, by acquiescence, ratify such unauthorized discliarge, and thus become bound by it. (For a statement of the case, see, ante, " Agent," 1.) The Farmers^ Loan and Trust Company v. Walworth, 1 Comst., 433. 18. Agreement to discharge the lien of a mortgage ; When its speci- fic performance may he compelled. Wliere A. is drawrn into a purchase of lands of B., on which and on other premises C. has a mortgage, by the parol promise of C. to discharge it as to the lands in question, on receiving a certain proportion of the purchase money, w^hich is paid to him, but he neglects to execute such discharge: Held, that notwithstanding the statute of frauds, a specific performance of C.'s agreement would be decreed, on the ground that where a party has paid money upon a contract within the statute, and a recovery of the money will not restore him to his former situation, he is entitled in equity to a specific perform- ance of the contract. Malins v. Brown, 4 Comst., 403. 19. Presumption of payment. No presumption, from lapse of time, of the payment of a mortgage, can arise under our statutes, within twenty years after a mortgage becomes due. Ingraham V. Baldwin, 5 Seld., 45. VI. EEDEMPTION. 20. Redemption by assignee of a term/- The assignees of a term of years may, to protect their estate, redeem a mortgage given prior to the lease by their lessor. Nor will it alter the case, that the leasehold premises consist of but a part of the lands covered by the mortgage. And on redemption, the redeeming party has a right to an assignment of the mortgage redeemed, and, if it be recorded, a right to require the mortgagee to acknowledge the assignment. Averill v. Taylor, 4 Seld., 44. 21. Evidence. The widow of a mortgagee, who acquired the title to the mortgaged premises under a sale which was not effec- tual to cut off the equity of redemption of the mortgagor, occu- 54 426 COURT OP APPEALS DIGEST. MORTGAGE. pying the premises after her husband's death after releasing her right of dower, was held a competent witness for the heirs of the mortgagee, in an action brought against them by the mortgagor's heirs to redeem; her interest, if any, being in favor of the redemption. Dolson v. Rosey, 4 Seld., 216. 21a. See, seq., No. 25 and No. 42. VII. FOEECLOSUEE. (1.) Under the statute. 22. Cloud vpon title. A purchaser at a sale by the Attorney General, under a mortgage executed to the people of the State, must claim through the advertisement and the sale, and, therefore, although the deed given in pursuance of such sale should profess to convey land embraced in the mortgage, but not included in the advertisement and sale, there is no occasion for the owner of such land to resort to a court of equity to remove the cloud fronj his title. Cox V. Clift, 2 Comst., 118. 23. Loan Cornmissioners' sale, under a mortgage, is void, if made by only one of the commissioners, and it will not cure the defect that both unite in the deed to the purchaser. Powell v. Tuttle, 3 Comst., 396; Olmsted \. Elder, 1 Seld., 144. 24. Service by mail of copies of the notice of sale, twenty-eight days prior to the day of sale is good, although the parties served reside in the same place with the party foreclosing, or his attorney. Stanton v. Keine, 1 Kern., 196. 25. Private sale under a power in a mortgage is not good, though expressly authorized by the terms of the mortgage. The, statute (1 R. L., 374, sees. 5, 6 ; 2 R. S., 545) directing the manner in which mortgaged premises shall be sold by virtue of a power, the sale must be at public auction, after notice as prescribed by the statute, to bar the right of redemption. In 1824 a conveyance was exe- cuted by way of mortgage, containing among other things a power to the grantee " on default in paying the indebtedness, to sell the premises at public or private sale, for cash or upon credit, and con- vey the same to the purchaser in fee, and apply the proceeds, after paying all expenses of executing the trusts, to the payment of the COURT OF APPEALS DIQEST. 427 indebtedness, rendering the surplus to the grantor or his heirs." The grantor' died intestate, in July, 1830, the indebtedness remain- ing unpaid ; and the grantee took possession, and in 1833 sold the premises at private sale, without notice to the heirs or representa- tives of the grantor, and conveyed with full covenants as to title. On bill filed by the heirs of the grantor, against the grantee and those deriving title under the sale : Held, 1. That the conveyance was a mortgage ; and 2. That the right of redemption was not barred by the private sale made by virtue of the power. Law- rence et ul. V. The Farmers' Loan and Trust Company et al., 3 Kern,, 200. 26. Affidavits of sale, it seems, cannot be taken by the deputy county clerk in the absence of th« clerk. Craft v. Merrill, 4 Kern., 456. Compare with this the case of Miller v. Lewis, 4 Comst., 654, cited, ante, " County Clerk ; " and Lynch v. Livingston, 2 Seld., 422, cited, ante, "Deed." (2.) Foreclosure by action. 27. When the land is the primary fund. Where real estate is incumbered by two mortgages, and the holder of the junior one forecloses and purchases in the property, the presumption is that he bids to the value of the equity of redemption only ; and the land becomes from thenceforth the primary fund for the payment of the debt secured by the senior mortgage. Mathews v. Aikin, 1 Comst., 595. 28. Inverse order of alienation. Where lands are mortgaged and a part thereof subsequently sold by the mortgagor, it seems that the part remaining unsold is the primary fund for the payment of the mortgage debt, and if different parcels are sold at different times, thay should be charged with the debt in the inverse order of alienation. Crafts v. Aspinwall, 2 Comst., 2S9. See, seg-., No. 32. 29. Breaches subsequent to commencement of suit, in bond and mort- gage for support and maintenance. It seems that the provisions of the Revised Statutes (2 R. S., 192, 193), relating to foreclosure and sale for installments not due at the commencement of the suit, 428 COURT OF APPEALS DIGEST. MOBTGAGE. apply only to mortgages conditioned for the payment of money. Accordingly where a bond and mortgage were conditioned to sup- port and maintain the obligee during his life, and a bill was filed to foreclose the mortgage, alleging a breach for the year then last past : Held, there being no supplementary pleadings, that the complainant, in addition to the value of bis support for the period mentioned in the bill, could not have a decree for breaches subse- quent to the commencement of the suit. Ferguson v. Ferguson, 2 ComsU, 360. 30. Parties ; Adverse prior claims of title cannot he litigated. In a suit to foreclose a mortgage, one who claims adversely to the title of the mortgagor, and prior to the mortgage, cannot properly be made a party defendant, for the purpose of trying the validity of such adverse claim of title. And where a defendant in such suit,, made such as a subsequent purchaser or incumbrancer, in his answer sets up a claim adverse to the title of the mortgagor, and anterior to the mortgage, the plaintiff should dismiss the bill as to him, unless he is prepared to prove that such claim iitfact arose subsequent to the mortgage. Corning v. Smith, 2 Seld., 82. 31. Purchaser of part of the mortgaged premises from the mortgagor assuming payment of the mortgage, makes his land so purchased the primary fund for payment of the mortgage ; and if his deed con- tain the condition that he is to pay it, that will be notice to all persons taking title in any way from or under him, to such lands, and they will take subject to the same equity. And where the grantee of such a purchaser, purchases the original mortgage, it is thereby paid and discharged. Russell v. Preston, 3 Seld., 171. 32. Marshaling of liens ; Actual notice of lien necessanj to compel. The right of .grantees of lands incumbered by mortgao^e to have it satisfied by sale of the lands in the inverse order of their aliena- tion, is an equitable and not a legal right; and the mortgagee when applied to for a release of a part of the mortgaged premises is not bound at his peril to ascertain whether any part thereof has been aliened. He must have sufficient notice to put him upon inquiry, in order to require him to regard the equitable right. Howard Insurance Companij v. Halsey, 4 Seld., 271. COURT OF APPEALS DIGEST. 429 33. What is or is not notice in such case. The recording of a con- veyance of a part of the land made subsequently to his mortgage, is not a constructive notice to him. Neither is information ob- tained by a solicitor retained by him to foreclose the mortgage, because not acquired in reference to the same transaction. But where the release in terras refers to a conveyance in which the premises conveyed are referred to as the lands of the grantee, the reference is constructive notice of the fact, to the same extent as if the conveyance referred to had been recited in the release. Id. 34. Reference to take jyroof against an absent defendant; Exami?ia- tion of parties. When in an action of foreclosure a decree has been made upon pleadings and proofs, appointing a referee to compute the amount due, to examine the plaintiff as to payments, and to take proof of the allegations of the bill as against an absent defendant, and directing a sale of the premises on the confirmation of the report, the parties who have appeared and answered are concluded by such decree as to the issues in the pleadings ; and the referee has no right to examine the plaintiff as to any facts except those relating to payments on the mortgage ; nor to exa- mine the absent defendant in behalf of his co-defendants as to a defense of fraud set up in the answer. McCracken v. Valentine^a executors, 5 Seld., 42. 35. Mortgage to secure circulating notes. The comptroller of this state has power to foreclose a mortgage assigned to him by a bank, to secure the redemption of its notes, on default being made in the payment of the mortgage, notwithstanding the statute does not give him that express power. The right to collect the money due upon a security is an incident to the ownership, and there is nothing in the nature of the trust in this case and like cases to qualify that right. Flagg v. Hunger, 5 Seld., 4S3. 36. Personal liability of a purchaser of mortgaged premises for defi- ciency ; Special equities. Where one sold real estate subject to one- half the amount of a certain mortgage, which the purchaser assumed in the deed of conveyance to pay, as part of the purchase money, and the deed was made and recorded by the vendor, but not accepted by the purchaser until a reduction was made in the 430 COUET OF APPEALS DIGEST. MOBTGAOE. price, which reduction was made by the vendor executing his bond to the purchaser, conditioned for the payment of a certain portion of the half of the mortgage expressed in the deed to be assumed by the purchaser; and the bond contained a clause to the effect that in case of default by the obligor in performing the condition of the bond, the obligee was not bound to pay any part of the mortgage, " anything contained in the deed to the contrary not- withstanding :" Held, in an action to foreclose the mortgage, and to charge the purchaser personally for any deficiency, that the deed and bond must be construed together as one instrument ; and that the final clause of the bond was not in the nature of a pen- alty, but a valid condition, on the breaqh of which by the vendor, the purchaser was released from personal liability to him : Held, further, that the plaintiff in such action of foreclosure, claiming against the purchaser of real estate an equitable right under the deed of conveyance, was subject to the equities as they existed against the vendor; and could not, therefore, have a personal judg- ment against the purchaser for that part of the mortgage which he had assumed by the deed of conveyance to pay. Id. 36a. Accepting a deed of mortgaged premises which recites that they are subject to the mortgage and that it forms the con- sideration of the conveyance, does not render grantee liable for deficiency. Trotter v. Hughes, 2 Kern.,^'75. Nor, unless the grantm- is personally holden for the mortgage, will a statement in the deed that the grantee assumes the payment of the mortgage, render the grantee liable for a deficiency. Id. VIII. REMEDIES OTHEK THAN BY FOEECLOSUEE. 37. Action for waste, against a party cutting timber with knowledge that the premises are scanty security. An action on the case will lie by the holder of a mortgage on lands, against the mortgagor or a purchaser from the mortgagor, of the equity of redemption, for acts of waste in taking away fences, and cutting down and carry- ing away valuable timber, knowing of the existence of the mort- gage and of the insolvency of the mortgagor ; and in such case it is not necessary to show that the primary motive of the defendant COURT OF APPEALS DIGEST. 43I in committing the wrongful acts, was to injure the plaintiff's secu- rity. It is enough that the acts were done by defendant with a full knowledge of the circumstances, although done primarily with a view to his own emolument. Van Pelt v. McGraw, 4 Comst., 110. IX. MISCELLANEOUS CASES. 38. Rights of purchaser at sale in foreclosure, to possession of the premises. Where a decree of sale in a foreclosure suit provides that the possession of the premises shall be delivered to the pur- chaser on production of the deed, and a certified copy of the order confirming the sale : Quere, whether the purchaser, before he complies, with those provisions of the decree, can, on the strength of his deed alone, maintain an action for the possession against the mortgagor, or any one holding under him. The deed alone would be sufficient as against a wrongdoer, but doubted if it would be against the mortgagor or his grantees who are rightfully in possession. Giles v. Comstock, 4 Comst., 270. 39. A power to sell lands does not imply a power to mortgage. And whether a trustee, appointed by will, with power to sell and dispose of lands in fee simple or otherwise, may mortgage the lands, quere. The Albany Fira Insurance Company v. Bay, 4 Comst., 9. 40. An agent employed to collect a mortgage belonging to his principal, cannot purchase the property on his own account at the mortgage sale, directly nor indirectly. Nor will instructions from the principal to the agent not to bid for him beyond a fixed amount authorize the agent to bid for himself beyond that amount. If he do purchase, it will be for the benefit of the principal at the latter's election. Moore v. Moore, 1 Seld., 256. 41. A mortgagor has no insurable interest remaining in the build- ings covered by the mortgage, after the sale under the decree of foreclosure, notwithstanding the decree has not been enrolled nor the deed executed. The deed, when executed, relates back to the time of sale, and from that time the premises are at the risk of the purchaser. • McLaren v. The Hartford Fire Insurance Com- pany, 1 Seld., 151, 432 COUET OP APPEALS DIGEST. UOBTGAOE. 42. Wheji moiigagee, with 'power to sell, may or may not 'purchase. Where a mortgagor, being about to leave the country, gives to his mortgagee a powder of attorney, authorizing him to sell the mortgaged premises, and convey them in fee, and, after discharg- ing the mortgage, to pay the surplus over, the relation of principal and agent is created, and the mortgagee becomes incapable of acquiring the title under his power, v?ithout the mortgagor's consent. But with his express consent he may acquire the title by a conveyance through a third party, and thereafter neither the mortgagor nor his heirs can redeem. Dohson v. Racey, 4 Seld., 216. 43. Usury ; Declaration of mortgagee prior to assignment not evi- dence to establish. In an action brought by the assignee of a bond and mortgage against the mortgagor, the latter cannot give in evidence the declaration of the mortgagee, made prior to his assignment of the mortgage, to show that it was given upon a usurious loan. Nor will it be sufficient, on the question of usury, to show that at the time the mortgage was given, a less sum than the amount of the condition was paid by the mortgagee to the mortgagor. There must be evidence of an agreement or intention to reserve more than lawful interest. Booth v. Sweezey, ^ Seld., 276. 44. Dower; Effect of foreclosure of husband^ mortgage. A claim of dower in premises devised is not barred by a foreclosure and sale under a mortgage executed by the husband alone during ■coverture, although the widow was made a party to the fore- •closure suit, and the bill, which was taken as confessed against her, alleged, in pursuance of the 132d rule of the late Court of Chancery, that she claimed some interest in the premises " as subsequent purchaser or incumbrancer, or otherwise." A decree against defendants, made parties under such general allegations, bars rights and interests in the equity of redemption, but not those which are paramount to the title of both mortgagor and mortgagee. Lewis v. Smith, 5 Seld., 502. 45. Reforming a mortgage for fraudulent rep-esmiations by the mortgagor as to what premises it embraces. Where an applicant for a loan procured it by falsely inducing the lender to believe that a COURT OF APPEALS DIGEST. 433 MOTION — MDSICIPAL CORPORATIOHS. mortgage which he gave as security included certain valuable .premises which were in fact on adjacent premises owned by the mortgagor, not included in the mortgage ; on bill filed by the mortgagee against the mortgagor and his wife and her trustee to whom the husband had made a voluntary conveyance of such adjacent premises soon after procuring the loan, the mortgage was reformed so as to include such premises and erections, and a decree of foreclosure and sale was made as to all the premises. De Peyster v. Hasbrouck, 1 Kern., 582. 46. Cloud upon title; A mortgagee in possession, though under a foreclosure which is a nullity, may maintain an action to remove a cloud upon his title, against persons who have a paper title apparently good but in reality bad, and who are strangers to the equity of redemption. Craft v. Merrill, 4 Kern., 456. 47. Estoppel ; Mortgagee and prior mortgagee. A mortgagee of land is not estopped by judgment in an action, or the award of arbitrators, between his mortgagor and a prior mortgagee, rendered after the execution of the second mortgage, but may litigate the amount due upon the prior mortgage, notwithstanding such judgment or award. Campbell v. Hall et al., 16 N. Y. Rep., 575. 48. See, Title, " Specific Performance," seq. MOTION. 1. Motion papers must be entitled in this Court, or they cannot be read, notwithstanding section 274 of the Code declaring that " the title of the action shall not be changed in consequence of an appeal." Clickman v. Clickman, 1 Comst., 611. 2. See, Title, " Practice." MUNICIPAL CORPORATIONS. I. Their powers generally, and under special charters. II. Their rights and liabilities. III. Local improvements and assessments therefor.; Streets and highways, I. THEIR POWERS GENERALLY, AND UNDER SPECIAL CHARTERS. 1. City of New York: Held, tkut tiie corporation had no power to assume the defense of suits brought against the supervisors of 65 434 COURT OF APPEALS DIGEST. HUKICIFAL CORPOHATIOBS. the county for penalties for an alleged neglect of duty in refusing to audit and allow salaries to associate judges of general sessions. of the city and county, appointed under an unconstitutional law; nor to pay judgments and costs in such suits; and drafts drawn for such payments held void. Powers of municipal corporations considered and discussed. Halstead v. The Mayor, Sfc, of New York, 3 Comst., 430. 2. City of Schenectady ; City ordinance. A municipal corpora- tion in its ordinance requiring the leveling and paving of streets, must conform strictly to the provisions of the statute giving it the power to pass such ordinance, or its proceedings will be void. An ordinance on this subject, held void because it did not prescribe the particular manner in which the paving, &c., should be done, but left it to " the city superintendent under the direction of the committee on roads, of the common council" to direct ; while the statute only authorized ordinances for such improvements "in such manner as the common council should prescribe :" Held, a power which they pould not delegate. Thompson v. Schermerhorn, 8 Seld., 92. 3. City of New YorJc ; Power of acquiring the fee of lands or domain : Held, that the legislature may authorize a municipal cor- poration to acquire the fee simple of lands of private persons for public purposes ; and that where lands were compulsorily taken for an alms-house, and used therefor for twenty-seven years when the site was changed, there was no reversion to the original owner, but the fee remained in the corporation. Heyward v. The Mayor, ^c, of New YorJc, 3 Seld., 314. 4. City of Rochester ; Power to hold lands. The power by the charter was " to purchase, hold and convey any estate, real or personal, for the public use of said corporation :" Held, that a con- veyance to the corporation of land beyond its boundaries for the purpose of a street, was void. Riley v. The City of Rochester, 5 Seld., 64, 6. City of Buffalo : Held, that under the provision in its charter authorizing it " to establish and regulate markets," it has power to purchase market grounds ; and that by giving its bond for $35,000 COURT OP APPEALS DIGEST. 435 MnSICIPAL OOHPOliATIONS. purchase money, payable in twenty-five years, with semi-annual interest, it did not contract a "funded debt" within the meaning of section five of the "Act to restrict and regulate the power of municipal corporations to borrow money, contract debts, and loan their credit" (Lav/s of 1853, chap. 603). Ketchum v. The City of Buffalo and Amtin, 4 Kern., 356. 6. City of New York ; Police regulations. The ordinance of the common council of New York, requiring hoistways in stores and other buildings to be inclosed by a railing, held, to be a reasonable police regulation, and within- the legitimate powers of the corpo- ration. Mayor, ^c, of New York, v. Wiiliams et al.,. 15 N. Y. Rep., 502. ir. THEIR EIGHTS AND LIABILITIES. 7. City of Buffalo ; Negligence in constructing public works : Held, that the corporation had no right of action against a contractor to recover damages to which it had been subjected, and which it had been compelled to pay to an individual who was injured by falling into a public sewer, in course of construction, left unguarded ; that there being nothing in the contract imposing upon the con- tractor the duty of putting up barriers, &c., and protecting pg,s- sengers against injury by accident, it was, so far as appeared by the pleadings in this case, the duty of the city to do this, and their neglect that it was not done. City of Buffalo v. Holloway, 3 Seld., 493. Compare No. 10, seq. 8. Liable for damage to individuals consequent upon want of care in constructing a culvert ; City of Rochester. The corporation of the city of Kochester, having power " to cause common sewers, drairls, &c., to be made in any part of the city," directed a culvert to be built for the purpose of conducting the water of a natural stream , which had previously been the outlet through which the surface water of a portion of the city had been carried off. A freshet having occurred, the culvert, in consequence of its want of capacity and the unskillfulness of its construction, failed to dis- charge the waters, so that they were set back upon the factory of the plaintiffs, and injured their property situated therein: Held, 436 COURT OP APPEALS DIGEST. MUNICIPAL CORPOKATIONS. that the corporation was liable for the damage ; that although passing the ordinance for its construction was a judicial act for which they were not liable, yet the doing of the work in carry- ing it out, was ministerial, and it was their duty to see that it was carefully and skillfully done. The Rochester White Lead Company V. The City of Rochester, 3 Comst., 463. 9. Not liable for consequential damages to owner of lands which are injured by ciireful and skillful excavation of the adjacent land for a street ; City of Brooklyn. The corporation of the city of Brooklyn, regularly laid out and opened a street and thereby acquired title to the land over which it passed. Afterward they proceeded to grade the street, in order to bring it into public use, and in so doing removed a high bank which constituted a natural support to the premises of an adjoining owner, so that a portion of his land fell. There was no allegation of malice, or want of care or skill: Held, that the adjacent owner could not maintain an action on the case for the damages sustained by him. Radcliffs executors v. Mayor, •Sfc, of Brookhjn, 4 Comst.. 195. 10. Not liable for negligence of contractor's servants in blasting rocks in grading street ; City of New York. A city corporation is not liable for injuries to third persons, occasioned by the negli- gence of workmen engaged in grading a street, under the direc- tion of a person who has entered into a contract with the corpora- tion to perform the work in conformity to a plan referred to in the contract, for a specified sum to be paid by the corporation. The contractor in such case is not the servant or agent of the corpora- tion, notwithstanding there is a clause in the contract by which be engages to conform the work to such further directions as may be given by the corporation or its officers. Such a reservation relates merely to the kind of work to be done, and not to the maimer of doing it. Pack v. The Mayor, S{c., of New York, 4 Seld., 222. See, also, Kelly v. The Mayor, ^c, of New York, 1 Kern., 432. 11. Liable in tort for act of their officer in levying upon and taking away bank bills, in collection of a void assessment upon plaintiff, made for a purpose within the general powers of the corpora- tion, and for which the common council had authority to have COURT OF APPEALS DIGEST 437 MUNICIPAL CORPOBATIONS. levied an assessment in a regular way. Denio, C. J., dissenting. Howell 4' Christopher v. The City of Buffalo, 15 N. Y. Rep., 512. For cases containing same doctrine, see, ante, Title, " Corpora- tions," Nos. 21, 22. 12. Village of Ithaca ; Liable for damages for negligence of its trustees, commissioners of highways, ex officio, in cojistriicting a bridge. AVhere the trustees of a village are made, by its charter, commis- sioners of highways, they are to be regarded, in respect to that function, not as independent public officers, but as the agents of the corporation, so as to make the latter civilly responsible for their acts or omissions, according to the law of master and servant. Accordingly, where the trustees of the village of Ithaca, being such commissioners of highways for the territory within its limits, constructed a bridge within, and with the funds of, the village, in so negligent and unskillful a manner, that, by means thereof, the plaintiff's building was carried away during a freshet, the bridge and diking forming a dam, and the arches being too small to discharge the water : Held, that the building of the bridge was a corporate act ; that the powers given to the trustees, as commis- sioners of highways, vested in them, not as individuals, . nor as independent public officers, but as a part of the municipal power of the corporation, for the benefit of which they are to be exer- cised ; and that the corporation is, therefore, responsible for their acts and omissions in that capacity. Conrad v. The Trustees of the village of Ithaca, 16 iV. Y. Rep., 158; and cases cited in note at page 161. See also the following cases: A city corporation is bou7id to keep its streets and avenues in repair, so as to be safe for the traveling public, and liable for damages for neglect, to individuals sustaining injury thereby. Hutson v. Mayor, 8jc., of New York, 5 Seld., '163. A city corporation is not liable for acts of individuals obstructing streets and occasioning damage to travelers, unless its officers have notice of the obstructions. Griffin v. Mayor, 8^,, of New York, 5 Seld., 456. III. LOCAL IMPEOVEMENTS AND ASSESSMENTS THEBEFOE. 13. When courts will interfere by injunction to restrain the collection of alleged illegal assessments, or otherwise. If it appear, on the 438 COURT OF APPEALS DIGKST. face of the proceedings, that the assessment is illegal, the party will be left to his remedy at law ; but if the proceedings be appa- rently regular, and within the jurisdiction of the tribunal or body making the assessment, but in fact void by reason of extrinsic facts i-equiring proof, the collection of the assessment will be restrained by injunction. Hey wood v. The City of Buffalo, 4 Kern., 534. 14. Accordingly, where an action was brought to restrain the collection of, and annul, an alleged illegal assessment, made by the corporation of Buffalo for school purposes, which, if legal, was a lien on plaintiff's real estate, but the complaint did not show that its invalidity did riot appear on the face of the proceed- ings imposing it : Held, on demurrer to the complaint, that the action could not be maintained. Id. 15. Power to assess expense of improvements upon those benefited. A statute which authorizes a municipal corporation to grade and improve streets, and to assess the expense among the owners and occupants of lands benefited by the improvement, in proportion to the amount of such benefit, is a constitutional and valid law. Such an assessment is an exercise of the power of taxation vested in the State government, and is not in conflict with that part of the Constitution which declares that " no person shall be deprived of life, liberty or property, without due process of law," and that " private projerty shall not be taken for public use without just compensation." The power to tax, implies the power to apportion a tax as the legislature shall see fit; and the power of apportion- ment has no limit, where there is no constitutional restraint. And if a particular law, providing for taxation, be in fact' unwise or unjust in its operation, the remedy is to be sought from the legis- lature, and not from the judiciary. The Peoples. The Mayor, \'c., of Brooklyn, 4 Comst., 419. MURDER. 1. Killing is not murder, if done in self-defense, in a case where the circumstances furnish reasonable ground for apprehending a COURT OF APPEALS DIGEST. 439 design to take away the life of the party, or do him some great bodily harm, and reasonable ground for believing ih&t such desiga will be accomplished ; although it may afterwards turn out that the appearances were false, and there was in fact no such design or danger that it would be accomplished. Shorter v. The People^ 2 Comst., 193. 2. But this principle will not justify one in returning blows with a dangerous weapon, when he is struck with the naked hand, and there is no reasonable ground to apprehend a design to do him great bodily harm; nor will it justify homicide, when the combat can be avoided, or where, after it is commenced, the party can withdraw from it in safety before he kills his adversary. Id. 3. Premeditated design to kill. So far as the felonious intent is concerned, it makes no difference whether it be formed at the instant of striking the fatal blow, or has been contemplated for months. It is enough to constitute murder, if the intention precedes the act, although the latter follows instantly. The degree of deliberation required is the same, under our Revised Statutes, as at common law. The People v. Clark, 3 Seld., 385. 4. Heat of passion is no excuse except in sudden combat, nor then, if it has had time to cool. The intentional killing of a human being without provocation, and not in sudden combat, iS murder, although done in the heat of passion. When one believes him- self about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack if in his power to do so, and the right of attack for self-defense does not arise until he has done everything in his power to avoid its necessity. And where, after a mutual combat has been for the moment terminated, and a fatal blow is then struck, the question to be determined is, whether there had been suificient time for the excited passion of the pri- soner to cool, and not whether in point of fact be did not remain in a state of anger. The People v. Sullivan, 3 Seld., 396. 5. Evidence ; Intoxication. It is proper to ask, on a question whether a person was intoxicated^ of a witness who saw and observed him on the occasion referred to, "whether, in. his judg- ment, he was under the influence of intoxicating liquor?" And, 440 COUET OF APPEALS DIGEST. MDIUALITY — NEGLIGENCE. per Mitchell, J., on a charge of murder, the question of the intoxication of the prisoner, at the time he caused the death, may be material to explain the prisoner's conduct at and prior to the time ; and also in reference to the design with which he perpe- trated the act. The People v. Eastwood, 4 Kern., 562. MUTUALITY. 1. See, ante, Title, "Contract." Enoy. Woodworth, i Comst., 249 ; Worrell v. Munn, 1 Seld., 229. MUTUAL ACCOUNTS. See, anle, Title, " Limitation of Action." (rreen v. Ames, 4 Kern., 225. NATURALIZATION. I. A record of the judgment of a competent court admitting an alien to become a citizen, and reciting the facts which entitled the alien thereto, cannot be impeached by proof contradicting those recitals. In all collateral proceedings, such record is conclusive. McCarthy v. Marsh, 1 Seld., 262. NEGLIGENCE. I. Cases in which the action for, was sustained. II. Cases in which the action was not sustained. III. Miscellaneous cases. I. WHEEE THE ACTION WAS SUSTAINED. 1. Against a wholesale dealer in drugs and medicines, for carelessly labeling a deadly poison as a harmless medicine, to wit : " Extract of belladonna," as " Extract of dandelion," and thereby being the means of its being sold for what it was labeled, to a retail drug- gist, who put it up and sold it, on the prescription of a physician, as extract of dandelion, to plaintiff, who took it as a medicine as COURT OP APPEALS DIGEST. 441 keqligence:. prescribed, and was thereby greatly injured. Thomas v. Winches- ter, 2 Seld., 397. 2. Against the owners of a steam tow boat for injuries to a canal boat taken in tow " at the risk of the master and owners" where the injuries arose from the gross negligence of defendants' servants in navigating it, although not occasioned by fraud or want of good faith.. Wells v. The Steam Navigation Company, 4 Seld., 375. 3. Against either one of three separate railroad companies owning distinct portions of a continuous railroad between two termini, but ticketing passengers and checking baggage through the whole route, for the loss, at some unknown point on the route, of plain- tiff's baggage, received at one terminus to be carried over the whole road. Hart v. Rensselaer and Saratoga Railroad Company, 4 Seld., 37. 4. Against a railroad company, by a fireman in their employ, for injuries received by the bursting of the defective boiler of a loco- motive engine which the company continued in use after notice of the defects. Keegan v. The Western Railroad Company, 4 Seld., 175. 5. Against a corporation of a city for injuries sustained by plain- tiff by being thrown from her carriage by accident, happening in consequence of neglect of corporation to keep an avenue in repair. Hutson and Wife v. The Mayor, Sfc, of New YorJc ; and for injury to the carriage by the same accident. Carlin et al. v. The Same, 5 Seld., ]63. 6. Against a collecting bank to whom a draft had been sent for presentment to the drawee, drawn by the " Empire Mills" upon ♦'E. C. Hamilton, Esq., New York," for neglecting to procure acceptance, or to protest for non-acceptance when the drawee, on presentation, in lieu of his own acceptance, wrote across the face of the draft, "Accepted ; Empire Mills, by E. C. H., Treas. ;" which was held to bind neither the drawee nor the "Empire Mills ;" the drawer and indorsers were good at the time of the neglect, but afterwards became insolvent. Walker v. The Bank of the State of New York, 5 Seld., 5S2. 7. Against a railroad company for injury sustained by a passenger, whose elbow was fractured wliile she was seated in a train in 56 442 COURT OF APPEALS DIGEST. NEGLIGENCE. motion, by coming in contact with some hard substance {what the proof did not show) projecting from some stationary car or cars standing on a side track, and used by workmen in company's employ as lodging and boarding cars ; the court holding, that although the burden of proving negligence in defendant is on the plaintiff, and that simply proving an injury while riding on cars, without showing how it was received, would not be enougljj yet, that in this case, evidence of the position of the boarding cars, and of horizontal marks and indentations on the side of the car in which plaintiflF was riding, in the line of that part of the window from which the injured arm projected, in connection with proof that the door of one of the stationary cars on the side , towards the moving train opened outwards, and was not ordinarily kept fastened ; that these circumstances were enough to raise a pre- sumption of want of proper care in the defendants, and to shift upon them the burden of proof that the injury was not attribu- table to any negligence or fault on their part. Holbrook v. The Utica and Schenectady Railroad Company, 2 Kern., 236. 8. Against a plankfoad comjiany for injuries received by plaintiff by being thrown from his wagon in the night, in consequence of the dangerous condition in which the public highway was left by the defendants while lawfully engaged in building their plankroad thereon. Ireland v. Oswego, Hannibal and Sterling Plankroad Com- pany, 3 Kern., 527. 9. Against a railroad company by the administrator of a. child from six to seven years of age, who was run over and killed by one of defendants' cars, notwithstanding there was no proof of any pecu- niary or special damage to the plaintiff or to the next of kin by reason of the death of the child ; such proof being held unneces- sary under the statute. (Laws of 1847, chap. 450, amended by Laws of ] 849, chap. 256.) Oldfield v. The New York and Harlem Railroad Company, 4 Kern., 310. 10. Against a railroad company for injuries sustained by a passen- ger, in consequence of the breaking of an axle by reason of a latent defect which could not be discovered by the most vigilant exterrwl examination, and although defendants purchased the car COURT OP APPEALS DIGEST. 443 KEaLIOENOE. from extensive and skillful makers, and the axle was procured from a manufacturer of skill and reputation ; they being held responsible for an accident happening in consequence of a defect which could have been discovered in the process of manufacturing, by the application of any test known to men skilled in such busi- ness ; and it being further held, that it was right for the jury to find the defendants guilty of negligence in not ascertaining the utility of, and adopting the safety beam truck as a protection against injury to passengers on the breaking of an axle ; it being in proof that that improvement had been sometime in use on several other roads. Hegeman v. The Western Railroad Corpora- tion, 3 Kern., 9. 11. Against a railroad company for injury to cattle straying and getting on the railroad track, in consequence of the neglect of defendants to maintain fences and cattle guards as required by the general railroad act (Laws of 1850, p. 233, sec. 44), although the plaintiff was not an adjoining proprietor, and it did not appear how or whence the cattle came upon the road ; on the ground that the section referred to was intended to impose an absolute liability upon railroad companies so neglecting, without reference to the negligence of plaintiff, and thereby to protect railroad travelers from injury, by inducing care and vigilance on the part of such companies. Corwin v. The New York and Erie Railroad Com- pany, 3 Kern., 42. 12. Against a railroad company by a mail agent, carried without compensation as a passenger, injured by accident occuring by rea- son of the culpable negligence and want of skill of defendants; on the ground, per Selden, J., that the safe carriage of passen- gers, and liability for injury to them hy gross negligence, is imposed upon carriers as matter of public duty, and does not depend upon contract or the payment of compensation. Nolan v. Western Railroad Corporation, 15 N. Y, Rep., 444. 13. Against a railroad company for killing cattle which strayed from plaintiff's premises on to the track through a gateway con- structed by defendants at a farm crossing, and which had got out of repair, and liable to be blown open, by the neglect of defend- 444 COURT OF APPEALS DIGEST. NEaUQEKCE . ants, as found by the jury, to keep it in a secure condition ; the court holding it a question of fact for the jury to determine whether the mode adopted by plaintiflf to secure the gate, when he discovered that it was out of repair, was reasonably judicious, and whether the plaintiff was culpably negligent in suffering his cattle to remain in a field insuflGciently fenced from the railroad, or in having failed to give the company notice of the defect ; and the court also holding, that \yhile it was the primary "duty of the company to discover and repair defects in fences, gates, &c., which they were bound to maintain, it was also the duty of an adjoining proprietor, interested in their security, to give notice to the com- pany when a defect has come to his knowledge ; but that it must ordinarily be left to the jury to determine which of the parties is to be charged with negligence in a particular case. Foler v. New York Central Railroad Company, 16 N. Y. Rep., 476. 14. Against an incorporated village, whose trustees were, by virtue of their office, commissioners of highways *under the char- ter, as to all roads within the corporate limits, for want of care and skill in such trustees, in erecting a bridge across a stream with arches of insufficient capacity, so that the diking and bridge formed a dam, and thereby plaintiff's building was carried away during a freshet. Conrad v. The Village of Ithaca, 16 N. Y. Rep., 158, and cases cited in note. II. CASES IN WHICH THE ACTION WAS NOT SUSTAINED. 1-5. Against the mere architect or builder ofapvhlic worJc, for want of care or skill in the execution thereof, by a third person injured after its completion, by accident happening in consequence of such want of care or skill. The Mayor, S(i;., of Albany, v. Cunliff, 2 Comst., 165. 16. Against parties having a license to build a sewer in a public street in a, city, and who employ another person to construct it at a stipu- lated price for the whole work, by a plaintiff sustaining injury resulting from the negligent manner in which the sewer is left at night by the workmen employed in its construction ; on the ground that such workmen are the servants or agents of the contractor, COURT OF APPEALS DIGEST. 445 NEQLIOEIICE. and he alone is responsible for their tieglect, and that there cannot be two superiors severally responsible in such a case. BlaJce v. Ferrh, 1 Seld., 48. 17. Against proprietors of a store in a city, by a person who, in passing upon the sidewalk, was injured by the falling of a box then being let down with defendants' tackle and fall, suspended outside the store, through the carelessness of a porter then in the employ ' of a third person who had purchased the box and contents of defendants, and had their permission to send such porter to take it away, the latter using defendant's tackle for that purpose with their knowledge and consent ; defendants held not liable, on the ground that the porter was not their servant or agent, and that one person cannot be made answerable for the negligence of another, unless the relation of master and servant or principal and agent exist between them. Stevens v. Armstrong, 2 Seld, 435. 18. Against a contractor with a city coryoration to build a sewer in a public street, in an action by the corporation, for damages to which it has been subjected at the suit of an individual, in conse- quence of the contractor's carelessness in leaving the sewer ex- posed during its construction, there being nothing in his contract requiring him to protect the public against accident, by putting up lights or barriers. City of Buffalo v. Holloway, 3 Seld., 493. 19. Against a city corporation for the acts of its citizens in obstructing its streets by piles of rubbish and materials, and thereby occasioning injury to the plaintiff in being thrown out of his carriage ; there being no proof that the city officers had notice of such obstruction. Griffin v. Mayor, S/b., of New York, 5 Seld., 456. 20. Against a city corporation for negligence of the servants of a contractor doing grading of a public street by the job ; notwith- standing the job, as provided by the contract, is to be done under the direction and to the satisfaction of certain officers of the cor- poration. Kelly V. The Mayor, &fc., of New York, 1 Kern., 432. See, also. Pack v. The Mayor, S{c., of New York, 4 Seld., 222. 21. Against the owners pf a steamboat in a case of collision, where the steamboat, in the night, ran into a propeller lying aground 446 COURT OF APPEALS DIGEST. NESLISENCE. across the channel in Cleveland harbor ; it appearing that vessels had never before been known to ground or obstruct the passage at that point ; that those in charge of the steamboat did not dis- cover the propeller until it was too late to avoid a collision ; and that they exercised ordinary care : the court holding that in cases of collision, the question is whether the party doing the injury used all the precaution and care exacted of him by law under the circumstances ; and that he is not necessarily liable, although, by the utmost precaution and care, a collision might have been avoided. Kelsey v. Barney, 2 Kern., 425. III. MISCELLANEOUS CASES. 22. If plaintiff's negligence cooperate with defendants' miscon- duct to produce the injury, the action cannot be sustained. Munger V. The Tonawanda Railroad Company, 4 Comst., 349. 23. In cases of marine insurance "against the perils of the sea or lakes," the underwriter is not liable for damages and costs which the owners. are compelled to pay to prevent the insured vessel from being sold, in a case where she has been libeled and condemned at the suit of owners of another vessel with which the insured vessel, in consequence of the negligence of her crew, came in collision and caused damage to such other vessel, herself suffering none. It was not the collision, in that case, but the libel, which was the proximate cause of the loss. Mathews v. The Howard Insurance Company, 1 Kern., 9. 24. Evidence. In a case where it was claimed that plaintiff's building was burned by being set on fire by carelessness of defend- ants, by sparks from an ill-constructed locomotive engine of defendants, on a passing train ; there being no positive evidence, and the evidence given tending to exclude the probability, that the fire was communicated by any other means ; it was held com- petent for plaintiff to prove that on other occasions, engines of the company in passing, emitted sparks and coals which fell further from the track than the building in question. Sheldon v. The Hudson River Railroad Company, 4 Kern., 218. COURT OP APPEALS DIGEST. 447 NEW TRIAL — NEW TOEK, CITY OF. NEW TRIAL. 1. See, Title, " Practice;" Id., 2 Kern., 2, 3'. 2. See, Title, "Appeal ;" Id., 4 Kern., 3, 5 to 9. 3. See, Title, " Judge's Charge," 15 N. Y. Rep. NEW YORK, CITY OF. 1. Title to land where an entire lot is taken, hut only partis required for street : Held, that the provision in 2 Revised Laws, 416, sec- tion 179, authorizing commissioners of estimate and assessment to include a whole lot in their assessment, when only a part is required for the use of a street, should be so read and construed as to require the consent of the owner to the appropriation of the part not required for public use, and, • therefore, that it is not unconstitutional, and that where such consent has been obtained, and proceedings confirmed, and damages paid, the title vests in the corporation. Embury v. Conner, 3 Comst., 511. 2. Power to regulate streets and assess the expense ; Demand of assess- ment lefore levy : Held, that the corporation has power to regulate a street at its own expense, and assess and collect the expense afterwards, upon and from those benefited ; that the ordinance directing the work to be done and the expense assessed, may be general in its terms, without designating the persons or property to be assessed prior to the doing of the work ; that the assessment may include several streets, or the work on each street may be separately assessed, in the discretion of the corporation ; and that where a contract made in pursuance of an ordinance for regulat- ing several streets and avenues above and below Thirty-fourth street had been nearly completed, and thereupon a second ordi- nance was passed altering the regulation of the street above Thirty- fourth street, and thereby largely increasing the expense of the whole work, that there was no, error in including in the assess- ment the owners of lots lying below Thirty-fourth street. And held further, that although a demand of an assessment must be made before levy, yet it need not be made by the collector, but 448 COURT OP APPEALS DIGEST. NEW TORK, CITT OP. was good if made by his deputy, and hence an omission in the answer to deny an allegation in the complaint " that no demand was made by A. S." (the collector), was not an admission that it was not made by the deputy collector. Manice et al. v. Tke Mayor, Ifc, of New York, 4 Seld., 120. 3. Enlarging slijjs by extending piers : Held, that under the act of 1806 (4 Web. 3/- Skin., 614, sec. 12) the corporation had power to enlarge slips, and could accomplish this by building piers and extending them into the river, and that in order to form a " slip " it was not requisite that the piers on each side should be extended equally or at the same time. Thompson et al. v. The Mayor, S^c, of New York, etal., 1 Kern., 115. 4. Prescriptive rights to wharfage. Where the corporation of New York was the owner of and entitled to receive one-half of the wharfage arising from the end of a pier, and annually demised and let the same and the right to collect and receive it to lessees : Held, that it was not sufficient to establish title thereto by pre- scription in the owner of the other one-half, that he had collected and appropriated to his own use the whole wharfage daring thirty years, without obstruction from the city or its lessees ; but that under such circumstances there should be proof of knowledge by or notice to the corporation of an adverse claim and enjoyment, in order to establish title by prescription against it. Id. 6. Construction of piers and rights to wharfage. Where the cor- poration granted to an individual a water lot on the East river, and he covenanted to construct in front of it, on the river, a street which should be and remain a public street of the city, and did so, and the corporation covenanted that the grantee should enjoy the wharfage arising from the bulkhead created by the street, which for a time he received ; and subsequently the corporation acquired title to the granted premises pursuant to sections 177 and 178 of the act of 1S13, for the purposes of a street; and afterwards the corporation directed to be constructed opposite these premises a pier, which thenceforth formed the side of a public slip, which pier was built at the joint expense of the corporation, and the proprietors of lots adjacent to said granted premises, COURT OP APPEALS DIGEST. 449 NON-IMPRISONMENT ACT. and the emoluments therefrom were shared between them and the city in certain proportions ; subsequently the corporation directed this pier to be extended into the river, and invited the said proprietors to unite in constructing the extension, the expense and emoluments thereof to be borne and shared in the same pro- portion as were those of the original pier, which they refused to do, and the corporation, at the expense of the city, extended the pier : Held, that the corporation had authority to do so, and that the wharfage arising from this new portion of the pier belonged to the corporation. Marshall v. Guion et al., 1 Kern., 461. 6. Assessments on owners of lots for widening streets, under 2 Revised Laws, 342, are liens on such lots, in the nature of a mortgage. They are not discharged by defective proceedings for sale and conveyance of the lots for the purpose of collecting the assessments, the proceed- ings having been abandoned and the money refunded to the purchaser on discovery of the defect ; nor are such proceedings a bar to an action against the owner of the lot, to recover the sum assessed ; and the same period of limitation applies to an action to enforce such payment, as is required to. bar an action on a mortgage or judgment. The Mayor, Sfc, of New York, v. Colgate, 2 Kern., 140. 7. Review of report of commissioners of estimate and assessment for opening streets. The Supreme Court, under 2 Revised Laws, page 409, section 178, has jurisdiction, as a court, to review such report; but the decjsion of the general term, on appeal, under chapter 270 of Laws of 1854, is final, and no appeal lies to this court from such decision. Matter of Canal and Walker streets, 2 Kern., 406. 8. See, ante, Title, "Municipal Corporations." NON-IMPRISONMENT ACT. 1. Creditor proceeding under, gains a priority. The assignment which a debtor, proceeded against under the non-imprisonment act, executes pursuant to the provisions of the aet, (Stat, 1831, sees. 16, 17,) is for the benefit of the creditor who institutes the 61 450 COURT 01" APPEALS DIGEST. HOH-EESIDEST — HOTARIAIi PBOTEST. proceeding, and not of creditors generally. And a voluntary assignment, executed by the debtor, pending the proceeding, of all his property, for the benefit of his creditors generally, is a fraud upon the statute and the rights of the creditor instituting the proceeding. And where such a voluntary assignment was executed, so that nothing was left to pass to the statutory assignee : Held, upon bill filed by the creditor against the debtor and the voluntary assignee, that the latter be decreed to hold the property for the benefit of the prosecuting creditor, and that the statu- tory assignee was not a necessary party to the bill, since no title passed under the assignment to him. Spear v. Wardell, 1 Comst., 144. See- also Hall et al. v. Kellogg, 2 Kern., 325. 2. See, ante. Title, "Execution," II. NON-RESIDENT. See, ante. Title, " Absent and Absconding Debtors." NONSUIT. 1 . "Where, on the trial of an action for an assault and battery, the plaintiff called two witnesses, one of whom testified to the assault without stating any matter to justify it, and the other also proved the same assault, but stated circumstances of justification : Held, that the court could not be required to nonsuit the plaintiff. Lobar v. Kopler, 4 Comst., 546. NOTARIAL PROTEST. 1. The certificate of a notary, of demand of payment and notice of protest of a promissory note, is not evidence of the fact, when it is shown that he did not personally perform the service. It may, however, be proved by the person who did it for him. Hunt V. Mayhee, 3 Seld., 266. 2. See, ante, Title, "Bills of Exchange and Promissory Notes." COURT OP APPEALS DI&EST. 45I NOTICE — NOTICE TO QUIT. NOTICE. 1. Sufficient to put a party on inquiry ; Effect of it may he refelled by proof that he inquired without success. When a purchaser has knowledge of any fact sufficient to put him upon inquiry as to the existence of some right or title in conflict with that which he is about to purchase, he is presumed either to have made the inquiry and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim to be considered a bona fide purchaser. This presumption, however, is a mere inference of fact, and may be repelled by proof that the purchaser failed to discover the prior right, notwithstanding the exercise of due diligence on his part. Williamson v. Brown, 15 N. Y. Rep., 354. 2. Bank officers. The directors or managers of a banking cor- poration are chargeable, it seems, with notice of such matters relating to the ordinary business of the institution, as are known to their cashier. The New Hope and Delaware Bridge Company v. The Phoenix Bank, 3 Comst., 156. NOTICE OF LIS PENDENS. 1. Good, though nof stating county where mortgage was recorded. A notice of suit pending under " an act to reduce the expense of foreclosing mortgages in the Court of Chancery," passed May 14, 1840, describing the mortgage and the ward and county where the premises were situated, and setting forth that the mortgage was recorded, but not stating in what county recorded, was a sub- stantial compliance with the statute. And, at all events, the decree could not be objected to in a collateral action. Potter v. Rowland, 4 Seld., 448. NOTICE TO QUIT. See, ante, Title, " Landlord and Tenant." 452 COURT OF APPEALS DIGEST. NDISAKCE — OCCBPAHCT. NUISANCE. 1. In the common law action of nuisance, the declaration must show dt, freehold estate in the plaintiff; but in an action on the case for damages merely, sustained in consequence of the erection of a nuisance, it is enough that the plaintiff is in possession of the premises affected thereby. Cornes v. Harris, 1 Comst., 223. 2. Continuance of a nuisance erected by another. The successor to the title and possession of property, who omits to abate a nuisance erected thereon by another, after notice to do so, is liable for the damage caused by its continuance. And, per Denio, J., he is responsible, although he has not been notified to abate it. Brown V. The Cayuga and Susquehannah Railroad Company, 2 Kern., 486. 3. City railroad; Obstruction of highway. Any continuous obstruction of a public highway or street is a public nuisance ; but that which is authorized by competent legal authority can- not, in law, constitute a nuisance. Per Denio, Ch. J. Davis v. The Mayor, Sfc, of New York, 4 Kern., 506. NUNCUPATIVE WILL. See, seq., Title, " Will;" Id., 4 Seld., 196. OCCUPANCY. 1. Accidental and by mistake, is not enough to require notice under iax sale by comptroller. In an action of trespass for cutting timber upon a lot of land containing two hundred and fifty acres^ the plain- tiff claimed title under a deed from the comptroller, given upon a Bale for non-payment of taxes. It appeared that at the date of the deed, there was a brush fence between the lot and another lot ad- joining, which was occupied under a contract from the plaintiff. In consequence of a crook in the fence, about two and a half rods of the lot in question was inclosed with the lot adjoining so occupied, and the occupant, and those who had preceded him in the posses- COITET OF APPEALS DiaEST. 453 ODD FELLOWS — OFFICE AND OFFIOBK. sion of that lot, had mowed grass upon the two and a half rods, but without intention to occupy over the line of the lot, or knowledge that they had done so : Held, that the judge erred on the trial in holding that the lot in question was aijtually occupied within the meaning of the statute (1 R. S., 412, sec. 83), so as to require notice to the occupant before the title could become abso- lute under the comptroller's deed. To constitute an occupancy which will render notice necessary under the statute, there must be, it seems, an intention on the part of the alleged occupant to enjoy the property. An accidental or chance occupation of a small part of the land does not require notice. Smith v. Sanger, 4 Comst., 576. ODD FELLOWS. See, ante, Title, " Arbitrament and Award." OFFICE AND OFFICER. I. Title to oflSce; Election ; Officers de facto. II. Powers and duties generally ; Acts colore officii ; Compensation. III. Liabilities ; Actions by and against ; Costs. IV. Pleading ; Other mattery I. TITLE TO OFFICE ; ELECTION ; OFFICERS DB FACTO. 1. Town meetings; Adjournment. The qualified electors of a town, at thei/ annual town meeting, have power, after the regu- lar organization of the meeting, to determine by vote that the meeting shall be continued at the place of such organization through a part of the day, and then adjourned to some other place in the town, and there continued through the residue of the day ; and the meeting may be held accordingly, and the elec- tion of town officers at such meeting will be valid. The People V. Martin, 1 Seld., 22. 2. And it makes no difference as to the power of the electors to adjourn the meeting to another place (when once organized at the proper place), whether the meeting be held at a place desig- 454 COURT OF APPEALS DIGEST. OFFICE AKD OFPICEK. nated by the electors at the previous annual town meeting, or at the place designated by statute in the absence of such vote. Id. 3. Though a town meeting must be held between sunrise and sunset, it need not be kept open constantly through the day. ■^. 4. Officers de facto. A challenged voter swearing falsely before a de facto board of inspectors, is liable to the same punishment as if the oath had been administered by inspectors dejure. The People V. Cook, 4 Seld., 67. 5. It does not vitiate an election that the inspectors and clerks were not sworn, nor that the oath was administered in an irregu- lar manner. Id. 6. Nor that there were no separate clerks of the poll, if that duty be discharged by one of the inspectors. Id. 7. The provisions of the statute as to the manner of holding elections, canvassing votes, and making certificates of canvass, and as to proceedings on quo warranto to try the title to an elective office, discussed and considered. Id. 8. See, ante, Titles, " County Clerk ;" " Governor." II. POWERS AND DUTIES GENEEALLT ; ACTS COLORE OFFICII ; COMPENSATION. 9. Deposit of a sum of money, by a party in custody of a sheriff", to obtain permission to go at large. The policy of the law in declaring void bonds, agreements, &c., taken by sheriffs and other officers, colore officii, not in conformity with statute, is to guard against official oppression on the one side, and a lax performance of duty to the injury of the plaintiff in the process on the other. And though an agreement made with a sheriff by which a party under arrest is permitted to go at large upon any terms other than those prescribed by the statute, is void, as well as any other agreement taken from a party in custody, intended as an indemnity to the sheriff for a breach of duty, as being contrary to such policy ; yet this prohibition extends only to the officer, and not to the plaintiff in the process. Accordingly, where a party under arrest was permitted to go at large, upon depositing with a third person the sum of money for which he was arrested, under an agreement COURT OF APPEALS DIGEST. 455 OFFICE AKD OPFIOEK. that if he did not surrender himself at a given time, the money might be paid over to the plaintiff in the process : Held, in an action to recover back the money from the person with whom it was deposited, that the question was whether the agreement was made with the officer, or with the plaintiff, at whose suit the arrest was made ; and upon the evidence, that question du-ected to be submitted to the jury. Winter v. Kinney, 1 Comst., 365. 10. A town collector may seize, not only the goods and chattels of the person .taxed, but any goods and chattels in his possession. And where he levies before the iieturn day specified in his warrant, he may (under the statute, 2 E. S., 398, sec. 6), sell at any time within a week after such return day. Sheldon v. Van Buskirk, 2 Comst., 473. 11. Power of the legislature over fees and salaries. Public offices in this state are not incorporeal hereditaments, nor have they the character or qualities of grants. And the prospective salary or other emoluments of a public office are not property in any sense, and may be increased, reduced, or regulated by law at all times, except in the cases in which the Constitution has expressly forbid- den it. The right to the compensation grows out of the rendition of the services ; and not out of any contract between the govern- ment and the officer that the services shall be rendered by him. Conner v. Tlie Mayor, Sjc, of New York, 1 Seld., 285. 12. Consanguinity does not disqualify for the performance of a minis- terial act. The taking of the proof or acknowledgment of a deed not being a judicial act, it may be done by an officer who is so related to one of the parties as to be disqualified as a judge or juror. Lynch v. Livingston, 2 Seld., 422. 13. An of^cer cannot execute final process in his hands, for his own benefit. Therefore, where a sheriff was fined by the cojurt to the amount of an execution in his hands, for neglecting to return it, and after the fine had been paid to the judgment creditor with moneys of the sheriflf, and the judgment assigned to a third person for his benefit, the sherifi"sold the real estate of the debtor on the execution, and executed adeed of the same to a judgment creditor, 456 COURT OF APPEALS DIGEST. OFFICE AND OFFICEK. who redeemed : Held, that the sale was void, and no title passed by the deed. Carpenter v. Stillwell, 1 Kern., 61. 14. Town, officers cannot hind their towns by contracts not within the scope of their official power as defined by statute. The town of Phar- salia being liable for the support of certain paupers, at the time being in the town of Norwich, the defendant, as overseer of the poor of Pharsalia, promised the plaintiffs, overseers, &c., of Nor- wich, that if they would provide for such paupers, he would pay the expenses incurred : Held, that it was not within the official power of the defendant to make such a contract, and that the plaintiffs are confined to the remedy given by statute, viz., the audit of the account by the superintendents of the poor, and the levying of the amount by the board of supervisors on the town of Phaisalia, for the benefit of Norwich. Overseers of the Poor of Norwich v. Overseer, 8fc., of Pharsalia, 15 N. Y. Rep., 341. III. LIABILITIES ; ACTIONS BY AND AGAINST ; COSTS. 15. A postmaster who assumes to charge letter postage on a newspaper in consequence of an initial being on the wrapper, does not act judicially in such a sense as to protect him from an action for improperly detaining such newspaper, although no fraud or malice be alleged or proved. Teall v Felton, 1 Comst., 637. 16. Costs in error. A defendant in error, who was prosecuted in the court below for an act done by him as a public oflBcer, is entitled to double costs in error, on the affirmance of the judg- ment. BurJcle v. Luce, 1 Comst., 239. 17. An officer is protected by an execution regular on its face, where he levies upon the goods of the defendant in the execution, not- withstanding the judgment on which it issued may have been extinguished by a valid discharge in bankruptcy. Ruckman v. Cowell, 1 Comst., 505 ; see, also, as to collector of taxes, Sheldon v. Van BusTcirTc, 2 Comst., 473 ; and Chegaray v. Jenkins, 1 Seld.,, 376. 18. Evidence. An admission by a defendant in trespass, that he had levied on the property (at the same time exhibiting the execu- tion and stating whom it was against), involves no justification under the process. Copley v. Rose, 2 Comst., 115. COURT OF APPEALS DIGEST. 457 OFFICE AND OFFICER. 19. For the negligent discharge of a purely ministerial duty, by a public officer or body, an injured party may have redress by action. The Rochester White Lead Company v. The City of Rochester, 3 Comst., 464. 20. It constitutes a breach of an official bond, given for the " faith- ful performance of the duties of his office," that a sheriff, under process against the property of a defendant, seizes the goods of a third person ; and the latter, after judgment against the sheriff in trespass, and execution thereon unsatisfied, may prosecute the bond, and recover against the sheriff and his sureties, his damages by reason of such trespass. The People v. Schuyler, 4 Comst., 173. 21. An officer issuing a void warrant is not liable for its execu- tion after the return day therein mentioned. Nor will the receipt by him of moneys collected under color thereof, after such return day, render him liable unless he had notice that the collection was after the return day. Van Rensselaer v. Kidd, 2 Seld., 331. 22. Irregular process when not a protection. The warrant to a town collector of taxes, consisting in part of the assessment roll, of which the proper certificate is a necessary element, the want of the certificate is a defect apparent upon its face, and renders the process no protection to the officer. Van Rensselaer y. WitbecTc, 3 Seld., 517. 23. Officer and deputy, when jointly liable. Where a sheriff is liable for the trespass or misfeasance of his deputy, both may be sued jointly for such wrongful act. Waterbury v. Westervelt, 5 Seld., 598. 24. When town officers have no joint right of action. The supervisor and commissioners of highways of a town cannot maintain a suit in their joint names as such officers, on a contract made by them on behalf of the town, which contains no express agreement with them as such officers. Palmer etal. v. The Fort Plain and Coopers-- town Plankroad Company, 1 Kern., 376. IV. PLEADING ; OTHER MATTERS 25. A party sued for acts done by him as a public officer, may, under the statute (2 R. S., 353, sees. 28, 29), insist upon a former 58 458 COURT OP APPEALS DIGEST. OPIHIONS — OPINIOXS 01' WITNESSES. adjudication as conclusive, wibhout pleading it. Doty v. Brown, 4 Comst., 71. 26. An unauthorized act of a public officer may be ratified by the parties for whom it was assumed to be done, and thereby become binding upon them. The Farmers' Loan and Trust Com- pany V. Walworth, 1 Comst., 433. 27. Attorneys and solicitors are not liable for referees' fees. Judson V. Gray, 1 Kern., 408. 28. Assessors and collectors of taxes are not agents of the town in its corporate capacity, in any such sense as to render the town liable in an action to recover a tax erroneously assessed and col- lected of him, upon lands not lying within the town. Lorillardv. The Towri of Monroe, 1 Kern., 392. 29. The auditor of the canal department is not a mere ministerial officer, and is not bound to draw his warrant for the payment of a draft made upon him by a canal commissioner, unless the latter is authorized by law to make the draft. Merriam v. Sckoonmaker, 3 Kern., 238. 30. See titles of various offices. 31. Buying and selling offices, ifc. See Gi-ay v. HooJc, 4 Comst., 449. OPINIONS. 1. T resumed concurrence in. Where two or more points are dis- cussed in the opinions delivered on the decision of a cause, and the determination of either point in the manner indicated in such opin- ions would authorize the judgment pronounced by the court, the judges concuring in the judgment must be regarded as concurring in such opinions upon all the points so discussed, unless some dis- sent is expressed, or the circumstances necessarily lead to a different conclusion. James v. Patten, 2 Seld., 9. OPINIONS OF WITNESSES. See, Title, " Evidence." COURT OF APPEALS DIGEST. 459 OKDIXABT CARE. — PAKEST AND CHILD. ORDINARY CARE. See, Title, " Negligence." PARENT AND CHILD. 1. Step-father. Although a step-father is not by law entitled to the custody or services of the children of his wife by a former hus- band, nor bound to maintain them, yet where he assumes the rela- tion of a parent towards them, and receives them into his family and supports and educates them on the same footing as his own children, he is not liable to them in an action for services rendered to him by them during their minority, although the value of such services may exceed the expenses of their education and support. Under such circumstances a promise to pay wages cannot be implied. Williams y. Hutchinson, Z Comst., 312; and see BarthyY, Richtmyer, 4 Comst., 38. 2. Right of action for injuiy to minor child by negligence. Whether a father whose minor child has been so injured by the negligence of another, that he dies, can recover any higher damages than medical and funeral expenses, guere. Puck v. The Mayor, Sfc, of New York, 3 Comst., 489. But see Oldfeld v. The Harlem Railroad Company, 4 Kern., 310, and Quin, administrator, v. Moore et al., 15 N. Y. Rep., 432. 3. Seduction. The father of an indented servant cannot main- tain an action for her seduction against her master by whom she is seduced. In such aii action the plaintiff must have a right to the services of the person seduced. Bain v. Wycoff, 3 Seld., 191. And for the same reason, a step-father cannot maintain an action for the seduction of his step-daughter. Bartley v. Richtmyer, 4 Comst., 38. 4. Seduction. Where the father has not relinquished his right as such (by indenture or otherwise) to the services of his minor daughter, he may maintain an action for her seduction, though at the time she was, in fact, in the service of the defendant ; and this 460 COURT OF APPEALS DIGEST. PAEOL EVIDENCE. without any proof of care or expense on her account during her sickness. Muhehall v. Millward, 1 Kern., 343. But the loss of service must be the direct and immediate, and not the remote consequence of the seduction. And where no pregnancy fol- lowed, and no loss of service, except three months after the seduc- tion the daughter became ill in consequence of the anticipated exposure in a suit against the defendant for the seduction, it was held, that the action could not be maintained. Knight v. Wil- cox, 4 Kern., 413. 5. Custody of minor children. A court of equity has jurisdiction and authority to take a minor child from a guardian appointed by the surrogate on the death of its father, and deliver it to the care and custody of its mother, where this is for the advantage of the child. Wilcox v. Wilcox, 4 Kern., 575. PAROL EVIDENCE. I. When held admissible. II. When held inadmissible. I. WHEN HELD ADMISSIBLE. 1. In the construction of a deed, where the language of a res- ervation was ambiguous. French v. Carhart, 1 Comst., 96. 2. In an action upon a covenant of seisin in a deed, to show the true consideration paid, contradicting that expressed in the deed. Bingham v. Weiderwax, 1 Comst., 509. 3. In trespass against a collector of taxes, to show that the persons signing the warrant were, in fact, supervisors. Sheldon V. Van Buskirk, 2 Comst., 473. 4. In aid of a particular construction of a will, to show collat- eral circumstances which might be supposed to have influenced the mind of the testator at the time of making the will. Wolfe v. Van Nostrand, 2 Comst., 436. 5. To show the existence, contents and loss of a lost deed, and declarations of the supposed grantor confirming the fact of its existence. Metcalf v. Van Benthuysen, 3 Comst., 424. COURT OF APPEALS DIGEST. 461 FABOL EVIDENCE, 6. To show what was litigated and determined, and the grounds of the determination, in a former suit, set up as ns judicata. Doty V. Brown, 4 Comst., 71. See No. 17, seq. 7. In the construction of a charter party, to show, by conversa- tions between the master and defendants, what parts of the vessel would be required for accommodation of master and crew. Suit for extra freight. Almgren v. Dutilh, 1 Seld., 28. 8. In construction of wheat receipts, not amounting to con- tracts of bailment, to show that they were understood at the time to be given for the benefit of executors. Wadsworth v. AUcott, 2 Seld., 64. 9. To show the particular object of a judgment or mortgage for future advances, and the amount of advances in fact made. Truscott V. King, 2 Seld., 147. 10. To show the actual condition of goods at the time of their receipt, and that they were not in "good order," though admit- ted by the bill of lading to have been received in "good order." Ellis V. Willard, 5 Seld., 529. 11. To explain the meaning of technical marks and characters in a contract, as used in a particular trade or business. Dana v. Fiedler, 2 Kern., 40. 12. To show an agreement by one surety to indemnify another, prior to, or at the time of, both executing the principal contract. Barry v. Ransom, 2 Kern., 462. See No. 22, seq. 13. To show an agreement for a different destination of goods from that expressed in a carrier's receipt, for the purpose of repel- ling the inference of an alleged conversion. Scovill v. Griffith, 2 Kern., 609. 14. To charge a party as carrier, where his receipt for goods described him as a forwarder. Blossom et at. v. Griffin et al., 3 Kern., 569. 16. To show that a money bond, absolute in its terms, was delivered under an agreement by which it was to be held by the obligee as collateral to a debt of third parties, and to be canceled upon his obtaining payment from them. Chester v. Bank of Kings- ton, 16 N. Y. Rep., 336. 462 COURT OF APPEALS DIGEST. PABOL EVIDEHCE. II. WHEN HELD INADMISSIBLE. 16. To show the value of excavating hard pan and rock, where a street contract provided a fixed compensation for all materials and labor necessary " for executing the digging," refilling, &c. Sherman v. The Mayor, Sfc, of New York, 1 ComsU, 316. 17. To show that a difierent subject was litigated, on a former trial, from what is stated in the declaration therein to have been the ground of the action. ( See No. 6, ante.) Campbell v. Butts, 3 Comst., 173. 18. To impeach an award by showing that the arbitrators ^id not intend what their determination on its face declares. Dolce v. James, 4 Comst., 567. 19. To show acts of the parties with a view to the construction of a written instrument, whose language has a fixed and ascer- tained meaning. Giles v. Comstock, i Comst., 270. 20. To qualify the delivery of a deed, where it is made to the grantee; or show that it was delivered in escrow. WorraUv. Munn, 1 Seld., 229. 21. To establish usage or custom as to the meaning of a con- tract, when its terms are plain and unambiguous. Wadsworth v. Allcott, 2 Seld., 64. 22. To qualify the liability of sureties among themselves, who sign a note at the request of the principal, by showing that the surety who last signed stated that he would not be liable except. as surety for all the prior signers. Per Geat, J. Norton v. Coons, 2 Seld., 33. Compare No. 12, ante. 23. To contradict or modify the terms of a bill of lading ; as to show an agreement that the property might be delivered at a different place, or to other consignees, than are mentioned and specified in it. (Compare No. 13, ante.) Fitzhughv. Wiman, 5 Seld., 558. 24. To show an understanding between the parties to a deed, in which the lands are described by certain known monuments, that the lands should be bounded by certain other monuments. Clari v. Baird, 5 Seld., 183. COURT OP APPEALS DIGEST. 463 PARTIES TO ACTION. 25. To establish a cotemporaneous parol agreement, varying the terms of a written assignment ; as that the assignor and assignee should share whatever the latter could collect of a claim ; the assignment being absolute on its face, and the evidence being oifered for the purpose of showing a want of proper parties. Durgin V. Ireland et al., 4 Kern., 322. 26. See, Title, "Evidence." PARTIES TO ACTIONS. I. Parties plaintiff, who necessary or proper, or otherwise. ll. Parties defendant, who necessary or proper, or otherwise. III. Objection for want of, how taken, and when deemed waived. IV. Miscellaneous cases. I. PAETIES PLAINTIFF, WHO NECESSAET OE PROPEE, OR OTHERWISE. 1. Stakes on, an illegal wager. A party who stakes a sum of money on an illegal wager, may recover back so much thereof as belongs 'to .himself, without joining in the action other persons who contributed specific portions of the fund. RucJcman v. Pitcher, 1 Comst., 392. 2. Bond to several attaching creditors. Where a statutory bond was given to several attaching creditors, conditioned to pay to each creditor the amount due him, and the statute (2 E. S., 12, sec. 57 ), provided that the bond should be held for the common benefit of all the creditors, and might be prosecuted by them jointly, or by any one of them separately in respect to his separate demand : Held, that a single creditor might maintain a suit on the bond in his own name, and need not in his action, prosecute for the common benefit. Pearce et al. v. Hitchcock et al., 2 Comst., 3S8. 3. Covenant. A party may sue upon a covenant running to himself, although he did not sign and seal the instrument. Smith V. Kerr, 3 Comst., 144. 4. Insolvent corporation. Where a corporate company has done acts in fraud of creditors, or members of the company, and a receiver is afterwards appointed, quere whether the remedy by proceedings in disaffirmance thereof should be lathe name of the 464 COURT OF APPEALS DIGEST. PAETIES TO ACTIOIT. receiver or of the persons defrauded. Hyde, receiver, !(c., v. Lynde, 4 Comst., 387. 5.. Usurpation of office; Quo warranto. In an action in the nature of a quo warranto, brought by the attorney-general on the relation of a person claiming the office, against a party who has usurped it, the claimant is interested in the question and should be joined with the people as a party plaintiff. The People, ex rel. Crane, v. Ryder, 2 Kern., 433. 6. Assignor of a claim. A cotemporaneous parol agreement that the assignor and assignee are to share whatever the latter can collect on the claim, does not make the former a necessary party to the suit, where the assignment was a written one, and absolute on its face. Durgin v. Ireland et al., 4 Kern., 322. 7. Action of ejectment by a married woman. Where a married woman had the actual possession of land, held by her for her separate use, 'and has been wrongfully ejected therefrom, she may, under the Code of Procedure, maintain an action in her own name to recover the possession, without joining her husband. Darby v. Callaghan, 16 N. Y. Rep., 71. 8. Assignor of an unsettled account. The master of a vessel having an unsettled account with her owner for his wages, and for his receipts from the earnings of the vessel and disbursements on her account, assigned his claim to a third person. The assignee brought an action, and it appeared on the trial that there was a balance due from the defendant : Held, that under the Code the defendant could not require the master to be made a party to the action for the purpose of enforcing an accounting. He was a com- petent witness for either party, and upon his examination the defendant could have every benefit from his testimony, and the production of his books and papers, which he could obtain from his accounting as a party. Allen v. Smith, 16 N. Y. Rep,, 415. II. PARTIES DEFENDANT, WHO NECESSAET OB PROPEE, OR OTHERWISE. 9. Setting aside a will for fraud. A person who is charged with fraudulently procuring the execution of a will in favor of an COURT OP APPEALS DIGEST. 465 PARTIES TO ACTIOlf. infant, is a proper party to a bill filed for the purpose of setting aside such will, although he has no interest. He may be charged with costs. Brady v. McCosJcer, 1 Comst., 214. 10. Penaltij. Only one penalty can be recovered for removing goods from demised premises, contrary to the statute, and all who assist in the commission of the offense may be sued together. Conleij V. Palmer, 2 Comst., 182. 11. Against heirs for debt of the ancestor. All the heirs must be joined in a suit brought by a creditor under the statute {2 R. S., 452), to charge the heirs in respect to lands descended. Mer- sereau v. Ryers, 3 Comst., 261. 12. Creditor's bill. Where the plaintiff in a judgment creditor's bill attempts to reach the moneys due upon a mortgage which he alleges has been fraudulently assigned by the debtor, the assignee of the mortgage must be made a party, although he resides out of the state. Gray v. SchencJc, 4 Comst., 460. 13. Foreclosure. Adverse claimants of title to the mortgaged premises cannot properly be made parties defendant for the pur- pose of trying the validity of such adverse claim of title. Corning v. Smith, 2 Seld., 82. 14. Creditor's bill; Action by receiver. Where a receiver of the property of the judgment debtor, appointed by the court under a creditor's bill, commences a suit in equity against a trustee of the judgment debtor, to reach the equitable interest of the latter in a fund held in trust for him, the judgment debtor is a necessary party to the suit. Vanderpool v. Van Valkenburgh, 2 Seld., 190. 15. Ejectment for dower, under the Eevised Statutes, must bo brought against the actual occu;pant of the premises of which the plaintiff is dowable, and not as in the former action of dower, against the tenant of the freehold. Ellicott v. Hosier, 3 Seld., 201. 16. Foreclosure by trustees. Where the owner of a mortgage transferred it to trustees to hold it as security for his indebtedness to, and advances to be made him by, a third person, and after- wards assigned his interest in the mortgage, with 'his other pro- perty, to trustees, for the benefit of all his creditors; on bill filed 69 466 COURT OF APPEALS DIGEST. PARTIES TO ACTIOir. by the first trustee8 to foreclose the mortgage, Jield, that the trustees for the benefit of creditors were necessary parties. Bard el al. v. Poole el ah, 2 Kern., 495. 17. Partition; Death of defendant. On the death intestate of a defendant, against whom a bill in partition has been taken as confessed, his heirs must be regularly brought in as defendants, or the decree of sale will be void as against them. Making them parties to proceedings for distribution of proceeds of sale does not estop them from setting up their title by descent, where it does not affirmatively appear that they received their shares of such proceeds. Requa et al. v. Holmes, 16 N. Y. Rep., 193. in. OBJECTION FOR WANT OF, HOW TAKEN, AND WHEN TO BE DEEMED WAIVED. 18. A surety for a substituted triistee cannot object, in a suit upon the bond given for the faithful execution of the trust, that some of the persons interested in the trust estate were not parties in the proceedings for the appointment of the new trustee. People V. Norton, 5 Seld., 176. 19. If there bean improper Joinder of parties defendant, as in eject- ment of defendants occupying distinct parcels of the premises, the objection must be raised by demurrer or by answer, or it is waived. Fosgate v. The Herkimer Manufacturing and Hydraulic Company et al., 2 Kern., 580. 20. The non-joinder of a proper co-plaintiff in tort must be pleaded or it is waived. And where the defect appears on the face of the complaint, a demurrer is the only remedy. It will not avail in that case to set it up in the answer, nor can it be allowed in dimnutiou of damages on the trial. ZahrisTcie et al. v. Smith, 3 Kern., 322. 21. The non-joinder of a necessary party defendant may be pleaded in abatement in an answer which also sets up a defense on the merits. Sweet v. Tuttle, 4 Kern., 465. IV. MISCELLANEOUS CASES. 22. Assignment of policy of insurance. Under the charter of the Albany Insurance Company, section 7 (Laws of 1836, 44, COURT OP APPEALS DIGEST. 467 PAKTIES TO ACTION. 515), it is provided that "whenever the property insured shall ( without the consent of the company ) he alienated by sale or otherwise," the policy shall become of no effect ; but that the assignee may have it made good to him by taking certain steps there pointed out : Held, that a morigaging of the property and assignment of the policy to the mortgagee, with their consent, was not "an alienation by sale or otherwise" and that a suit upon the policy must be brought in the name of the insured. Conover v. Insurance Company of Albany, 1 Const., 290. 23. The statutory assignee under the non-imprisonment act is not a necessary party to a bill filed by the creditor against the debtor and his voluntary assignee to set aside a general assignment made by the debtor, pending the proceeding, and prior to the execution of the assignment to such statutory assignee, and in fraud of the rights of such creditor to a priority. The voluntary assignment having been first executed, nothing passed to the statutory assignee, and he has no interest to be affected. Spear v. Wardell, 1 Comst., 144. 24. Specijic performance. A party who is entitled to a specific execution of an agreement to release his land from the lien of a mortgage, may maintain an action for that purpose, notwithstand- ing, before the filing of the bill, he has conveyed away the land, such conveyance being with warranty. Malins v. Brown, 4 Comst., 403. 25. Contract with executor. An executor can maintain a suit either in his own name or as executor, upon a note given to him as executor, for a debt due to the testator at the time of his death. Merritt v. Seaman, 2 Seld., 168. 26. Action by auctioneer. A public auctioneer who sells goods for another may maintain an action for the price, although he has received his advances and commissions, and has no interest in the property sold or its proceeds, Minturn v. Main, 3 Seld., 220. This case arose prior to the Code. See section 111. 27. A collecting bank to which a bill is transmitted for collection, and which has a special interest in the bill and proceeds, can sus- tain an action in its own name against its agent employed to 468 COURT OP APPEALS DIGEST. PAETITIOK. collect the same, for default in paying over the proceeds or in charging the parties. Commercial Bank of Pensylvania v. Union Bank of New York, 1 Kern., 203. 28. In an action against two persons on an alleged Joint contract, the plaintiff may under the Code, recover judgment against one whose several liability is made out, though he fail as to the joint con- tract ; the common law rule on this subject is changed by the Code. Brumskill v. James, 1 Kern., 294. 29. In an action against husband and wife, where the plaintiff in the complaint demanded judgment that the defendant execute a mortgage upon the real estate of the wife to secure him for money alleged to have been advanced on their promise to give such secu- rity, and such further or other relief as the court should deem proper; and the plaintiff on the trial failed to prove a case ■entitling him to the relief specifically demanded, but proved that the husband was liable to him for the money advanced: Held, that the court might give judgment against the husband for the amount, and dismiss the complaint as to the wife. Marguat et al. V. Marquat and wife, 2 Kern., 336. 30. Substituting a party plaintiff . Where an action was brought by a taxpayer of a city to prevent the construction of a railway in a street, and the court held that the resolution of the common council authorizing its construction was void, and that the build- ing of the railway ought to be enjoined, but that it could not be done at the suit of a taxpayer to whom it was not specially inju- rious, but might be at the suit of the people ; and thereupon the court permitted an amendment at the trial by adding the attorney- general as a party plaintiff, and then gave judgment for the relief prayed : Held, that such amendment was not authorized by the •Code, and that the order therefore was erroneous. Davis et al. v. The Mayor, Sfc, of New York, 4 Kern., 606. PARTITION. 1. Pleadings in equity. The complainant claimed half of the estate by inheritance from his father, and the other half by inherit- COURT OF APPEALS DIGEST. 469 ance from his brother, and alleged that the will of his brother was void for fraud, &c. ; but in case the will should be adjudged valid, then he still claimed one-half of the estate, and insisted that he was entitled to a partition ; and the prayer of the bill was, that the will might be declared void, or that a partition might be had : Held, that the bill did not make a case for partition, since, in one aspect of the case, the complainant claimed the whole of the premises, and in the other, showed that the rights and interests of the parties were unsettled ; and therefore held, that the bill was not liable to objection for multifariousness. Brady v. McCosJcer, 1 Comst.., 214. 2. Trust interest converted into a fee. Where a debtor conveyed lands to trustees upon trust, to sell the same for the benefit of certain specified creditors, and to reconvey to him such parts of the property as should remain unsold after satisfying the trusts ; and by a subsequent instrument conveyed his residuary interest in the property to the same trustees_/br the henefit of the same credi- tors, and in satisfaction of their demands ; and the creditors, on their part, accepted the trust fund as a satisfaction of their claims : Held, that the trust was thereby determined, and the whole legal and equitable title to the property became vested under the statute (1 R. S., 728, sees. 47, 49) in the creditors, and that one of them might maintain against the others a bill for a partition of the property. Selden v. Fermilyea, 3 Comst., 526. 3. Confirming a 'partition as to subsequently acquired interests. Two tenants in common make partition of their lands, and exe- cute to each other releases in fee. One of them had only a life estate, but after the division the fee descends to him, and he sub- sequently sells and conveys in fee the part, allotted to him in par- tition. This, it seems, confirms the partition, so that he who held only the life estate cannot claim any interest in the part allotted to his co-tenant. Balccr v. Lorillard, 4 Comst., 257. 4. Salt springs reservation. The heirs of a decedent, to whom lands had been set apart by the commissioners of the land office, pursuant to the Revised Statutes (vol. 1, p. 267, sec. 93), for the purpose of his erecting works thereon for the manufacture of 470 COURT OF APPEALS DIGEST. PARTNEKSHIP. coarse salt, and who entered and made such erections, take no estate or interest in the premises by descent, and cannot have par- tition thereof. Newcomb v. Newcomb, 2 Kern., 603. 5. Unoccupied lands. Where the intestate was seised and pos- sessed of lands which descend to tenants in common, one of them, though not in possession, can sustain proceedings under the statute for partition, the lands being unoccupied. Beebe v. Griffing, 4 Kern., 235. 6. Purchaser of premises at sale in partition. Whether a party having a vested future estate in lands, without a present right to possession, is or is not entitled to institute proceedings for a parti- tion; yet where the court having general original jurisdiction of the subject matter, and jurisdiction of the parties in interest, has decreed a sale in partition in such a case, the parties in interest are concluded by such decree, and a purchaser at a sale under the decree cannot refuse to complete his purchase on the alleged ground that partition could not be decreed. BlaTceley v. Colder, 15 N. Y. Rep., 617. But it seems that, under the Revised Statutes and chapter 430 of 1847, a tenant in common of a vested remain- der in real estate, though his right to possession is postponed dur- ing the continuance of a life estate, may institute proceedings for the partition of the land, whether the intervening estate is held as an entirety, or by several as joint tenants or tenants in common. Per Denio, Ch. J. ; Comstock, Selden and Paige, Js., concurring. Id. 7. County courts. The statute defining the jurisdiction of the county courts, is constitutional so far as it confers upon those courts jurisdiction in proceedings to obtain the partition of lands. It is a special proceeding. Doubleday v. Heath, 1& N. Y. Rep., 80. PARTNERSHIP. I. Limited partnerships. II. Wh■^t constitutes a partnership or otherwise. III. Contracts of the firm ; Transfers of property by one memher, IV. Interests of the firm in real estate. V. Diasolntion ; Withdrawal ; Assignment. VI. Actions by and against the firm. VII. Miscellaneous oases. COURT OF APPEALS DIGEST. 471 PARTKEKSHIP. I. LIMITED PARTNEESHIP 1. Liability of special partner; Notice of dissolution. Where a limited partnership is dissolved by the agreement of the parties before the period fixed for its termination by the original certifi- cate, it continues as to persons crediting the firm without actual notice of such dissolution, until the notice required by the statute has been filed, recorded, and published for four weeJcs as therein prescribed. Beers v. Reynolds Sf Maginnis, 1 Kern., 97. 2. If any alteration be made in the capital or shares, and the partnership be in any manner thereafter carried on, before the publication of the notice is completed, the special partner becomes liable as a general partner. Id. 3. Accordingly, where parties to a limited partnership agreed to dissolve it, and caused notice of such dissolution to be filed and recorded, and commenced its publication, and the special partner at the same time sold his interest in the copartnership effects to the general partner, who secured the price by a mortgage on the effects and other property, and by a judgment, and continued the same kind of business, and afterwards and before the publication of the notice was completed, purchased goods of the plaintiff who had no actual notice of the dissolution : Held, that the special partner was liable to the plaintiff as a general partner, without reference to the intent with which the dissolution was made, and the mortgage and judgment taken. Id. II WHAT CONSTITUTES A PAETNEESHIP OE OTHERWISE. 4. Share of profits alone does not. A person employed by a firm, and receiving a given share of the profits as a compensation for his services, but having no community of interest in the capital stock of the concern, is not liable as a partner. BurcMe v. Eckhart et al, 3 Comst., 132. 5. Must share in losses as well as profits. To constitute a partner- ship, there must be a joint undertaking to share in the profit and loss. And where several persons were engaged in running a line of stages, and by the agreement between them, one was to run at 472 COURT OF APPEALS DIGEST. PAETNEKSHIP. his own expense a certain portion of the route, and the others in like manner the residue; each authorized to receive fare from passengers over the v^hole or any part of the route ; the parties to settle monthly, and the fare so received to be divided betw^een them in proportion to the distance which they respectively trans- ported such passengers ; the party found to have received more than his share to pay over to the other the balance on each monthly settlement : Held, that this did not constitute a partner- ship between the parties, and that an action of assumpsit, and not of account in equity, was a proper. form of action by one of the proprietors against another, claimed to have received more than his proper share. Pattison v. Blanchard, 1 Seld., 186. 6. Speculating in real estate. It seems that a partnership can be constituted in the business of buying and selling real estate merely. Sage v. Sherman, 2 Comst., 418. III. CONTEACTS OF THE FIRM ; TEANSFEES OF PEOPEETT BY ONE MEMBER. 7. In partnerships each partner is the agent of his associates, for the purpose of making all contracts within the scope of the partnership business ; and special instructions and limitations upon the authority of each other, are to be deemed advisory merely, and are not binding upon third persons. Per Strong, J. Id. 8. Execution of sealed instruments; Ratification. A sealed con- tract relating to partnership business, executed by one of several partners for the firm, without authority under seal, is binding on all the partners if they assent thereto ; and such assent may be given at the time or subsequently. Smith et al. v. Kerr et al., 3 Comst., 144. 9. Accommodation indorsements hy partners. An authority for one partner to subscribe the firm name as accommodation sureties for a third person, may be shown by circumstances. Accordingly, where the firm name, " Stocking & Hunt," was so signed by the partner Hunt, for the accommodation of David Hunt, it was held competent to show that three years before. Stocking was informed COURT OF APPEALS DIGEST. ^JQ PAKTNEESHIP. that it was so used (in other transactions of the same kind), and replied that it was all right, and that after the failure of David Hunt, he stated he did not know the amount of his liabilities for him, as he had kept no account of them. Butler v. Stocking, 4 Seld., 408. 10. Ratification of act originally done without authority. One partner, without authority, and for his own exclusive benefit, indorsed a promissory note, made by himself in the firm name, and the indorsee took the note with full knowledge of the facts : Held, that his copartner was bound by a subsequent promise to pay the note, without any independent consideration. Commercial Bank of Buffalo v. Warren, 15 N. Y. Rep., 577. 11. Transfer of firm property by one partner. One partner has authority to sell and transfer all the copartnership effects directly to a creditor of the firm, in payment of a debt, without the know- ledge or consent of his copartner, although the latter is at the place of business of the firm, and might be consulted. Nor is such transfer invalid, although the firm is insolvent, and thereby the one creditor gains a preference over the other creditors of the firm. (Denio and Johnson, Js., dissented.) Mahhett v. White, 2 Kern., 442. IV. INTERESTS OF THE FIEM IN EEAL ESTATE. 12. Purchase by a partner of the reversion of a lease held by the firm. One partner may, in good faith, purchase and hold for his own use, the reversion of real estate, occupied by the copartner- ship under a lease for years. But where one partner secretly makes such purchase in his own name, whilst the other partner, with his concurrence, is negotiating with the owner to obtain the property for the use of the firm, the purchaser will be declared a trustee for the firm. Anderson v. Lemon, 4 Seld., 236. 13. See, No. 6, ante; and No. 19, seq. V. dissolution; withdrawal; assignment. 14. Statute of limitations. After the dissolution of a partner- ship, an acknowledgment and promise to pay, made by one of the 60 474 COURT OF APPEALS DIGEST. PAETNEKSmP. partners, will not revive a debt against the firm which is barred by the statute of limitations. Van Kueren v. Parmelee el al., 2 Comsi., 523. 15. Loan by one partner to the other after dissolution. One of two partners, after dissolution, advances money to the other and takes his promissory note therefor. In an action upon the note, evi- dence of a cotemporaneous verbal agreement that the note should be paid out of the effects of the firm, and if such effects were not sufficient, then that the lender should pay three-fourths and the maker one-fourth of the balance, is inadmissible. Nor is it any defense to such note, that the money advanced was to be applied, and was applied by the maker, to pay the debts of the late part- nership, the assets of the firm being in the hands and under the control of the partner receiving the money. Paying demands against the firm does not give to the partner paying any right of action at law against his copartner on an implied promise, but such rights must be adjusted by an account in equity. Such pay- ment can, therefore, constitute no defense or set-off against the note. Gridley v. Dole, 4 Comst., 4S6. 16. Liability of retiring partner. A partner whose name is not used in the firm, is not, it seems, liable for debts contracted by the firm, after his retirement, with persons who had no knowledge of his previous connection as a partner, although no notice of his retirement is given. But he continues liable for debts subse- quently contracted with persons who knew of his previous con- nection, unless he gives them notice of his retirement. And a jury, it seems, may infer a linovvledge of the previous connection, either from direct transactions and dealings of the creditor with the firm, or from public notoriety. Davis v. Allen et al., 3 Comst., 168. 17. Liability of retiring partner. Where the three defendants were copartners until January, 1849, when they dissolved, and two of them continued the business under the same firm name , and the plaintiff" had, on two occasions prior to the dissolution, sold goods to small amounts, on credit to the firm, which were paid before its dissolution, and. they subsequently, without notice of COURT OP APPEALS DIGEST. 475 PAETNERSHIP. the change in its members, sold merchandise to the firm on credit: Held, that all the defendants were liable therefor. Clafp v. Rogers, 2 Kern., 2S3. See, also, ante, No. 16, and seq.. No. 18. 18. Liability of retiring partner. The defendants were partners, and as such contracted to receive and sell, on commission, a quan- tity of lumber, to be forwarded to them by the plaintiff. Before it was all sold, Briggs retired from the firm, and the business was continued by Vose on his own accoimt: Held, that Briggs was jointly responsible with Vose to the plaintiffs for the proceeds of their lumber received by Vose after the dissolution. Briggs v. Briggs and Vose, 1-5 N. Y. Rep., 471 See, also, ante, Nos. 16 and 17. 19. Assignment for benefit of firm creditors. The members of an insolvent mercantile firm assigned their partnership property, and certain real estate which they oivned, not as partners, but as tenants in common, in trust for the payment of their partnership debts, reserv- ing any surplus which should remain, to the assignors : Held, that this reservation rendered the assignment void as to individual creditors of the assignors. Though such a reservation might not avoid the assignment if it embraced only partnership property, yet, where it applies to individual property of the assignors, and there are individual debts not provided for, it raises a conclusive presumption of an actual fraudulent design to hinder and delay such individual creditors. Collomb v. Caldwell et al., 16 N. Y. Rep., 484. VI. ACTIONS BT AND AGAINST THE FIEM. 20. By acceptor for moneys paid on a draft draimfor rent of premises occupied by the firm zmder a lease to one partner. A. B. and C. being partners in trade, A. took the lease of the store occupied by them in his own name, and paid one-third of the rent. To provide for the other two-thirds, C. drew a bill in the name of the firm, pro- cured it to be accepted by the plaintiff, and at the same time agreed in the name of the firm to take care of the bill at maturity. A., in the presence of the plaintiff, and at the time such agree- ment was made, refused to assent thereto. The bill went to pay the rent, with the knowledge and assent of A. and B. : Held, 476 COURT OP APPEALS DIGEST. PARTNEKSHIP. that the plaintiff, having paid the bill as acceptor, might main- tain an action against the firm for money paid. Pearce v. PFilkins et al., 2 ComsU, 469. 21. Effect of a vacatur of a judgment against one partner on a fartnershiy demand. Where a debt owing by a partnership is merged in a judgment recovered against one of the partners, a vacatur of the judgment saving the rights of the partner not sued, will not revive the cause of action as against him. Olmstead v. Wehster, 4 Seld., 413. 22. Partnership debt paid by the proceeds of a usurious mortgage to one partner, cannot be collected though the mortgage is afterwards declared void for the usury. Where one of two partners receives from a debtor of the firm his mortgage to dispose of to his part- ner at a usurious rate of discount, and apply the proceeds in payment of a debt to the partnership, and the agreement is con- summated and the money paid, the debt is discharged ; and upon the defendant resisting the collection of the mortgage, and obtain- ing a decree declaring it void for usury, the partners cannot recover their original debt. The usurious contract in such a case is between the mortgagor and the partner who becomes the assignee of the mortgage, and not between the mortgagor and the part- nership. Green v. Elmer, 4 Seld., 422. The opinion delivered in the case assumes that had the usurious transaction been direct between the debtor and the firm, the giving of the usurious mort- gage would then form no obstacle to the collection of the debt. But see La Farge v. Herter, 5 Seld., 241, holding that "the usurer is not allowed to show that an obligation, which he has taken in satisfaction of a prior demand, is usurious and therefore void, in order to avoid the effect of such obligation as a satisfaction of the prior demand." VII. MISCELLANEOUS CASES. 23. Agent's due bill on settlement. It seems that where a partner- ship is indebted to an individual for services, and an agent of the firm, on adjusting the account, gives to the creditor a written acknowledgment that a certain amount is due "on settlement" COURT OP APPEALS DIGEST. 477 PARTY-WALL. for the services, and signs his own name, adding thereto the word " agent," that this is not a promissory note either of the firm or of the agent. Or if it be a promissory note, it is not a discharge of the debt of the firm, unles§ shown to have been taken in satis- faction; nor does a receipt in full given by the creditor to the agent, estop him from asserting his claim against the firm, unless they have settled with the agent on the faith of the receipt and upon the supposition that he had actually paid the debt. Davis v. Allen, 3 Comst., 168. 24. Policy of insurance rendered void in certain cases by conveyance of interest in premises from a partner to his copartner, without insurer^s consent. Where copartners hold a policy of insurance against fire, subject to the condition that " when the property insured shall be alienated by sale or otherwise, the policy shall be void," a con- veyance by one partner, of his interest in the insured property to his copartners, without the assent of the insurers, renders the policy void, so far as the rights of third persons have not inter- vened. Tillou V. The Kingston Mutual Insurance Company, 1 Seld., 405. (But as to the latter qualification of the doctrine, see Gros- venor v. The Atlantic Fire Insurance Company of Brooklyn, 17 N. Y. Rep., 391, holding in efiect that even after assignment of a policy with the consent of the insurers, it may be rendered void by acts of tJie assignor, amounting to a violation of the conditions of the policy, though the assignee be in no way privy thereto, and overruling the above cited case in that respect.) 25. Married women as partners. One who indorses a note made by a firm of married women, thereby guarantees, in effect, that they were competent to make a note, and is liable as indorser, though the note is in fact void for want of capacity in the makers to con- tract, and though the holder (for a valuable consideration) in fact had notice that the makers were married women. Erwin v. Downs, 15 N. r. Rep., 51b. PARTY-WALL. 1. Where the owner of adjoining houses having a common party- wall, conveys the houses to different grantees and makes the center 478 COURT OF APPEALS DIGEST. PATENTS FOE HTVENTIONS. of the wall the dividing line of the land conveyed to them respec- tively, each grantee acquires an easement of supporting his build- ing by means of the half of the wall belonging to his neighbor. This right exists so long as the wall continues to be sufficient for the purpose, and the respective buildings remain in a condition to need and enjoy the support. Partridge v. Gilbert, 16 N. Y. Rep., 60i. 2. When one of the buildings thus supported becomes so dilapi- dated as to be unsafe and unfit for occupation, and the removal of the front and rear walls of such building, with the floors and beams, would occasion the destruction of the whole wall, the owner of such building may, upon reasonable notice to the tenant of the adjoining building, lawfully take down the whole wall ; and if he occupy no unnecessary time in completing the work, and use proper care and skill in its execution, he will not be resjjonsible to the tenant of the adjoining building for damages resulting from its exposure to weather, from loss of business, or inability to let the upper lofts. Id. 3. It seems that the easement of each proprietor in the tenement of the other, ceases with the state of things which created it, so that there is no right in either, in case the other refuses to coope- rate, to rebuild the wall and claim contribution. Per Denio, Ch. J., doubting Campbell y. Mesier (4 John., ch. 334), and approving Sherred v. Cisco (4 'Sa7id., S. C. R., 480). Id. PATENTS FOR INVENTIONS. 1. Jurisdiction. The courts of this state have no jurisdiction to entertain a suit instituted to restrain the infringement of a patent right, and they will not entertain it, although the defendant in the suit stipulate not to raise that objection. Jurisdiction of the sub- ject matter cannot be conferred by consents Dudley v. Mayhew, 3 Comst., 9. 2. Sale of a patent right ; Waiver of condition. Where, on the sale on an interest in a patent right, the privilege was given to the purchaser, after the trial of the subject of the patent for a specified COURT OF APPEALS DIGEST. 479 , PATENTS POK lANDS — PATMEHT. time, if it proved useless, to reassign the interest purchased, and receive back the consideration paid for it ; and after the expiration of the time so fixed, a reassignment was accepted by the sellers : Held, that such acceptance was a veaiver of the condition requiring a trial of the patent, and entitled the purchaser to a return of the consideration. And the sellers having promised, immediately after the sale, to furnish to the purchaser, within a few weeks, the means of testing the usefulness of the patent ; and having, after request by the purchaser, failed to do so, within the time limited for the trial : Held, that although the promise was without consideration, yet as the purchaser relied upon it, and was thus prevented from performing the conditions of his contract, such non-performance was no defense to the sellers to the suit against them for the con- sideration. Young v;. Hunter, 2 Seld., 303. PATENTS FOR LANDS. 1. The validity of letters patent from the State, under which defendants in ejectment entered into possession of lands thereto- fore held wrongfully by the plaintiffs, cannot be questioned by the plaintiffs. Parmelee v. The Oswego and Syracuse Railroad Company, 2 Seld., 74. 2. Royal letters patent (issued in 1685), granting lands in the province of New York, are not void by reason of their conferring manorial privileges and franchises upon the patentees. Or, if void, they are confirmed and made valid by the colonial act of May, 1691. People v. Van Rensselaer, 5 Seld., 291. PAYMENT. I. What amounts to a paytaeBt, or otherwise. II. When payments may or may not te recovered back. III. Appropriation of payments. IV. Presumption of payment. V. Pleading and evidence ; Other matters. I. WHAT AMOUNTS TO A PAYMENT, OE OTHERWISE. 1. Talcing the note of a third person for an existing debt is not a satisfaction, unless the creditor agrees to take it in payment. 480 COURT OF APPEALS DIGEST. Vailv. Foster, 2 Comst., 312. And the onus of establishing that it was agreed to be so taken is on the debtor. Noel v. Murray, 3 Kern., 167. But where it is received, not for & precedent iebt, but at the same time with the contracting of the debt, the pre- sumption is, that it was agreed to be taken in payment, and the burden of proving the contrary rests on the creditor. Id. 2. Receiving the debtor's own 'promissory note for the debt is not a merger or payment of the demand. Nor where the note is accompanied by a chattel mortgage of the debtor for the debt, does the taking of a new note, including additional indebtedness and a second mortgage on the same property therefor, extinguish the first mortgage ; at least, without an express agreement that it shall have that effect. Hill v. Beebe, 3 Kern., 556. 3. J'he receiving of a third person^ check by a bank, under an agree- ment not to take it as payment, but to apply it upon defendant's maturing note, if the drawer's account shall be good when the note falls due; though the account be not then made good, yet if, on new credits being made to him, the bank charge him in account with the check, and credit the note as paid, it operates as an absolute payment of the note, so that, after the bankruptcy of the drawer, a new note, given by defendant for the old, in igno- rance of the facts, is without consideration, and cannot even be regarded as given in compromise of a doubtful claim. Pratt v. Foote, 5 Seld., 463. 4. Conditional agreement to compromise with a debtor. An agree- ment by one of several creditors to compromise his claim for fifty cents on the dollar, on condition that all the other creditors con- sent to take the same per centage on the debts due them, and a receipt by such creditor, showing payment of fifty per cent as a compromise and in full of the indebtedness, " provided all the other creditors accept the same for their demands," do not work a satisfaction of his claim, if any of the other creditors refused to compromise, and were paid their demands in full. The effect of the payment of the fifty per cent was simply to discharge the debt pro tanto ; the residue was still owing, and an action on the COURT OP APPEALS DIGEST. 481 original contract of indebtedness was the proper remedy. Durgin V. Ireland, 4 Kern., 322. 5. Satisfaction of one of two judgments against different parties for the same debt. Where a note given by a judgment debtor and a surety, as collateral to the original judgment, is got into judgment which_is collected of the surety* the original judgment is thereby satisfied, aiid there can be no valid sale of property on execution thereon, even for unpaid sheriff's fees on the execution. Such fees are not a part of the judgment, but are merely incident to it. Ci-ajl V. Merrill, 4 Kern., 456. 6. Payment to a sheriff to redeem lands sold on execution. Where the amount of the purchaser's bid and interest is duly paid to the sheriff, the effect of such payment is not impaired by the person making such payment giving immediate notice to the sheriff not to pay over a portion of the money. Sprakerv. Cook, 16 N. Y. Rep., 567. 7. Payment on a contractfor sale of goods to be made in the notes of a third party, vehom both of the contracting parties supposed to be solvent ; a tender of such notes at the day vf'iW not be effectual as a payment so as to require the vendor to deliver the goods, where such third party, before that time, becomes insolvent, so that his notes are not worth over from ten to thirty cents on the dollar. Benedict et al. v. Field, 16 N. Y. Rep., 595. II. WHEN PAYMENTS MAT OE MAT NOT BE EECOVEEED BACK. 8. On a land contract. The purchaser, to whom a conveyance is due under a contract to give a good and sufficient deed of land free of all incumbrances, may recover back the purchase money paid by him, and six years' interest thereon, where the seller is unable to give a good title. A deed containing covenants of warranty and against incumbrances, will not satisfy such a con- tract, where the grantor has not the legal title to the premises. Fletcher V. Button, 4 Cornet., 396. 9. Freight 'paid under protest to a carrier who is not entitled to it, but who exacts it as a condition of delivering the property, is not a case of voluntary payment, and it may be recovered back. Harmony v. Bingham, 2 Kern,, 99. 61 482 COURT OF APPEALS DIGEST. 10. Payment to a collector of taxes. Money voluntarily paid to a person authorized to receive it, if collectable, upon a claim of right, vyhere there is no misrepresentation or mistake of any fact, cannot be recovered back. Accordingly, where a collector of taxes for a town in Putnam county, through which the Harlem railroad extended, called at the office of the company in New York and there exhibited to its treasurer a warrant and tax list issued by the board of supervisors of the county, commanding him to collect a tax of the company, and requested its payment ; and the treasurer, with knowledge of all the facts touching the liability of the company, paid the amount of the tax to the collector with- out objection or protest: Held, that the company could not recover back the amount from the collector, although it was demanded from him before he paid it to the county treasurer, and there was a defect in the assessment, rendering the tax void, which appeared from the warrant. The New York and Harlem Railroad Company V. Marsh, 2 Kern., 308. 11. Payments hy a surety to the creditor in ignorance of a secret arrangement with the principal debtor affecting the surety's remedy over. The Bank of Kingston discontinued a suit which it had brought against the makers and iridorsers of a promissory note discounted by it, upon the execution of a bond, by three of the parties to the note, conditioned for the payment of the amount due thereon in eight months, and such bond was delivered under a secret agreement that the bank would endeavor to collect the amount secured thereby from the plaintiffs in this action, who were in fact only secondarily liable, the primary obligation being upon the obligors in the bond and the other parties to the note for which it was given. The plaintiffs being ignorant of this condi- tion, afterwards paid a judgment recovered against them by the bank for the same debt, and the bond was thereupon transferred to them by the bank : Held, that the bond having, by virtue of the condition on which it was delivered, become satisfied when the bank obtained payment from the plaintiffs, the latter were in equity entitled to recover back the amount paid upon the judg- ment. Chester Y. The Bank of Kingston, 16 N. Y. Rep., 336. COURT OP APPEALS DIGEST. 483 III. APPEOPRIATION OF PAYMENTS. 12. Draft against consignment. A bill of exchange drawn against a consignment of goods, and a mere letter of advice from the consignor to the consignee, do not, it seems, operate as a spe- cific appropriation of the proceeds of the goods to the payment of the bill. Cowperthwaite v. Sheffield, 3 Comst., 243. 13. On running account. Where no specific application is made by the parties of payment upon a running account, they will be applied in equity upon the first items of indebtedness, although the creditor may have held security for the payment of these items, and none for the final balance of account. Truscott et al, V. King, 2 Seld., 147. IV. PRESUMPTION OF PAYMENT. 14. Presumption as to payment of rent on surrender. Where one indebted to another upon a lease, the term of which is unexpired, enters into a special contract to surrender the remainder of his term, and assigns to the lessor a land contract on which money had been paid, and the lessor agrees to pay him therefor a certain sum at a future day, there is no presumption that the accrued rent due the lessor is extinguished. Sperry v. Miller, 4 Seld., 336. 15. As to mortgage. No presumption from lapse of time, of the payment of a mortgage, can arise under our statutes, vsdthin twenty years after the mortgage becomes due. Ingraham v. Bald- lain, 5 Seld., 45. Belmont v. O'Brien, 2 Kern., 394. 16. The statute presumption of payment arising from lapse of time is not sufficient to entitle the debtor to affirmative relief based upon the idea of payment in fact. (2 R. S., 301, sec. 48.) It will not entitle the vendee to a deed in an action for a specific performance of a land contract. Morey v. The Farmers' Loan and Trust Company, 4 Kern., 302. Nor will it be sufficient to uphold an equitable de- fense by the vendee in ejectment brought by the vendor treating the contract as forfeited for non-payment. Lawrence v. Ball, 4 Kern., 477. 484 COUET OP APPEALS DIGEST. V. PLEADING AND EVIDENCE J OTHEK MATTERS. 17. The mere act of receiving a sum of money, there being no explanation of the fact, implies, it seems, that it is received be- cause it is due, and not as a loan. But where a witness testified that he asked the defendant "if he had had any money of the plaintiflF," and the defendant replied that "he had had twenty dollars of him ; " and the witness then told the defendant that " the plaintiff had requested the witness to speak to him about it," to which the defendant made no reply, but turned away : Held, that a jury might infer from this evidence that the money was received by way of a loan, and the jury having so found, that their verdict in a justice's court was conclusive. Bogert v. Morse, 1 Comst., 377. 18. Usury. A payment made by the voluntary act of the debtor cannot be impeached and recovered back on the ground of usury, except as to the excess over the principal and lawful interest. But it is otherwise, it seems, where the payment is obtained by the •creditor out of collateral securities in his hands, without the con- currence of the debtor. Mumford v. The American Life Insurance and Trust Comjiany, 4 Comst., 463. • 19. Payment nrnst he 'pleaded, or it cannot he ^proved. The com- plaint alleged that the plaintiff did labor and service for and at ■the request of the defendant, which was worth $650, and con- ■cluded with an averment that there was due the plaintiff, on ■account of such service, over and above all payments and set-offs, $134, and a demand of judgment for that sum, with interest. The answer consisted only of a general denial of all the allegations of the complaint : Held, that evidence of payment, as a defense to the action, or of partial payment in mitigation, was inadmissible on the trial, because neither was pleaded. Section 149 of the Code requires new matter, in all cases, to he pleaded, whether it consti- tute an entire, or only a partial defense. McKyring v. Bull, 16 N. Y. Rep., 297. COURT OF APPEALS DIGEST. 485 PENAL AND STATUTB ACTIONS. PENAL AND STATUTE ACTIONS. 1. Limitation. It seems that the three years' limitation pre- scribed in the statute (2 R. S., 298, sec. 31), is intended only to embrace penalties and forfeitures, properly so called, and other causes of action penal in their nature, and in which both the cause of action and the remedy are given by statute ; but does not extend to cases where the action is partly given by the common law, and partly by statute. It does not, therefore, extend to an action against a stockholder of a corporation on his individual lia- bility for its debts, since that is a common law liability, and requires an express statute to exempt from it. Corning v. McCul- loch, 1 Comst., 47. 2. Privilege of witness. A witness, or party called as a witness, may not only object to testifying to the main fact which would subject him to a penalty or forfeiture, but may also refuse to dis- close any one of a series of facts which together would expose him to such penalty or forfeiture. Pierce v. Bank of Salina, 1 Comst., 83. 3. Construction of statutes. Where an offense was committed against the statute prohibiting the removal of goods from demised premises to avoid the payment of rent (2 R. S., 503, sec. 17), so that the landlord had a right to sue for the penalty imposed, before distress for rent was abolished by the act of 1846 (Stat., 369) : Held, that the right of action was not taken away by the latter statute. Conley et al, v. Falmer, 2 Comst., 182. 4. Recovery of penalty, when a satisfaction. Where a statute imposes a penalty or forfeiture for an act injurious to the rights of another, and the penalty is given to the party aggrieved, it is in the nature of a satisfaction for the wrong done. Id. 5. Extent of recovery; Parties. Only one penalty can be reco- vered for removing goods from demised premises contrary to the statute, and all who assist in the commission of the offense may be sued together. Id. 6. Stoclcholder'' s right to inspect stock hooks in a private corporation, includes also the right to take a copy or memorandum of the names 486 COURT OF APPEALS DIGEST. PENALTY — PEBJ0BT. of the stockholders ; and the officer in charge who permits the mere inspection, but refuses to permit such copy or memorandum to be taken, subjects himself to the penalty of $250, provided by section 1, title 4, chapter 18 of the first part of the Revised Statutes. And, per Paige, J., a penal statute is not to be con- strued so strictly as to defeat the obvious intention of the legis- lature in passing it. Cotheal et al. v. Brower, 1 Seld., 562. 7. Railroad companies. Held, that under the general railroad act, as originally enacted (Laws of 1850, 232, sec. 29), a railroad corporation was liable to the penalty prescribed by the act, for each time a locomotive passing on its road crossed a public high- way without ringing the bell or sounding the whistle, notwith- standing the railroad arid highway did not cross each other on the same level, but the former was laid fifteen feet above the latter and on a well-constructed bridge. The People v. The New York Cen- tral Railroad Company, 3 Kern., 78. ( The act was amended in the particular referred to in 1854, 608, sees. 7, 18.) PENALTY. See, Titles, "Bond;" "Damages,-" and 1 Seld., 422. PERJURY. 1. Slander, charging perjury. A witness may be convicted of perjury in falsely swearing to a promise within the statute of frauds, although parol evidence of the promise would not be com- petent if objected to. Such evidence is material, and therefore the action of slander will lie for imputing perjury in respect thereto. Howard v. Sexton, 4 Comst., 157. 2. False swearing by an elector. A challenged voter swearing falsely before a de facto board of inspectors, is liable to the same punishment as if the oath had been administered by inspectors de Jure. The People v. Cook, 4 Seld., 67. COURT OF APPEALS DIGEST. 487 PLACE OP TKIAL — PLANKEOAD COMPANIES. PLACE OF TRIAL. See, Title, "Specific Performance," seq., and 3 Kern. PLANKROAD COMPANIES. (1.) Extent of franchises. (2.) Contracts with town officers for use of public highways. 13.) Suhsoriptions to stock, and recovery thereof. 4.) Duties and liabilities to the traveling public. (I.) Extent of franchises. 1. The plaintiffs, a corporation organized under the general plankroad acts, had built their road upon the line of an old high- way which bounded the defendant's farm on one side, and had erected a toll-gate on that part of their road which ran by his farm. After the erection of the gate, the defendant moved his fence from the line of the road where it originally stood, back upon his farm some twenty or thirty feet, and graded a track by the side of the road, but entirely upon his own land, extending on both sides of the toll-gate, so that persons traveling upon the road could, if so disposed, leave the road and pass over this parallel track, thus avoiding the gate. The complaint stated these acts and averred that the acts of the defendant were done for the purpose and with the intent to injure and defraud the plaintiffs ; and prayed for an injunction, together with damages for the injury sustained. The answer denied the motives imputed to the defend- ant in the complaint, and insisted that the fence was removed and the track graded to facilitate his farming operations, and to afford him convenient ingress and egress to and from his barn and other premises; such improvements having been made necessary by the acts of the plaintiffs themselves, in cutting down the old highway several feet, and leaving high banks in front of his barn, pasture and house. On demurrer to this answer: Held, (1.) That the acts of the legislature, granting franchises to corporations are to be construed strictly, according to their terms ; that the grantees in such acts take ncjthing by implication, either as against the 488 COURT OF APPEALS DIGEST. PLANKKOAD COMPANIES. power making the grant, or against other corporations or indi- viduals. (2.) That the acts authorizing the formation of plank- road companies give to such companies no interest or easement in or upon the lands adjoining their road, and no right to restrict the use which the proprietor of such lands may make of his own pre- mises. (3.) That the owner of land may put it to any use which does not infringe some fixed legal right of another; loss or damage to one person arising from the use made by another of his own property, being damnum absque injuria, unless the former has previously acquired some legal right to restrict the use which the latter shall make of such property. (4.) That where no such right of restriction exists, it is immaterial what may be the motives of the proprietor for dealing with his own property in a particular way. (5.) That the action could not be maintained. The Auburn and Cato Plankroad Company v. Douglass, 5 Seld., 444. (2.) Contracts with town officers fox use of public highways. 2. Where the right to take and use a highway for the construc- tion of a plankroad was granted to a company upon condition that it should not maintain a toll-gate within certain limits ; and the com- pany, by virtue of the grant, took possession of the highway, but afterwards violated the condition, and an action was brought to compel the company to observe it : Held, (1.) That section 1, chap- ter 398, of the Laws of 1847, does not repeal or modify section 26 of the general plankroad act (chap. 210, of Laws of 1847) ; but the two sections are to be construed together in determining the power of the supervisor and commissioners of highways to con- tract with a plankroad company, as to its taking and using a highway of the town for the construction of its road. (2.) That they have authority to agree with the company upon the compensa- tion and damages to be paid for taking and using the highway, and to grant the right to do so ; but have not the power to impose a condition upon the grant that it shall erect and maintain its toll- gates in specified localities, nor to oblige the company, as a con- sideration of the grant, not to locate and maintain a toll-gate within COURT OP APPEALS DIGEST. 489 FLAKKBOAD COMPANIES. a specified limit. (3.) That a naked condition, inserted in a grant, does not create any agreement on the part of the grantee accept- ing the thing granted, to perform the condition, and a specific performance thereof cannot be enforced ; but that the remedy for a breach of the condition is by a proceeding to recover the thing granted. (4.) That the supervisor and commissioners of highways of a town cannot maintain a suit in their joint names as such officers, on a contract made by them on behalf of .the town, which contains no express agreement with them as such officers. (5.) That the action could not be sustained. Palmer v. The Fort Plain and Cooperstown Plankroad Company, 1 Kern., 376. (3.) Subscriptions to stock and recovery thereof. 3. Prerequisites to incorporation. The whole capital stock need not be subscribed before filing the articles of association, in order to constitute the company a corporation ; it is sufficient that stock to the amount of $500 for every mile of the proposed road is in good faith subscribed, and five per cent paid thereon. The Sche- nectady and Saratoga Plankroad Company v. Thatcher, 1 Kern., 102. 4. The directors have authority to require payment of subscrip- tions to. stock before the whole capital is subscribed. Nor can a subscriber to the stock in a proposed company, who is present at the first election, and is there elected a director and acts as one of the board, be permitted, when sued for his subscription, to object to the validity of the organization on the ground that no notice of such election was given, and that some of the subscribers did not attend ; nor is it a defense to such suit, that after calls were made, and before they were payable, he assigned his stock to a responsible party, and had it transferred to, and an account opened with him on the books of the company ; nor, where he voted for the call, as a director, and served notice thereof on other subscribers, is it a defense to him that notice of the calls was not given to him pursuant to the 39th section of the act. Id. 5. Amendment of charter. Where a company was incorporated in 1848, under the plankroad act of 1847, and the defendant then subscribed to its stock, and the company, by virtue of a subse- 62 490 COURT OF APPEALS DIGEST. PLANKROAB COMPANIES. quent act of the legislature, without his consent, increased its capital, and applied its funds to the construction of a branch road, not authorized by its original organization : Held, that the defendant was not thereby released from his subscription. Id. 6. Prerequisites to incorporatioii. In an action upon a subscrip- tion to stock, it is not a valid objection to the incorporation of the company, that the proposed road is less than five miles long. That circumstance simply affects the right to erect gates and collect tolls. Nor are the articles void because the directors are thereby authorized to increase the capital stock without the consent of a majority of the stockholders, as required by section 40 of the act. Such a provision is nugatory, but does not invalidate the articles. Nor is it a valid objection that the defendant or other individual subscribers have not paid the five per cent on their subscriptions, provided the aggregate of payments amounts to five per cent on the whole stock. The Eastern Plankroad Company v. Vaughan, 4 Kern., 546. 7. Evidence. A duly certified copy of the articles of association and affidavit required by the act to authorize them to be filed, is •prima facie evidence of the incorporation of the company. Other evidence of the payment of the five per cent is not required unless something to the contrary is proved. Id. 8. What is a sufficient subscription. Where a person signed an instrument stating that, for value received, he promised to pay two individuals named a specified sum for the purpose of building a plankroad between two points named, and authorized them to transfer such subscription to a corporation thereafter to be formed for that purpose, and a corporation was afterwards organized to construct the road, and the subscription transferred to it ; in an action by the corporation to recover its amount : Held, that the defendant was liable on such instrument, not strictly as a sub- scription to stock, but as a promise, resting for its consideration upon the object expressed in the instrument and the equitable right of the company to the benefit of the promise in furtherance of such object, undertaken so far at the defendant's request. Id, COURT OF APPEALS DIGEST 491 PLEADING AT LAW AND IN EQOITT. (4.) Duties and liabilities to the traveling public. 9. A plankroad company is bound, while constructing its road on the site of a public highway, to exercise reasonable care and diligence to render the ordinary public travel on the former high- way convenient and safe ; and if, by the negligence of the com- pany, the road is rendered unsafe, and a traveler exercising ordi- nary care sustains damage, the company is responsible. Ireland V. The Oswego, Hannibal and Sterling Plankroad Company, 3 Kern., 526. PLEADING AT LAW AND IN EQUITY. I. Pleadings on tlie part of the plaintiff. (1.) Bill in Chancery. (2.) Declaration under former practice. (3.) Complaint under the Code. (4.) Reply. n. Pleadings on the part of defendant'. (1.) Answer in Chancery. (2.) Plea under the former practice. (3.) Answer under the Code. III. Demurrer. IV. General. I. PLEADINGS ON THE PAET OF THE PLAINTIFF. (1.) Bill in Chancery. 1, Jurisdiction. Where a bill was filed for the purpose of set- ting aside a will on the ground of fraud gnd undue influence, and it appeared that at the filing of the bill the complainant was not in actual possession of the estate, and that a trust term in such estate, which vested the legal title in trustees, was yet unexpired, so that no recovery could be had in ejectment : Held, that a demurrer to the bill for want of jurisdiction, on the alleged ground that there was a perfect remedy at law, was properly overruled. Brady v. McCosJcer, 1 Comst., 214. 2. Multifariousness. The complainant claimed half of the estate by inheritance from his father, and the other half by inheritance from his brother, and alleged that the will of his brother was void for fraud, &c.; but in case the will should be adjudged valid, 492 COUET OF APPEALS DIGEST. PLEADIHO AT LAW AHD Ilf EQCITT. thea he still claimed one-half of the estate, and insisted that he was entitled to a partition ; and the prayer of the bill was, that the will might be declared void, or that a partition might be had : Held, that the bill did not make a case for partition, and there- fore that it was not liable to objection for multifariousness. Id. 3. Death of complainant ; Bill of revivor and supplement by devisee. Where a party, claiming an estate by inheritance, files a bill for the purpose of setting aside a will, and dies pending the suit, his devisee may file ah original bill in the nature of a bill of revivor and supplement, and if his right as devisee be admitted or estab- lished, he will be entitled to the benefit of the proceedings in the original suit. Id. 4. Bill to reform a deed. A court of equity will not reform a deed or writing, unless it be alleged and proved that there was a mistake or accident ia the preparation of the instrnment, so that it does not express the true intention of the parties. Leavitt, receiver, v. Palmer, 3 Comst., 19. 5. See, ante, Titles, "Chancery ; " " Equity Jurisdiction." (2.) Declaration •under former practice. 6. Immaterial what name the pleader gives his action. The form of an action is determined by the matter set forth in the declara- tion, and not by the name which the plaintifi" may give it. If therefore, the pleader, in the commencement of a declaration, gives the action a wrong name, it will do no harm. Comes v. Har- ris, 1 Comst., 223. 7. Trover under the statute against usury ; Variance. In an action of trover for goods, or things in action, received by the defendant in violation of the statutes against usury, the declaration must conform to the statute (2R. S., 352, sec. 3) ; and if it do not, an objection made on the trial to a recovery will be fatal. Schroep- pell V. Corning, 2 Comst., 132. 8. Action on replevin bond. In an action upon a statutory secu- rity, as a replevin bond, the declaration need not aver in terms that the bond was taken in pursuance of the statute. It is enough if the instrument, as set forth, is in accordance with the statute; COURT OP APPEALS DIGEST. 493 PT.BADISO AT LAW AND IN EQUITY. nor need it aver that the bond was executed on behalf of the plain- tiifs in the replevin suit ; nor, wlaere the bond is executed to the coroner, need it state that the v^rit was directed to the coroner. That fact will be presumed from the giving of the bond to him, the commencement of the suit, and the taking of the property under the writ. Shaw et al. v. Tobias, 3 Comst., 188. 9. Surplusage. Though the declaration describe the plaintiffs " as trustees " of an unincorporated association, and allege that the promise declared on was made to them " as such trustees aforesaid," yet, if it appear from other warrants, and from the contract itself as set out, that it was in legal effect made to them as individuals, the phrase "as such trustees," &c., may be rejected as surplusage. Davis et al. v. Garr, administrator, 8fc., 2 Seld., 124. ] 0. Allegation of time, when immaterial. In an action on a bond conditioned to indemnify the obligee against moneys which he may be compelled to pay for a third person, an allegation in the declaration that the plaintiff, " afterwards, to wit," on a day speci- fied, paid certain moneys, does not preclude him from showing that the payment was made at an earlier day for the purpose of claiming interest. Lyon v. Clark, i Seld., 148. See, also, Lester V. Jewett, 1 Kern., 453. 11. Performance and excuse fornon-performance. Under an aver- ment of performance of a covenant, evidence in excuse for non-per- formance is not admissible. Per Allen, J. Oakley v. Morton, 1 Kern., 25. ( 3. ) Complaint under the Code. 12. Facts, and not conclusions of law, must be stated. Quere, whether, under the Code of Procedure, it is proper to allege, ac- cording to the former precedent, that " the defendant is indebted to the plaintiff" in a certain sum for so much money had and received by the defendant to the plaintiff's use. The more proper course would seem to be to state the facts which show that the defendant has received money belonging to the plaintiff. Eno et al. V. Woodworth, 4 Comst., 249. 494 COURT OF APPEALS DIGEST. PLEABIua AT LAW AND IH EtWITT. 13. WJiat amounts to an allegation of fact. A complaint alleging that the defendant is indebted to the plaintiffs in a specified sum for goods sold and delivered by the plaintiffs to the defendant at his request, and that such sum is due to them from him, is good. It sufficiently shows a sale of goods, the price of which had become payable and remained unpaid. It contains every statement of fact necessary in an indebitatus count in debt. The word " due" sometimes means " payable." Allen et al. v. Patterson, 3 Seld., 476. 14. Rule of construction as to words of two meanings, Sfc. The common law maxim, that in pleading everything shall be taken most strongly against the pleader, is to be received with some qualification, and where words are employed capable of different meanings, that is to be taken which will support the plea. Id. 15. Facts on which a duty arises must he stated. A statement in a complaint, that, by means of a contract which is set forth, it be- came the duty of the defendant to perform certain acts, is not sufficient unless the facts necessary to show the duty are stated. The City of Buffalo v. Holloway, 3 Seld., 493. 16. On contract illegal by our laws. Where a party seeks to enforce, in the courts of this state, a contract, which, by its laws, is forbidden and declared void, he must aver and prove where it was made, and that by the laws of that place it was authorized and valid. Thatcher v. Morris et al., 1 Kern., 437. 17. Action in the nature of a quo warranto. The complaint alleged, that at an election legally held in a county named, pur- suant to the statute for the election, among other officers, of a county judge for such county, for the term of four years from the first day of January, 1852, the relator, who was a party plaintiff with the people, received a majority of the votes given for the office of county judge, and was legally elected to such office for such term : Held, on demurrer to the complaint, that it stated sufficient facts to show that the relator was entitled to the office, and properly made a party. The People, ex rel. Crane, v. Ryder, 2 Kern., 433. 18. Statute of limitations ; Complaint need not state the new promise. It seems that in an action under the Code, the complaint may })e COURT OP APPEALS DIGEST. 495 PIEADIHO AT LAW AND IN EQUITY. upon the original demand ; and if the statute of limitations ia interposed as a defense, the new promise or acknowledgment may be given in evidence to avoid it, without being alleged in the pleadings. Esselstyn v. Weeks, 2 Kern., 635. 19. Fraud and deceit; Scienter. In an action for falsely and fraudulently representing a person as solvent, the complaint should aver, and the plaintiff must prove, that the representations were made with intent to deceive and defraud. But a complaint which substantially, although not in direct and technical language, alleges this, is sufficient. Zabriskie et al. v. Smith, 3 Kern., 322. 20. Negligence. A general averment in the complaint, of negli- gence, is sufficient to admit proof of the special circumstances constituting it. As in an action against a railroad company, to recover damages for the death of a child run over and killed by one of defendants' cars, evidence was held admissible under a general averment of negligence, that there were no suitable brakes or guards in front of the car where the driver was stationed. Oldfield V. The New York and Harlem Railroad Compa.ny, 4 Kern., 310. 21. Setting out copy of a contract. Though a complaint be insufficient as a common law pleading, on the ground that the plaintiff does not make title to a contract, for want of an aver- ment of consideration, such defect is cured by setting out a copy of the contract ( expressing the consideration ) under section 162 of the Code. Frindle v. Caruthers, 15 N. Y. Rep , 425. (4.) Reply. 22. Departure. A departure from the complaint, in a reply to the answer, is not a cause of demurrer under the Code as amended in 1849. Per Marvin, J. White v. Joy, ^ Kern., 83. 23. When necessary or otherwise. A counter claim which requires a reply to put it in issue, must contain, in substance, a cause of action in favor of the defendant against the plaintiff. Vassear v. Livingston, 3 Kern., 248. 496 COURT OF APPEALS DIGEST. PLEADING AT LAW ASD IH EQUITT. II. PLEADINaS ON THE PART OF THE DEFENDANT. (1.) Answer in Chancery. 24. Matters not set up. la chancery, relief cannot be granted upon grounds not set up in the bill, nor can a defendant avail himself of matters of defense not stated in his answer. Per Jewett, Ch. J. Kelsey v. Western, 2 Comst., 500. 25. The defense in equity, that the plaintiflF has a perfect remedy at law, is not available at the hearing, when the defend- ant has neglected to present it in his answer. Truscott et al. v. King, 2 Seld., 147. 26. Facts proved, but not pleaded, are not available to the party proving them. Field v. The Mayor, ^., of New York, etal., . 2 Seld., 179. 27. Answer as evidence. Where the answer of a defendant, responsive to the bill of complaint, and the testimony of a single witness called by the complainant, are in conflict, they balance each other ; but a preponderance may be given to the latter by other circumstances detailed in the answer, or by its unreasonable or evasive statements. Jacks v. Nichols, 1 Seld., 178. (2.) Plea under the former practice. 28. A plea to an avowry is bad if it do not answer all that it pro- fesses to answer. Thus, where a defendant in replevin avowed the taking of the goods as a distress for a quarter's rent, payable in advance, and the plea thereto, professing to be a complete answer, showed that the lessee occupied the premises for a part of the quarter, and then abandoned the premises as untenantable in con- sequence of the landlord not finishing or repairing them according to his agreement : Held, that the plea was bad. Nichols v. Dusen- hury et al., 2 Comst., 283. 29. Must plead issuahly. Where an avowry set forth a lease by the terms of which the rent was payable quarterly in advance, and avowed the taking of the property as a distress for one quar- ter's rent, and the plain tiif pleaded that such rent " never became or was due," without denying the lease as set forth in the avowry : COURT OP APPEALS DIGEST. 497 PLEADIKG AT LAW AND IN ESUITT. Held, that the plea was good for nothing. Id. See, also, No. 40, seq. 30. Former recovery. A party insisting upon a former recovery as a bar to an action, must show that the record of the former suit includes the matter alleged to have been determined. Campbell v._ Butts, 3 Comt., 173. 31. Judgments of inferior courts. A general averment of juris- diction is not sufficient. The facts on which it depends must be stated. To a declaration in assumpsit the defendant pleaded a former recovery, stating, that the ^\wai\S impleaded the defendant in a certain justice's court, and such proceedings were had that the plaintiff recovered a final judgment on the merits for a certain sum upon the same cause of action : Held, that the plea was bad in substance. Turner v. Roby et al., 3 Cornet., 193. 32. A plea of non est factum merely puts in issue the execution of the instrument declared on, and admits all the other allegations of the declaration. Haggart et al. v. Morgan et al., 1 Seld., 422. 33. Hypothetical pleading. In an action of covenant to recover damages for the non-performance of an act agreed to be done by the defendant, a plea that if the plaintiff was damnified, it was by his own wrong, and by and through his own act, means and default, is bad on demurrer. Harmony v. Bingham, 2 Kern., 99. (3.) Answer under the Code. 34. Usury; Immaterial variance. The provisions of the Code of Procedure on the subject of a variance between the pleadings and proofs, are applicable to cases in which usury is alleged and sought to be established ; they have done away with the strict rule which formerly prevailed as to variance in such cases. Accordingly, where on the trial the evidence tended to prove a usurious agree- ment which differed from the one alleged in the answer in several particulars, but not in its entire scope and meaning, and the plain- tiff gave no proof that he was misled thereby to his prejudice!^ Held, that the variance should be deemed immaterial. Catlin v. Gunter, 1 Kern., 368. 63 498 COURT OP APPBAIiS DIGEST. PLEADJIHG AT LAW AMD IK EQUITT. 35. An award cannot be insisted on in bar, unless it is alleged as such in the answer ; not even though the fact of the award appears from the plaintiff's evidence. Brazill \. Joham et al,, 2 Kern., 9. 36. Equitable defenses noay, under the Code, be insisted on by way of answer, to what are known aa strictly legal causes of action. Thus, in an action on a judgment,, the defendant may allege and prove as a defense that it was obtained by fraud. Dob- son V. Pearce, 2 Kern., 156. See, also, Crary v. Goodman, Id., 266 ; and The New York Central Insurance Company Y. The Na- tional Protection Insurance Company, 4 Kern,, 85. 37. An improper joinder of parties defendant (as in ejectment of several persons occupying distinct parcels of the premises, if that be an improper joinder), must be objected to by demurrer or answer. Fosgate v. The HerJdmer Manufacturing and Hydraulic Company, 2 Kern., 580. 38. Indefinite and uncertain answers. Where, in an action to recover a balance on a note, the answer alleged that the note "was by mistake given for a greater sum than was due from the maker to the payee, to wit, a sum sufficient to cancel the balance claimed," and issue was taken thereon by the reply : Held, that the defendant was entitled to prove, under the pleadings, that the note was given on a settlement of accounts, and by mistake was for a larger amount than the sum actually due. That an objec- tion that the allegation in the answer was too indefinite, should have been taken by motion to make it more certain, before taking issue by a reply. Seeley v. Engell, 3 Kern,, 542. The same doc- trine applied to an answer in an action for flowing land, which set up twenty years' user, but did not allege that it was adverse to the plaintiff. White v. Speticer, 4 Kern., 247. 39. Pleas in abatement and in bar, may be set up in the same answer, under the Code ; as the non-joinder of a party defendant with a defense on the merits. Sweet v. Tuttle, 4 Kern., 465. 40. Immaterial issues. When the complaint sets forth the con- dition of a bond, and avers the execution of a mortgage as collat- eral security for the same debt, " with the same condition as the COURT OF APPEALS DIGEST. 499 PIEADINO AT lAW AHD DT BaUITT. said bond ; " an answer repeating the words of the condition as stated in the complaint, and averring that it is not contained in the mortgage, is not a denial that such was, in substance, the con- dition of the mortgage. To raise that issue, the defendant should either deny the deed, or set out the condition verbatim for the judgment of the court. Dimcn v. Dunn et al,, 15 N. Y. Rep., 498. 41. Matters not pleaded cannot be proved either in bar or in mitiga- tion : Held, that section 149 of the Code requires a defendant in all cases to plead any new matter constituting either an entire or a partial defense ; and that in an action on contract for the re- covery of money, under a general denial in the answer, evidence of payment as a defense, or of partial payment in mitigation, is inad- missible. Mc'Kyring v. Bull, 16 N. Y. Rep., 297. III. DEMUEKEE. 42. Formal and technical defects. This court, it seems, will not reverse a judgment rendered in a subordinate court overruling a demurrer, where the defect in the pleading demurred to was formal and technical merely, and should have been amended by the court below. McCormick v. Fickering, 4 Comst., 276. 43. Form of demurrer. A demurrer stating in the words of the statute " that the complaint does not state facts sufficient to con- stitute a cause of action," is sufficiently definite to raise the ques- tion whether the complaint shows a cause of action. Per Ghat, J. Haire v. Baker, 1 Seld., 357. 44. If the time when a material fact occurred is not sufficiently stated in a pleading, the remedy, it seems, is by motion to make definite, and not by demurrer. The People, ex rel. Crane, v. Ryder, 2 Kern., 434. And so of a title or right in plaintifi", to the con- tract declared on, defectively stated in respect to consideration. Prindley. Carvihers, 15 N. Y. Rep., 425. IV. GENERAL. 45. An amendment of the pleadings, by striking out counts or parts of counts from the declaration, allowed by a judge during 500 COURT OP APPEALS DIGEST. the trial, without costs, is authorized by section 1 49 of the Code of 1848, which refers the terms to the discretion of the court. The Cayuga County Bank v. Warden et al., 2 Seld., 19. 46. Complaint insufficient as to one defendant. Where two persons are made- defendants, and the complaint does not state facts suffi- cient to constitute a cause of action as to one of them, the objec- tion maybe made upon the trial, and upon the fact appearing, the complaint should be dismissed as to such defendant. The Mont- gomery County Bank v. The Albany City Bank, and The Bank of the State of New York, 3 Seld., 459. 47. Effect of reversal of a nonsuit. Where a judgment of nonsuit has been reversed by this court, and a new trial ordered, the right ■of the plaintiflfs to recover upon proving the facts stated in their pleading, is established by the judgment. Buell et al. v. The Triistees of the Village of Lockjjort, 4 Seld., 55. 48. Answer or parts of answer read as evidence without objection, on the trial of a cause before a referee, is sufficient to warrant the referee in regarding the facts therein stated as established, although denied by the reply, and the answer, if objected to, could not, for that reason, have been read as evidence of them. The People v. Norton, 5 Seld., 176. 49. Evidence of the waiver of a tender by the opposite party, is ■competent and sufficient to support the averment of a tender. Holmes V. Holmes, 5 Seld., 525. 50. Variance. An objection that the case made by the proof varies from that stated in the complaint, should be distinctly made at the trial. Otherwise, a general exception to the decision on the facts and law, raises only the question whether the law is correctly decided on the facts proved, irrespective of the pleadings. Belknap v. Seeley, i Kern., 143. PLEDGE. 1. Sale of pledgors^ interest on execution: Held, in affirmance, by an equal division of the judges of this court, of the judgment of the Supreme Court, that the sheriff holding an execution against COURT OP APPEALS DIGEST. 5OI pledgor, may take the property pledged into his possession and sell the pledgor's interest therein ; but that after such sale the pledgee is entitled to the possession of the property until the purchaser redeems it from the pledgor. Stief v. Hart, 1 Comst., 20. 2. Pledge of stock. Where the property is not capable of manual delivery — as shares of stock in an incorporated company, a pledge may be created by a: written transfer thereof; and the transaction may be a pledge instead of a mortgage, although the legal title passes to the pledgee. So held, where the transfer of the stock was absolute in its terms, but a note for borrowed money, given by plaintiff to defendant at the time, stated that the stock was deposited as collateral security — that the transaction was a pledge and not a mortgage. Wilson v. Little, 2 Comst., 443. 3. Rights of creditor to sell the pledge. He cannot sell without first demanding payment of the debtor, notwithstanding the debt is payable presently without demand, and though by the terms of the pledge he was authorized to sell at public or private sale without notice to the debtor. Id. 4. Action for wrongful sale. No previous demand by the debtor is necessary in order to a right of action, where the creditor has wrongfully sold the pledge so that he cannot restore it. Id. 5. Measure of damages in such case. Whether it be the value of the stock at the time of the unauthorized sale, or the highest value down to the time of the trial, qv^re ? But where the debtor oifered to pay the debt and demanded a return of the stock, and was put off from time to time by promises of the creditor to re- place it, and in the meantime it rose in value, it was held, that he was entitled to recover the enhanced value. Id. 6. Pledge of commercial paper. In the absence of a special power for that purpose, the pledgee cannot, on default and notice to pledgor, sell such paper either at public or private sale, but must hold it and collect when due, and apply the proceeds to the debt. Nor will proof of a local custom so to sell, be allowed. Such a custom, if it existed, would be illegal and void. Wheeler v.Newbould, 16 N. Y. Rep., 392. 502 COURT OP APPEALS DIGEST. POWEE — PRACTICE. 7. Proper mode of making sale of a pledge of personal property. To authorize a sale of goods and merchandise pledged, by the act of the party, without judicial proceedings, personal notice to redeem, and of the time, place and manner of the intended sale, which must be public and not private, must be given to the pledgor. Id. 8, See, ante, Title, " Banks and Banking," III. POWER. See, Title, « Will." POWER IN TRUST. See, Titles, "Trusts;" "Will." POWER AND AUTHORITY. See, Titles, "Husband and Wife;" "Jurisdiction;" "Loan Commissioners;" "Sale for Taxes and Assessments;" "Sta- tutes;" "Will." PRACTICE. (1.) Case and exceptions ; Mistrial. (2.) Entitling and filing papers. (3.) Judgment final on appeal. (4.) Parties. (5.) Rehearing. (6.) Remittitur. (7.) Special verdict. . (8.) Trial. (9.) Waiver and omission to plead. (1.) Case and Exceptions; Mistrial. 1. See, ante, Titles, "Appeal;" "Exceptions." 2. A general exception " to the whole of the charge of the court, and to each part of it," when the charge involves more than a single proposition of law, and is not in all respects erroneous, presents no question for review on appeal. Jones ' v. Osgood, 2 COURT OP APPEALS DIGEST. 503 ' s PRACTICE. Seld., 233 ; and Caldwell v. Murphy, 1 Kern., 416. Nor will a general exception reach the defect (if it be a defect sufficient to warrant a reversal), that on trial of a cause before a judge with- out a jury, he filed no decision in writing pursuant to section 267 of the Code. Sands v. Church, 2 Seld., 347. 3. Excepting by stipulation. A stipulation to the effect that the finding and decision of the judge, in a cause tried without a jury, " shall be considered as having been duly excepted to," will not be regarded as equivalent to an exception. Per Johnson, J. Stephens V. Reynolds, 2 Seld., 454. 4. Exceptions must be taken at the trial. This court cannot review the determination of the court below, at general term, denying a new trial after a verdict, except upon a bill of exceptions taken on the trial, or a special verdict presenting questions of law. An exception to its decision at a general term, amounts to nothing. And where certain facts were found specially by the jury, and the justice conducting the trial ordered judgment pro forma for the plaintiff, with liberty to the defendants to appeal to the general term on a case, and with liberty to the court to enter such judg- ment as they may see fit, and to adj ust the verdict to it, and the court at general term rendered a judgment against the plaintiff, it was held, that this court could not review it. McCracleen v. Ckol- well, 4 Seld., 133. 5. Appeal from a judgment of a referee. When a case comes be- fore this court on appeal from a judgment rendered on the report of a referee, where there are no exceptions, and no distinct ques- tion of law appears to have been presented to and passed upon by the referee, the only question for review is, whether the facts found by him are sufficient to sustain the judgment. Keegan v. The Western Railroad Company, 4 Seld., 175. Nor will it aid the case that questions of law were raised on the argument of a motion to set aside the report at a general term. Morris v. Htis- $on, 4 Seld., 204. 6. Leave to apply to the court below to amend the record, where the case is defective. The case of Johnson v. WhitlocJc, 3 Kern., 344 (ante, Title, "Appeal," No. 46), points out the proper mode of 504 COURT OF APPEALS DIGEST. settling a case, in order to procure a review in this court, and such practice will be adhered to ; but it is in the discretion of this court, where the cause appears meritorious, instead of dismissing the appeal, to give leave to the appellant to apply to the court below for leave so to amend the record as to bring up a case on which this court can properly pass on the questions involved. Westcott V. Thompson, 16 N. Y. Rep., 613. 7. Where judgment will be reversed for mistrial, though correct on the merits. The proceedings upon a trial at circuit are reviewable, in the first instance at general term, only in two cases : First. Upon a motion by the unsuccessful party for a new trial, upon exceptions, by the order of the judge who tried the cause ; Sec- ond. Where there is an uncontroverted state of facts, and the case presents only questions of law, and the judge directs a verdict subject to the opinion of the court. And where exceptions were taken at the trial by both parties, upon which they had a right to be heard upon a motion for a new trial ; and the plaintiff had a verdict, which the judge directed to be taken, subject to the opin- ion of the court at general term, and the; court, at general term, gave judgment for the defendant : Held, that the judgment must be reversed as for a mistrial, and a new trial granted, though the judgment appeared from the case to be correct on the merits. Cohh V. Cornish, 16 N. Y. Rep., 602. And where, upon the trial, there was a disputed question of fact, and the judge submitted certain questions to the jury, who answered them specially, and found a verdict for the plaintiff, assessing his damages, subject to the opinion of the court upon a case to be made, with liberty to turn it into a bill of exceptions ; and the case was heard at general term, and judgment rendered for the defendant: Held, a mistrial, the judgment reversed, and a new trial ordered. Gilbert v. Beach, 16 N. Y. Rep., 606. (2.) Entitling and filing of papers. 8. Motion papers in this court. Motion papers must be entitled in this court, notwithstanding section 274 of the Code, declaring that " the title of an action shall not be changed in consequence of an COURT OF APPEALS DIGEST. 505 FBACTICE. appeal :" and if not so entitled, they cannot be read. Clickman v. CUcJcman, 1 Comst., 311. 9. Assignment of errors must le filed before it is served; and where it was not filed until the next day after it was served, the rule to join in error, and all subsequent proceedings, were set aside. hyme v. Ward, 1 Comst., 531. (3.) Judgment final on appeal. 10. When a verdict, or the report of the referee, for the plain- tiff, is set aside, upon a case, and it is apparent that no possible state of proof applicable to the issues will entitle him to a judg- ment, the appellate court should render final judgment for the defendant, and should not award a new trial. Edmxtnston v. McLoud, 16 N. Y. Rep., 543. (4.) Parties. 11. Receiver's suit under creditor's bill. Where a receiver of the property of a judgment debtor, appointed by the court under a creditor's bill, commences a suit in equity against a trustee of the j udgment debtor, to reach the equitable interest of the latter in a fund held in trust for him, the judgment debtor is a necessary party to the suit. Vanderpocl v. Van Valkenburgh, 2 Seld., 190. 12. Husband and wife. Where the complaint asked a specific performance of an alleged agreement by husband and wife to secure plaintiff for moneys advanced by him on the faith of such agreement, and asked such further or other relief as. the court should deem proper ; and plaintiff failed to make out a case for the specific relief, but showed the husband liable for the money: Held, that the court might give judgment against the husband for the amount, and dismiss the complaint as to the wife. Marquat V. Marquat and wife, 3 Kern., 336. See also Montgomery County Bank v. Albany City Bank, 3 Seld., 459. 13. See, ante, Title, "Parties." (5.) Rehearing. 14. When a matter of right. A party complaining of any order made at a special term, has a right to have the matter reheard 64 506 COURT OP APPEALS DIGEST. and passed upon by the Supreme Court at a general term. Grade V. Freeland, 1 Comst., 228. 15. Where a justice of the Supreme Court, at a specialterm, made a decree in favor of the plaintiff in an equity cause, and the defendant duly applied to the general term for a rehearing, under the judiciary act of 1847 (sec. 20), and the application was (denied : Held, that the order of the general term was erroneous, although on the face thereof it appeared that the merits had been considered. Dillaye v. Blair, 2 Comst., 189. (6.) Remittitur. 16. Where the judgment of the court below is reversed by default for not joining in error, the remittitur should not be sent to the court below until ten days have elapsed. Lyme v. Ward, 1 Cornet., 531. 17. Where a return has been filed, and any order is made by this court which disposes of the entire appeal, it is proper to send down a remittitur, although it may not be an order on the merits. So held, where the respondent entered an order dismissing the appeal, under the seventh rule, for want of service of copies of the case. And after a remittitur has been regularly sent to the court below, this court loses jurisdiction of the cause. Dresser v. BrooJcs, 2 Comst., 559. But where the order entered -on the decision of a cause in this court does not correctly state the judgment pro- nounced by the court, it will be amended on motion, notwith- standing the remittitur may have been sent to the court below and filed there. Palmer, receiver, ^c, v. Lawrence, 1 Seld., 455. (7.) Special verdict. IS. Must state facts, and not evidence. And where, in trover, it stated only a demand and refusal, and did not find that the pro- perty was in defendant's possession at the time of the demand, but the evidence tended to show it was not: Held, not sufficient to entitle plaintiffs to judgment, notwithstanding it also found that defendants had sold the property ; there being also evidence that they had authority to sell it on plaintiffs' account, and the fact COURT OF APPEALS DIGEST. 507 PBACIICE. not being negatived that the sale was for the purpose and in the manner authorized. Hill v. Covell, 1 Comst., 522. 19. A special verdict or finding of a judge in the nature of a special verdict, where trial hy jury is waived, should find all the conclusions of fact, so as to leave nothing for further determina- tion except questions of law. Sisson v. Barrett, 2 Comst., 406. (8.) Trial; Practice at. 20. Jury ; Trial by, cannot be demanded as matter of right in a foreclosure suit transferred from the Court of Chancery to the Supreme Court, under the Constitution of 1846. Palmer, receiver, 4'c., V. Lawrence, 1 Seld., 389. 21. Jury; Objections to the mode in which they were summoned or impanneled, cannot be made for the first time after, verdict. Day- harsh V. Enos, 1 Seld., 531. A court of record in which an issue of fact in a common law action is pending, and of which it has jurisdiction, may order the summoning of a jury to try such issue, in the absence of any statutory provision on the subject. Per McCoDN, J. Id. 22. Jury, may take depositions to their room, which have been read on the trial ; it is not error for the judge to allow them to do so. Howland v. Willets, 5 Seld., 170. 23. Jury. A party" against whom a verdict is declared, has an absolute right to poll the jury; at any time before the verdict is entered. And the inquiry to be put is, "Is this your verdict?" and the court cannot be required to have the question put, " Is this your verdict against each and both of the defendants?" Lobar v. Koplin, 4 Comst., 546. 24. Nonsuit. Cannot be granted where the plaintiff is entitled to recover anything, even though it be but nominal damages. Van Rensselaer v. Jewett, 2 Comst., 135. Nor where there is any evidence going to make out a case, as where in assault and bat- tery, one of plaintifi''s witnesses proved the assault without stating 'any matter going to justify it, and another witness for pkintiff" showed the same assault, but also proved circumstances of justi- fication. Labar v. Koplin, 4 Comst,, 546. 508 COURT OP APPEALS DIGEST. FBACTtCE. 25. Objections. Where, on the trial there is an opportunity to object, but the party remains silent, all reasonable intendments will be made in a court of review, to uphold the judgment. Jencks v. Smith, 1 Comst., 90. And where improper evidence is received, and the question of its admissibility on objection is reserved, and it is taken subject to the objection, and after the evidence is closed the jury are instructed to disregard it ; no spe- cific objection to that course being raised at the time, such ruling cannot be afterwards complained of. McKnight v. Dunlojp, 1 Seld., 537. 26. A general objection to the admissibility of evidence is suf- ficient where the objection could not have been obviated on the trial, had the specific grounds of objection been pointed out. Merritt v. Seaman, 2 Seld., 168. 27. Witness ; Privilege, Where a witness objected to testifying on the ground that his testimony might subject him to an indict- ment or prosecution for a penalty, it is not, in a court of review, an answer to the claim of privilege, that the statute of limitations has run against the offense, unless it appear that such answer was suggested at the trial. Per Johnson, J. Pierce v. Bank of Sor- Una, 1 Comst., 83. 28. Party against whom no evidence appears. Where, on the trial of an action against two persons for a joint assault, no evidence appears against one of them, he is entitled to be discharged for thfe purpose of being examined as a witness for his co-defendant. But if there is any evidence against him, however slight, he can- not be ; and it is too late to move for his discharge after the jury have retired. Lobar v. Koplin, 4 Comst., 546. 29. Evidence, Indorsee against acceptor of a bill of exchange may properly give in evidence (under the common counts and notice. Laws of 1836, chap, 276), the note and indorsements to him, notwithstanding the copy acceptance served with the declaration, omitted the indorsements. The eifect of the common counts and no- tice is^quivalent to an allegation of title in the plaintiff to the acceptance, of which the indorsements are good common law evi- dence. Purdy v. Vermilya, 4 Seld., 346. COURT OF APPEALS DIGEST 509 PEESDMPTIOlfS. 30. When verdict for jilaintiff should he ordered. Where a 'prima facie case is made out by the plaintiff, and there is a failure of proof on the part of the defendant to defeat it, it is proper for the court to direct a verdict for the plaintiff. And to render such direction erroneous, it must be shown that a controverted ques- tion of fact was decided by the judge. The People v. Cook, 4 Seld., 67. (9.) Waiver; Omission to plead. 31. Where the parties to a proceeding iff bankruptcy had a defense in the nature of the statute of limitations, which they should have set up in the proceeding, but did not, the matter can- not here be shown against the decree made in such proceeding. Chemung Canal Bank v. Judson, 4 Seld., 254. 82. Where a party has appeared in an action, and a decree has been made reciting his appearance at the hearing, he cannot in another action object to the recital. If he did not in fact appear at the hearing, he should, by motion, have the recital corrected. Id. 33. See, ante and seq., the following titles : "Absent and Ab- sconding Debtors;" "Amendment;" "Appeal;" "Attorney;" " Chancery Practice ; " « Code ; " " Costs ; " " Default ;" " Depo- sition;" "Discovery of Books and Papers;" "Estoppel;" "Evidence;" "Exceptions;" "Execution;" "Imprisonment;" "Injunction;" "Judgment;" "Jurisdiction;" "Parties;" "Plead- ings;" "Witness:" PRESUMPTIONS. What will he presumed, in the absence of evidence to the contrary.. 1. That where a party receives money from another, it is be- cause it is his due. Bogert v. Morse, 1 Comst., 377. 2. That one of several associates had communicated to them his knowledge of an originally unauthorized act of their common agent, where the act concerned them all alike, and no express dissent is shown, after the lapse of several years, with a view to 510 COURT OP app:eiais digest. PEEStJBPTIONS. establish their liability to third person on account of such act. Sage V. Sherman et al,, 2 Comst., 417. 3. That executors did not intend, by a particular act susceptible of two constructions, to release the trust estate, where it would be a violation of duty for them to do so. Brewster v. Striker, 2 Comst., 19. 4. That a party intended by his acts to injure another, if that was the necessary consequence of such acts. Van Pelt v. Mc- Graw, 4 Comst., 110. 5. That arbitrators have included in their award everything that was brought before them. Ott v. Schroeypel, 1 Seld., 482. 6. That foreign laws are like our own. Monroe v. Douglass, 1 Seld., 448. 7. That where a party in possession of lands has a clear right to possession in right of his wife, or as tenant by the curtesy, that he holds by virtue of such right, and not adversely, although he has also a void deed purporting to give him a title in fee. Cormn V. Corwin, 2 Seld., 342. 8. That the holder of a note payable to bearer, or indorsed in blank by the payee, is the owner of it for a good consideration. James v. Chalmers, 2 Seld., 209. 9. That where his promissory note is given by one party to another, all accounts and demands to that date are settled be- tween the parties, and the maker is indebted to the payee on such settlement to the amount of the note. Lake v. Tysen, 2 Seld., 461. 10. That where a person is shown to be a professional gambler, he has not changed his employment at the end of twenty months from the time to which the proof relates. McMahon v. Harrison, 2Seld.,U3. 11. That all the judges of this court who do not expressly dis- sent, concurred in the different points discussed in the opinions delivered, where the determination of either point in the manner indicated in such opinions would authorize the judgment pro- nounced by the court, and where such judges concurred in the judgment so pronounced. James v. Patten, 2 Seld., 9. COUET OF APPEALS DIGEST. 511 FBINCIPAL Airs AQEKT. 12. That acts of the legislature were .passed by a majority of all the members in each house. The People v. The Supervisors of Chenango, 4 Seld., 317. 13. That where a foreign life insurance company take a pre- mium note on the issuing of a life policy, and where it appears that it was created solely to effect insurance on lives ; that the insurance was such as it was authorized to effect and the note legal. The Mutual Benefit Life Insurance Company v. Davis, 2 Kern., 669. 14. That a mortgage is paid after the lapse of twenty years from the time it becomes due. Belmont v. O'Brien, 2 Kern., 394. 15. That a devisee of property in trust accepts the trust estate. Burritt V. Silliman, 3 Kern., 93. 16. That a note taken hy a creditor on a precedent debt was not, and taken on a debt cotemporaneously contracted, was taken in payment of the debt. Noel v. Murray, 3 Kern., 167. 17. That a purchaser who has knowledge of any fact suiEcient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase, has either inquired and ascertained the extent of such right, or has been guilty of a degree of negligence equally fatal to his claim to be considered a bona fide purchaser. But he may discharge himself by showing that he made due inquiry without success. Williamson v. Brown, 15 N. Y. Rep., 354. 18. That the holder of a promissory note or bill of exchange knows the person and residence of his immediate indorser. Lavj- rence v. Miller, 16 N. Y. Rep., 235. PRINCIPAL AND AGENT. I. Public agents. n. Private agents. (1.) Rights and liabilities of principal and agent, as between themselves. (2.) Liabilities of principal to thifd person ; Ratification, (3.) Liability of agent to third persons. (4.) General, 512 COURT OP APPEALS DIGEST. PEINOIPAIi AND AGENT. I. PUBLIC AGENTS. 1. Postmaster. A postmaster who assumes to charge letter postage on a newspaper in consequence of an initial being on the wrapper, does not act judicially, nor as the agent of the govern- ment, in such a sense as to protect him from an action for impro- perly detaining such newspaper. Teall v. Felton, 1 Comst., 537. 2. Tovm officers. The assessors and collector are not in any legal sense the agents of the town in its corporate capacity, in the assessment and collection of taxes, and the town is not responsible for any mistake or misfeasance by them in the performance of their duties. Lorillard v. The Town of Monroe, 1 Kern., 392. 3. Clerk in Chancery. The act of a public officer exceeding the authority conferred on him by law, may be adopted by the party for whose benefit it is assumed to be done. Per Beonson, J. The Farmers' Loan and Trust Company v. Walworth, 1 Comst,, 433. II. PEIVATE AGENTS. (1.) Rights and liabilities of principal and agent as between themselves. 4. Agent nat allowed to -purchase for himself. An agent employed to collect a mortgage for his principal cannot, directly nor indi- rectly, buy the property at the mortgage sale for his own benefit ; not even though the principal has instructed him not to bid, for him, beyond a limited sum ; he cannot bid for himself beyond that sum. And if he do purchase it will be held to be for the benefit of the principal at the latter's election. Moore v. Moore, 1 Seld., 256. 5. The agent cannot rightfully assume any position in reference to the sale, where his interest will be adverse to that of his em- ployer. And there is no distinction in this respect between private and judicial sales, where the agent controls the judicial sale, and the officer acts under his instructions. Id. 6. Liability of agent for negligence in procuring acceptance of bill. Where the holder of a bill of exchange transmits it to his agent for presentment to the drawee, such agent has no right to receive COURT OF APPEALS DIGEST. 513 PKINOIPAL AND AGBHT. anything short of an explicit and unequivocal acceptance without giving notice to the holder as in case of non-acceptance ; and he will be liable for any loss the holder may sustain in consequence of his neglect to do so. Walker v. Bank of the State of New York, 5 Seld., 582. 7. See, Title, " Factor." (2.) Liability of principal to third persons ; Ratification. 8. Insurance. Where a policy of insurance prohibited an as- signment of the interest of the assured "unless by the consent of the company manifested in writing," and the secretary, on an application to him at the office of the company, indorsed upon the policy and subscribed a consent, it seems that his authority to do so, in the absence of evidence to the contrary, should be presumed. And at all events, evidence that he was sole agent, had charge of the books, was in the constant habit of giving such consent in writing and entering his acts in the books of the com- pany who never repudiated his acts, was sufficient evidence of his authority to go to the jury, and that a formal resolution of the board of directors need not be shown. Conover v. Insurance Com- pany of Albany, 1 Comst., 290. 9. Wilful trespass of agent. A principal who neither authorizes nor ratifies a wilful trespass of his agent, is not liable therefor. Vanderbilt v. The Richmond Turnpike Company, 2 Comst., 479. 10. The plaintiff's boat was run into and damaged by the wil- ful act of the captain of the defendant's boat. The trespass was also sanctioned and approved by one who was the president of the defendant's corporation, and the general agent and manager of its business : Held, that the corporation was not liable for the colli- sion. Id. 11. Banking corporation. The directors or managers of a bank- ing corporation are chargeable, it seems, with notice of such matters relating to the ordinary business of the institution as are known to their cashier. The New Hope and Delaware Bridge Com' pany v. The Phxnix Bank, 3 Comst., 156. 65 514 COURT OF APPEALiS DIGEST, PBIMCIPAL AND AGENT. 12. Persons having no notice of the agency. In trover for certain checks, &c., drawn upon banks in New York, it appeared that the plaintiff was in the habit of sending checks to his agent in that city to be converted into cash, for the purpose of buying eastern money. The plaintiff indorsed the checks in question to his agent, and sent them to him for that purpose. The agent indorsed them to the defendants, who received them without notice of the agency, and paid value by passing the amount to the credit of the agent, and certifying checks on their bank for the amount of the credit. The agent misapplied the funds and failed : Held, that the title to the checks passed to the defendants, and therefore that the action would not lie. Case v. The Mechanics' Banking Association, 4 Comst., 166. 13. Declarations of an agent. The declarations of an agent, when not expressly authorized by his principal, must, in order to bind him, be within the scope of his agency. Thus, where the agency was to borrow money of the plaintiffs upon the principal's mortgage, and the agent falsely stated to the mortgagees that he owned it, and that it was given upon a previously existing indebt- edness to him, and thereby induced the mortgagees to advance their money and certificates of deposit upon it : Held, that the principal is not estopped to deny the false representation. New York Life Insurance and Trust Company v. Beehe, 3 Seld., 364. 14. Authority to do a particular act must he strictly pursued. An authority given by a father to his son to accept in his name a bill of exchange for $2,000 to be used for a particular purpose, will not warrant him in accepting a bill for a part of the amount given for another purpose. Nixon v. Palmer, 4 Seld., 398. 15. Of what third persons must take notice. Where an acceptance of a bill is made by one professing to act as the agent of the drawee under a special authority, the party receiving the bill is chargeable with notice of the extent of his powers. Id. 16. Teller of a hank; Limit of his authority not notice to third persons. A bona fide holder for value, of a check negotiable upon its face, and certified to be good by the paying teller of the bank on which it is drawn, whose authority to certify is limited to cases COURT OP APPEALS DIGEST. 515 PEIKCIPAL AND AOENT. where the bank has funds of the drawer sufficient to cover the check, can enforce the payment of the check, although the drawer has not such funds, and the check was certified by the teller with- out funds, in violation of his duty, for the mere accommodation of the drawer, and upon his promise that it should never be presented for payment. Farmers' and Mechanics' Bank v. Butchers' and. Drovers' Bank, 16 N. Y. Rep., 125. 17. Execution of note or bill by agent. Where one H. had autho- rity, as agent, to bind the defendant under the name of "The Churchman:" Held, that the defendant was not liable upon a note given by such agent and signed " D. H., agent for the Churchman," but containing no further expression of an intention to bind the defendant. De Witt v. Walton, 5 Seld., 570. IS. Fraudulent issues of shares of stock by the transfer agent of a (orporation, does not bind the corporation. The certificates are not negotiable instruments in a commercial sense, and the pur- chaser takes them subject to all the equities. Meclmnics' Bank v. New York and New Haven Railroad Company, 3 Kern., 599. 19. Contracts requiring the exercise of judgment and discretion; One jjerson cannot he agent for both parties. And where he undertakes to do so, a court of equity will avoid the contract on the applica- tion of either of the parties. Thus, where the agent of one insu- rance company re-insured another, of which he was director and secretary, acting for both : Held, that the contract was voidable in equity, and that under the Code the defense was available in an action at law upon the policy. The New York Central Insurance Company v. The National Protection Insurance Company, 4 Kern., 85. 20, Ratification. The ratification by a principal of the act, previously unauthorized, of his agent or of one assuming to be his agent, operates per se as an adoption of the act of the agent, and not merely as presumptive evidence that the act was pre- viously done by the authority of the principal. It is therefore available to a third person who had notice at the time of the want of such previous authority. Commercial Bank of Buffalo v. Warren,, 15 N. Y. Rep., 577. But the ratification must be with a 516 COURT OF APPEALS DIGEST. PKWCIPAL AUD AGEHT. full knowledge by the principal of all the facts affecting his rights. Nixon V. Palmer, 4 Seld., 398. See, also, No. 28, seq. 21. Ratification by presumed acquiescence, inferred from previous dealings of the same tiature. , Where the officers of a railroad com- pany were entrusted with the power of making purchases of lands for the use of the road, and, without express authority from the company, had been in the habit of agreeing upon the price by a submission to arbitrators, and the awards in such cases were paid by the company's financial officers under a general resolution to pay the amount they directed : Held, in a given case, that the officers had power to submit the question of price to arbiti-ators, and their award was binding on the company. Wood v. The Auburn and Rochester Railroad Company, i Seld., 160. (3.) Liability of agent to third persons, 22. It seems that a known agent, receiving money for his prin- cipal, in pursuance of a valid authority, without fraud, duress or mistake, is not liable to an action on behalf of a third person who is ultimately entitled to the money, for neglecting to pay the same upon request, although the agent has not paid it over to his principal. It seems, also, that, in cases of known agency, the principal alone is liable to third persons for any omission or neg- lect of duty in the matter of the agency. Calvin v Holbrook, 2 Comst., 126. 23. The mere architect, or builder, of a public work, is answerable •only to his employers for any want of care or skill in the execu- tion thereof, and he is not liable to third persons for accidents or injuries which may occur after the completion of such work though in consequence of such want of care or skill. The Mayor, Sfc., of Albany, v. Cunliff, 2 Comst., 166. 24. An officer of a corporation to whose order, as such, a note executed to it is payable, and who indorses the note, adding to his name his official character, and negotiates it on behalf of the cor- poration, is not personally responsible as indorser. Babcock v. Beman, 1 Kern., 200. OOUET OF APPEALS DIGEST. 517 PEINCIPAL AND SUKETY. 25. An attorney, who merely issues an execution and communi- cates to the sheriff the instructions of his clients to seize thereon specified property, is not liable as a trespasser, although the seizure is wrongful ; nor is he liable, because, in pursuance of their instructions and in their name, he executes to the sheriff an indem- nifying bond, notwithstanding he puts a seal to the bond, while his instructions are contained in a letter, and he has no authority under seal. Ford and Rochwood v. Williams, 3 Kern., 577. 26. If a railroad conductor, in the execution of lawful instruc- tions to remove a passenger from the car for not exhibiting his ticket, use unnecessary force, and wantonly injures the passenger, he, but not the corporation, is liable for such wanton excess. Per Brown, J. Hibbard v. New York and Erie Railroad Company, 15 N. Y. Rep., 455. (4.) General. 27. Where a statute requires an oath from the principal, it can- not be satisfied by the oath of the agent. Per Steong, J. The People V. Fleming, 2 Comst., 484. 28. Delegation of authority ; Ratification. An executor or other trustee, empowered to sell lands in his discretion, cannot autho- rize an agent to contract for their sale. The power is a personal trust, which cannot be delegated ; and a contract by an agent in such case is void. But where it has been executed by an agent, the principal may render it valid, by ratifying it, with full know- ledge of the facts. In ratifying it, he exercises the personal qualities essential to the due execution of the trust. NevMon v. Branson, 3 Kern., 587. 29. See the following Titles : "Agent;" "Factor;" "Husband and Wife;" "Insurance;" "Municipal Corporations;" "Negli- gence;" "Sale and Delivery of Goods." PRINCIPAL AND SURETY. I. Existence and extent of the relation. n. Liability of the surety to the creditor, and by what acts or omissions it will be discharged or otherwise. III. Subrogation. IV. Contribution. V. Miscellaneous cases. 518 COURT OF APPEALS DIGEST. PEIHCIPAL AND BDRETT. I. EXISTENCE AND EXTENT OF THE RELATION. 1. Co-legatees in no sense sustain to each other the relation of surety in respect to the testator's debts; each being liable only in proportion to the amount of his legacy. Wilkes v. Harper, 1 Comst., 586. 2. Joint or several makers of a note. A promissory note was exe- cuted by A., B., and C. ; A. being the principal debtor. C, the last signer, added the word "surety" to his signature: Held, that without extrinsic proof, C. was not to be deemed a surety for both the other makers ; and, therefore, where B. and C. had each paid one-half of the note to the holder, held further, that C. could not, upon simply proving the note and such payment, recover against B. for money paid. Sisson v. Barrett, 2 Comst., 406. 3. Where two persons give their joint obligation upon a con- sideration received by them jointly, each stands in the relation of surety for the other in respect to one-half the debt. And if an agreement is afterwards made between them, by which one of them assumes the entire obligation, the other from thenceforth becomes his surety in respect to the whole, and as such may prove his claim under the bankruptcy of his principal, although he has paid nothing on the joint obligation, and the same is not yet due. Crafts V. Mott, 4 Comst., 603. 4. After judgment. The relation and rights of a surety are pro- tected by law, as well after as before judgment. Per Ruggles, Ch. J. La Farge v. Herter, 5 Seld., 241. See, also, Bangs v. Strong, 4 Comst., 315. II. LIABILITY OF THE SURETY TO THE CREDITOR, AND BY WHAT ACTS OR OMISSIONS IT WILL BE DISCHARGED OR OTHERWISE. 5. Forbearance for a usurious consideration, extended by the creditor to the principal debtor, cannot operate to discharge the sureties ; the usury rendering the agreement for such forbearance illegal and void. Per Bronson, J., and Jewett, Ch. J. Vilas v. Jones, 1 Comst., 274. COURT OF APPEALS DIGEST. 519 PRINCIPAL AND SURETY. 6. Giving up a collateral security. Where a creditor receives fi'om his principal debtor collateral security of sufficient value to pay the debt, the surety is discharged if the security be surren- dered without his consent. But where the holder of a promissory note indorses and transfers it for value in the usual course of business, he is not a surety within the meaning of this rule ; and, therefore, he will not be discharged, although the indorsee takes security from the maker, and afterwards surrenders it without his consent. Pitts v. Congdon, 2 Comst., 352. 7. Extending the credit by a binding contract. Where, however, the indorsee in such case changes the contract of the maker by extending the time or giving a new credit, so as to suspend the right of action on the note, this is a good defense to the indorser. Id. See, also. Bangs y. Strong, 4 Comst., 315, and Coleman v. Wade, 2 Seld., 44, where the time was extended by an award of arbitrators. 8. Sureties in a replevin bond ; Delaying suit. The sureties in a bond given by a plaintiff on the commencement of an action of replevin, are not discharged by delay in the prosecution of the suit without their knowledge, though, assented to by defendant, unless it appear that such delay was unreasonable and improper. And if that does appear, it would only discharge them from liabi- lity _/<>r w«7ii o/" ^JfOMCM^iow, and not where the breach complained of is the non-payment of the svm of money recovered by the defend- ant in the replevin suit. Daniels v. Patterson, 3 Comst., 47. 9. Omission to give tiotice of the default of the ^principal is not a defense to the surety, unless he shows he has sustained damage in consequence of such omission. Union Bank v. Coster^s executors, 3 Comst., 203. 10. Mere indulgence to ttie principal debtor, at the will of the creditor (where there is no binding contract extending the time), however long continued, and, whatever be the consequences, will not operate to discharge the surety. Schroeppell v. Shaw, 3 Comst., 446. 11. Indulgence to one collaterally liable. And the rule is the same whether the indulgence be extended to the principal debtor or 520 COURT OF APPEALS DIGEST. PKINCIPAL AND StTKETT. towards a third person, liable to the creditor on a collateral secu- rity. And where the plaintiff, as surety for others, executed with them a note to the defendant for $2,000, payable in a year ; and one of the principals at the same time assigned to the defendant, as collateral security, a bond and mortgage of a greater amount against third parties, which fell due by successive installments after the maturity of the note : Held, that the passive neglect of the creditor (there being no request on the part of the surety) to enforce the bond and mortgage, afforded no ground to relieve the surety, even in equity, although the neglect continued for a long time, and the value of the security was thereby lost. Id. 12. And although the creditor, after waiting two and a half years, commenced, without request, a foreclosure suit upon the bond and mortgage, in season to have sold the mortgaged premises under his decree, and then to have docketed the decree for the deficiency in time to acquire a general lien upon property of the mortgagors, sufficient to pay the debt or some part thereof, but conducted his proceedings so negligently that before he docketed his decree their property was encumbered by other liens to its full value, and the debt secured by the bond and mortgage became thereby lost : yet, held, that the plaintiff, as surety, was entitled to no relief in law or at equity. Id. 13. Supersedeas. Where the sureties in a bond, given on a writ of error, were excepted to and failed to justify, in consequence of which the writ of error was superseded : Held, that the sureties were thereby discharged. Ward v. Syme, 4 Comst., 171. 14. Sheriff's official bond. The wrongful seizure by the sheriff under an attachment, of the goods of a third person, not a defend- ant in the attachment, is such a breach of his bond of office " for the faithful performance of the duties of the office," as' renders the sheriff and his sureties liable thereon, in a suit brought by such third person, after a recovery against the sheriff in trespass, and execution returned unsatisfied. The People v. Schuyler, 4 Comst., 173. 15. Assignment of claim against principal, reserving claim against surety. "When a creditor has separate judgments against principal COUET OP APPEALS DIGEST. 521 PEIKCIPAL AND BUEETY. and surety, the judgment against the principal embracing a sum beyond the amount for which the surety is holden, an assignment of the latter judgment by the creditor to a stranger, for a consi- deration not, exceeding such excess, giving the assignee " the right at all times to control the execution," with a reservation of the right of the creditor to collect his judgment against the surety, does not discharge the surety, where the latter had been previously offered the same thing (to wit, an assignment of the judgment against the principal) and had declined it. And an engagement upon like consideration entered into by the creditor t.o the princi- pal debtor, that he, the creditor would not enforce the judgment in any way against him with a reservation of the right of the credi- tor to collect his judgment against the surety, does not discharge the surety. If the latter has the debt to pay, his remedy over against the principal is in no way affected by such arrangement. Huhhell v. Carpenter, 1 Seli., 171. HI. SUBROGATION. 16. One who pays a debt for which he is not personally bound and which is not a charge upon his property, is not entitled to be subrogated to a lien which the creditor had upon the estate of the debtor. Wilkes v. Harper, 1 Comsi., 686. 17. The right of a surety to be subrogated on payment of the debt, to the securities held by the creditor, does not depend upon contract, but rests upon principles of justice and equity. Mathews V. AiJcin, 1 Comst., 595. IS. A. owed a debt to B., who was indebted to C. At the request of B., and in pursuance of an arrangement between B. and C, A. executed a bond and mortgage for the amount of his debt, directly to C. The complainant D., on the solicitation of B., but without any request from the mortgagor, guarantied the payment of the bond. The holder of the bond and mortgage, who had also become the owner of the equity of redemption under a junior mortgage, sued D. upon his guaranty and com- compelled him to pay the debt : Held, on a bill filed by D., that 66 522 COURT OF APPEALS DIGEST. PEIKCIPAL AND SDRETT. he was entitled by substitution to the benefit of the mortgage for his indemnity. Id. 19. A surety, upon the payment of a debt, is entitled to the benefit of all the collateral securities held by the creditor. Schroep- pel V. Shaw, 3 Coitist., 446. And in like manner the creditor is enti- tled to the benefit of any collateral securities which the debtor has given to the surety, or person standing in the situation of surety. Vail V. Foster, 4 Comst., 212. 20. Where a purchaser of land procured a third person to give his note for, the consideration money, and to indemnify the maker executed to him his bond and mortgage on the premises, and before the note became due the maker failed : Held, that the vendor of the land was entitled to the benefit of the bond and mortgage. And held further, that the equitable right of the ven- dor to the benefit of the bond and mortgage, was good against the lien of a judgment creditor's bill filed against the mortgagee. Id. 21. A surety, by refusing to take the control of a judgment and execution against the principal debtor, when oflFered to him by the creditor, may deprive himself of the right to demand subrogation, when the debt is sought to be collected from him. Hubbell v. Car- penter, 1 Seld., 171. 22. Where a creditor makes an agreement by which a security is rendered valueless to a surety who is entitled to be subrogated in respect thereto, the surety who has paid the creditor, after a judgment obtained against him in ignorance of such agreement, is entitled to recover back from the creditor, of the amount paid by him, so much as is equal to the defeated security. C/iester v. The Bank of Kingston, 16 N. Y. Rep., 336. IV. CONTEIBDTION. 23. See, ante, No. 2. 24. Parol agreement between co-sureties. An agreement made between parties prior to or cotemporaneously with their executing a written obligation as sureties, by which one promises to indem- nify the other from loss, does not contradict or vary the terms or COURT OF APPEALS DIGEST. 523 PRINCIPAL AND SUBBTT. legal effect of the written obligation ; and it may be proved by parol evidence. And such promise, although not in writing, is a bar to an action by the party making it, against his co-surety for contribution. It is not one of the promises required by the sta- tute of frauds to be in writing to render it valid. Barry v. Ran- som, 2 Kern., 462. 25. Bankrupt discharge. Where, in 1837, the plaintiff and defendant, as sureties, executed, with a party to a replevin suit, a joint and several bond, conditioned that the latter would pay all sums which might be recovered against him therein ; and, in 1843, the defendant was discharged as a bankrupt, under the act of Congress passed in 1841, and, in 1847, judgment was recovered in the replevin suit against the principal in the bond, the amount of which the plaintiff was compelled to pay: Held, in an action by the plaintiff against the defendant for contribution, that his discharge in bankruptcy was a bar to the plaintiff's demand. Tobias v. Rogers, 3 Kern, 59. In another case, the plaintiff and defendant gave their bond upon a joint purchase of real estate. The plaintiff afterwards conveyed his share of the land to the defendant, who thereupon agreed to pay the bond, and indemnify the plaintiff against the same. Subsequently the defendant was discharged as a bankrupt, under the act of Congress of 1841 ; and after that, installments fell due on the bond, which the plaintiff was obliged to pay : Held, that the plaintiff was to be regarded as standing in the relation of surety for the defendant, and, there- fore, that his right to recover was barred by the discharge. Crafts v. Mott, 4 Comst., 603. 26. Several sureties, who sign a note of the principal, at his request, at different times, without communication with each other, are bound to contribute equally to the payment of the note in case of the failure of the principal. Where the first of the sureties pays the whole note, he may recover from the last his portion of the amount so paid ; and it is no defense to such action that, by the understanding between him and the principal, he signed as surety for all the previous signers. And, per Geat, J., parol proof is not admissible to qualify the liability of such sure- 524 COURT OF APPEALS DIGEST. QUO WABRAKTO. ties to each other, or to contradict their implied obligation to bear the burden equally. (But see, ante, No. 24.) Norton y. Coons, 2 Seld., 33, V. MISCELLANEOUS CASES. 27. See, ante, Title, "Jurisdiction," 11. 2S. When surety is not concluded by judgment against the principal. A mere surety for the payment of a debt, without any agreement, express o'r implied, to be bound by a suit between the principal parties, is, at common law, no more affected by its event, if against his principal, than a mere stranger. Except in cases where, upon the fair construction of the contract, the surety may be held to have undertaken to indemnify his principal against the result of a suit, or where he is made a privy to the suit by notice and the opportunity to defend, a judgment against the principal is proof against the surety only of the fact of its recovery, and not that the facts in pais, against which the security agreed to indem- nify, were established in the litigation. Thomas v. Hubbell et al., 15 N. Y. Rep., 405. 29. Accordingly, where the defendants were sureties in a bond to the sheriff, that their principal, C. H., should " well and faith- fully, in all things, perform and execute the duties of deputy sheriff, without fraud, deceit, or oppression," and a judgment was recovered against the sheriff for the alleged misconduct of such deputy, in a suit of which such deputy had notice, with a request to defend, but his sureties had no notice: Held, in an action on the bond against the sureties, that they were at liberty to prove facts which would have established a good defence in the action against the sheriff. Id. 30. See, also, the following Titles : "Guaranty;" "Trustee;" "Estoppel." QUO WARRANTO. CONDUCTING OP ELECTIONS ; DUTIES OP CANVASSERS ; CEETIPICATE3 OP ELECTION ; NATURE OF THE ACTION. 1. An action in the nature of a writ of quo warranto is a civil action, and the decisions of the Supreme Court in it are to be COURT OP APPEALS DIGEST. 525 QUO -WARRANTO. , i , ______^ reviewed upon the principles applicable to such actions, and not by those which prevail in criminal proceedings. The Peoyle v. Cook, 4 Seld., 67. 2. Fraud. Where the pleadings raise a question of fraud in relation to the acts of a board of public officers, and the evidence on the trial goes only to s"how an irregularity without fraudulent intent, the court is not bound to submit it to the jury as an open question. Id. 3. Name of the candidate; Questions of fact. When it appeared that in an election where Benjamin Welch, junior, was a candidate, ballots were given for Benjamin C. Welch, junior, and Benjamin Welch, and evidence was given sufficient to establish prima facie that they were given for Benjamin Welch, junior, and none was given to the contrary, it was held that no question of fact was raised which should have been left to the jury. Id. 4. What evidence of intent of voters may be received. The board of state canvassers act in the main ministerially in making their certificate. Their judicial power extends no further than to take notice of matters of general notoriety, as that certain abbrevia- tions are used for particular names. They cannot hear evidence beyond the return to show the intention of the voters. But the Supreme Court has power to go behind the certificate of can- vassers and the ballot box, to ascertain the intention of the voters in depositing their ballots, to receive extrinsic testimony on the subject, and to correct errors made by the voters in casting their ballots. Id. 6. Certificate, how far conclusive. The certificate of the board of canvassers may be conclusive of the election of an officer in a controversy arising collaterally, or between the party holding it and a stranger. But between the people and a party in an action to impeach it, it is only prima facie evidence of the right. It is the will of the electors, and not the certificate, which gives the right to the office. Id. 6. Oaih of inspectors of election. Neither the neglect of the inspectors to take the prescribed oath, nor its irregular adminis- tration, vitiates an election. And it is a valid oath, though taken 526 COURT OF APPEALS DIGEST. QITO WAKRANTO. 4 . on any other book than the holy evangelists, if the parties admin- istering and taking it supposed the book to be a Bible. Id. 7. What ballots should he counted, and how. Ballots for a state officer containing, in addition to the names of candidates for state officers, a vote for a countyjudge, should be counted for the state officer. Id. 8. Duty of county canvassers. They have no right to reject a return of acting inspectors, regular on its face, upon proof, by the certificate of a town clerk, that the persons signing it were not, in fact, inspectors. Id. 9. What proof required to invalidate a canvass. Where the votes given in an election district have been canvassed by the county and state canvassers, and the defendant seeks to reject them as irregular, he holds the affirmative, and must show that the votes were untruly canvassed, or that some facts exist which show that the certificate does not truly state the result of the popular will. It is not enough that he shows that the board was not regularly constituted, that the poll lists were not compared, or that other irregularities intervened, if no illegal votes were received, no legal votes rejected, or that the votes were not faithfully canvassed. Id. 10. Election laws. The statute regulations for conducting elec- tions are intended to affijrd all citizens an opportunity to exercise their right to vote, to prevent illegal votes, and to ascertain the result with certainty. And they are directory and not jurisdic- tional in their character. Id. 11. Inspectors fro tempore, irregularly appointed, are yet officers de facto. In the absence of the inspectors of election at the time for opening the poll, the persons who may be appointed by the supervisor, town clerk and justices, are appointed to supply the vacancies of the absent inspectors for that election, and not to act until others are appointed in their places. And though such tem- porary appointment be made by the supervisor, town clerk, and ,less than two justices, and is therefore irregular and does not dis- place the regular inspectors ; yet, such irregular appointment is a colorable authority for the persons appointed, and renders them, while exercising their functions, officers de facto. Id. COURT OP APPEALS DIGEST. 527 QBO WABEANTO. 12. Clerics of the poll. If no person can be found to take the appointment, the election is not to fail, but the inspectors should perform the duty of clerks. Id. 13. Number of acting inspectors. The occasional interference during an election of more than three inspectors will not preju- dice, if all were officers de facto. Id. 14. Irregularity in closing the polls. The closing of the outer door of the room where an election is held, at sundown, and then permitting the voters within the room to vote, will not render the election invalid, unless it be shown either that legal voters were excluded by the closing of the door, or that illegal votes were received after sundown. The provision of the statute as to the time of opening and closing the polls is directory. Id. 15. What irregularities may he overlooked. An irregularity in conducting an election, which does not deprive a legal voter of his vote, or admit a disqualified person to vote, if it cast no uncer- tainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, may be overlooked in an action in the nature of a quo warranto. Id. 16. Parties and pleadings. In an action in the nature of a quo warranto, brought by the attorney-general on the relation of a person claiming the office against a party who has usurped it, the claimant should be made a party plaintifi"; and to authorize his being joined the complaint should state facts showing him entitled to the office. The People, ex rel. Crane, v. Ryder, 2 Kern., 433. 17. What is a sufficient complaint in this respect. And where the complaint alleged, that at an election legally held in a county named, pursuant to the statute for the election, among other offi- cers, of a county judge for such county for the term of four years from the first day of January, 1852, the relator, who was a party plaintiif with the people, received a majority of the votes given for the office of county judge, and was legally elected to such office for such term : Held, on demurrer to the complaint, that it stated facts sufficient to show that the relator was entitled to the office, and properly made a party ; and that if the time when the election was held be not sufficiently stated, the remedy was by motion to 528 COURT OP APPEALS DIGEST. BAILROAD COUFANIES. make definite, and that such objection is not available on demur- rer. Id. EAILROAD COMPANIES I. Proceedings by petition or by action where they were plaintiffe. II. Actions in which they were defendants. (1.) When and for what held liable. (2.) When held not Uable. III. Miscellaneous cases. I. PEOCEEDINGS BY PETITION OR BY ACTION WHERE THEY WERE PLAINTIFFS. 1. Appraisement of lands reserving easement to the owner, void. Where a railroad company was authorized to acquire lands upon an appraisement by appraisers, who were to assess the value of the lands without any deduction on account of benefit, an ap- praisement of them with a condition that certain easements are to he reserved to the owner, is unauthorized, and no title will be acquired by the proceeding. Ruggles, Ch. J., dissented. Hill and Aldrich V. The Mohawk and Hudson Railroad Company, 3 Seld., 152. 2. The general railroad act of 1850 held not unconstitutional, though providing for the creation of an indefinite number of cor- porations, and appropriating private property without the owner's consent ; the payment of compensation being provided for, and the appropriation of the lands being held to be for " public use." The Buffalo and New York City Railroad Company v. Brainard et al., 5 Seld., 100, and Same v. Smith. 3. The decision of the general term confirming the report of commis- sioners of appraisal, held final. No appeal lies to this court. New York Central Railroad Company v. Marvin, 1 Kern., 276. 4. No action lies to recover hack a void toa; voluntarily paid to a tax collector, where there was no misrepresentation or mistake of any fact. The New York and Harlem Railroad Company v. Marsh, 2 Kern., 308. 6. Action to recover subscription to slock : Held, that an agreement to take shares, made before the incorporation, raised an implied promise to pay ; and that the interest acquired by the defendant on the incorporation being perfected, was a sufficient considera- COURT OF APPEALS DIGEST. 529 BAILROAD COMPANIES. tion for the promise ; that no actual allotment of shares was neces- sary before commencing the action ; that the remedy by forfeiture was cumulative merely ; that an intermediate alteration of the charter changing the name, and increasing the capital and extend- ing the route, was no defense in the absence of fraud ; and that fraudulent representations of one of the company's officers made at a public meeting in presence of a majority of the directors, but not made by any authority from or resolution of the board, did not discharge the defendant. The Buffalo and New York City Railroad Company v. Dudley, 4 Kern., 336. And in another case, held, that ten percent need not be paid on each subscription previous to filing the articles of association, but it was enough that ten per cent on the aggregate of one thousand dollars for each mile of the proposed road had been paid ; that a subscription was binding, though the defendant had paid nothing on it, the right of membership being a sufficient consideration, and that it could not be revoked ; that notice of calls was only necessary in proceed- ings for forfeiture, and not in order to a right of action ; and that the articles of association might be filed on duplicate sheets, each containing a portion only of the names of subscribers. Lake Ontario, Ifc, Railroad Company, v. Mason, 16 N. Y. Rep., 451. II. ACTIONS IN WHICH THET WERE DEFENDANTS. (1.) When and /or what held liable. 6. In an action against a company which owned so much of a railroad from Whitehall to Troy, operated by three separate com- panies, as lay between Troy and Ballston, one other of the three owning from Ballston to Saratoga, and the third from Saratoga to Whitehall, for the loss of plaintiff ^s_ baggage as a passenger from Whitehall to Troy ; the three, companies running cars over the whole route, selling through tickets by common agents, and receiv- ing the baggage at one terminus to be carried over the whole route. Hart v. The Rensselaer and Saratoga Railroad Company, 4 Seld., 37. 67 530 COURT OF APPEALS DIGEST. BAILEOAD COMPANIES. 7. For the price of lands for the use of the road, determined by an award of arbitrators who were appointed by agreement between plaintiff and officers of the company, though such officers were not expressly authorized by any resolution of the board of directors to enter into arbitration, but derived their authority from their previous practice, to the same effect which had been sanctioned by the payment of previous awards. Wood v. The Auburn and Rochester Railroad Company, 4 Seld., 160. 8. By a fireman in their own employ, who was injured by the bursting of a defective boiler of a locomotive engine on their road, which they continued in use after notice of its defective and dan- gerous condition ; no negligence on the part of the plaintiff being shown. Keegan v. The Western Railroad Company, 4 Seld., 175. 9. By a passenger whose elbow was fractured, while the train was passing a car standing on an adjoining track of defendants' road, by coming in contact with some hard substance projecting from such car ; the proof on the part of the plaintiff not showing what such substance was, but showing marks and indentations on the outside of and running lengthwise of the car in which plain- tiff was seated, and on a line with the open window against which her arm rested ; the court holding that although negligence in the defendants was not to be presumed from the mere fact that a passenger was injured, while riding on a train, yet, that in this case enough had been shown to shift the burden of proof upon the defendants, that the injury was not attributable to their want of care. HolbrooJc and Wife v. The Utica and Schenectady Railroad Company, 2 Kern., 236. 10. For damage to plaintiffs^ lands situated on a stream, occa- sioned by an ovei-flow of water, caused by the construction of the defendants' road over thfe stream and through its banks, though such construction was authorized by the legislature, but in a manner so as not to impair its usefulness. Brown ct al, v. The Cayuga and Susquehanna Railroad Company, 2 Kern., 486. 11. For wages of laborers employed and not paid by a subcon- tractor under a contractor to whom defendants had let the build- ing of a portion of their road ; by virtue of section 12 of the COURT OF APPEALS DIGEST. 531 BAILBOAS COMPANIES. general railroad act. Kent v. The New York Central Railroad Companij, 2 Kern., 628. 12. For injury to a passenger, occasioned by the breaking of an axle, in consequence of a latent defect which could not be dis- covered by the most vigilant external examination ; although the defendants purchased the car from extensive and skillful car- makers, and the axle vsras procured from a, manufacturer of skill and reputation ; the proof tending to shov? that the defect might have been discovered in the process of manufacturing the axle or car, by the application of a test known to men skilled in such busi- ness ; and also tending to show that the peril might have been avoided if the defendants had had in use on their cars, the safety beam, shown to have been at the time already in use on other roads for a considerable period ; and the court holding it a ques- tion for the jury to determine whether they were not guilty of negligence in not ascertaining its utility, and adopting it to pro- tect passengers from injuries by accidents, to which cars are liable. Hegeman v. The Western Railroad Corporation, 3 Kern., 9. 13. For injury to cattle straying upon the track in consequence of the neglect of defendants to maintain fences and cattle guards along its road, as required by section 44 of the general railroad act; although plaintiff was not an adjoining proprietor, and it did not appear how or whence the cattle came upon the road. Cor- win V. The New York and Erie Railroad Company, 3 Kern., 42. 14. For the penalties provided by the general railroad act as originally enacted (Laws of 1850, p. 232, sec. 39), for omitting to cause the bell to be rung or whistle sounded each time the engine passed over the railway where it crossed a public highway, although the railroad and highway did not cross each other upon the same level, but the former was fifteen feet above the latter. (Section 39 was amended in that respect in 1854, so as to confine it to cases where they cross on the same level.) The People v. The New York Central Railroad Company, 3 Kern., 78. 15. For running over and killing a child of six to seven years of age, though there was no proof, by the administrator who brought the action, of any pecuniary or special damage to the plaintifi" or 532 COURT OF APPEALS DIGEST. BAItEOAD COMPANIES. next of kin ; and though the complaint contained only a general averment of negligence in the defendants ; it being held, that under such an averment it was admissible to prove that there were no sufficient brakes on the car. OldfieM v. The New York and Harlem Railroad Company, 4 Kern., 310. 16. For the loss of a horse strangled hy his halter or other means in a car in which he was carried by defendants as freight ; the court holding that their liability as carriers of animate property, is not limited to a careful and safe conveyance of the car containing it, but that in the absence of any special agreement they are re- sponsible for any injury which can be prevented by foresight, vigilance and care, although such injury arises from the conduct of the animal transported. Clarke v. The Rochester and Syracuse Railroad Company, 4 Kern,, 570. 17. Upon an order drawn upon their treasurer, by the president of the company, in favor of a contractor, expressed to be in pay- ment for work done for them on the road ; such order being held to be in effect the promissory note of the company. Fairchild v. The Ogdensburgh, S/v., Railroad Company, 15 N. Y. Rep., 337. 18. For injury to plaiidiff, a carman, whose cart was struck by defendants' car, as plaintiff was turning off from the track to the left ; the court holding that this did not put plaintiff in the wrong ; and that the statute requiring carriages, when meeting in the highway, to turn to the right, has no application to the meeting •of railroad cars with common vehicles in the streets of a city. -Hegan v. Eighth Avenue Railroad Company, 15 N. Y. Rep., 380. 19. For the bodily pain (as a special subject of compensation) suffered by a plaintiff who is injured by a collision occasioned by the negligence of the defendants ; the court holding them liable to plaintiff therefor, as well as for his medical expenses and the direct pecuniary loss from being deprived of the use of his limbs. Ransom v. The New York and Erie Railroad Company, 15 N. Y. Rep., 415. 20. For injury to a mail agent in the employment of the govern- ment, payiwg- no /are, who is injured by the car running off the track in consequence of defendants' culpable negligence ; on the COURT OF APPEALS DIGEST. 533 KAILBOAD COMPANIES. ground that it is their duty to carry safely., though such carriage be undertaken by defendants voluntarily and without compensa- tion. Nolton V. Western Railroad Corporation, 15 N. Y. Rep., 444. 21. For damages to the owner of the fee of a public highway, ap- propriated by defendants without his consent or an appraisal of his damages, although done under an act of the legislature and a license from the municipal authorities of the city wherein such highway lies. Williams v. The New York Central Railroad Com- pany, 16 N. Y. Rep., 97. 22. For damages in killing plaintiff^ s cattle which escaped upon the track through an insufficient farm gate ; notwithstanding a contract previously entered into between plaintiff and defendants, that the latter should " construct and maintain good and sufficient fences on each side of the track, and also two crossings for teams," but making no provision for gates; it being held by the court that the omission in the contract to provide for gates and bars at the crossings, did not relieve the company from its statutory obli- gation to maintain them, as required by the general railroad act. Poler v. The New Yorh Central Railroad Company, 16 N. Y. Rep., 476. (2.) When held not liable. 23. For damages for negligence in killing plaintiff'' s cattle, unlaw- fully in the highway, and straying upon the track through plain- tiff's negligence. ( Prior to the passing of the general railroad act. ) Munger v. The Tonawanda Railroad Company, 4 Comst., 349. 24. For injury to a trackman in their employ, while passing over the road in a hand car, by being run over by an extra train of defendants, in the night, through the negligence of those in charge of the train ; on the ground that one servant or agent cannot recover of the principal for injuries sustained through the negli- gence of another agent or servant, when both are engaged in the same general business. Coon v. The Syracuse and Utica Railroad Company, 1 Seld., 492. ( The court declined to rule upon the point whether the defendants were liable on the ground that those in charge of the train were running it in accordance with the regulations and directions of the principal, for the reason that 534 COURT OF APPEALS DIGEST. KAILKOAD COMPANIES. that point was not presented or passed upon at the trial in the court below.) 25. For the damages sustained by a riparian owner of lands on the Hudson river, by the construction of their railroad by defendants, along the shore between high and low water mark, so as to cut off all communication between such land and the river, otherwise than across such road ; on the ground that whatever rights the owner of the land in such case has in the river, or in its shore below high water mark, are public rights, which are under the control of the legislative power, and that any loss sustained through the act of the legislature affecting them, is damnum absque injuria. Edwaeds, J., dissented. Gould v. The Hudson River Railroad Company, 2 Seld., 522. 26. In an action by a riparian owner on the Hudson river, who owned a wharf on a deep bay, across which bay the defendants constructed their road; to compel defendants to extend the wharf through the bay and across the road to the river, upon the alleged ground that it was "cut off" by the road, within the meaning of the defendants' charter (Laws of 1846, p. 279, sec. 15): Held, that it was not so "cut off," but that it was a case where the duty of defendants was discharged by the construction of a sufficient draw, as they had already done. Tillotson v. The Hudson River Railroad Company, 5 Seld., 575. 27. For delay in transporting plaintij's butter, so that it did not arrive in New York in the usual time, nor until the market had fallen; the evidence showing that the defendants' road was in good order and fully equipped, and that they ran as many trains as they could with safety, the delay being occasioned by an unusual quantity of freight being delivered, which was forwarded without preference, in the order of its receipt. Wibert et al. v. The New York and Erie Railroad Company, 2 Kern., 245. 28. For trespass, in entering upon plaintiff's premises and con- structing their road, after acquiring title pursuant to the provisions of their charter, but not in compliance with the general railroad act ; the court holding, that where the two came in conflict or covered the same subject matter, the charter, which was first COURT OF APPEALS DIGEST. 535 KAILKOAD COMPANIES. enacted, furnished the rule for defendants to follow. Clarhon and Wife V. The Hudson River Railroad Company, 2 Kern., 304. 29. For refusal to acknowledge as valid certificates for shares of stock, fabricated and fraudulently issued by their transfer agent ; the court holding that stock, certificates do not partake of the charac- ter of negotiable instruments, and that an assignee thereof, though honafide, takes them subject to all the equities. (Schuyler case.) Mechanics' Bank v. New York and New Haven Railroad Company, 3 Kern., 699. 30. For ejecting a passenger from their cars, who refused to exhibit his ticket a second time on request of the conductor, in conformity to a regulation of the company; the court holding such regulation reasonable and lawful, and, per Bkown, J., that if any excess of force was used, or, per Comstock, J., if the case was not within the regulation, the conductor, and not the company, was liable. And, per Denio, Ch. J., that, if the passenger had once forfeited his right to be carried further by refusing to exhibit his ticket, he could not regain it by exhibiting it after the train was stopped for the purpose of putting him off. Hibbard v. New York and Erie Railroad Company, 15 N. Y. Rep., 455. III. MISCELLANEOUS CASES. 3 1 . Suit by contractor ; Measure of damages. In an action against a railroad company, to recover damages on account of their pre- venting the performance by plaintiff of a contract for the construc- tion of their roadway, the difference between the amount of the principal contract and of subcontracts, entered into by the plain- tiffs with other persons for the performance of the same work, does not constitute the proper measure of damages ; and evidence of such subcontracts is not proper in reference to the amount of damages. Story et al. v. New York and Harlem Railroad Company, 2 Seld., 85. 32. Appraisal of land damages. Held, on demurrer to a plea in trespass, that a previous notice, of not less than ten days, was necessary to give jurisdiction to the officer before whom the jury of appraisers was to be drawn under the act (chap. 31 of the Laws 536 COURT OF APPEALS DIGEST. BAILBOAS COMFAinES. of 1847) ; and that the plea was bad for not showing such notice. And held further, that averments in the plea, that the owner appeared before the officer at the time appointed for drawing the jury, and objected to the regularity of the proceedings, without averring upon what ground; and that, on the day when the jury met to appraise the damages, he again appeared, and objected to the competency of one of them, who was set aside, did not cure the defect as to notice or render the proceedings valid. Cruger v. The Hudson River Railroad Company, 2 Kern., 190. 33. Order removing action to United States Court. No appeal lies to this court from an order of the Supreme Court, removing an action commenced therein to the United States Court, on the ground that the defendant is a citizen of another state. The order does not determine the action and prevent a judgment therein, nor does it affect a substantial right within the meaning of section 11 of the Code. Illius v. The New York and New Haven Railroad Company, 3 Kern., 597. 34. Burning a building by sparks from a locomotive ; Evidence, In an action of this nature, evidence that engines of the company, passing near that place on other occasions, emitted sparks and coals, which fell further from the track than the building in ques- tion, is competent, after the plaintiff has given evidence tending to exclude the probability that the fire was communicated by any other means. Sheldon v. The Hudson River Railroad Company, 4 Kern., 218. 35. Practice ; On sequestration of property of insolvent railroad corporation. Upon the granting of an order of sequestration, and for the appointment of a receiver of an insolvent railroad corpora- tion, in an action brought in behalf of all its creditors, the right of action against its stockholders, for the amount of their unpaid subscriptions to its capital, vests in the receiver, and a judgment creditor of the corporation will be restrained from prosecuting an action against a stockholder, under the 10th section of the gene- ral railroad act (chap. 140 of 1850), commenced by him afterthe making of such order, but before the appointment of a receiver under it was perfected. Rankine, receiver, v. Elliott,^ 16 N. Y. COURT OF APPEALS DIGEST. 537 EATIFIOATIOH — RECEIPT. Rep., 377. See Mann, receiver, ^c, of the Canajoharie, ^., Rail- road Com^amj, v. Pentz, 3 Comst., 415. RATIFICATION. 1. Seej ante, Titles, " Agent ;" " Principal and Agent." 2. See 1- Comst., 433; 2 Comst., 417; 3 Comst., 53, 156; 3 Kern., 687 ; 15 N. Y. Rep., 577. RECEIPT. 1. Parol evidence to explain. In an action of trover by exe- cutors for a quantity of wheat receipted to J. S. W., one of the plaintiffs, in his individual name, to be delivered when called for, parol evidence was held admissible, on the part of the plaintiffs, to show that the wheat in fact belonged to them as executors, and not to J. S. W. in his own right; and also to show that it was understood, at the time of the execution of the receipts, that they were given for the benefit of the executors.. Wadsworth v. All- cott, 2 Seld., 64. 2. When it does not pass title. Where a warehouseman, receiv- ing flour for shipment, gives receipts from time to time for the quantity in store not previously receipted, to be delivered to the owner's factor, upon which the factor accepts the owner's drafts, no title to the flour receipted passes, unless it was actually sepa- rated from the mass, by a delivery, or by some mark or designa- tion by which it could be specifically known. The only effect of the receipt in such a case is, to give the factor a right to demand from the receiptor the delivery of the flour. Gardiner et al. v. Suydam et al., 3 Seld., 357. 3. When it amounts to a contract of release. An instrument in writing, acknowledging the receipt of a sum of money in full for damages sustained by the party signing it in consequence of an injury received from the person paying it, is not a simple receipt which can be explained or varied by parol evidence. It is in the nature of a release, and is evidence of a satisfaction of the claim 68 538 COURT OF APPEALS DIGEST. RECEIVER. of the person making it, and, unless shown to have been obtained by fraud, bars such claim. Coon v. Knajip, 4 Seld., 402. 4. When not a merger of previous 'parol contract. Where the plain- tiff sends to the office of a common carrier goods to be transported to another place, and a contract is there made for their transporta- tion, and a receipt given simply specifying the receipt of the goods marked w^ith the consignee's address, the receipt and parol contract may both be given in evidence. McCotter v. Hooker, 4 Seld., 497. 5. An admission in a bill of lading, signed by the carrier, that goods are received "in good order," does not conclude him, as against the parties to the instrument, from shov^ing by parol evidence that the goods were not in good order vyhen received. Ellis V. Willard, 5 Seld., 529. EECEIVER. 1. Proceedings supplementary to execution. No assignment need be executed by the debtor to a receiver appointed in such proceed- ings in order to pass title to the property of the debtor.- And such receiver represents the creditors as well as the debtor, and may, therefore, maintain an action to set aside the debtor's previous assignment of his property made in fraud of creditors. Porter v. Williams et al., 5 Seld., 142. See No. 5, seq. 2. Action by receiver ; Pleading. Where, in an action under the Code of 1849, upon a promissory note, the plaintiff added the description of receiver of a banking corporation to his name in the complaint, but nowhere set out his appointment; and the defendant, in his answer (treating the complaint as in effect claiming to recover in plaintiff's individual right) alleged that he was indebted to the bank at its failure ; that a receiver was appointed (without naming him) and that defendant made and transferred the note to such receiver in payment of the debt, and that such note was held and owned by such receiver in his official capacity, and not by the person named as plaintiff; and the reply averred, in substance, that the plaintiff was the receiver mentioned in the answer, and as such owned and sought to recover COURT OF APPEALS DIGEST. 539 BECEITEB. upon the note : Held, on demurrer to the reply, that the plaintiff was entitled to judgment. And, per Marvin, J., that under the Code, as amended in 1S49, a departure from the complaint in a reply is not cause of demurrer. White v. Joy, 3 Kern., 83. 3. Suit against stockholder of insolvent corporation. A creditor of a railroad corporation recovered judgment at law, issued execu- tion, had it returned unsatisfied, and filed his bill in Chancery under section 36 of the statute relating to "proceedings against corporations in equity" (2 R. S., 463), for a sequestration of the effects of the corporation and the appointment of a receiver. The receiver appointed in that suit then instituted a suit in equity against a stocliholder to recover the unpaid balance of his sub- scription. The stociiholder sued had paid all the calls made by the corporation, pursuant to the terms of his subscription, and other stockholders, v?ho had not paid their subscriptions, vi^ere not made parties : Held, that the bill could not be sustained. Mann, receiver, Sfc, of the Canajoharie, Sfc, Railroad Company, v. Pentz, 3 Comst., 415. 4. The bill should have been filed by the creditor in behalf of all the creditors, against the corporation and all the shareholders who have not paid up their subscriptions, so that an account might be taken of the debts and assets of the corporation, of the amount of capital not paid in, and the sum due from each share- holder. Id. 5. Acts of insolvent corporation in fraud of its creditors. Where a banking association formed under the general law, being insolvent, transferred to one of its directors certain Arkansas bonds in exchange for shares of its own stock : Held, on bill filed by the receiver of the bank subsequently appointed, that the transaction was illegal and void under the statute (1 R. S., 5S9) " to prevent the insolvency of moneyed corporations and to secure the rights of creditors," and that the receiver might reclaim the bonds for the benefit of the creditors. Gillet, receiver, Sfc, v. Moody, 3 Comst., 479. 6. Receiver of an insolvent insurance company cannot impeach or disaffirm the previous lawful and authorized acts of the corpora- 540 COURT OP APPEALS DIGEST. tion, e. g., the settlement and surrender of a deposit note to a member, although done without requiring of him payment of his proportion of losses ; there being no proof of fraud or of any mistake of fact in regard to the existing claims against the com- pany at the time of the surrender. Hyde, receiver of the Chenango Mutual Insurance Company, v. Lynde, 4 Comst., 387. 7. Foreign receivers. Eeceivers or trustees of the effects of an insolvent corporation of another state, appointed under the laws of such state, with power to take possession of all the effects of such corporation, " and to sell, convey or assign its real and personal estate," have power to sell and assign a debt due to the corporation from a citizen of this state, and such sale and assignment give to the purchaser the equitable right of action, as against the debtor, in the courts of this state. The question whether assignments under foreign bankrupt laws operate as a transfer of the bankrupt's effects within this state, as against creditors and bona fide ^purchasers, discussed, and the cases of Abraham v. Plestero (3 Wend., 538) and Johnson v. Hunt (23 Wend., 87) considered and reviewed by EuGGLES, Ch. J., and Paige, J. Hoyt v. Thompson, 1 Seld., 320. 8. Assignments by such receivers and trustees are properly executed by them in their own names, without the use of the name of the corporation or the corporate seal. Id. 9. The judgment debtor is a necessary party to a suit commenced by a receiver against the trustee of the judgment debtor, to reach the equitable interest of the latter in a fund held in trust for him. Vanderpoel, receiver, v. Van Valkenburgh et al., 2 Seld., 190. 10. Powers of the Court of Chancery to direct the conveyance to and sale by a receiver, of real estate in certain cases ; Judgments docketed after conveyance to receiver, no lien. The late Court of Chancery had power, under a bill filed by a judgment creditor, for the purpose of setting aside a fraudulent conveyance of the debtor's lands, to direct the conveyance of the lands by the debtor and his fraudulent grantee to a receiver, pending the suit, and after a decree declaring the sale by the debtor fraudulent, to order the lands sold by the receiver, and the proceeds to be applied in satis- faction of the plaintiff's judgment. The purchaser at such sale COURT OF APPEALS DIGEST. 541 acquired all the title and interest which the debtor bad in the lands, at the time of his conveyance to the receiver. And a judg- ment recovered against the debtor after his conveyance to the receiver, does not create a lien upon the lands. The Chautauque County Bank v. White, 2 Seld., 236. 11. A receiver of an insolvent banking corporation may repudiate the illegal transfer of its securities by its officers, and claim them as part of the fund. Talmage v. Pell, 3 Seld., 328. And so of a transfer by a cashier of a banking corporation of promissory notes exceeding $1,000 in value, without a previous resolution of its board of directors, as against any person other than a bona fide purchaser without notice (1 R. S., 591, sec. 8). And in the receiver's action the defendant cannot recoup for the consideration paid by him to the bank on the transfer. Gillet, receiver, Sfc, v. Phillips, 3 Kern., 114. But it seems that a cotemporaneous in- direct approval by the board of directors, followed by a resolution ratifying the transfer, will be equivalent to a previous resolution. Curtis V. Leavitt, 15 N. Y. Rep., 9. 12. A receiver of an insolvent insurance company may recover upon a stock note given for the purpose of complying with section 5, of chapter 308, of the Laws of 1849 ; and it is no defense to such action that the losses, to the payment of which the money may be applied when collected, have occurred after the expiration of the period for which the maker of the note was insured, or that no assessment was made in respect to such losses, upon other notes given to the company. White, receiver, v. Haight, 16 N. Y. Rep., 310. 13. Insolvent railroad corporation; Sequestration. Upon the granting of an order of sequestration and for the appointment of a receiver of an insolvent railroad corporation, in an action brought in behalf of all its creditors, the right of action against its stock- holders, for the amount of their unpaid subscriptions to its capital, vests in the receiver, and a judgment creditor of the corporation will be restrained from prosecuting an action against a stockholder under the 10th section of the general railroad act (chap. 140, of 1850), commenced by him after the making of such order, but 542 COURT OF APPEALS DIGEST. EECOQKIZAHOE EEDEMPTION OF LAKES. before the appointment of a receiver under it was perfected. Rankine, receiver, v. Elliott, 16 N. Y. Rep., 377. RECOGNIZANCE. 1. The condition being for defendant's appearance at a criminal court, it is no defense to an action on the recognizance, that there was no indictment found. His discharge rests in the discretion of the court, whether an indictment be found at the particular term or not. Champlain v. The People, 2 Comst., 82. 2 The declaration on a recognizance taken by a Supreme Court commissioner, need not state the special facts giving the officer jurisdiction. And, since an examination before the committing officer may be waived by the accused, it is not necessary that the recognizance should show on its face that there is probable cause for believing the accused guilty of the offense charged, or that the magistrate made any adjudication in the matter. Id. 3. A person arrested for a criminal offense may insist upon an examination before he can be compelled to enter into a recogni- zance. But if the recognizance was extorted from him in viola- tion of such right, that must be set up by way of defense. The declaration need not aver that an examination was waived. Id. RECOUPMENT. 1. In an action for rent, the defendant may recoup his damages for fraudulent representations of the lessor as to the territorial extent of the demised premises. Whitney v. Allaire, 1 Comst., 305. And his damages sustained by breach of an implied covenant, for quiet enjoyment. The Mayor, Sfc, of New York, v. Mabie, 3 Kern., 151. And, it seems, his damages for breach of his landlord's agreement to repair. Nichols v. Dusenbury, 2 Comst., 283. 2. See, ante. Title, " Receiver," No. 11. REDEMPTION OF LANDS. 1. Who may redeem. A senior judgment creditor may acquire the interest of the purchaser at a sale under a junior judgment, COURT OF APPEALS DIGEST. 543 BEDEMFTIOH OF IJ SALE OF CHATTELS. I. What amounts to a sale or otherwise. II. Sales for cash ; Conditional sales ; Delivery, in. Sales of property procured by fraud or felony. IV. Sales under a warranty. V. Miscellaneous eases. I. WHAT AMOUNTS TO A SALE OB OTHERWISE. 1. See, Titles, " Bailment ; " "Contract;" "Fraud;" "Title to Property." 2. Goods " to arrive." The plaintiffs executed a written memo- randum importing that they had sold to the defendants one hun- dred and fifty tons of pig iron, of a certain quality, " on board the ship S.," it being understood by both parties that the ship was then at sea. This, it seems, was not a sale, but an agreement to sell the iron on condition of its arrival in port. And, therefore, it seems, that when the ship arrived with the quantity of iron on board, but of an inferior quality, the contract was at an end and bound neither party. Shields et al. v. Pettie and Mann, 4 Comst., 122. COURT OP APPEALS DIGEST. 553 SALE OF CHATTELS. 3. The defendants, however, having received a part of the iron before ascertaining its quality, and then having refused to accept or pay for it as of the quality required by the contract : Held, after a demand to return what they had received, with which they were unable to comply in consequence of having sold some of it, that there was an implied promise on their part to pay for the iron so received, at its value in market at the time of the demand. And, therefore, held further, that' the plaintiflFs, under a general count in assumpsit, were entitled to recover the market value of the iron received by the defendants, although it had risen in market at the time of the demand, so that its value exceeded the price agreed to be paid for the iron mentioned in the contract. Id. 4. Advances on property. The plaintiifs discounted the drafts of the owner of two hundred barrels of flour, taking as security "for the acceptance" a forwarder's receipt of the drafts, given on ship- ment of the flour from Rochester to the owner's consignee, the defendant at Albany, on whom the drafts were drawn ; the de- fendant refused to accept, but receiived the property and converted it to his own use, with notice of the transaction with plaintiffs' bank : Held, that the defendant was liable to the plaintiffs in tro- ver for the flour; the transaction, it seems, amounting to a sale of the flour to the plaintiffs, in trust to deliver it to the defendant if he accepted the drafts, or if not, in trust to sell the flour and pay the drafts. Bank of Rochester v. Jones, 4 Const., 497 5. See, Title, " Gift." II. SALES FOR cash; CONDITIONAL SALES; DELIVERY. 6. Waiver of condition ; Burden of proof. Where goods, sold to be paid for on delivery, by notes, are delivered without the notes being given or demanded, the presumption is that the condition is waived, and that a complete title vests in the purchaser. This presumption may be rebutted by proof of the acts and declara- tions of the parties at the time going to show a different inten- tion; and the question what the intent was, is for the jury. Smith V. Lyncs, 1 Seld., 41. ^ 70 554 COURT OF APPEALS DIGEST. SALE OF CHATTELS. 7. If the actual delivery is complete, the burden of proof to establish the condition rests upon the vendor ; and after actual delivery, whether as between the parties it was or was not condi- tional, a hona fide purchaser from the vendee gets a good title. Id. 8. Agreement that no title shall vest until payment. In such case no title will vest though the property be delivered, the purchaser getting merely a right to the use of the property until default ; and a creditor of the defaulting purchaser, who levies on and sells the property (though the sale be under another execution in the sheriff's hands), having indemnified the sheriff, is liable for its value, in the vendor's action, though none of the proceeds of the sale were applied on his execution. Herring v. Hojipoci, 15 N. Y. Rep., 409. 9. Payment in notes of a third person who has meantime become insol- vent. Upon an executory contract for the sale and delivery of goods to be paid for on delivery in the notes of a third person, whom both parties supposed at the time to be solvent, but who becomes insolvent before the day fixed for performance, the vendor is not bound to deliver on tender of the notes, though they may not be entirely worthless ; notwithstanding by the terms of the bargain such notes were to be taken " without recourse." Bene- dict el al. V. Field, 16 N. Y. Rep., 595. 10. See, Title, "Frauds, Statute of." in. SALES OP PEOPEETT PROCUEED BT FEAUD OE FELONY. 11. Fraud of conditioruil purchaser shipping property in his ovm name without owner^s consent ; Construction of statute of 1S30 as to dealings of principals, factors and agents. A sale of lumber on credit, and a conditional delivery of it to the purchaser for trans- portation by him and delivery to consignees for sale in the name of the original owner and as his property, the avails to be paid to him to the extent of the unpaid purchase money, and the surplus to such purchaser, give to the latter no title to the property, or authority to sell it, or to create a lien upon it for advances. And where the conditional purchaser in such case, having shipped the COURT OF APPEALS DIGEST. 555 SALE OF CBATTEL8. lumber and received a bill of lading from the carrier in the name of the owner, substituted therefor a paper signed by himself only, stating the shipment in his own name as consignor, which was delivered with the lumber to the consignees who made advances on it to him : Hdd, that the shipment was not "in the name" of such purchaser, within the statute relative to principals, factors and agents (Laws of 1S30, chap. 179), so as to protect the con- signee in dealing with him as owner ; but to afford such protec- tion the shipment must be in the name of another with the owner's consent. Covell v. Hill et al., 2 Seld., 374. 12. That the paper signed only by the consignor was in no sense a bill of'lading ; or if it was, it was not " intrusted " to the holder in the sense of section 3 of the act ; that the absence of a regular bill of lading with notice at the time of delivery that it was " the Covell lumber," was enough to put the consignees on inquiry, and to deprive them of the character of bona fide pur- chasers or incumbrancers under the act. Id. 13. That the consignees having authority from the owner to sell the property for his account, were guilty of a conversion in selling it as another's property in hostility to the owner's rights, and were liable to him in trover for the value of the lumber at the time and place of conversion, with intei'est, less the advances for freight, and could not deduct the amount paid by the conditional purchaser, inasmuch as that was forfeited by his fraudulent acts in shipping and pledging it as his own. Id. 14. A'b title can be made through a felony. On the seventh of October the plaintiffs, in the city of New York, contracted to sell to Lovett & Co. fifty barrels of potash, to be paid for on delivery; and thereupon Lovett, one of the purchasers, engaged from the own- ers of a vessel about to sail for Liverpool, freight for the potash. On the ninth of October, the plaintiffs, pursuant to the contract of sale, sent the potash on board the vessel, and took from the defend- ant, Peabody, who was master, receipts tiierefor in their own names ; and on the same day Lovett stole the receipts from the plaintiffs, and on presenting them to the owners of the vessel, procured a bill of lading for the potash in his own name, upon 556 COURT OF APPEALS DIGEST. SALE OF CHATTELS. which, and a bill of exchange drawn against the shipment, he pro- cured an advance to about the value of the property. Lovett & Co., were insolvent and contracted for the property intending not to pay for it; and the plaintiffs, within a few days after the bill of lading had been procured, demanded the potash of the master, who declined to deliver it, and it was transported to Liverpool and delivered pursuant to the bill of lading. In an action by the plaintiffs against the master : Held, 1st, that the plaintiffs had not parted with their title to the potash ; and 2d, that the master was liable to them for its value, notwithstanding the bill of lading was given to Lovett and the advance made to him upon its credit, without notice and in good faith, and although by the custom of merchants and ship owners in New Yorii, bills of lading are made out and delivered to the person producing the ship receipts, with- out reference to the party named in them, and without any assign- ment of them from such party. The act of Lovett through which the defendant was compelled to make title, was a felony, and could not be set up to the prejudice of the true owner. Brower et al. v. Peabody, impleaded, 8fc., 3 Kern., 121. IV. SALES WITH WAEEANTT. 15. Re-presentation, not amounting to a warranty. Sale April third, of linseed oil "to arrive per ship Marcia, from London, sailed on or about the fifteenth of March, ult. : Held, that the statement as to time of sailing was a mere representation and not a warranty ; that defendants were bound to take and pay for the oil though the vessel did not sail until the twenty-sixth, and so did not reach port until the spring trade in oil had ceased ; and that evidence of loss to defendants on that account was not admissible in an action on the contract. Hawes et al. v. Lawrence et al., 4 Comst., 345. 16. A mere sale by sample does not amount to a- warranty ; Where the bulk of the goods are open to purchasers' inspection, or he lias an opportunity to examine, he is bound to do so, or he cannot claim damages unless there be an express warranty. The plaintiff, a merchant in New York, received an order from Mexico for a quantity of cotton sheeting, having over thirty threads to the Mexican quarter of a COUET OF APPEALS DIGEST. 557 SALE OF CiaATTELS. square inch. By the Mexican revenue laws, the importation of goods of less fineness was prohibited. The plaintiff employed a broker to make the purchase, who procured samples from the defendant, only one of which was found to be of the requisite fineness. The broker ordered the desired quantity of the goods, of the quality of the approved sample. .The defendant had only about half of the desired quantity, but agreed to procure from Boston and deliver the residue in a short time, which he did. The whole was delivered in bales, at a packing house, at the plaintiff's request, where the bales were opened and the cloths repacked in larger bales, and forwarded to Mexico. There, being found to average only twenty-eight to twenty-nine threads to the quarter inch, they were condemned, and sold by the custom-house officers. The defendant was not notified that the goods were designed for the Mexican market, or what were the revenue laws there, or that goods having over thirty threads to the quarter inch were required. He had no glass to count the threads, which could not be counted without a glass. It was not unusual for goods of this kind, of the same general quality, to vary one or two threads in the quarter of an inch. In an action to recover damages for the loss of the goods, alleging in different counts, a warranty that the goods delivered were of the same fineness as the sample ; that they were of a quality which could be imported into Mexico ; that they had over thirty threads to the Mexican quarter inch, &c. : HM, (1.) That something beyond the mere exhibition of a sample is requi- site to create a warranty that the bulk of the goods is of the same quality as the sample ; and that such exhibition is but a repre- sentation that the sample has been fairly taken from the bulk of the commodity. (2.) That as to the goods procured from Boston, regarding the contract as an executory one to furnish goods of a particular description, the purchaser was bound to examine them when the bales were received and opened to be repacked, and to have returned them if the quality was not such as was promised ; and that not having done so, he waived all objection on account of defects of quality which would have appeared on such exami- nation. (3.) That the defendant was not required to furnish goods 558 COURT OF APPEALS DIGEST. SAiB OP CHATTELS. suitable for the Mexican market, or having over thirty threads to the quarter inch, as he had no notice that the goods were pur- chased for that market, or of the state of their revenue laws, or that goods counting that number of threads were required. (4.) That the broker, in making the purchase, acted as the agent of the plaintiff, and not of the defendant ; and notice to him was, therefore, not notice to the defendant. (5.) That there was no proof of warranty, and that plaintiff was properly nonsuited at the trial. Hargous v. Stone, 1 Seld., 73. 17. Proof of a general custom to sell by sample, and to make pur- chaser good if the bulk of the commodity afterwards prove defective, is not proper on the question whether there was a war- ranty of quality in a particular case of sale by sample. Beime and Burnside v. Dord, 1 Seld., 95. 18. No warranty can be implied from the mere exhibition by the seller of goods, of a sample at the time of the sale, as to the nature or quality of the bulk of the commodity. There must be other evidence to show that the parties mutually understood that they were dealing with the sample, upon an agreement on the part of the seller that the bulk of the commodity corresponded with the sample. Id. 19. That a personal examination of the bulk of the goods by the purchaser at the time of the sale is not practicable or con- venient, furnishes, of itself, no sufficient ground to say that the sale is by sample. It is only a fact bearing on the question of the character of the sale. Per Jewett, J. Id. V. MISCELLANEOUS CASES. 20. Evidence in, action for non-delivery. Proof of ability and readiness to take and pay for goods sold to be paid for on delivery, is sufficient in the purchaser's action against the seller for non- delivery; a demand to deliver need not be proved. Vail et al. V. Rice, 1 Seld., 155. 21. Action for breach of warranty, express or implied, may be maintained without proof of a return or offer to return the goods, or giving notice of the defect ; or the purchaser may recoup in COURT OF APPEALS DIGEST. 559 SALVAGE. an action for the price ; and it will make no difference that the purchaser has resold the goods and no claim of damage has heen made upon him by his vendees, or that he is not liable to any such claim. And the price at which he resold has no legal bearing on the question of damages. Muller v. Eno, 4 Kern.., 597. 22. Sale of a chose in action. Upon the assignment of a judg- ment, in the absence of any statement by the assignor that pay- ments have been made thereon, the law implies a warranty that the whole nominal amount remains due and unpaid. Furniss v. Ferguson et al., 15 N. Y. Rep., 437. 23. Delivery of the whole to the purchaser of apart, not counted, out nor separated from the mass, carries with it the right of selection, and is a sufficient delivery to pass the title as against a subsequent purchaser of the whole from the same vendor, though the latter purchase is made before any actual selection of his part by the first purchaser. Thus, where A., the owner of a brick yard, in consideration of a previous indebtedness and of a new advance, sold by writing to B., the defendant, forty three thousand bricks to be taken out of an unfinished kiln containing a larger quantity, and also delivered to him formal possession of the yard, and agreed with him to burn the kiln ( which was done by B. ) ; and, thereupon, before any selection of the forty three thousand bricks had been made by B., A. executed to C, the plaintiff, a bill of sale of " all the bricks in such unfinished kiln :" Held, that after the execution of such bill of sale, B. was still entitled to select and take the forty-three thousand bricks, although not before separated from the mass, and that the plaintiff could not maintain trespass against him for so doing. Crofoot v. Bennett, 2 Const., 258. 24. As to illegality of agreements to prevent competition at sales of property under process, &c., see Brisbane v. Adarm, 3 Comst., 129. SALVAGE. 1. When goods are derilect so as to give salvor a lien. Goods con- tained in a vessel sunk or abandoned at sea, and which are not 560 COURT OF APPEALS DIGEST. SEDUCTION — SET-OFF. cast upon the shore, are not " wrecks," nor within the provisions of the Revised Statutes entitled "Of wrecks" (1 R. S., 690), but are derelict, and the finder who recovers them has by the mari- time law a lien for salvage. And the sea includes the water of a river navigable from the sea, and within the ebb and flow of the tide. ~ And a vessel or its cargo may be derelict, and a salvage ser- vice may be rendered and a lien therefor acquired there, as well as upon the high seas. It is sufficient, if it be within the bounds of admiralty jurisdiction, although also within the body of a county. Accordingly, where a canal boat was casually sunk in the tide wafers of the Hudson river, near Coxsackie, and subsequently found, and a quantity of wood on board saved: Held, that the salvor had a lien upon it for salvage against the owner. Bulcer v. Hoag, 3 Seld., 555. SEDUCTION. See, Titles, " Master and Servant ;" " Parent and Child." SET-OFF. 1. Of debt not due ; Insolvency. A court of equity will, it seems, enforce a set-off of cross-demands where the defendant is insol- vent, although the debt of the complainant to the defendant is not due. But the rule is otherwise if the debt of the defendant to the complainant is not due. The complainants were indebted to the defendant's testator in the sum of between three and four thousand dollars, to recover which, the defendant, as executor, brought an action at law. The complainants thereupon filed their bill to compel a set-off of certain notes given to them by the tes- tator, which were not yet due, and to restrain the action at law. The estate of the testator was insolvent : Held, nevertheless, that the bill could not be sustained. Bradley v. Angel, 3 Comst., 475. 2. Against assignee of a hankrupt. A debtor to the bankrupt cannot set-off a demand against the latter, purchased after the filing of the petition under the law of 1841. And in this respect the filing of a petition by a partner on his account, and on behalf COURT OF APPEALS DIGEST. 561 of the firm, has the same effect as a petition by all the partners. By purchasing the demand, the debtor to the baniirupt simply puts himself in the place of the party selling it, becoming entitled to a distributive share of the bankrupt's estate, and nothing more ; the decree, as against the purchase, relating back to the time of filing the petition. Smith v. BrinJcerhoff, 2 Seld., 305. 3. Mutual accounts current. Where such accounts exist between two parties, one of them cannot, by simply buying an open ac- count fiom a third person, without notice to, or recognition of its validity by the other, make it a part of the account current, so as to save it from the statute of limitations. Gfreera v. Ames, 4 Kern.., 225. SHERIFF. I. Duties and liabilities in executing and returning process. II. His deputies. III. Custody of prisoners. IV. Other matters. I. DUTIES, &C., IN EXECUTING AND RETURNING PROCESS. 1. See, Title, "Execution." 2. Seizing property of a party other than the defendant in the pro- cess. Such act is a breach of his official bond given " for the faithful performance of the duties of his office.;" and such party, after judgment and execution returned unsatisfied against the sberiff, may maintain an action on such bond against the sheriff and his sureties. The People v. Schuyler, 4 Comst., 173. 3. False return of an execution. That the execution was issued within the thirty days, at the end of which it should issue by sta- tute, is no defense to the action for falsely returning such execu- tion. It is not void, but voidable only at the instance of the defendant therein. Bacon v. Cropsey., 3 Seld., 195. 4. Measure of damages in the action for a false return of an execu~ tion, is the amount directed by it to be levied.. And the sheriff cannot show that the amount so directed to be levied, was not due on the judgment. Id. 71 562 COURT OF APPEALS DIGEST. 5. For neglecting to return an execution. The measure of damages is jtrima facie the amount directed to be levied. No proof of special damage is necessary. But the sheriflF may show that the defendant in the execution had no property upon which he could have levied, but not that the judgment is still collectable. The case of Stevens v. Rowe ( 3 Denio, 327 ), overruled. Ledyard v. Jones, 3 Seld., 550. 6. For moneys collected on an execution; the return is conclusive evidence of the amount, though made by a deputy, and the sheriff cannot impeach it.' Sheldon v. Fayne, sheriff of Washington, 3 Seld., 453. 7. The payment of moneys into court, in pursuance of its order, where they were collected on an execution against a tenant, out of goods liable to distress, is a protection to sheriff against an action for the rent, brought after such payment, by a landlord who had given notice to the sheriff pursuant to the provisions of the statute. ( 1 K. S., 746, sec. 12, &c.) AcJcer v. Ledyard, 4 Seld., 62. 8. Where he has been fined to the amount of an execution, for neglecting to return it, and has paid the fine, he cannot enforce the execution for his own benefit ; nor can it be done where the fine was paid with his moneys, by a third person for his benefit, and the judgment assigned to such third person ; and a sale of real estate under it would be void. Carpenter v. Stillwell, 1 Kern., 61. 9. He is not liable to the mortgagee of chattels for selling the same on an execution against the mortgagor, where the latter has, by the terms of the mortgage, a rigVit of possession for a definite period, although he sell without noticing the mortgage interest, and deliver possession to the purchaser. Hull v, Carnley, sheriff, and Colton, 1 Kern., 501. 10. What constitutes a valid levy. A manual interference with the goods is not necessary. It is sufiicient that the property is present, subject to his control, and that he then openly states that he levies upon it, and asserts his authority over it by virtue of the execution. Barker v. Binninger, 4 Kern., 270. COUET OP APPEALS DIQEST. 553 II. HIS DEPUTIES. 11. Bond to the sheriff. It is not a breach of such a bond, con- ditioned that the deputy should so demean himself that the sheriff should not sustain " any damage or molestation by reason of any act done or liability incurred" by or through such deputy, that the sheriff has been sued and judgment recovered against him for a default of the deputy in not returning an execution. There can be no recovery against the deputy and his sureties, unless the sheriff proves that he has paid some such judgment recovered against him, or has otherwise sustained actual damage. Gilbert v. Wiman, 1 Comst., 550. 12. Accountable to the sheriff, and not to the party for moneys col- lected on process. An action will not lie against a deputy sheriff to recover money rightfully received by him in that character, although, on demand of him, while the money is yet in his hands, he refuses to pay it to the person to whom it belongs. Colvin v. Holbrook, 2 Comst., 126. 13. For his trespass or misfeasance as such, he is liable jointly with the sheriff. As where he wasted part, and returned in a damaged state a part of a stock of goods remaining in his hands after satis- fying an execution by levy and sale. Waterbury v. Westervelt, 5 Seld., 598. 14. His statements are not evidence in chief against the sheriff, where they were not made in the performance of an official act. Barker v. Binninger, 4 Kern., 270. 15. The sheriff is liable for his acts, unless it be shown not only that the plaintiff directed the deputy to depart from the line of his duty imposed by law, but that the deputy followed, or under- took to follow, such instructions. Sheldon v. Payne, 3 Seld., 453. HI. CUSTODY OP PRISONERS. 16. An agreement with the sheriff for the going at large of a .party in custody, upon any other terms than those prescribed by statute, is void. And so is any agreement to indemnify the sheriff against the consequences of his breach of duty. But this prohibi- 564 COURT OP APPEALS DIGEST. tion extends only to the officer, and not to the plaintiff in the process. Therefore, where a party under arrest was permitted to go at large, upon depositing with a third person the sum of money for which he was arrested, under an agreement that if he did not surrender himself at a given time, the money might be paid over to the plaintiff in the process : Held, in an action to recover back the money from the person with whom it was deposited, that the question was, whether the agreement was made with the officer, or with the plaintiff at whose suit the arrest was made ; and upon the evidence, that question directed to be submitted to the jury. Winter v. Kinney, 1 Comst., 365. 17. Action for an escape. The officer cannot show in his defense that the judgment on which the execution was issued, was erro- neous ; as that the evidence before the magistrate did not make out a cause of action in tort. Wesson v. Chamberlain, sheriff, 3 Comst.', 331. 18. Retaking a prisoner who has escaped.. If the plaintiff did not consent to the arrangement under which the defendant was suf- fered to go at large, he may issue new process and retake him. And such consent is not made out by showing that he called on a third person to perform his undertaking to the sheriff to pay the -debt or surrender the prisoner, as he promised to do as a condition ■of his going at large. Id. 19. What is not a defect in an execution against the body. An exe- ■cution against the person, reciting the judgment as prescribed in section 289 of the Code, and commanding the sheriff to commit the defendant "to the jail of said county of M., until he shall pay the said judgment, according to law," the words "or be dis- ■charged," from subdivision 3 of that section, being omitted, is nevertheless, valid ; and a sheriff discharging a prisoner arrested upon such execution, is liable as for an escape. Hutchinson v. Brand, 5 Seld., 208. IV. OTHER MATTERS. 20. See, Title, " Redemption of Lands." 21. When sheriff's sureties entitled to be subrogated. Where a COURT OF APPEALS DiaSST. 565 SHIPS AND TESSELS. sheriff, under legal process, seizes property claimed by a stranger, and requires and receives indemnity before proceeding to the final execution of the writ, his sureties, on payment of the judgment recovered against him for the erroneous seizure, are entitled to be subrogated to the indemnity. The People v. Schuyler, 4 Comst., 173. 22. One who has indemnified a sheriff for taking property by virtue of an execution, is not a competent witness for the sheriff in defense to a suit against him for such taking. He is the person " for whose immediate benefit the suit is defended," within the meaning of section 399 of the Code of Procedure. Rowland v. Willelts, 5 Seld., 170. SLj/ rrJ/^o^f^f^ Mt «*w^*^^' li^'Wf W^a. //4*t»^ Willelts, 5 Seld., 170. -^/U/^yv-^^^Ww^ ,4 a*vU^'^' '^'mtM^ n^ SHIPS AND VESSELS. (1.) Statute lieus. (2.) Authority of master. (3.) Charter party. (4.) Miscellaneous cases. (1.) Statute liens. 1. No "debt" is contracted, so as to give a lien, until the goods are delivered. And if delivered, the lien is waived if a credit is given extending beyond twelve days after the vessel leaves the port where the supplies are furnished, notwithstanding an express agreement that the lien shall continue. The lien must be one created by the statute, and not by agreement of the parties. And where goods were furnished from time to time to a vessel navigating the Hudson river, making daily trips between New York and Albany, under a previous agreement that the bills were to be paid at the end of the season : Held, under the 2d section of the statute, that after the expiration of twelve days from any time when the vessel left port, there was no lien for goods previ- ously furnished under the contract. Veltman et al. v. Thompson et al., 3 Comst., 438. See Laws of 1859 amending the statute in important particulars. 2. A charterer put in possession by the owner, and designated as captain, may contract a debt for which the vessel will be liable. Pendleton et al. v. Franklin, 3 Seld., 508. 566 COURT OP APPEALS DIGEST SHIPS AND VESSELS. 3. The application for the loarrant is Sufficient in that respect if it state in tiie alternative, that the debt was contracted by " E. S. D., master, owner, or agent," without specifying in which charac- ter he acted. Id. 4. A steamboat enrolled and registered as a coasting vessel, is within the description of vessels contained in the statute. Id. (2.) Authority of master. 5. See, ante. No. 2. 6. Repairs in a home port. The master of a vessel, as general agent for the owners, has authority, in a home port, to bind them by his contract for necessary repairs to the vessel, unless his power has been in some way suspended or restricted, and notice of such suspension or restriction is brought home to the creditor. Provost V. Patchin, 5 Seld., 235. (3.) Charter party. 7. Extra freight. Under a charter for a single voyage, at a gross sum, of the whole tonnage of the plaintiff's vessel, " except so much thereof as may be necessary for the accommodation of the officers and crew, and the storage of provisions, water and fuel for the same : " Held, that the question was not what was indis- pensably necessary for their accommodation ; and that the captain and crew having given up the cabin, forecastle and storeroom, usually occupied by them, to be filled with defendant's freight, he was entitled to usual charges for such freight, beyond the gross sum for the charter, the jury having found that those parts of the vessel were included in the reservation. Almgren v. Dutilh et al., 1 Seld., 28. 8. Parol evidence. And held further, that proof of the conversa- tion between the captain and the defendants when in negotiation for the charter of the vessel, in relation to the parts of the vessel which would be required for the use of the captain and crew and their stores, was properly admitted. That such proof did not tend to contradict or vary the written contract, but only to point out the subject to which it applied. Id. COURT OF APPEALS DIGEST. 567 ( 4. ) Miscellaneous cases. 9. No title passes to the party for whom a vessel is built, to be finished at a fixed price and by a certain day, and to be delivered when completed, until it is completed. Thus, where A. con- tracted to build for B. a vessel of specified dimensions, and deliver it to him complete on a day named, for the price of $5,000 ; $3,000 to be paid at specified stages of the work, and $2,000 when it was completed and delivered, the workmanship and materials to be inspected and approved as the work progressed, by the superintendent of B., which v/as done : Held, that B. had no property in the -vessel before it was completed. Andrews et al. V. Durant, 1 Kern., 35. See, also. Decker et al. v. Furniss et al., i Kern., 611. 10. Insurance. A policy of insurance describing the property insured as " a barque on the stocks," does not cover portions of it lying in the ship-yard finished and ready to be united to the keel, and valueless for any other purpose. Hood v. The Manhattan Fire Insurance Company, 1 Kern., 532. 11. See, Titles, " Insurance ; " "Salvage." SLANDER. I. Slander of persons. (1.) Words imputing crime. (2.) Words affecting plaintiff in his office or tusiness. (3.) Privileged communications. (4.) Pleadings and evidence. II. Slander of title. I. SLANDER OF PERSONS. (1.) Words imputing crime. 1. Ferjury. A witness may be convicted of perjury in falsely swearing to a promise within the statute of frauds, although parol evidence of the promise would not be competent if objected to. Such evidence is material, and, therefore, an action of slander will lie for imputing perjury in respect thereto. Howard v. Sexton, 4 Corns t., 157. 568 COURT OF APPEALS DIGEST. 2. Ferjury. Where the charge is perjury, it will avail nothing in justification to prove that plaintiff swore false through an inno- cent mistake. (Before the Code.) Fero v. Ruscoe, 4 ComM., 162. (2.) Words affecting plaintiff in his office or business, 3. Words not actionable per se. In the action of slander, where the words spoken derive their actionable quality from extrinsic facts and circumstances, such facts and circumstances must be proved or the plaintiff cannot recover. Accordingly, in an action for slanderous words alleged in the declaration to have been spoken of the plaintiff as a constable, and imputing to him miscon- duct in his proceedings under a bench warrant, placed in his hands for the arrest of an offender who had been indicted, and the words proved were not slanderous except as connected with the indict- ment and bench warrant, and the plaintiff failed to prove the war- rant: Held, that he could not recover. Kinney v. Nash, 3 Comst., 177. 4. Words not actionable in themselves, do not become so when spoken of one holding a public office, or engaged in a profession or trade, unless they touch him in his office, profession or trade. Id. 5. An action for slanderous words, imputing to the plaintiff misconduct as a constable, is not sustained by proving words im- puting misconduct to him as agent of the executive of this state for the arrest, in another state, of a fugitive from justice. Id. (3.) Privileged communications. 6. Words spoken or written in a legal proceeding, pertinent and material to the controversy, are privileged, and the truth of the statement cannot be drawn in question, in an action for slan- der or libel. Garr v. Selden, 4 Comst., 91. 7. See, Title, " Libel." (4.) Pleadings and evidence. 8. Words not charged in the declaration. Evidence cannot be given of words spoken on another occasion and of a different im- portfrom those charged in the declaration, although such evidence COURT OF APPEALS DIGEST. 559 is offered only for the purpose of showing that the words charged were spoken with malicious intent. As on a charge of perjury before arbitrators, to prove that defendant, in speaking of the arbi- tration, said on another occasion, " the way they got the money was no better than highway robbery : " Held, inadmissible, though offered for no other purpose than to show '^ with what mind" the words charged in the declaration were spoken. Howard v. Sexton, 4 Comst., 157. 9. Justification. Where a defendant justifies in his pleadings, but the evidence comes short of .a justification, he cannot have any benefit from t\\e evidence, but the justification on the record, and the failure to make it out, constitute an aggravation of the slander. (Before the Code.) Fero v. Ruscoe, 4 Comst., 162. 10. Under the general issue, the defendant may show the words privileged, or give any other evidence tending to disprove malice ; but he cannot, under that plea, prove. the truth-of the charge or give any evidence tending to that result, either in defense or in mitigation. Id. 11. Good character cannot be proved by the plaintiff in reply to defendant's evidence, tending to prove the truth of the charge. Houghtaling v. Kilderhouse, 1 Comst., 530. 12. Former recovery. Under this plea the defendant cannot show that some of the words contained in the declaration were given in evidence in the former suit, unless they were also contained in the declaration in such former suit. He must be confined to the record in the former suit, and cannot show that a different subject was litigated at the former trial. Campbell v. Butts 3 Comst., 173. 13. Pleadings and evidence under the Code. The defendant may now prove in mitigation facts and circumstances which disprove malice, although they tend to prove the truth of the charge ; and he may do this without having alleged the truth of the charge in his answer. As where the charge was keeping a house of ill-fame, he may prove in mitigation, lewd and lascivious conduct of plain- tiff's family.* Bush v. Prosscr, 1 Keim., 347. Or where the charge was stealing defendant's corn, he may prove in mitigation that they 72 570 COURT OP APPEALS DIGEST. SPECIAL SESSrOXS — SPECIAL VERDICT, were tenants in common of a piece of corn raised on shares, and that plaintiflF, instead of fairly dividing, dishonestly hid away a part of the crop in the field before a division. Bisbey v. Shaw, 2 Kern., 67. II. SLANDEE OF TITLE. 14. The words must be false, malicious, and followed by direct and natural pecuniary damage, in order to be actionable. And such damage must be specially alleged and proved. And where the plaintiff, before the speaking of the words, had entered into a written contract with a third person, for the sale to him of the lands in relation to which the words were spoken, and the pur- chaser, afterwards, in consequence of those words, having become dissatisfied with the purchase, the contract was at his request canceled by the plaintiff and the money paid down returned (the loss of a sale to that person being the only special damage alleged): Held, that the action could not be maintained ; that the damages (if any) sustained by the plaintiff, were the consequence of his own voluntary act, and not of the words spoken by the defendant. Kendall v. Stone, 1 Seld., 14. SPECIAL SESSIONS. See, Titles, " Error, Writ of;" " Indictment," SPECIAL VERDICT. 1. Must state facts and not evidence of facts. As in trover, must not state demand and refusal, instead of a conversion ; especially as the evidence tended to show the property out of defendant's possession at the time ; or even stating a sale of it by defendant, but also tending to show a right to sell under authority from plaintiff: Held, not enough to entitle plaintiff to judgment. Hill V. Covell, 1 Comst., 522. Langley v. Warner, 3 Comst., 327. 2. Must find all the conclusions of fact, and leave nothing for the court to determine but questions of law. Sisson- v. Barrett, 2 Comst., 406. COURT OF APPEALS DIGEST. 57I SPECIFIC PEKFORMANCE — STAKE DECISIS. SPECIFIC PERFORMANCE. 1. Will be decreed against a vendee of land, to compel him to take a deed and pay the purchase money, though the vendor have also a remedy at law. And where the vendee has given notice of his refusal to complete the contract, no previous tender of a deed is necessary. Crary v. Smith, 2 Comst., 60. 2. Will be decreed at the suit of A., to compel C. to perform his verbal agreement to release from the lien of his mortgage, a piece of land which A. bought of B. and took his deed and paid for on the faith of C.'s said agreement to release ; a portion of the purchase money having been paid on the mortgage at the time of the agreement ; and this notwithstanding A., at the time of filing the bill, has conveyed away the lands, such conveyance being with warranty. Malins v. Brown, 4 Comst., 403. 3. See, Title, " Infant," No. 8 ; case of Hyatt, administrator, v. Seely, 1 Kern., 52. 4. Will be decreed against a resident of this state, to compel performance of a contract to convey lands in another state ; not- withstanding section 123 of the Code, which requires actions of this class to be brought in the county where the land lies. New- ton V. Bronson, 3 Kern., 587. 5. Will not be decreed of a contract for the conveyance of land, where there is no evidence of the payment of the purchase money, except the presumption arising from the lapse of twenty years from the time it became due. Morey v. The Farmers^ Loan and Trust Company, 4 Kern., 302. STARE DECISIS. 1. Where the decisions of the highest appellate tribunal of this state, and those of the federal courts are in conflict, the former will be followed, except where the latter are made controlling authority by the constitution and laws of the United States. Towle V. Forney, 4 Kern., 423. 2. The decision of the Court of Errors in Cochran v. Van Surlay (20 Wend., 365) should be followed by the courts of this state, 572 COUET OF APPEALS DIGEST. though departed from by the Supreme Court of the United States. Id. The case in Wendell holds constitutional a -private act of the legislature authorizing the sale of infants' real estate for their support, and maintenance. Compare with this the case cited, ante, Title " Constitutional Law," No. 29. STATUTES, I. Construction. (1.) Amendment. (2.) Grants of power. (3.) Eetroaotive effect. II. Qeneral. 1. CONSTEUCTION. (1.) Amendment. 1. The effect of an amendment of a statute, made by enacting that the statute " is amended so as to read as follows : " and then incorporating the changes and additions with so much of the former statute as is retained, is not that the portions of the amended sta- tute which are merely copied without change, are to be considered as having been repealed and again reenacted, nor that the new provisions or the changed portions should be deemed to have been the law at any time prior to the passage of the amended act. The part which remains unchanged is to be considered as having con- tinued to be the law from the time of its original enactment, and the new or changed portion to have become law only at and sub- sequent to the passage of the amendment. Ely v. Holton, 15 N. Y. Rep., 595. 2. The word " hereafter," occurring in a statute amended in the manner above described, is to be construed distributively. As to the original provisions, it means subsequent to the time of their enactment ; as to the new portions it means subsequent to the time the amendment introducing them took effect. Id. (2.) Grants of power, 3. Whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end in view, is COURT OF APPEALS DIGEST. 573 STATniES. implied. So when it commands a thing to be done, it impliedly authorizes the performance of all acts necessary to the execution of the command.. Per Jewett, Ch. J. Stie/v. Hart, 1 ComsU, 20, as to the duty of a sheriff on execution levied upon pledged property. 3a. Where the statute which creates the right gives a remedy, the party is confined to that remedy ; but if it gives no remedy, the usual legal remedies may be resorted to for the enforcement of the right. Budley v. Mayhew, 3 ComsU, 9. 4. Where property is taken under a statute authority, without the consent of the owner, the power must be strictly followed ; and if any material link is wanting, the whole proceeding is void. Doughty V. Hope, 1 Comst., 79. 5. The intention of the legislature in using words in a statute must be sought after, and when ascertained must be followed, with reason and discretion in the construction of such statute. James v. Patten, 2 Seld., 9. (3.) Retroactive effect. 6. Where an oifense was committed against the statute pro- hibiting the removal of goods from demised premises, to avoid the payment of rent (2 R. S., 503, sec. 17), so that the landlord had a right to sue for the penalty imposed before distress for rent was abolished by the act of 1846 (Stat., 369) : Held, that the right of action was not taken away by the latter statute. Conley v. Palmer, 2 Comst., 182. 7. A statute authorizing a writ of error in behalf of the people, *' to review any judgment rendered in favor of a defendant upon any indictment for a criminal offense, except where such defend- ant shall have been acquitted by a jury," held not to authorize such writ to review a judgment rendered prior to the passing of the statute. The People v. Carnal, 2 Seld,, 463. II. OENEBAL. See the following Titles: "Absent and Absconding Debtor;" "Albany Basin;" "Alien;" "Appeals;" "Arbitrament and 574 COURT OF APPEALS DIGEST. STATUTE OF FEAUDS STOCK-JOBBINO. Award;" "Betting and Gaming;" "Canals;" "Constitutional Law;" "Criminal Law;" "Execution;" "False Pretences;" " Laborers on Public Works ;" " Lien Law ; " " New York City ;" " Plankroad Companies ; " " Eailroad Companies ; " "Taxes." STATUTE OF FRAUDS. See, Title, " Frauds, Statute of." STATUTE OF LIMITATIONS. See, Title, " Limitation of Actions." STEP-FATHER. See, Titles, « Master and Servant ; " " Parent ana Child." STOCKHOLDERS. 1. See, Titles, "Corporations;" "Plankroad Companies;" " Railroad Companies." 2. Manufacturing companies ; Personal liability. The owners of stock are " the persons composing the company," within the 7th section of the act of 1811, relative to incorporation for manufacturing purposes. And one to whom stock was transferred on the books of the company, though taken and held as collateral security for a debt, is liable to creditors under that section. So held, of a transfer to one of the members of a firm by its debtor as security for his debt to the partnership ; that the partner who took the transfer was liable to a creditor of the company to the full amount of the stock, though the firm debt was less than the amount of the stock. Rosevelt v. Brovm, 1 Kern., 148. STOCK-JOBBING. See, Title, " Contract ; " case of Sta;ples v. Gould," 5 Seld., 520. COURT OF APPEALS DIGEST. 575 SUBBOaATION — SUPEKVISOES. SUBROGATION. See, Title, " Principal and Surety." SUMMAEY PROCEEDINGS TO RECOVER THE POSSESSION OF LAND. See, Title, " Landlord and Tenant." SURETY. See, Title, " Principal and Surety." SUPERIOR COURT. See, Title, " Jurisdiction." SUPERVISORS. 1. Their tax warrant is valid though no official description or designation of the persons signing it appears in the body of it or attached to their signatures. Sheldon v. Van BusTcirk, 2 Comst., 473. 2. In an action by a supervisor it is sufficient that in the title to the complaint he is described by his official designation, and in the body of it that he complains "as supervisor as aforesaid." Smith V. Levinus, 4 Seld., 472. 3. Supervisors as legislators. The act (Laws of 1849, chap. 194) vesting in boards of supervisors power to make laws for protec- tion of shell and other fish, in the water of their counties, is con- stitutional. Id. 4. Mandamus. They may be compelled by mandamus to meet and perform a duty (issuing warrant for military commutation) neglected by them at their annual meeting. The People v. Super- visors of Chenango, 4 Seld., 318. 5. Mandamus. They cannot be compelled by mandamus to audit and allow to a person wrongfully assessed, the amount of 576 COURT OF APPEALS DIGEST. SURBOCATE. the tax collected from him, and to direct it to be levied upon the town or county. The People, ex rel. Mtjgatt, v. The Supervisors of Chenango County, 1 Kern., 563. 6. Suit against a county. The board of supervisors should be named as defendants ; the individual supervisors should not be named. Per Allen, J. Hill v. Board of Super-visors of Living- ston County, 2 Kern., 52. See same case as to power to lay taxes for building and repairing bridges. SURROGATE. I. Granting administration and superseding letters. II. Ordering sales of real estate of a decedent. III. Proof of wills. IV. Guardians' accounts. v. Accounts of executors and administrators. VI. Miscellaneous. I. QUANTING ADMINISTRATION AND SUPERSEDING LETTERS. 1. Petition for letters of administration. A petition under the Revised Laws of 1S13, stating all the facts requisite to give a sur- rogate jurisdiction to issue letters of administration, sworn to be true " according to the best knowledge and belief" of the peti- tioner, was sufficient to authorize the issuing of such letters ; or, if not sufficient to sustain the letters on appeal from the order, their validity cannot be questioned collaterally. Sheldon v. Wright, 1 Seld., 497. 2. Granting administration to a stranger. Under the same laws (R. L. of 1813), where the widow declined taking letters of administration, and recommended the issuing of letters to a per- son not a relative of the deceased, all the children of the deceased being minors, the surrogate had jurisdiction to grant letters to the person so recommended, without issuing citations to the next of kin. Id. 3. What is not, and what is, " improvidence " tthich will authorize, the superseding nf letters testamentary. That an executor is illiterate, and a person of small pecuniary means, and that he has been guilty of misconduct or mismanagement in administering the trust COURT OF APPEALS DIGEST. 577 BBKKOaATH. estate, do not authorize the surrogate to supersede the letters tes- tamentary, under 2 Revised Statutes 71, sections 18 to 21, and 69, section 3, on the ground that tiie executor is legally incompetent to serve " by reason of improvidence." Emerson ei al. v. Bowers, mroiving executor, Sfc, 4 Kern., 449. 4. The term " improvidence " refers to such habits of mind and conduct as render a man generally, and under all ordinary circum- stances, unfit to serve ; and the facts proved in this case might have warranted an order, under 2 Revised Statutes, 72, section 20, requiring security, but did not make out a case for superseding the letters testamentary. Id. II. ORDERING SALES OF REAL ESTATE OF A DECEDENT. 6. Dower lands. The statutes do not authorize a sale of the widow's estate, in dower, for payment of debts, after it has been assigned to her. Lawrence v. Miller, 2 Comst., 245 ; Same v. Broum, 1 Seld., 394. 6. Devisees, whose lands have been sold to pay testator's debts, on a deficiency of personal estate for that purpose, are entitled to be reimbursed out of assets subsequently discovered and received by the executors. Couch et al. v. Delaplaine, 2 Comst., 397. 7. Infant heirs are not bound by the sale unless a guardian ad litem was appointed for them. The proceedings being hostile to the heirs, as it seems, the surrogate must proceed in the manner pointed out by statute, to acquire jurisdiction of the persons as well as the subject matter, or the sale will be void. Schneider v. McFarland, 2 Comst., 459. 8. Confirming sale by chancery decree. It is only irregularities in the sale, that can thus be confirmed under the statute (2 R. S., Ill, sec. 61) ; the regularity and propriety of the previous proceed- ings cannot be inquired into, nor should the decree in terms pre- clude the parties from contesting it on other grounds than such irregularities. Bostwicic et al. v. Atlcins et al., 3 Comst., 63. 9. Confirmation, before surrogate. Where different parcels were sold, he may confirm as to a part, and order a resale as to a part, if sold at a price disproportionate to its value, and if in his opinion 73 578 COURT OF APPEALS DIGEST. BITRKOaATE, it will produce ten per cent more on a resale. Delaplaine v. Law- rence, 3 Comst,, 301. ] 0. Administrator may sell in -parcels, if that mode is calculated to produce the highest price, notwithstanding the order to sell describe the premises as one parcel. Id. 11. Puhlication of order to show cause. The provisions of the Revised Laws of 1813, in relation to the sale of the lands of an intestate, by order of the surrogate, for the payment of debts, requiring the order to show cause against the sale, at a time fixed in the order, not less than six, nor more than ten weeks from the time of making the order, to be immediately published for four weeks successively in two or more public newspapers, are suffi- ciently complied with, by four successive weekly publications in two papers, before the day fixed for showing cause. Per Foot, J. Sheldon v. Wright, 1 Seld., 497. 12. Lands omitted in first order by mistake, may, it seems, be sold by virtue of a second order made on the petition of the administra- tor showing the error, without any new order to show cause. Id. 13. Reciting order in administrator's deed. If there be an error in the recital, it will not vitiate, if other parts of the deed furnish, of themselves, the means of correcting the error. Id. 14. Widow''s share of proceeds of sale, is one-third of the gross amount including accrued interest on proceeds, and not the net amount deducting expenses. Higbie v. Westlake, 4 Kern., 281. 15. Administrators' fees. The per diem allowance can only be granted for the days proved to have been necessarily occupied in the business. And they can be allowed only two dollars fof pre- paring and executing each deed. Id. 16. Counsel fees. The statute ( Laws of 1844, 447 ) authorizes the payment of a reasonable amount for professional services in applying for and conducting the sale ; but the fee bill of the Court of Chancery for services in litigated cases is not applicable to such proceedings. Id. 17. Appeal from decree of distribution, may be brought by a credi- tor, though he has received under it, on account of his demand, the amount awarded to him by it. Id. COURT OF APPEALS DIGEST. 579 BUEEOSATE. 18. What is necessary to authorize surrogate to vacate the sale. If the proceedings were regular, but it is claimed that the sum bid is disproportionate to the value, and that ten per cent more can be obtained by a resale, clear of expenses, yet it cannot be vacated without showing the inadequacy of the bid to the value of the property at the time the sale took place. Kain v. Masterton, 16 N. Y. Rep., 174. 19. Defective affidavit of publication of order to show cause. An afBdavit of publication of such order in the state paper for six weeks commencing M.a.Yc\i twentieth, the order itself having been made March twenty-second, is not sufficient to confer jurisdiction. As the order could not be published until made, the most the affidavit shows is a five weeks' publication. And it does not aid the case, that the order of sale recited that it was made upon proof of due publication. The surrogate could not acquire jurisdiction by his own statement not showing an adjudication founded on evidence of facts on which jurisdiction depended. Sibley v. Waffle, 16 N. Y. Rep., ISO. m. PEOOF OF WILLS. 20. See, Title, " Will," seq. 21. The decree of a surrogate having jurisdiction of the subject, declaring a will of personal property duly executed, is conclusive evidence, in a collateral action, of such execution, notwithstand- ing it be shown that there was but a single subscribing witness to the will. It is made conclusive by statute (2 R. S., 61, sec. 29), and that statute is not repealed or modified by section 18 of chap- ter 460 of the Laws of 1837. Vanderpoel, receiver, v. Van Valken- burgh et aL, 2 Seld., 190. IV. guardians' accounts. 22. A surrogate has jurisdiction to compel the guardian of a minor, appointed by him, to account as to the estate of such minor ; to settle his final account and determine the balance in his hands ; to order the guardian to pay over such balance to a new guardian appointed in his stead, or to the ward if he has 580 COURT OF APPEALS DiaEST. SnBBOGATE. \ become of age ; and on the neglect or refusal of the guardian to comply with the decree, to issue an attachment against his person as for a contempt. Seaman v. Durijea eC ah, 1 Kern., 324. 23. Process of commhment for such co7itempt. It need not recite all the facts and proceedings necessary to confer jurisdiction. It is suflicient if upon its face it appears to have been issued in a proceeding of which the surrogate had jurisdiction, states in sub- stance the cause of the commitment, and specifies the act or duty to be performed and the expenses to be paid. Id. V. ACCOUNTS OP EXECUTOES AND ADMINISTEATOES. 24. Proceeds of rents and sales of real estate under trusts contained in a will. Where a testator devised and bequeathed all his real and personal estate to his executors, in trust to sell the same whenever they should see fit; also with authority to lease the same, and directed the executors to divide the whole trust estate into nine equal parts, and pay over and convey one of said parts to each of his four children who were of age, and to hold the remaining five parts until his minor children should respectively become of age, and to pay over and convey to them their shares as they should become of age : Held, that the executor could be compelled to account before the surrogate, not only for the per- sonal estate bequeathed to him, but also for the rents and profits of the real estate, and for the proceeds of such real estate as he had sold pursuant to the directions contained in the will. Stagg v. Jackson et al., 1 Comst., 206. 25. His decree on a final account does not har creditors' claims not presented. And where, on such an accounting, after the publication of the notice tequired by statute, the holder of a note given by the intestate to a payee -who had transferred it to such holder, did not appear or present his claim, but the amount of it was allowed to the administrator in his accounts as paid to the payee who repre- sented that the note was lost: Held, that such payment was made by the administrator in his own wrong; that the decree passing it was no defense to the holder's subsequent suit against the ad- -ministrator on the note, and was in no respect conclusive upon the COURT OF APPEALS DIGEST. 581 holder. The President, Directors and Company of the BanJc of Poiigh- Jcee])sie v. Hasbrouck, 2 Scld., 216. 26. The statute of limitations may be set up by an executor cited to account before a surrogate, in bar of any claim presented against the estate, in the same manner as in an action at law or in equity on such claim. Martin v. Gage, 5 Seld. 398. VI. MISCELLANEOUS. 27. See, Titles, " Dower ; " " Executors and Administrators ; " "Guardians;" "Infant." TAXES. I. Assessment. II. Taxation of corporations. III. Collection under the warrant. IV. Tax sales ; Proceedings by the comptroller. V. Miscellaneous. I. ASSESSMENT. 1. Wliere there are three assessors, all must act, or be consulted, or the assessment is void. If the assessment be signed by all, it is pre- sumed to be their joint act, but if the fact be otherwise it may be shown to avoid the assessment ; and either of the assessors who signed may be a witness to prove that one of the number was not consulted. Doughty v. Hope, 1 Comst., 79 ; and see No. 5, seq. 2. The ratification by the common council of the city of New York, of a void assessment, does not aid the proceeding. To make out a title to property under a sale for its non-payment, there must be a valid assessment duly ratified. Id. 3. Assessors' certificnte. Where a statute prescribes the form of a certificate to be signed by the assessors and attached to their assessment roll, a substantial compliance with its terms is neces- sary to give jurisdiction to the boai'd of supervisors to impose a tax and issue their warrant to the collector thereon. Van Rens- selaer V. Witheclc, 3 Seld., 517. 4. Assessors and collectors are not agents of a town, in such a sense as to make the town responsible for their mistakes, or liable to 582 COURT Oi" APPEALS DIGEST. refund a tax collected of one erroneously assessed therefor. Loril- lard V. The Town of Monroe, 1 Kern., 392. 5. 2%e assessors are personally liable to refund a tax to one assessed for personal estate in a town of which he was not a resi- dent at the time the assessment was made. And it is a question of fact, and not of good faith in the assessors. And an assessment cannot be lawfully made by one assessor. It must be made by all, or by a majority upon the meeting of all. The People, ex rel. Mygatt, V. The Supervisors of Chenango County, 1 Kern., 663. See, also, Mijgatt V. Washburn, 15 N. Y. Rep., 316. 6. Time for making the assessment. Where one of the assessors, while engaged in ascertaining the names of the taxable inhabi- tants and property, called in May upon a person then a resident of the town, and set down his name and the value of his personal estate at $10,000, and so informed him, and such person thereafter and in the same month, removed to another county ; and in July following, the assessors prepared and completed the roll, retaining his name and assessment at $10,000 : Held, that the assessment was not made until July, and that the assessors had no jurisdic- tion to make it. Id. 7. Exempt property. A private boarding school building is not exempt from taxation by the statute (1 R. S., 388, sec. 4), exempt- ing every school-house and every building erected for the use oi" a college, incorporated academy or other seminary of learning. The dictum of Rugsles, J., in Chegarayv. Jenkins (1 Seld., 376), overruled. Chegaray v. The Mayor, Sfc, of New York, 3 Kern., 220. 8. Reiits resened. The power granted to the city authorities by the charter of Buffalo (chap. 132 of 1843, 133, tit. 5, sec. 4), to assess all taxable property, includes not only such as was then taxable by the general law of the state, but whatever should be made subject to taxation by any general- statute afterwards to be passed. It tlierefore includes rents reserved by leases in fee, or for a life or lives, or for more than twenty-one years. The sta- tute (chap. 327 of 1846), making rents reserved by such leases taxable as personal estate, makes no discrimination between agri- COURT OF APPEALS DIGEST. 583 cultural and city lands, nor in the taxation of city rents thus reserved, is any made between taxes for county and state, and those for city purposes. And such rents are taxable, although less than twenty-one years of the original term remains unex- pired at the time of tlie assessment. Citi/ of Buffalo v. Le Cou- teulx, 15 N.Y. Rep., 451. II. TAXATION OF COEPOKATIONS. 9. See, Title, " Mutual Insurance Companies," under " Insu- rance," IV. 10. See Sun Insurance Company v. Mayor, i^'c, of New York, 4 Seld., 241, III. COLLECTION UNDER THE WARRANT. 11. Town collector may seize not only the goods and chattels of the person taxed, but any goods and chattels in his possession. And if he levies before the return day, lie may sell at any time within a week after the return day. (2 E. S., 398, sec. 6.) Shel- don V. Van Buslcirk, 2 Comst., 473. 1^. Protection to the officer. A warrant in due form, issued to a constable, by the receiver of taxes of the city of New York, di- recting the collection of a tax, protects the officer executing it, whether the tax was lawfully assessed or not. Chegaray v. Jen- kins, 1 Seld., 376. But the warrant to a town collector, inasmuch as it consists in part of the assessment roll, of which a certificate in the form prescribed by statute, and signed by the assessoi-s, is a necessary element, is no protection to the officer if such certifi- cate be wanting, since that would be a defect apparent upon its face. Van Rensselaer v. Witbeck, 3 Seld., 517. IV. TAX SALES ; PROCEEDINGS BY THE COMPTROLLER, &C. 13. City of New York ; Street assessment. The publication of the redemption notice required by statute, 1S16, page 114, section 2, as amended by statute, 1840, page 274, section 10, after a sale for a tax or assessment, must be fully completed before the com- mencement of the last six months of the two years succeeding the 584 COURT OF APPEALS DIGEST. sale, and an omission in this respect will invalidate the purcha- ser's title. Doughhj v. Hope, 1 Comst., 79. 14. Where the redemption notice is not published according to law, a regular notice served after the execution of the lease, given upon the sale, pursuant to statute, 1841, page 211, section 3, and the certificate by the street conimissioner, required by section 7 of tiie same act, do not confirm the title. Id. 15. The statute which declares that the lease given upon a sale for taxes or assessments in the city of New York " shall be con- clusive evidence that the sale was regular," &c. (Stat., 1816, 115, sec. 2), refers only to the notice of sale and the proceedings at the auction. Id. 16. Power of comptroller in sale of lands. He cannot sell with- out a regular assessment, a return with collector's affidavit that the tax remains unpaid, nor until it has remained unpaid for the period specified in the statute. And his deed is not conclusive (if it he prima facie) evidence that these prerequisites exist, but it is only evidence of the regularity of his proceedings. And where a lot of land intended to be assessed is a part of a tract of a known name, and the assessment describes the lot as situated in a different tract, his deed, given on Sale for non-payment of the tax is void, notwithstanding if the name of the tract were rejected, the other matter of description would be sufficient to identify the lot. Tallman v. White, 2 Comst., 66. It is not even prima facie evidence. BeeJcman v. Brigham, 1 Seld., 3G6. But see Laws of 1850, chapter 108, making the comptroller's Aeedi presumptive evi- dence, not only of his authority to sell, but also of the regularity of all proceedings up to the time of the execution of his deed. And see No. IS, seq. 17. Notice to occvpant. A mere accidental occupancy (as a mis- take in an adjoining owner in getting his fence over the line, so as to inclose some two and a half rods of the lot), is not such an actual occupancy within the meaning of the statute (1 R. S., 412, sec. 83), as to require notice to the occupant before the title could become absolute under the comptroller's deed. Smith v. Sanger, 4 Comst., 57G. COURT OP APPEALS DIGEST. 585 TENANTS IS COMMOS. IS. Comptroller^ deed; Notice to occupant. The legislature has power to enact that a deed executed by the comptroller, of lands sold by him for unpaid taxes imposed thereon, shall be presump- tive evidence that the proceedings required by law to authorize the sale and conveyance were had. Hand et al. v. Ballou et al., 2 Kern., 541. 19. If the land be occupied when the deed is given, the six months' notice to redeem must be given, notwithstanding it was unoccupied when the two years expired, at the end of which the purchaser, if there had been no redemption, was entitled to his deed. And no title vests under the comptroller's deed to the pur- chaser, until the notice has been served and the six months has expired. Chapter 108 of the Laws of 1S30, provides for cases where the land is occupied at the expiration of the two years fixed by statute for redemption, and it is not a substitute for, nor does it repeal the provisions of the Revised Statutes as to notice where the land is occupied when the deed is executed. Id. 20. The act of 1S55 (chap. -327), "to provide for the due ap- portionment of taxes and assessments, and for the sale of real and personal estate to pay the same," is constitutional. And where the proper parties have been brought in, and unknown owners proceeded against by publication, a sale under the judgment of the Supreme Court in pursuance of it, vests a fee siaiple in the purchaser. Jaclcson v. Babcock, 16 N. Y. Rcj)., 246. V. MISCELLANEOUS. 21. See, also, Titles, "Assessors and Assessment; " " Constitu- tional Law ; " " Corporations; " " Highways ; " " Municipal Cor- porations ; " " New York City ; " " Towns." TENANTS IN COMMON. 1. Cannot maintain a joint action on a policy of insurance issued to them, where, after it was issued and before a loss, one conveyed to the other all his interest in the premises. Murdoclc V. The Chenango Mutual Insurance Company, 2 Comst., 210. 74 586 COURT OF APPEALS DIGEST. TENANT FOR LIFE — TENDER. 2. See, Titles, "Ejectment; "" Husband and Wife;" "Par- tition." 3. Tender of damages to one of several tenants in common, being the sum awarded to all in proceedings against them jointly for appropriation of their lands, is a sufficient tender to all. Dychnan v. The Mayor, Sfc, of New York, 1 Seld., 434. 4. See, Title, " Replevin." TENANT FOR LIFE. 1. It is his duty to protect the interest of his co-tenants in the reversion, where he has bought the interest of one in the common property. He cannot suffer it to be sold for taxes and buy it in and hold it for his exclusive benefit, but the purchase will be held to be for the benefit of ail. Burhans v. Van Zandt, 3 Seld., 523. 2. See, Title, " Landlord and Tenant." TENDER. 1. In an action against a pledgee of personal property, by the pledgor, for its conversion, no previous tender of the debt is neces- sary, wiiere the pledgee has wrongfully sold the pledge so that he cannot restore it. Wilson v. Little, 2 Comst., 443. 2. In an action by a vendor of land against a vendee, by con- tract, for its specific performance, no previous tender of a deed is necessary, where the vendee has given notice of his refusal to perform. Crary v. Smith, 2 Comst., GO, 3. Where tender is averred in pleading, evidence of a waiver of the tender by the opposite party supports the averment. Holmes V. Holmes, 5 Seld., 525. 4. On an executory contract for the sale and transfer of stock at a future day at a given price, neither party can recover against the other without averring and proving a tender of performance oa his part, or its equivalent. Lester v. Jewett, 1 Kent., 453. 5. Upon a valid tender of a chattel or the promissory note of a third person in performance of a contract, the title is changed, COURT OF APPEALS DIGEST. 587 TESTIMONY DB BENE ESSE — TITLE TO PROPEKTY. and the law applies the property in satisfaction of the debt. If the tender is refused, the party making it may, if he so elect, con- tinue in possession, and thereupon becomes a bailee for the credi- tor. Iks Arts V. Leggett, 16 N. Y. Rep., 582. 6. But it seems he may acquiesce in the refusal, and treat the property as his own, remaining liable, not as bailee, but on the original contract. Per Selden, Eoosevelt, Hakkis and Peatt, Js. Id. TESTIMONY DE BENE ESSE. A witness, whose testimony has been taken de iene esse can- not be impeached on the trial by proving that subsequent to the taking of such testimony he made statements inconsistent there- with, or said that what he had sworn to was false. Before such statements can be given in evidence to impeach him, he must be interrogated as to the same. Stacy v. Graham, 4 Kern., 482. TIME. Fractions of a day are not in general regarded, except for the purpose of preventing injustice. Blydenhurgh v. Colheal, 4 Comst., 418. TITLE TO PROPERTY. 1. Growing grass belonging to a tenant may be transferred by his personal mortgage. Jencks v. Smith, 1 Comst., 90. 2. Accession. Where a party by a wilful trespass takes a quan- tity of corn from the owner and converts it into whiskey, the title to the property is not changed, but the whiskey still belongs to the owner of the original material, and his creditor may sell it on execution against him. An innocent purchaser from such wilful wrongdoer, who changes the property into a different species, as wheat into bread, olives into oil; or grapes into wine, &c., can hold it against the originaf owner. But the trespasser himself can work no change in the property that will alter the title, so 588 COURT OP APPEALS DIGEST. TITLE TO HEAL ESTATE — TOKT long as the change can be traced. Sikhunj v. McCoon, 3 Comst., 379. 3. See, Title, " Factor ; " case of Gardiner v. Suydam, 3 Seld., 357. 4. Where one builds a vessel for another, to be delivered com- plete by a given day at a fixed price, no title passes to the person for whom it is to be built, until it is completed and delivered, notwithstanding by the contract the greater part of the purchase price is to be, and is in fact, paid in installments as the work pro- gresses. Andrews v. Durant, 1 Kern., 35. TITLE TO EEAL ESTATE. Cloud upon. That a tenant in common in exclusive posses- sion, gives a mortgage upon the whole of a farm of which he owns only an undivided half, but claims no other interest, does not constitute a cloud upon the title such as a court of equity will interfere to remove. Nor will it interfere for that purpose, though such mortgage has been foreclosed, in a suit against the mortgagor only, and the whole farm advertised and sold, the purchaser un- justly claiming that he has thereby acquired title to the whole. Ward V. Dewey, 16 N. Y. Rep., 519. TORT. ,1. Acts which are innocent and lawful in themselves may become wrongful and fraudulent, when done without a just re- gard to the rights of others. Applied to the case of a purchaser from a mortgagor of real estate, where such purchaser cut off the timber, linowing- that the security of the mortgage was thereby impaired. Van Felt v. McGraw, 4 ComU., 110. 2. When assignable. A right of action for the wrongful taking and conversion of personal property is assignable; and under the Code, the assignee can recover in his own name. McKce v. Judd, 2 Kern., G22. Hall v. Robinson, 2 Cumst., 293. And it seems, that a claim against a foreign government for indemnity on account of an illegal capture, is assignable in equity. Couch v. Delaplaine, 2 Comst., 397. • COURT OP APPEALS DIGEST. 589 TOWNS — TRESPASS. 3. TJ^e?i not assignable. A right of action for damages for fraudulent representations as to the solvency of the vendee of merchandise is not assignable. Zabrislcie v. Smith, 3 Kern., 322. TOWNS. 1. Town meetings. The electors have the power, by vote, at their annual town meeting to determine to hold the meeting at the place of organization for a part of the day, and then to adjourn it to another part of the town for the remainder of the day ; and an election of town officers at such meeting is valid. The People V. Martin, 1 Seld., 22. 2. And their power to adjourn to another part of the town is the same, whether the place where the meeting is organized be that which was appointed by a vote at the previous annual town meeting, or that fixed by statute in the absence of such vote. Id. 3. A town meeting cannot properly be kept open at any other time than between sunrise and sunset ; but it need not be kept open the whole time through the day. Id. 4. See, Title, " Plankroad Companies." ■5. It seems that a town, in its corporate capacity, cannot main- tain an action to vindicate the taxpayers in respect to an illegal tax. Per Denio, J. Town of Guilford v. The Supervisors of Che- nango County, 3 Kern., 143. 6. See, Title, " Highways." TRESPASS. I. Trespass as to personal property. II. Trespass on lands. III. Assault and battery ; False imprisonment. I. TRESPASS AS TO PERSONAL PROPERTY. 1. Pleading. In an action of trespass for taking personal pro- perty, although the declaration does not aver property in the plain- tiff, yet if the proof shows it, that will be sufficient to uphold a judgment for the plaintiff, although the defendant did not appear. Copleij v. Rose, 2 Comst., 116. 590 COUET OF APPEALS DIGEST. 2. Evidence. An admission by the defendant that he had levied on the property, at the same time exhibiting the execution and stating whom it was against, and afterwards refusing to disclaim the levy, is sufficient to charge him as a trespasser ; the admission involves no justification under the process. Id. 3. A party who seeks to justify the taking of property under legal process, must show that he was an officer, and had -lawful authority to take the property. Id. 4. Remedies. Where a chattel is tortiously taken from the actual or constructive possession of the o'Cyner, he may bring trespass de bona asportatis, or replevin in the cepit. Ely v. Ehle, 3 Comst., 506. 5. Void warrant. The officer who issues it is not liable for its execution after the return day therein mentioned. Van Rensselaer V. Kidd, 2 Seld., 331. 6. Attorney who issues an execution, and merely communicates to the officer the instructions of his clients to seize certain specified property under it. Is not liable for the trespass, though the seizure be wrongful. Ford v. Williams, 3 Kern., 578. 7. See, Titles, "Animals;" "Action;" "Action on the Case ; " "Sheriff." II. TRESPASS ON LANDS. 8. Injuries by domestic animals. Although the owner of domestic animals is not in general liable for injuries committed by them, unless it is alleged and proved that he had notice of their vicious propensity, yet, if at the time of the injury they be trespassing on plaintiff's land, he may bring his action of trespass quare clausum /regit, and allege the particular injury committed {i. e., the killing of plaintiff's animal), in aggravation of damages, and in that case may recover without proving the scienter. Van Leuven v. Lyke et al., 1 Comst., 515. 9. Right of way. Where the owner closes it and opens a new one for the use of those having such right, and they assent to the change and use the new one for less than twenty years ; yet the owner cannot then close the new way and prevent its use, with- COURT OF APPEALS DIGEST. 59I out first restoring the old one to its former condition And if, without so doing, he remove a bridge over a stream crossing the new way, those having a prescriptive right to the old, may re- build the bridge or fill the stream, doing as little damage as pos- sible, and continue the use of the new way until the old one is restored. Hamilton v. White et al., 1 Seld., 9. 10. See, Titles, "Tort;" "Waste." III. ASSAULT AND BATTEET ; FALSE IMPEISONMENT. 11. Assault; Immaterial issues; Evidence. In an action for as- sault and battery, an answer alleging that the plaintiff was a niece and adopted daughter of the defendant, and had been educated and supported in his family from childhood ; that immediately before the said assault, he unexpectedly met the plaintiff in a public street, where his relations to her as a parent were well known, riding in company with a man of bad character, by whom she had been enticed away from his house about a year before, and taken to a house of ill-fame kept by him, and where she had since lived and was still living ; and that in the sudden impulse of the moment, he struck with his whip at the man with whom she was riding, with the intention to hit him, and the blow accident- ally fell on the plaintiff; although issue be taken upon it by the plaintiff, is immaterial, except so far as it alleges that the blow was accidental. Louisa F. Corning v. Richard S. Corning, 2 Seld., 97. 12. Evidence of such facts, except as aforesaid, is not proper even in mitigation of damages. Evidence of provocation, with that view, is proper only when so recent as to induce the pre- sumption that the blow was given under the immediate influence of the passion thus wrongfully excited. And it is not competent where it is alleged that the provocation was given by the third person at whom the blow was aimed, and that it accidentally fell on th(3 plaintiff. Id. 13. Nor can the bad character of the plaintiff in such action be proved in mitigation. Id. 592 COURT OF APPEALS DIGEST. 14. False imprisonment ; Plea of the generalissue. The defendant cannot, under such a plea (not being an officer), show a judgment and execution in his favor, and that the arrest and imprisonment were under such execution. Coats v. Darby, 2 Comst., 517. 15. And where, in such a case, the plaintiff's evidence shows that the defendant directed the arrest and imprisonment, the latter cannot prove the judgment and execution, with a view of show- ing that the process, and not the direction, influenced the officer in making the arrest; and that the evidence is offered, not as a justi- fication, but with the avowed purpose of showing that defendant was not guilty of the trespass, does not make it proper. (The case of Herrick v. Manly, 1 Caines' Rep., 252, holding a contrary doc- trine, overruled.) Id. TRIAL. I. Before the court or a referee. II. Jury trial. (1.) Impanneling jury. (2 ) Examiuatiou of witnesses ; Olbjections and exceptions. (3.) Nonsuit. (4. ) Judge's charge. (5.) Verdict. III. New trials. I. BEFORE THE COURT OR A REFEREE. 1. No jury can be demanded in an equity cause, as a matter of riglit. Palmer, receiver, Sfc, v. Lawrence, 1 Scld., 389. 2. See, Title, "Appeal ;" Nos. 45 to 51. II. JURY TRIAL. (1.) Impanneling Jury. 3. Implied waiver of objections. Where parties proceed to trial before a jury, without objection to the manner in which such jury was summoned or impanneled, it is too late after verdict to make such objections. Dayharsh v. Enos, 1 Seld., 531. 4. Where the statute makes no provision on the subject, a court of record has the power to order the summoning of a jury to try an issue of fact in a common law action of which it has jurisdic- tion. Id. COURT OF APPEALS DIGEST. 593 (2.) Examination of witnesses ; Objections and exceptions. 5. Privilege of witness. A witness cannot be compelled to tes- tify to any one of a series of facts which might form a link ip the chain of evidence, to subject him to indictment or prosecution for a penalty. Pierce v. BanJc of Salina, 1 Comst,, 83. 6. Answer to claim of privilege. If the statute of limitations has run against the offense, that answer to the claim of privilege must be raised at the trial. It is not available on appeal. Per Beonson, J. Id. 7. Waiver of objections. If a party omits to object at the trial, all reasonable intendments will be made against him on appeal, to uphold the judgment. Jencksv. Smith, 1 Comst., 90. 8. Improper evidence received and afterwards rejected. If testimony be received reserving the question of its admissibility until the close of the evidence, the party against whom it is bo received, making at the time no objection to that course, cannot afterwards take an objection that it was error to receive it conditionally. McKnigU V. Dwilop, 1 Seld., 537. 9. A general objection to the admissibility of evidence is suffi- cient, where it could not have been obviated at the trial, had the specific grounds of objection been pointed out. Merrill v. Seaman, 2 Seld., 168. (3.) Nonsuit. 10. Is properly denied, though plaintiff show himself entitled only to nominal damages. Van Rensselaer v. Jewett, 2 Comst., 135. Or though in an action for an assault, one of his own witnesses state circumstances of justification, if another witness prove the assault without the justification. Lobar v. Koplin, 4 Comst., 546. (4.) Judges charge. 11. If he be requested to charge on a particular proposition, he may refuse unless it be right in all its parts both as to fact and law ; and he need not qualify his refusal- by pointing out the good and the bad parts of the proposition. Doughty v. /fope, iComsL, 79. 76 594 COURT OF APPEALS DIGEST. 12. A general exception to a, charge containing distinct proposi- tions, is unavailing unless every proposition is erroneous to the prejudice of the party excepting. Haggart v. Dunn, 1 Seld., 422. 13. He is bound to charge or refuse to charge on each proposition of law bearing on the evidence, distinctly submitted to him by counsel fox that purpose ; but if such propositions are numerous, and the charge covers them generally, his attention must be par- ticularly called by counsel to any proposition on which more definite instructions are desired. Zahriskie v. Smith, 3 Kern., 322. 14. Hypothesis not warranted by the evidence. If he submit to the jury an hypothesis wholly unwarranted by the evidence, it is error for which a new trial will be awarded. Storey v. Brennan, 15 N. Y. Rep., 524. (5.) Verdict. 15. Polling the Jury. A party against whom a verdict is de- clared, has an absolute right to poll the jury at any time, before the verdict is entered. But the proper inquiry is, " Is this your verdict ? " and the party cannot require the court to have the question put, " Is this your verdict against each and both the defendants?" Labar v. Koplin, 4 Com*^., 546. 16. Exceeding amount claimed in the complaint. The plaintiff cannot be allowed to amend the complaint so as to increase the demand of damages, except upon terms of payment of costs aild granting a new trial. Corning v. Corning, 2 Seld., 97. 17. The jury may, on retiring, take to thek room a deposition read on the trial. It is not error to allow them to do so. Hoio- land V. Willets, 5 Seld., 170. 18. Arithmetical average. It is error to instruct a jury that in ascertaining the value of property they may take an arithmetical average of the sums at which it was estimated by the witnesses. Per Johnson, J. Thomm v. Dickinson, 2 Kern., 364. III. NEW TRIAL. 19. An appellate court, in reviewing a judgment upon a case made at the trial, is not authorized to reverse the judgment and COURT OF APPEALS DIGEST. 595 render a final judgment against the party who prevailed in the court below. It can only order the judgment reversed and a new trial. Astor v. UAmoreux, 4 Sdd., 107. But see Edmonston v. McLoud; 16 N. Y. Rep., 543, holding that where a verdict or a report of a referee for the plaintiff is set aside, upon a case, and it is apparent that no possible state of proof applicable to the issues will entitle him to judgment, the appellate court should render final judgment for the defendant. 20. See, Title, "Appeal." TROVER. I. Where tlie action was maintained and the grounds thereof. II. Where it was not maintained and for what reason. I. WHERE THE ACTIOK WAS MAINTAINED. 1. Against a postmaster for refusal to deliver a newspaper, except upon payment of letter postage, not properly chargeable ; although the detention was under color of the laws of the United States and the regulations of the post office department. Teall v. Fel- ton, 1 Comst., 637. 2. Against a depositary of a chattel, by an assignee of the right and interest of the depositor, after demand and refusal to deliver to such assignee. Hall v. Robinson, 2 Comst., 293. 3. Against a factor, by a bank discounting the consignor's drafts upon the factor, on the security of a forwarder's receipts for such property consigned and on the way to such factor, the latter having refused to accept the drafts, and having sold and converted the consigned property to his own use, with notice of such trans- action with the bank. The Bank of Rochester v. Jones, 4 Comst., 497. 4. Against a consignee of lumber, by the consignor and owner, for the sale of the same as another's property, and in hostility to the rights of the consignor. Covell v. Hill, 2 Seld., 374. See, Title, "Sale of Chattels," III. 6. Against a sheriff and his deputy jointly, by a defendant in an execution issued to the sheriff and levied by the deputy, for an 596 COURT OF APPEALS DIGEST. excessive levy and for damage to some, and conversion of the re- mainder, of the goods remaining in their hands after satisfying the execution. Wat&rbury v. Westervclt, 5 Seld., 598. 6. By the maker of a p-omissory note, against one who, before such note had any legal inception, wrongfully negotiated the same to a bona fide holder for value. Decker v. Matthews et al, 2 Kern., 313. 7. By the assignee of the claim, and right of action of the ovraer of chattels, against one who, before the assignment, had sold and converted the same to his own use. McKee v. Jtidd, 2 Kern., 622. 7a. See, Title, " Title to Property," No. 4. II. WHERE THE ACTION WAS NOT MAINTAINED, AND FOE WHAT REASON. 8. By the owner of a quantity of lumber, against defendants who had received it from the owner's agent, and had sold and disposed of it ; but the only evidence of a conversion being a demand and refusal ; it appearing that it was impossible to comply with the demand by reason of the sale, and it not appearing that the sale was in a manner not authorized by the agent. Hill v. Covell, 1 Comst., 522, 9. By a borroiver against the lender for goods, &c., claimed to .have been received by defendant in violation of the statutes against usury ; but the complaint not referring to the statute, nor setting forth as required by it, " that such goods, &c., were con- verted by defendant contrary to the provisions of such statute," &c. Schroeppell v. Corning, 2 Comst., 132. 10. By a broker against bankers, for the alleged conversion of plaintiff's checks, received by defendants from, and passed to the credit of a third person, who was, in fact, plaintiff's agent, receiv- ing such checks to be converted into cash for the purpose of pur- chasing eastern money, but who misappropriated the avails of the checks ; the defendants having no notice of the agency. Case v. 37(6 Mechanics' Banking Association, 4 Comst., 166. 11. See, Title, "Trespass," No. 6. COURT OF APPEALS DIGEST. 597 TRUSTS. I. EesultiDg trusts ; Trusts by implication, and those arising out of fraud and wrong doing. II. Express trusts ; Estate of the trustee, and rights and authority of the cestui qu trust. (1.) Formal trusts executed by the statute. (2.) To sell lands for benefit of creditors.. (3.) To sell, mortgage or lease lands for the benefit of legatees, &o. (4.) To receive and apply rents and profits to use of any person for life, or a shorter term, ho. (5.) Trusts for accumulation ; Suspending power of alienation. (6.) General. III. Duties, powers and liabilities of trustees generally. See, Titles, "Executors and Administrators;" "Fraud;" "Guardian;" "Legacy;" "Will." r. EESULTING TRUSTS ; IMPLIED TRUSTS, AND THOSE AEISINO OUT OP FRAUD AND WRONG DOING. 1. Consideration paidiy one person and deed in name of another ; No resulting trust, except in favor of creditors, and that enforceable only in equity. Where a grant for a valuable consideration is made to one person, and the consideration therefor is paid by another, no interest, legal or equitable, vests in the person paying the consid- eration, to which a judgment and execution can attach, but the statute imposes upon the legal estate in the hands of the grantee in the conveyance, 'Apure trust in favor of the creditors at the time, of the person paying the consideration, which can be enforced in equity only. Thus, where a husband paid the consideration for land, and the conveyance was taken to his wife; and thereupon the land was sold under an execution upon a prior judgment against the husband, and the purchaser at the execution sale having obtained the sheriif's deed, brought ejectment: Held, that the action could not be maintained. The case of Wait v. Day (4 Denio, 439), so far as it holds to the contrary, overruled, and Brewster v. Power (10 Paige, 562), approved. Garfield v. Hat- maker, 15 N. Y. Rep., 475. 2. Implied trust; Assuming payment of a, judgment supposed to he, hut not in fact a lien, as part of purchase money. A debtor confessed a judgment to his creditor, but by mistake of the attorney, the 598 COURT OF APPEALS DIGEST. judgment was not docketed in the county of Albany, where the debtor owned lands. The debtor afterwards sold the land, both he and the purchaser supposing that the judgment was a lien, and the latter undertaking to pay it as part of the consideration of his purchase. Afterwards, on learning that the judgment had not been docketed, he refused to pay it. The debtor was insolvent : Held, on bill filed by the judgment creditor against the purchaser, that the latter held the lands charged with an equitable lien or trust for the payment of the whole amount of the judgment, al- though it was larger than represented by the debtoi* at the time of the purchase, there being no fraud or wilful misrepresentation. Haverly ct al. v. Becker, 4 Conist., 169. 3. Attorney and client. Where the client, under adyice of his attorney, conveys his lands to the latter without consideration and for the purpose of defrauding creditors, the attorney will be com- pelled to reconvey, on the consideration being refunded, not- withstanding the general rule that, where the parties to an illegal agreement stand on an equal footing, neither can be relieved as against the other. Ford v. Harrington, 16 N. Y. Rep., 285. 4. Principal and agent. An agent employed to collect a mort- gage belonging to his principal, cannot purchase the property at the mortgage sale, either himself or through the agency of a third person, for his own benefit. Such purchase will be held to be made for the benefit of the principal, at his election. Moore v. Moore, 1 Seld., 256. 4a. Where the whole use is disposed of by the deed, nothing can result to the grantor. Vnndervolgen V. Yates, 5 Seld., 219. II. EXPRESS trusts; estate of the trustee, and rights and AUTHORITY OP THE CESTUI QUE TRUST. (1.) Formal trusts executed by the statute. 5. Trustee^! mortgage fur part purchnsemoney. Where a convey- ance of lands is made to one person, in trust for the use and bene- fit of another, his or her heirs and assigns, without limitation, no estate or interest vests in the trustee, but the entire estate, legal and equitable, vests in the person to whose use the conveyance is COURT OF APPEALS DiaEST. 599 made ; subject, however, to such conditions as would have attached to the legal estate, had the title vested in the trustee according to the terms of the deed. And where such conveyance was made in terms to a trustee who at the same time executed to the grantor a mortgage upon the premises conveyed, to secure a part of the purchase money : Held, that the person to whose use the convey- ance was made could not avoid the mortgage, but took the title subject to it, the deed and mortgage being construed as in reality forming one instrument. Rawson v. Lampman, 1 Seld., 456. 6. The passive trust may be shown by another deed. Where a con- veyance is received to the use of another so that the cestui que trust is entitled to the actual possession of the lands and the receipt of the rents and profits, its effect is to vest the estate at law in the cestui. Nor is it necessary that the trust clause should be expressed on the face of the conveyance to bring the case within the statute. It is enough that the formal trust actually existed, nnd it may be proved by another deed. Wright v. Douglass, 3 Seld., 564. 7. Where the cestui que trust is a foreign corporation, the passive trustee need not be served with copy proofs, in a proceeding by attach- ment. (Laws of 1842, chap. 197.) He has no interest in the lands either as trustee or otherwise. The service is required to be made only upon a trustee who holds a trust recognized by law. Id. la. See No. 8, seq. (2.) To sell lands for benefit of creditors. 8. Where lands were conveyed by a debtor to trustees upon trust to sell the same for the benefit of certain specified creditors, and then to reconvey to him the parts remaining unsold, and by a subsequent instrument, the debtor, with the consent and accept- ance of the creditors, conveyed his residuary interest to the same trustees yor£/«e benefit of the same creditors, and in satisfaction of their demands : Held, that the trust was thereby determined, the power at an end, and that the whole legal and equitable title to the pro- perty became vested under the statute (1 R. S., 728, sees. 47, 49), in the creditors ; and therefore held further, that one of the credi- 600 COURT OF APPEALS DIGEST. tors might maintain against the others a bill for the partition of he property. Selden v. Vermibjea, 3 Comst., 525. (3.) To sell, mortgage or lease lands for the benefit of legatees, Sfc. 9. Executors in such case may he called to account before a surrogate. Where a testator devised and bequeathed all his real and personal estate to his executors,-in trust, to sell the same whenever they should see fit ; also with authority to lease the same ; and directed the executors to divide the whole trust estate into nine equal parts, and pay over and convey one of said parts to each of his four children who were of age, and to hold the remaining five parts until his minor children should respectively become of age, and to pay over and convey to them their shares, as they should be- come of age : Held, that the executor could be compelled to account before the surrogate, not only for the personal estate bequeathed to him, but also for the rents and profits of the real estate, and for the proceeds of such real estate as he had sold pur- suant to the directions contained in the will. Stagg v. Jackson et al, 1 Coinst., 206. (4.) To receive rents and profits and apply them to the use of any person for life, or a shorter term, Sfc. 10. Trust to receive rents, Sfc, and "pay them over " to the beneficiary, is equivalent to a trust to "apply them to the use" of any person, within the statute. A testator by his will made in 1833, gave " two-fifths of his real estate to his two_ daughters, so that each might have and enjoy the income of one-fifth, during their lives," and on their death, their shares to go to their issue. He appointed executors and constituted them trustees, and authorized and desired them, as such, to take charge of the real estate so devised, to manage and improve the same, and to pay over to the said daughters, from time to time, the rents, interest, or net income thereof. In case the daughters married, he declared that payment to them on their receipt, without the signature or consent of their husbands, should be sufficient: Held, 1. That the will vested the legal estate in the trustees during the lives of the daughters ; and 2. That the qOTJET OP APPEALS DIGEST, 601 trust was valid. Leggett and wife v. Perkins, 2 Comst., 297. See next No. 3 1. Power of trustee and cestui que trust to charge the trust estate. Where, since the Revised Statutes took effect, lands have been conveyed to a trustee, upon trust to receive the rents and profits and pay them over to a married woman for her sole use during her life, the trustee has, during such life, the whole estate legal and equitable in the lands, subject only to the execution of the trust. The cestui que. trust, has no estate or interest in them or their future income, upon which she can create any lien or charge for the expenses of protecting the trust estate, or for any other purpose. And if, without the concurrence of the trustee, she employs an attorney who defends a suit affecting the validity of the trust, such attorney cannot reach the surplus income under section 57 of the statute relative to uses and trusts, for the reason that he is not a creditor of the cestui que trust, within the meaning of that section. Being a married woman she cannot incur an obligation binding hev personally, even for the expense of protect- ing property held by a trustee for her use. Noyes v. Blakeman ct al., 2 Seld., 567. 12. Powers of the trustee. It is the duty of the trustee to use reasonable diligence to protect the trust estate, and he will have a lien upon it for the expenses of such protection, although not expressly provided for in the instrument creating the trust. And if he have not the means in hand, he may charge such expenses on the future income, and is not obliged to incur personal respon- sibility for their payment. And if lie do so charge future income, a new trustee appointed in his stead, takes the trust estate subject to the charge. Id. 13. Power conferred to sell the trust estate and hold the proceeds to the same use, is a valid power. Where, in contemplation of mar- riage, lands were conveyed to trustees to receive the rents and profits and apply them to the separate use of the wife during her life, and the trust deed contained a power to the trustees to sell the lauds and reinvest the proceeds, and hold them so reinvested to the same use : Hdd, that the power was valid, and that a con- 70 602 COURT OF APPEALS DIGEST. veyance by the trustees passed a good title; that such power is not repugnant to the trust created by the deed ; nor is the conveyance by the trustees a violation of the statute (1 R. S., 730, sees. 63, 65), prohibiting the alienation of trust estates. Belmont et al. v. O'Brien, 2 Kern., 394. (5.) Trusts for accumulation ; Suspending power of alienation. 14. A devise creating a trust for the maintenance and education of four infants, with a provision for the accumulation of the sur- plus and the division of the fund as they successively become of age, when each cestui que trust is to receive his proportion of it, may as to all the property, and does in any event as to a part, suspend the power of alienation beyond the termination of two lives in being, and is, therefore, void. Jennifigs v. Jennivgs, 3 Seld., 647. 15. Where a testator, who died leaving a wife, children, and grandchildren,, devised his real estate to his wife and two other persons, in trust, to receive the net income thereof and apply it to the use of his wife during her life or widowhood, at her death or marriage to divide the same into as many shares as he should leave children surviving him, the net income of one share to be received by each child during his or her life, and afterwards by his or her husband during life, or until marriage, and then the fee'of each share to vest absolutely in the children of each child, if any, and if none then in the right heirs of the testator : Held, that the entire devise was void, as it suspended the absolute power of alienation beyond the continuance of two lives in being at the time when the devise was to take effect. Amory v. Lord, 5 Seld., 403. 16. By such devise the widow and children of the testator and their surviving wives and husbands did not take successive lea-al estates, in which case the first two would be valid and the others void, but mere equities, all dependent on a trust"; and the trust being void, the equitable interests all failed. Id. 17. And held fm-ther, that the absolute power of alienation was suspended, notwithstanding a qualified power was given to the trustees to lease the estate for terms not exceeding ten years, and COURT OF APPEALS DIGEST. ggS to sell such portions thereof as might be necessary to discharge liens and pay for improvements upon the residue. Id. (6.) General. 18.. When interest of cestui que trust may not be sold on execution. By will made in 1815, the testator devised his i-eal estate to his three grandchildren and their heirs forever. He then directed such real estate to be " disposed of" by his executors and the sur- vivor of them, and the executors or administrators of such survivor, as follows : " The said real estate shall not, at any time here- after, be sold or alienated, but my said executors, or the survivor of them, or the executors or administrators of such survivor, shall, from time to time, lease or rent the same, on such terms as they shall deem most advantageous to my said heirs (grandchildren), and the rents, issues and profits of the same shall be annually paid to my said heirs in equal proportions ; and if either of my said heirs or their children, shall choose to occupy any part of my said real estate, he, she or they, shall have a preference over any other applicant, on paying a reasonable rent for the same." By a subsequent clause it was declared that, if any of his grandchildren should die without issue, the share of the one so dying should go to the survivors or survivor, and the heirs of such survivor for- ever : Held, that the executors took, by implication, the legal estate during the lives of the grandchildren, and therefore that such grandchildren had no present legal interest which could pass by a sale under judgment and execution against them. Breivster v. StriJcer, 2 Comst., 19. 19. What power of disposal retained, does not amount to an equitor hie fee in a grantor in trust for her me ivith remainder. A conveyance of real estate made in 1809 to a trustee, with power, with the grantor's consent, during her life to lease or sell, and from the proceeds after defraying the expenses of the trust, to pay over the residue for the reasonable support of the grantor as she may require the same during her natural life, and to accumulate the surplus, and at her death to apply it to the bringing up, education and support of such child or children as she should or might have, 604 COURT OF APPEALS DIGEST. during the life of such child or children, with remainder over in default of children, gave to the grantor only an equitable estate to the extent of the trust expressed for her use. It did not vest in lier the equitable fee sinjple, and she had no power to extin- guish the trust by conveyance to a third party. And upon the grantor's having children, they became entitled to a vested inte- rest in the trust estate, and to bring an equitable action to avoid a fraudulent disposition of it by the grantor and trustee. Wrigla et al. V. Miller et al., 4 Seld,, 9. 20. Decree by collusion between trustee and tenant in possession, to d'feat rights in remainder, will be vacated, on application of those enti- tled in remainder. The settler in a deed of lands conveyed in trust to a trustee to be managed, and the income and proceeds to be paid to her for her use during her life, with remainder to be ex- pended for the support and maintenance of her children, and remainder over, after the birth of the children joined with her husband in a conveyance of the trust estate to third parties, who by collusion filed a bill against the grantor's trustee and children, and obtained a decree avoiding the trust, and then reconveyed the land to the settler's husband. It was adjudged that the decree be declared void, the property restored to the trust, and that the husband account to a new trustee. Id. III. DUTIES, POWEES AND LIABILITIES OF TRUSTEES GENEEALLT. 21. Power to charge futwre income with expenses of protecting, the trust estate. See, ante. No. 12. 22. Death of one of three trustees; Powers of survivors. Where power is given by a deed in trust to three, in case of death of one, for the survivors, with the cestuVs consent, to appoint a successor, and thereupon such three shall be vested with the powers of the original trustees : Held, that on the death of one, the survivors, without appointing a successor, could execute the. powers ex- pressed in the trust deed. The appointment of a successor was not made imperative. Belmont v. O'Brien, 2 Kern., 394. 23. Acceptance of a trust; Disclaimer. In the absence of proof to the contrary, a devisee of property in trust is presumed to court: of appeals DIGEST. 605 accept the trust estate. But he cannot be vested with such an estate against his will ; and where he declines to accept it, his disclaimer need not be in such a form as to pass an estate in the property devised. Burritt v. SiUiman, 3 Kern., 93. 24. Delegating a personal trust; Ratification. Although an executor or other trustee, empowered to sell lands in his discre- tion, cannot authorize an agent to contract for their sale, and if he do, such agent's contract would be void ; yet he may render the agent's contract valid by ratifying it with a full knowledge of all the facts. In ratifying it, he exercises the personal qualities essential to the due execution of the trust. Newton v. Bronson, executor, 3 Kern., 687. 25. Removal; Substitution; Liability of surety of stibstituted trjistee. The late Court of Chancery had power by its general authority, independent of any special statute, to remove a trustee on good cause shown, and to substitute another in his stead. And whether such removal and appointment, made upon petition, without bill, was regular or not, the surety of the substituted trustee can make no objection on that ground, in a suit upon the bond given to secure the faithful execution of the trust. Nor can he object that some of the persons interested in the trust estate were not parties in the proceedings for the appointment of a new trustee. It is enough that he obtained the trust estate by virtue of the appoint- ment. The People v. Norton, 5 Seld., 176. 26. Action on bond properly brought in the name of the people. Where a bond of a trustee and his surety was given to " the people of the State of New York," for the benefit of those inte- rested in the trust estate, an action on the bond was properly brought in the name of the people, they being " trustees of an express trust" within the meaning of section 113 of the Code of Procedure. Id, 27. Trustee sacrificing trust property for his private advantage. Where the trust estate consisted of a house and lot, subject to the lien of a mortgage, and the trustee, for his own convenience, and not for the advantage of the estate, sold the property subject to the mortgage for less than its value, and the property on a fore- 606 COURT OF APPEALS DIGEST. UNDEETAKINOS ON APPEAL — UHITED STATES COITET. closure sold for less than the sum due on the mortgage : it was Held, that the surety of the trustee, after the death of the latter, was liable, on his bond, for the surplus value of the property at the time of the trustee's sale, beyond the amount of the incum- brance, together with interest on such surplus. Id. UNDERTAKINGS ON APPEAL. 1. One undertaking in $260, not sufficient on appeal from two orders, although one of the orders was not appealable. But ap- pellant allowed to amend on terms. Schermerhorn v. Anderson, 1 Comst., 430. 2. There must be an undertaking to pay costs and damages, under section 283 of the Code, or the appeal will not be effectual for any purpose. The undertaking provilled for by section 284, though necessary to stay proceedings, will not sustain the appeal. And the undertaking cannot be amended without consent of the sureties. Langley v. Warner, 1 Comst., 606. 3. One undertaking in $250is sufficient on appeal to this court by plaintiflf in replevin, where a single record was made up, not- withstanding there were two defendants to whom different sums of money were adjudged below. Smith v. Lynes, 2 Comst., 669. 4. Parties to an undertaking in the form prescribed by the Code (sec. 335), to stay execution on appeals to this court, are not liable to pay the judgment where the appeal is dismissed. Drummond et al. v. Husson, 4 Kern., 60. 6. Are valid within the statute of frauds, as to the sureties, though expressing no consideration moving to them. The statute providing for the undertaking creates the liability. Thompson v. Blanchard, 3 Comst., 335. UNITED STATES COURT. 1. See, 3 Kem., Title, "Appeal," 18, 19. COURT OF APPEALS DIGEST. 607 USAGE, COMMERCIAL — nSnKT. USAGE, COMMERCIAL. 1. Cannot control definite and certain contracts. Vail et al. v. Rice, 1 Seld., 155. Wadsworth v. Allcott, 2 Seld,, 64. USES, CHARITAELE. I. See, Title, " Legacy." USURY. I. Transactions held to be usuriona. II. Transactions held not usurious. III. What law, domestic or foreign, is to he applied. IV. Who may not set up the usury. V. Kemedies. (1.) Relief in equity.' (2.) Action against the lender under the statute. VI. Miscellaneous cases. I. TRANSACTIONS HELD TO BE USURIOUS. 1. Loan, in New York, of the lender's certificates of deposit for £48,000 sterling, payable in London, part within, one and part within two years, at five per cent interest, to a needy borrower whose necessities were known to the lender, and taking in ex- change such borrower's bills of credit or promissory notes for .£50,000, bearing semi-annual interest at six per cent, and payable in London at the rate of $6 for each £1 sterling, in installments, at four, five, six and seven years, accompanied by the borrower's deed of trust of real estate of sufficient value, to trustees, provid- ing for payment to the lender in New York, forty days before they would fall due in London, of the respective installments of the £50,000 with interest at seven per cent, as security for or by way of payment of such bills of credit, the lender, not having the ready money, to raise it in London by a sale of the bills on its own guaranty, expected to bring par, but in fact sold at a sacrifice . of over $12,000 sustained by the borrower. On bill filed by the borrower, held to be a loan of money and the bills of credit and trust deed declared void for usury and ordered to be canceled, by 608 COURT OF APPEALS DIGEST. the decree of the assistant vice-chancellor of the first circuit, re- versed by the Supreme Court at general term, but affirmed in this court. The. Dry Dock Bank v. The American Life Insurance and Trust Company, 3 Comst., 344. 2. Difference of exchange between different states. Loan of money in New York by a resident of Savannah, Georgia, the borrower's notes at seven per cent interest being taken for the sum loaned, and in addition thereto for the difference of exchange paid by the lender immediately previous, on the transfer of the money from Savannah to New York. JacJcs v. Nichols, 1 Seld., 178. 3. Loan of the lender^s certificates of deposit irredeemable within twenty years, and bearing interest at four and a half per cent, on the borrower's mortgage to the lender for same amount with in- terest at seven per cent. New York Life Insurance and Trust Company v. Beehe, 3 Seld., 364. 4. MaJcer^s accommodation note, negotiated by the lender to a third person at a usurious discount. Catlin v. Guntcr, 1 Kern., 368. 5. Loan, in New York, of lender'' s certificate of deposit for sterling money at twenty years and five per cent interest, payable in Lon- don, and receiving the borrower's bond and mortgage for a corres- ponding amount in federal money, at ten years and seven per cent semi-annual interest, with the intent that such certificates shall be, and which are, used by the borrower to raise money upon : Held, usurious on the ground that it was a mere loan of money, and that by the obligations exchanged the amount ultimately to be paid by the borrower was greater than that to be advanced by the lender. Schermerhorn v. Tallman, 4 Keiii,, 93. 11. TRANSACTIONS HELD NOT USCEIOUS. 6. The lender advanced the full amount of the securities, re- ceived by him on account of the loan; but the borrower sustained a loss and received less, in consequence of an arrangement made by him with a third person through whom the loan was effected, it not appearing that the lender had any knowledge of the ar- rangement or received any benefit therefrom. The Farmers' Loan and Trust Company v. Clowes, 3 Comst., 470. COURT OF APPEALS DIGEST. 609 7. The seller of land is willing to take $10,000 ; the buyer not having the money, a deed is executed and the buyer gives his bond and mortgage for $12,000, both to remain in seller's hands until he can find a purchaser of the bond and mortgage for $10,000, and then the deed to be delivered. This agreement is carried out. The transaction is not usurious, and the bond and mortgage are a valid security for $12,000. It is merely a high price on credit, and a low price for cash. Brooks v. Avery, 4 Comst., 225. 8. Sale of the alleged lender's credit. A firm having a house in New York and one at Havre, in France, and a part of whose business in New York was dealing in exchange, drew bills upon the house at Havre, payable in the city of Paris, and sold them to a bank in New York, upon an agreement that the bank, within a certain time, should pay the amount in similar bills, adding inte- rest at seven per cent, and a commission of one and a quarter per cent. The bank wanted the bills of the firm in order to dispose of them for money to relieve its necessities, but the evidence failed to show that the transaction on the part of the firm was not a sale in good faith of the bills : Held, that the agreement was not usu- rious. A usurious loan may be disguised under the form of a sale of exchange, but the party seeking to impeach it, must by evi- dence remove the covering, and exhibit the transaction as a loan of money. Leavitt v. De Launey, 4 Comst.,' 364. 9. Vendor's covenant as collateral for the full amount of a valid security sold at a discount. The plaintiff being the holder of a bond and mortgage, and wishing to raise money from the defendants to pay a debt which he owed to a bank, proposed in writing to sell to the defendants certain installments of the mortgage to grow due, and as collateral security for the payment of the installments, to give his own covenant, and also the guaranty of the bank to which he was indebted. The proposal was accompanied by an assignment of the whole of the bond and mortgage, previously prepared and executed by the plaintiff, which was absolute in ita terms, and contained a guaranty of the payment of the interest and collection of the principal, also by an engagement of the bank, reciting the plaintiff's indebtedness to it, and that he had pro- 77 610 COURT OF APPEALS DiaEST. mised to sell the said installments in order to pay such debt, and guaranteeing, "for the purpose of enabling the plaintiff' to effect the sale," the final collection of the said installments with interest. The proposal was accepted by the defendants, and the bond and mortgage with the assignment and the guaranty of the bank delivered to the defendants, they advancing to the plaintiff the amount of the installments mentioned in the proposal, in certifi- cates of deposit issued by their own corporation. But at the same time the defendants took from the plaintiff his own bond, conditioned absolutely for the. payment of the sum advanced, and they also executed to the plaintiff a writing, acknowledging that they had received the assignment of said installments " as collat- eral security " merely, for the payment of the plaintiff's bond. The transaction was entered on the defendant's books by their secre- tary, as a loan to the plaintiff, but the secretary had no personal knowledge of the matter. The oral evidence given by the chief officer of the defendants, who was called as a witness by the plaintiff, tended to show that in thus consummating the transac- tion, no departure from the proposal of the plaintiff accepted by the defendants, was understood or intended : Held, that the trans- action was a sale by the plaintiff to the defendants of the install- ments of the mortgage, and not a loan to the plaintiff of the sum advanced ; and therefore that the transaction could not be im- peached for usury. Mumford v. The American Life Insurance and Tmst Company, 4 Comst., 463. 10. Loan of chattels cannot be usurious at any per cent, unless in- tended as anindirect loan of money. B. loaned to R. on the first day of May, 1834, eleven cows, for two or four years, at R.'s election, E. to pay $50.75 on the first of May in each year for their use. E. agreed to return the cows to B. with calf, or with calves by their sides, on the 1st of May, 1836 or '38, as he should elect, worth $203, or pay that amount in cash. B. to sustain all losses that should appear providential : Held (the jury having found that this was not intended as a cover for a usurious loan of money), that the contract was not usurious. Bull v. Rice, 1 Seld., 315. COURT OF APPEALS DIGEST. 611 11. Discount ; Exchange. Not usury in a bank to take interest in advance, on paper having the usual time of bank paper to run ; nor for a banker in the interior of the state, in addition to interest, to charge borrower the current rate of exchange on paying him the proceeds of .the discount in sight drafts on New York, at his request, though the note was payable there. Marvine v. Hymers et al., 2 Kern., 223. Ill WHAT LAW, DOMESTIC OR FOREIGN, IS TO BE APPLIED. 12. Where (in the case stated, ante, No. 2), the notes were twice renewed, the last notes being made and dated at New York, which was the residence of the makers and indorsers, and sent by the makers with another note as additional security, payable in New York, to the lender at Bridgeport, in the State of Connecti- cut, where he was then staying, and who there accepted the new notes with the additional security, and gave up or sent to the makers at New York the previous notes : Held, that the contract must be governed by the laws of New York, and that such new notes were void, whatever might be the laws of Connecticut. Jach V. Nichoh, 1 Seld., 178. 13. Contract in another state. A note made in another state, and designating no place of payment, and which bears a higher rate of interest than is allowed by statute in this state, is not invalid on account of usury, unless it be shown that the laws of the place where the note was made prohibit such a rate of interest Davis V. Garr, 2 Seld., 124. 14. Foreign corporation lending in this state. The American Life Insurance and Trust Company was incorporated by the legislature of Maryland, and its charter empowered it " to make all kinds of contracts in which the interest of money is concerned, provided that nothing therein contained should be construed to authorize it to make any contract which, hy the existing laws, amounts to usury." By the laws of Maryland the rate of interest is six per cent per annum, and all securities by which interest at a higher rate is reserved are declared void : Held, that a loan of money by the company, made and to be repaid in this state, with intefest at 612 COURT OF APPEALS DIGEST. seven per cent per annum, was valid. Bard et al. v. Foole et al., 2 Kern., 495. 15. See, ante, Title, " Banks and Banking," III, 10, 12 ; case of Cwtis et al. v. Leavitt, S^c, 15 N. Y. Rep., 9. IV. WHO MAT NOT SET UP THE USCET. 16. Purchaser of lands subject to usurious liens. Persons who ac- cept a lien upon, or interest in the equity of redemption of mort- gaged premises, as mortgagees or purchasers, expressly subject to the lien of the prior' mortgage, cannot avail themselves of usury in such mortgage, in defense to a suit for its foreclosure. Sands V. Church, 2 Seld., 347. 17. • Creditors of an insolvent debtor, who has made a general as- signment, giving preference to an irregular and usurious judg- ment, cannot, for that reason, avoid the assignment. It is not a fraud upon them. Murray v. Judson and Sands, 5 Seld., 73. 18. The usurer himself cannot show that an obligation, which he has taken in satisfaction of a prior demand, is usurious and therefore void, in order to avoid the effect of such obligation as a satisfaction of the prior demand. La Farge v. Herter et al., 5 Seld., 241. V. REMEDIES. (1.) Relief in equity. 19. See, ante. Title, " Jurisdiction of Chancery," Nos. 44 and 45 ; cases of Vilas and Bacon v. Jones et al., 1 Comst., 274, and Minturn v. Farmers' Loan and Trust Company, 3 Comst., 498. 20. Party asJcing equity must first do equity. A mortgagee of real ■estate which is subject to the lien of a prior judgment confessed by the mortgagor upon a usurious consideration, is not a "bor- rower" within the meaning of the statutes, relating to usury i(Laws of 1837, 486, sec. 4), and therefor.e cannot maintain a bill to set aside the judgment, without paying or offering to pay the sum actually due. Rexford et al. v. Widger et al., 2 Comst., 131. ITor is a grantee of such real estate, such " borrower;" and this, notwithstanding he was in fact originally the borrower, but had COURT OF APPEALS DIGEST. 613 been discharged from his debts in bankruptcy, and became such "grantee" by purchase at the sale made by his own assignee in bankruptcy. Schermerhorn v. Tallman, 4 Kern,, 93. (2.) Action against lender under the statute. 21. Pleadnigs. In an action of trover for goods or things in action, received by the defendant in violation of the statutes against usury, the declatation must conform to the statute (2 R. S., 352, sec. 3) ; and if it do not (as if it omit to allege " that such goods or other things were converted by the defendant con- trary to the provisions of such statute," referring to the same as prescribed in the several sections), an objection made on the trial to a recovery will be fatal. SchroeppcU y. Corning, 2 Comst., 132. Do the provisions of the Code as to variance, mistakes in plead- ing, and amendments extend to such a case? See Catlin v. Gun- tcr, 1 Kern., 368. 22. Statute of limitations. Where a borrower, on obtaining a loan of money at an illegal rate of interest, assigns to the lender bonds and mortgages, in consideration of such loan, the assign- ment is void, and trover may be immediately maintained for them by the mortgagor. And the statute of limitations is a bar to such an action after six years from the time of such assignment. Nor can assumpsit be maintained (as against a plea of the statute of limitations), after six years from the time of such assignment, for moneys received by the lender on the securities, though received within six years prior to the commencement of the action. Schroe'ppell et al. v Corning, 2 Seld., 107. VI. MISCELLANEOUS CASES. 23. Sureties not discharged by creditor ; Forbearing for usurious 'premium. An agreement made by a creditor with the principal debtor, to forbear thd payment of the debt in consideration of a usurious premium paid for such forbearance, is void, and therefore cannot operate to discharge the sureties. Per Bronson, J., and Jewett, Ch. J. Vilas v. Jones, 1 Comst., 274. 614 COURT OF APPEALS DIGEST. VENDOB AND VENDEE OP LAND. 24. Privilege of witness. The usurer cannot be compelled to disclose the usury or any fact tending thereto, if he choose to object that he is privileged from testifying, on the ground that he might thereby be subjected to a criminal prosecution, penalty or forfeiture, unless the case be within sections 2 and 8 of chapter 430 of Laws of 1837. Nor even then, if there be any liability to prosecution or forfeiture, against which that act is not a protec- tion. Henry v. The Bank of Salina, 1 Comst., 83. 25. A discharged bankrupt, maker of a note alleged to be void for usury, held not to be a competent witness for his sureties on such note to establish the usury (on a bill filed by them to avoid it), unless he has released his interest in the surplus of his effects in bankruptcy. Morse v. Crofoot, 4 Comst., 1 14. 26. See, ante, Title, " Partnership." Case of Green and Ayrault v. Elmer, 4 Seld., 422. VENDOR AND VENDEE OF LAND. I. The contract. 11. Interests in tlie land. III. Rescission by vendee ; Action for payments. IV. Rescission by vendor ; Ejectment ; Action on the contract. V. Lien for purchase money ; Equitable relief. VI. General. I., THE CONTRACT. 1. A contract to give a " good and sufficient deed" of land, free of all incumbrances, is not satisfied by a deed containing covenants of warranty and against incumbrances, where the grantor has not the legal title to the premises. The cases of Gazeley v. Price (16 John., 267), and Parker v. Parmelee (20 id., 130), reviewed and questioned. Fletcher v. Button, 4 Comst., 396. 2. Seal; Authority of Agent. A contract for the sale of lands need not be under seal ; it is sufficient if it be in writing, and subscribed by the party or his agent lawfully authorized. And the authority of the agent may be conferred by parol. Worrall y. Munn, 1 Seld., 229. 3. See, Title, " Frauds, Statute of." COURT OP APPEALS DIGEST. G15 VENDOR AND VENDEE OF LAND. V- II. INTERESTS IN THE LAND. 4. A sale of lands on execution against the grantee ( by quit- claim deed), of one who was in possession under a contract of purchase, does not give to the purchaser any interest in the land; such sale being prohibited by statute. (1 E. S., 744, sec. 4.) Gage V. Cartwright, 5 Seld., 49. 5. A power of sale contained in a will authorizing executors to sell all the testator's " fast estate," does not embrace lands which have been sold by contract by the testator, the purchase money being unpaid, and the title still remaining in him at his decease. The interest remaining in the vendor in such a case, is a right to the money due on the contract, which is not real, but personal estate. Lewis v. Smith, 5 Seld., 502. III. RESCISSION BY VENDEE ; ACTION FOR PAYMENTS. 6. Where the vendor is not able to give a good title at the time when the deed is to be given, the vendee may recover back the purchase money paid by him, and six years' interest thereon. That the vendor has an equitable title, which, with the possession and use passes to the vendee under the contract, is no defense. And the whole purchase money may be recovered back, although a part of the payments were made in a note of the vendee, taken in satisfaction, and such note remains partly unpaid ; the vendor not having set that up in his answer by way of set-off. Fletcher V. Button, 4 Comst., 396. 7. Implied warranty of title. Unless the contrary be expressly excluded by the terms of the contract, there is always an implied warranty by the vendor that he has good title; and such implied warranty continues as long as the contract remains executory. If, therefore, before a deed is given, the vendor's title is cut off by sale under a prior mortgage, the vendee may rescind ; and a judg- ment obtained against the vendee, on a note for part of the pur- chase money, before such failure of title, cannot be enforced. Burwell v. Jackson, 5 Seld., 535. 616 COURT OP APPEALS DIGEST. VENDOE AKD VElfDEE OP LAUD. S. MistaJce in quantity of land. Notwithstanding the descnption is by metes and bounds, and ends with the words " more or less," the contract will be rescinded by a court of equity on vendee's application, where there is a mistake in quantity so consid- erable as to lead irresistibly to the conclusion that the contract would not have been made but for the mistake. As where the vendee contracted for lands, at a price of $14,000, whose chief value was for city lots, and it turned out that there was butyowr acres instead of eight, as the vendor had innocently represented. Belknaf v. Sealey, 4 Kern., 143. rV. EESCISSION BY VENDOE ; EJECTMENT ; ACTION ON THE CON- TRACT. 9. The defendants were by agreement to pay plaintiff SI ,823.44, by applying it on a contract for sale of land which defendants were to execute to plaintiff. This was done, but the plaintiff having failed to make his subsequent payments, the defendants availed themselves of a provision in it to that effect, and rescinded the contract by reason of such failure. The plaintiff then brought his action for the $1,823.44: Held, that he could not recover. Where the obligation of a party is to pay a sum in land, and he is not in default, he cannot be compelled to pay in money. Battle V. The Rochester City Bank, 3 Comst., 88. 10. Presumption of payment from lapse of time; Ejectment. Where the vendor, more than twenty years after the purchase money be- comes due, treating the contract as forfeited for non-payment, brings ejectment against the vendee for the land, the presumption of payment arising from lapse of time, is not sufficient to uphold an equitable title in the defendant to the land. To establish such a defense, payment in fact of the purchase money must be proved. Lawrence v. Ball, 4 Kern., 477. 11. Interest on the purchase money. Where the vendee takes pos- session of the land, without having paid the purchase money, he is bound to pay interest on it (and this, it seems, whether the land is or is not productive), so long as his possession is undis- turbed, and the vendor is not in default. And it is not a default COTIET OF APPEALS DIGEST. 617 VENDOE AND VENDEE OF LAND. in him, where the giving of the deed and the payment of the money were to be simultaneous, that he has not executed the deed, the money not having been tendered nor the deed demanded. Stevenson Y. Maxwell, 2 Comst., 40S. 12. The complainant and defendant held a lease of a vacant city lot, and the lessor's covenant in the lease to convey it to them in fee. The complainant agreed with defendant to sell him his interest in the property, the deed to be given and the purchase money paid or secured on a given day named in the contract. The day passed and nothing was done, but subsequently the de- fendant went on and improved the property by building stores, and received large rents and profits ; and in an account afterwards stated between the parties, the defendant was charged with the purchase money and interest, but not with any portion of the rents : Held, that the possession and improvements of the defend- ant must be referred to the contract of sale, and not to the lease, and that he was bound to pay interest on the purchase money. Id. 13. Action for installment ; Dependent covenants. A contract was made in August, 1845, for the sale of lands,, the purchaser cove- nanting to pay therefor $950, $200 in April, 1846, $200 in April, 1847, and the remainder in two annual payments thereafter; the seller covenanting to deliver possession in November, 1845, and a deed in May,lS46. In an action by the seller to recover the second installment : Held, that the delivery of a deed was a condition pre- cedent to the payment of the second installment, and that the plaintiff not having delivered or tendered a deed, could not recover. Grant v. Johnson, 1 Seld., 247. 14. The acceptance of possession by the purchaser, did not render his covenant to pay the second and subsequent installments, independent of that of the seller to convey. The terms of the contract did not require him to pay those installments before ob- taining a deed. Id. 15. When covenants become dependent, which were not so originally. Purchase money payable in five annual installments; vendor to convey "on condition that vendee pays as therein specified." None of the installments having been paid, and all having become past 78 618 COURT OF APPEALS DIGEST. VENDOR AND VENDEE OF LAND. due, the vendor brought his action therefor : Held, that he could not recover any part of the purchase money without proving an offer before suit to convey the land on receiving the price ; that vrhen the last Installment became due, the payment of the whole of the purchase money and the conveyance of the land, became dependent acts. Beecher v. Conradt, 3 Kern., 108. V. LIEN FOR PUECHASE MONET ; EQUITABLE EELIEF. 16. In what order the lien attaches, where the vendee has sold fart. Where lauds are contracted to be sold, and the purchaser con- tracts to sell a part of such lands, the part remaining is the primary fund for the payment of the original purchase money ; and if the original purchasers transfers different interests at differ- ent times, they are chargeable in the inverse order of alienation. Crafts V. Asj>inwall, 2 Corns t., 289. 17. Chancery has jurisdiction to enforce specific performance by the vendee on vendor's application, notwithstanding the vendor has a remedy at law upon the contract ; and no previous tender of a deed is necessary where the vendee has given notice of his refusal to perform. Crary v. Smith, 2 Comst., 60. 18. Lost contract ; Pleading. The defendant in such a case will be held to- greater strictness in his answer, than if the contract could be produced. And where the bill charged that the contract was executed by both parties, and set out what were claimed to be its terms, and the defendant answered that he never executed such a contract, and then proceeded to state that the contract was executed by himself alone, but stated no other difference, it seems this will be held an admission that the terms of the contract were as charged in the bill. Id. 19. The statute presumption of payment of moneys due on a con- tract after twenty years from the time they became due, is not sufficient evidence of payment to entitle the vendee to a deed. Morey v. The Farmers' Loan and Trust Company, 4: Kern., 302. VI. GENERAL. See, Titles, " Fraud ; " " Judgment ; " " Trusts." COURT 'OP APPEALS DIGEST. 619 VEEDICT — VOLDNTAKY ASSIGNMENT. VERDICT. 1. See 1 Comst., Titles, " Special Verdict." 2 Comst., " Special Verdict." 4 Comst., "Trial," 5, 6. 2 Sold., "Amendments;" " Estoppel," 2. 4 Seld., "Appeal," 1 ; " Statute of Frauds," 5. 4 Kern., "Appeal," 3. I. When valid. II. When void. VOLUNTARY ASSIGNMENT. I. WHEN VALID. 1. Where it was direct to certain creditors themselves, of a part of the debtor's property, to secure their demands, although it re- served the surplus to the assignor ; there being no extrinsic evi- dence of an intent to defraud other creditors. Leitch v. Hollister et al., 4 Comst., 211. Curtis et al. v. Leavitt, 15 N. Y. Rep., 9. 2. Though it provided for the payment of an irregular and usu- rious judgment, and gave it a preference. Murray v. Judson et al., 5 Seld., 73. 3. Where it authorized the assignees to sell the assigned pro- perty " upon such terms and conditions as in their judgment might appear best, and most for the interests of the parties concerned, and convert the same into money;" that such direction was not equiva- lent to an authority to sell on credit. Kellogg et al. v. Slausson et al., 1 Kern., 302. 3«. Where it did not assign the debtor's statutory right of re- deeming his land from a sale on execution. Dow et al. v. Platner, 16 N. Y. Rep., 562. II. WHEN VOID. 4. Where it transferred all the debtor's property to trustees, for the benefit of certain specified creditors, and then without providing for other creditors, and contained a direction to reconvey the surplus, if any, to the assignor ; notwithstanding it appear in 620 COURT OF APPEALS DIGEST. VOLUHTABT COHVETAKCE — WAIVER. proof that there will be no "surplus. Barney v. Griffin et al., 2 Comst., 365. 5. Where it exempted the assignee from responsibility for all losses sustained by the trust property, not occasioned by his gross negligence or wilful misfeasance. Litchfield etal. v. White et al., Z Seld., 438. 6. Where it authorized the assignee to sell the assigned property 071 credit; and further held, that it could not be remedied by exe- cuting and delivering a new instrument after the assignee had accepted and taken possession, directing him to sell for cash. Porter \. Williams et al., 5 Seld., 142. 7. Where it authorized the assignee to convert the assigned property into " money or available means," held, equivalent to an authority to sell on credit. Brigham v. Tillinghast et al., 3 Kern., 215. 8. Where partners assigned, with firm assets, certain real estate not owned by them as partners but as tenants in common, intrust for payment of their partnership debts, reserving any surplus which should remain, to the assignors : Held, void as to individual creditors of the assignors. Collomh et al. v. Caldwell et al., 16 N. Y. Rep., 484. VOLUNTARY CONVEYANCE. See, ante. Titles, " Fraud ;" " Voluntary Assignment." WAGER. See, Title, " Betting and Gaming." WAIVER. (1.) Cases where the act or omission was held to amount to a waiver. (2.) Where it was held not to be an effectual waiver. (1.) Where there was a waiver. 1. Where a justice's return to the Common Pleas showed that a mortgage was filed in a certain town, but did not show whether COURT OF APPEALS DIGEST. 621 or not it was the town where the mortgagor resided, but it did not appear that the opposite party objected in the court below that there was any defect in that respect in the evidence. Jencks v. Smith, 1 Comst., 90. 2. Where an agent for several principals exceeded his authority, but the fact was known to one of his principals at the time, and concurred in by him, but it did not expressly appear that the others were informed of it : Held, after the lapse of several years, that a concurrence and waiver by the others would be presumed. Sagev. Sherman, 2 Comst., 417. 3. Where a party was arrested, and instead of being examined, gave a recognizance for his appearance ; he is presumed to have waived an examination. Champlain v. The People, 2 Comst., 82. 4. Where a ward suffered eighteen years to elapse after he be- came of age, without impeaching a conveyance of his lands to his guardian who was guilty of a breach of duty in buying them for himself at a surrogate's sale ; and in the meantime the title had passed into the hands of innocent parties: Held, he must be deemed to have waived the objection and to have affirmed the sale. Bostwick v. Atkins, 3 Comst,, 53. 5. Where a statute requires two sureties in a replevin bond, if the party for whose benefit it is taken waives the objection that there is only one, the surety cannot afterwards resist a recovery on that ground. Shaw et al. v. Tobias, 3 Comst,, 188. 6. In a statutory proceeding the party against whom it is taken may waive any particular requirement of the statute intended exclusively for his benefit; and if he does so, the party proceeding cannot take advantage of the irregularity. Bvd et al, v. The Trus- tees of the Village of Lockport, 3 Comst., 197. 7. A party may renounce a constitutional provision, made for his benefit. Embury et al, v. Conner et al,, 3 Comst., 611. 8. Parties who are improperly yoiwed in a proceeding to acquire their lands for streets, waive the objection by appearing and con- testing on the sole ground of the inadequacy of the damages awarded. Dt/ckman v. The Mayor, ^., of New York, 1 Seld., 434. 622 COURT OF APPEALS DIGEST. 9. Prosecuting creditor who appears and opposes an insolvent's discharge without objecting that the notice, petition, &c., have not been regularly served 'as required by section 14 of the " act to abolish imprisonment for debt," is presumed to have waived that objection. The People v. Bancker, 1 Seld., 106. 10. Party going to trial before a jury without objecting to the mode in which they have been summoned or impanneled, thereby waives the right to object after verdict. Dayharshv. Enos, 1 Seld., 531. 11. Party who objects to evidence, when it is offered, but does not object to the course taken by the court in receiving it subject to the objection, reserving its decision on its admissibility until the close of the evidence, and then instructing the jury to disregard it, cannot raise the latter objection afterwards. McKnight v. Dunlop, 1 Seld., 537. 12. Party selling a patent with the privilege to the vendee, up to a certain time, of making trial of it, and within that time returning it if it prove useless, who, after that time, accepts a re- assignment of it, thereby waives the. right, in an action by vendee, to recover back the consideration, to object that the latter did not in fact make any trial of the patent. Young v. Hunter et al., 2 Seld., 203. 13. Taking a specific ground of objection to testimony, is a waiver of all other grounds which might have been obviated if raised. Nevjton v. Harris, 2 Seld., 345. 14. Evidence of a waiver of a tender by the opposite party, is proper and sufficient to support an averment of a tender. Holmes V. Holmes, 5 Seld., 525. 15. An insurance company which receives and acts upon pre- liminary proofs of loss, without objecting that they are informal or too late, and declines to pay the loss on other grounds, cannot raise any objections of form or time, when sued for the loss. Bumstead v. The Dividend Mutual Insurance Company, 2 Kern., 81. 16. A party waives his right to appeal to this court by stipu- lating with the other party beforehand that the decision of the general term shall be final. And if he brings an appeal, notwith- COURT OP APPEALS DIGEST. 628 WAERAHI — WABHAKTY. standing the stipulation, it will be dismissed. Townsend v. The Masterton, Sfc., Stone Dressing Company, 15 N. Y. Rep., 587. (2.) Where the act or omission was held not to be an effectual waiver. 17. A lessee by taking possession under a lease which he was induced to accept by fraudulent representations of the lessor as to the territorial extent of his right, waives thereby only his right to rescind the contract, and not his right to recover the damages occasioned by the fraud. Whitney v. Allaire, 1 Const., 305. 18. Where illegal evidence tending to establish a certain fact is received after objection duly made, the party making it does not waive it, although he himself afterwards introduces evidence tending to establish the same fact. Worrall v. Parmelee, 1 Comst., 519. 19. An appearance to a void appeal for the mere purpose of setting it aside, is no waiver of the defect. Seymour v. Judd, 2 Comst., 464. 20. The production, by a redeeming creditor, of the papers re- quired by statute to be produced, cannot be waived by the purchaser, whose right is sought to be acquired, so as to affect other creditors pursuing the same remedy. The People v. Ransom, 2 Comst., 490. WARRANT. 1. Against debtor to insolvent corporation, on application of receiver. 1 Comst., 330. 2. By board of supervisor's to town collector of taxes. 2 Comst., 473. 3. By county treasurer to sheriff, under act of May 13, 1846, "to equalize taxation." 2 Seld., 331. 4. See, Titles, "Absent and Absconding Debtors ; " "Attaching Creditor and Attachment;" " Court of a Justice of the Peace ;" "Jurisdiction;" "Office and Officer." WARRANTY. See, Titles, " Charter Party; " " Deed ;" " Insurance ; " " Sale of Chattels;" "Vendor and Vendee of Land." 624 COUKT OP APPEALS DIGEST. WASTE — WATEE-COITRSES. "WASTE. 1. Lies by holder of mortgage against mortgagor, or purchaser from mortgagor, who removes fixtures, and cuts down and carries away valuable timber, from the mortgaged premises, knowing that the security of the mortgage is thereby impaired, although his primary motive be not injury to the plaintiff, but his own emolu- ment. The maxim " sic vtere tuo ut alienum non ladas," applies to such a case. Van Pelt v. McGraw, 4 Comst., 110. 2. Lies by the party redeeming land from sale on execution (after receiving the sheriff's deed), against the purchaser at the sheriff's sale (or any other person), for cutting and taking away timber from the premises intermediate the sale and sheriff's deed, though done with the consent of the judgment debtor who was in possession. Thomas v. Crofoot, i Kern., 474. WATER-OOURSES, 1. If a city corporation, which has power by its charter " to cause common sewers, drains, &c., to be made in any part of the city," direct a culvert to be built for conducting the water of a natural stream which .had previously been the outlet through which the surface water of the city had been carried off, it must see to it that the work is skillfully done ; and if by the want of care or skill in its agents, a culvert be constructed of insufficient capacity to carry off the water in a freshet, the city will be liable to individuals for the damages thereby occasioned. The Rochester White Lead Company v. The City of Rochester, 3 Comst., 463. 2. A reservation in a deed, by which the grantors reserve " to themselves and their use, a certain well and water works laid down for the purpose of supplying the tannery aforesaid with water," was held (1). To be a reservation of the well and works unlimited in the uses to which the water might be applied, and not restricted to supplying the tannery; and (2.) Not to be limited to the grantors, but to pass to their grantees of the land appurtenant. COURT OP APPEALS DIGEST. 625 WATEK-COUBEES. Borst V. Emjjie^ 1 Seld,, 584. See, also, Olmsted y. Loomis, 5 Seld., 423. 3. Rights of a riparian owner of lands on a navigable river to the waters thereof: Held, not exclusive, but common and public, 80 that the construction of a railroad by legislative grant across a deep bay, between high and low water mark, so as to cut off com- munication with the river, except across the road, was, as to such owner, damnum absque injuria, GovM v. Hudson River Rail- road Company, 2 Seld., 622. 4. See, Title, " Salvage." 6. Twenty years^ me; Equity Jurisdiction. Where in a grant of a water privilege there was a reservation of so much water " as is necessary for the use of a forge and two blacksmiths' bellows," and the grantors and their successors, with the assent of the grantees and their successors, have for more than twenty years asserted and exercised the right of using the water reserved for other uses than those specified, the right so to use it is tbereby established ; and the recent diversion, by the grantees, of the water so reserved, from a paper mill which had stood for many years on the site of the forge, furnishes a proper case for the exercise of equity jurisdiction to restrain such diversion. Olmsted v. Loomis, 5 Seld., 423. 6. See, Title, "Deed," Nos. 4, 5 and 7. 7. Artificial channels ; Adverse enjoyment. Where hydraulic privi- leges are created by conducting a stream across lands in an artifi- cial channel, the proprietors of lots crossed bj such channel, in the absence of any stipulation to the contrary, have the same rights to the use of the water on their respective lots, as between themselves, as would exist if the artificial were a natural channel of the stream. And a simple non-user by a proprietor of his right, during twenty years, will not confer upon another the right to invade it, where such invasion has not continued for twenty years and upwards. Townsend v. McDonald, 2 Kern., 381. « 8. Boundaries on streams not navigable. Where, in a deed, the land is described as extending to the bank of a creek, the grantee does not take title to its center, nor is he limited to the bank at 19 626 COUKT OF APPEALS DIGEST. WIDOW — WILL. high water mark. Such a description includes the land to the margin of the stream at low water. The rule which prevails as to grants bounded on the shore or bank of the sea or navigable rivers (limiting to high water mark) is not applicable to streams not navigable. Halsey v. McCormick, 3 Kern., 296. wmow. 1. Goods given to her by statute. Under section P., chapter 157, of the Laws of 1842, the appraisers may set off to the widow such articles of furniture or other personal property as they think pro- per, not exceeding in value $150. Kai7i v. Fisher, 2 Seld., 597. 2. When intestate may he said to have " left a family." A man who has a wife and other relatives residing with him at the time of his death, besides servants, although without children, leaves a family within the meaning of section 9, article 1, title 3, chapter 6, part . 2 of the Revised Statutes. Id. 3. Where the appraisers omit to set apart property exempted to the widow's use under the statutes, and it is all sold by the exe- cutors, it is proper for the surrogate to decree her a sum of money in lieu thereof. Sheldon v. Bliss, 4 Seld., 31. 4. It is not in the discretion of the appraisers to omit altogether to set apart such property to amount of $150 under the law of 1842. Their discretion extends only to the kind of property to be set apart. Id. 5. See, Titles, "Divorce;" "Dower;" « Husband and Wife." WILL. I. Who may make a will ; Nuncupative wiHa. n. Who may take by will ; Charitable uses. III. Execution; Attestation; Fraud; Probate. IV. Construction. 1. Bequests and legacies. (a.) Description of person; quantum of interest, (i.) Legacy payable after death of legatee, (c.) Conditional legacy. COURT OF APPEALS DIGEST. 627 2. Devise. (a. ) Lands acquired after the making of the will. lb.) Executory and conditional devise. (c.) Election. (d.) As to the quantum of interest ; Fee by implication. ( c. ) Illegal suspension of power of alienation. 3. The residuary clause. 4. General rules ; Suits for construction. V. Powers and their execution. I. WHO MAY MAKE A WILL ; NUNCUPATIVE WILLS. 1. Married women. Prior to the statute (2 R. S., 60, sec. 21), a married woman could make a will of her separate personal estate, which would be valid in a court of equity. But since that statute and before the passage of the act of 1849 (chap. 375), she could not do it where the ante-nuptial agreement under which she held it, only authorized her " to enjoy, control and dispose of it during coverture, in the same manner and with the like effect as if she were afeme sole. Nor, per Denio, J., could she do so, even if the ante-nuptial agreement had contained an express provision that she might dispose of it by will. Wadhams et al. v. The American Home Missionary Society, 2 Kern., 415. 2. Soldiers and mariners. A nuncupative will may be made by a captain of a coasting vessel while she is on a voyage, and while lying at anchor in an arm of the sea where the tide ebbs and flows. And, as to the form, it is sufficient that the testator, in prospect of death, in answer to questions as to what disposition he desires totfiake of his property, states his wishes. No particular form of bequest is necessary, nor is it necessary for him to request any persons present to be witnesses that it is his will. Maria J. Hub- bard V. Elias Hubbard, 4 Seld., 196. II. WHO MAY TAKE BY WILL ; CHARITABLE USES. 3. Proceeds of lands to aliens. Where a testator gave to his wife for life the rents of certain lands, and directed that after her death the lands should be sold, and the proceeds divided among three persons, named in the will : Held, that this was a gift of money and not of lands, and was valid though the beneficiaries were aliens. Mcakings v. Cromwell, 1 Sdd., 136. 628 COURT OF APPEALS DIGEST. 4. Devise to posthumous alien. By the common law an alien can take real estate by devise, although he cannot hold it as against the state. And our statute (2 R. S., 57, sec. 4), which declares that " every devise of real property to a person, who, at the time of the death of the testator shall be an alien not authorized by statute to hold real estate, shall be void," does not apply to an alien devisee, born after the death of the testator. Wadsworth et al. v. Wadswoi-th et al., 2 Kern., 376. 5. Charitable uses. The testator by his will, made in 1832, and which took effect in 1834, bequeathed, after certain legacies, the residue of his estate " to the Methodist General American Mis- sionary Society, appointed to preach the gospel to the poor, L. C," a voluntary association then existing, and which, subsequently to his death, merged in and became incorporated as The Mission- ary Society of the Methodist Episcopal Church. In a suit between the incorporated society and the next of kin to the testatof ; Held, that the bequest was invalid, and the next of kin were entitled to the residue. (1.) The bequest is not valid as one made to the association for its own benefit, on account of its want of capacity to take. (2.) Nor can it be sustained as a charitable or religious ■use, because, Jirst, where there is no trustee named, competent to take, our Court of Chancery has no jurisdiction to uphold a be- quest for a charitable or religious purpose ; and, second, the objects •of the corporation which claimed the bequest, being " to diffuse more generally the blessings of education, civilization and Christi- anity throughout the United States and elsewhere," it could not be sustained as a charitable bequest, on account of the generality of the object. Owens v. The Missionary Society of the Methodist E;piscopal Church. 6. It seems that the law of charitable uses, as it existed in Eng- land at the time of the American Revolution, is not in force in this state ; and that our courts have only such jurisdiction over trusts for charitable and religious purposes, as was exercised by the Court of Chancery in England, independently of the prerogatives of the crown and the statute 43 Elizabeth (chap 4). Id. COURT OF APPEALS DIGEST. 629 7. The law of charitable uses, and the origin of the jurisdiction of the English Court of Chancery over the subject, discussed. Per Selden, J. Id. 8. In what cases bequests and trusts for puhlic and charitable pur- poses will be upheld. This case is distinguishable from Williams v. Williams (4 Seld., 525), inasmuch as there the fund was "bequeathed to trustees competent to take, in the first instance, while none such have been named here. And the decision in this case is not intended to deny the powers of courts of equity in this state to enforce the execution of trusts for public and charitable purposes, where the fund is given to a trustee competent to take, and where the charitable use is so far defined as to be capable of being spe- cifically executed by the authority of the court, although no cer- tain beneficiary, other than the public at large, be designated. Id. 9. See, Title, " Legacy." III. EXECUTION ; ATTESTATION ; FEAUD j PROBATE. 10. Publication. To render the execution of a will or codicil efiectual, the testator must, in the presence of two witnesses, de- clare the instrument to be his last will and testament. It is not sufficient that he makes such declaration in the presence of one witness, and signs the instrument in the presence of two who subscribe it as witnesses at his request. Seymour v. Van WycJc, 2 Seld., 120. 11. Case of defective execution and publication. Where the alleged will was not subscribed by the testator in the presence of the witnesses, and where they signed their names it was so folded that they could not see whether it 'was subscribed by him or not; and the only acknowledgment or declaration made by him to them, or in their presence, as to the instrument was, " I declare the within to be my will and deed ;" Held, that this was not a suf- ficient acknowledgment of his subscription to the witnesses, nor a sufficient declaration that the instrument was his will, within the requirements of the statute. Lewis v. Lewis, 1 Kern., 220, 630 COURT OF APPEALS DIGEST. 12. Republication ; From what time wills and codicils speak. The will of J. J. Astor was proved before the surrogate, by the sub- scribing witnesses, to have been duly executed December 31, 1836 ; a first codicil January 19, 1838, and a second January 9, 1839. These instruments, together with five other successive codicils, all of which purported to have been executed and at- tested on the days of their respective dates, were also proved by three attesting witnesses, who are the same persons in the case of each instrument, to have been acknowledged and published by the testator as his last will and codicils thereto, on the 11th January, 1845, and upon these proofs all the instruments were admitted to probate as the last will and testament of the deceased: Held, that the will and codicils were not to be I'egarded as an entire instrument, executed for the first time on the 11th January, 184-5, but that the acknowledgment and renewed attestation which then took place, have only the effect of a republication, giving no different operation to the several instruments from that which they would have if they stood upon their original execution, and therefore did not make the will or codicils speak as from the date of the republication, for the purpose of reviving legacies which had been adeemed or satisfied. Langdon v. Astor's executors, 16 N. Y. Rep., 9. 13. Fraiid and undue influence. The decree of the chancellor, annulling the will of John Fisher, deceased, as obtained by fraud and undue influence, and reversing the decision of the assistant vice-chancellor of the first circuit (3 Sand/. Ch. Rep., 351), af- firmed. The evidence showed, that although the will could not be declared void for want of a sound disposing mind in the testa- tor, yet, from the character of his disease, its long continuance, and the dependent state to which he was reduced, he was com- pletely under the control and dictation of his wife, and that she dictated the bequests instead of the testator. Clarke et al. v. 'Sawyer et al., 2 Comst., 498. 14. Construction of the statute requiring the mil to he subscribed " at the end" thereof; Map of lots attached and identified in the body of the will, need not be signed. An instrument propounded as a will, COURT OF APPEALS DIGEST. 631 consisted of eight unfolded sheets or pieces of paper, securely attached together at the ends. The writing of the will com- menced on the first and was continued on the four succeeding sheets, where it was brought to a close by the usual attestation clause, and was subscribed by the testator and the witnesses. On one of the sheets following the signature, was a map not signed by the testator or witnesses. The testator owned houses and lots in the city of New York, which he disposed of to his widow and among his descendants. In the body of the will, the lots were desig- nated by numbers, with a reference to the map as follows: " which said lots are designated on a certain map now on file in the office of the register of the city and county of New York {a copy of ivhich, on a reduced scale, is hereto annexed), entitled map of the property of, Sfc. {particularly describing the map on file) : Meld, that the will was subscribed by the testator " at the end of the will," within the meaning of the statute, that the paper attached being duly identi- fied in the body of the will was a part of it, though not sub- scribed, and that the execution of the will was valid. Tonnele v. Hall, 4 Comst., 140. 15. Probate; Legacy to subscribing witness; Record. Where there are three subscribing witnesses to a will, to each of whom a legacy is given, and the will, not contested, is proved by the oaths of two, the third, not having been sworn to the execution of the will by the testator, is entitled to his legacy after the time for appealing from the surrogate's decree, admitting it to probate' has expired. And the record of the testimony taken by the sur- rogate, and his decree thereon, are competent evidence to show that the will was proved without the testimony of such third witness. Caw v. Robertson, 1 Seld., 125. 16. See, Titles, "Legacy;" "Surrogate." IV. CONSTEUCTION. 1. Bequests and legacies. (a.) Description of person ; Quantum of interest. 17. By a codicil annexed to his will, a testator gave to each of his grandchildren living at his death, a legacy of $6,000, to be paid 632 COURT OF APPEALS DIGEST. on their respectively attaining the age of twenty-one, or marry- ing, whichever event should first take place ; such payment to be made in no case without the approbation of the parents of the grandchild, or the survivor of such parents, to be expressed in writing to the executors. At the time of making his will and codicil, the testator had several grandchildren under age and un- married, whose parents were living, but his granddaughter, J. K., was of age, married, and both her parents were dead: Held, 1. That J. K. was not entitled with the other grandchildren to a legacy of $6,000 under the codicil. 2. That J. K.'s children in esse at the death of the testator, and being his great-grandchildren, could not take legacies under the denomination of grandchildren, as used in the codicil, notwithstanding the fact that, in the body of the will, for the purposes of a fnal partition of a trust estate, among his children and grandchilden, the testator declared that J. K. was to be regarded as his child and her children as his grand- children. Hone V. Van Schaick, 3 Comst., 538. IS. The grammatical construction of the language zised is not neces- sarily to prevail. Thus, where, after bequeathing a sum to be equally divided among the six children of his daughter, the lan- guage of the testator was : "Also, I give to the said six children of my daughter, or to such of them as may survive me, one hundred thousand dollars of the public debt, called the water loan, to be paid to each on attaining their age of twenty-one years, and the interest of the shares of those under that age to be accumu- lated for their benefit until that period, and in case any of them shall die before that age, without issue, then his or her shares shall go to the survivors : " Held, that this was a bequest of the $100,000 to the children collectively, and not of that amount to each. De Nottebeck and Wife v. Astor et al., executors, 3 Kern., 98. (6.) Legacy payable >->. 340 AspinwaU, Oakley v., 3 Kern., SOO.t Astor, De Notteheck t., 3 Kern., 98 632 Astorv. L'Amoreux, 4 Seld., 107, 595 Astor's Executors, Kane v., 5 Seld., 113, 642 Astor's Executors, Langdon v., 16 N. Y. R., 9, 391, 630, 633 Astor Mutual Insurance Company, Bidwell v., 16 N. Y. E., 263, ... 22, 352, 364, 645 Astor Mutual Insurance Company, Patchin v., 3 Kern., 268, 246 Atkins, Bostwick v., 3 Comst., 53, 288, 309, 353, 577, 621 Atlas Mutual Insurance Company, Mussey v., 4 Kern., 79, 331 Auburn Theological Seminary v. Kellogg, 16 N. Y. E., 83 384, 388, 393 Auburn and Cato Plankroad Company v. Douglass, 5 Seld., 444 488 Auburn and Eochester Eailroad Company, Wood v., 4 Seld., 160, 164, 516, 530 Austin, Christopher T., 1 Kern., 216 374 Austin V. Searing, 16 N. Y. R., 112, 53 Averillv. Taylor, 4 Seld., 44, 366, 425 Avery V. Brooks, 4 Comst., 225, 609 B. Babcookv. Beman, 1 Kern., 200, 92, 516 Babcock V. Montgomery County Mutual Insurance Company, 4 Comst., 326,. . . . 318 Babcock, Jackson v., 16 N.Y. R., 246, 585 Bacon v. Cropsey, 3 Seld., 195 253, 561 Bagley V. Peddie, 16 N. Y. R., 469 186 Baird, Clark v., 5 Seld., 183, 196, 240, 274, 409, 462 Baker, Haire v., 1 Seld., 357 118, 499 Baker V. Hoag, 3 Seld., 565 .- .'...560 Baker v. Lorillard, 4 Comst., 257, 227, 309, 358, 469, 644 • Cited in note to WtUlami v. WiUuww, p. 382 ; same doctrine, t Adhering to decision of Id.t 4 C&irUft,, p. 614. CASES REPORTED. 651 BAK — BAT. FIOB. Baker, Magie v., 4 Kern., 435 40, 41, 48 Baker, Myers v., 4 Kern., 435.* Baloher, Ashburner v., 3 Seld., 262, 110 Baldwin, Ingrahamv., 5 Seld., 45 227,375,409,422, 425 Balwin t. Brown., 16 N. Y. R., 359, .^ 99 Ball, Lawrence v., 4 Kern., 477, 214, 410, 483, 616 Ballou, Hand v., 2 Kern., 541, 132, 686 Bancker, The People v., 1 Seld., 106, 314, 622 Bangs V. Strong, 4 Comst., 315, 229,263, 518, 519 Bangs, Receiver, y. Gray, 2 Kern, 477,/ 332 Bank Commissioners y. St. Lawrence Bank, 3 Seld., 513 157 Bank of Commerce v. Union Bank, 3 Comst., 230, 83, 417 Bank of Genesee v. PatcMn Bank, 3 Kern., 309 69, 95, 157 Bank of Kingston, Chester v., 16 N. Y. R., 336 244, 461, 482, 522 Bank of Poughkeepsie v. Hasbrouck, 2 Seld., 216, 261, 418, 581 Bank of Rochester y. Jones, 4 Comst., 497, 113, 265, 553, 695 Bank of Salina, Henry,impl'd with Pierce, v., 1 Comst., 83,.. 485, 508, 593, 614, 646 Bank of The State of New York, Morgan y., 1 Kern., 404, 115 Bank of The State of New York, Walker v., 5 Seld., 582 441, 513 Bank of (Jtica, Cahoon v., 3 Seld., 486, 90, 339 Barber Y. Gary, 1 Kern., 397,., 644 Bard, Fort v., 1 Comst. ,43 37 Bard Y.Poole, 2 Kern., 495 140,144,268,466, 612 Barker y. Einninger, 4 Kern., 270, 35, 226, 239, 254, 256, 394, 562, 563 Barley, De Witt v., 6 Seld., 371, 236 Barlow Y. Barlow, 2 Comst., 386, 224 Barlow, Barlow Y., 2 Comst., 386, 224 Barnard, Pierrepont v., 2 Seld., 279, 397 Barney y. Griffin, 2 Comst., 365, 104, 270, 620 Barney, Kelsey v., 2 Kern., 425 446 Barnes Y. Harris, 4 Comst., 375 171, 355 Barnes v. Ferine, 2 Kern., 18 46, 130, 252, 548 Barrett, Sisson v., 2 Comst., 406, 507, 518, 570 BarringerY. The People, 4 Kern., 593, 221 Barron, The People v., 1 Comst., 386, 248 Bartley Y. Eichtmyer, 4 Comst., 38, 416, 459 Barry y. Ransom, 2 Kern., 462, 243, 282, 462, 523 Barry, Touseley v., 16N.Y.R.,497 240, 423 Barto V. Hunrod, 4 Seld., 483, 46, 133 Barton, Rensselaer and Washington Plankroad Company y., 16 N. Y. R., 457.t Baskins Y. Shannon, 3 Comst., 310, 112, 271 Bate V. Graham, 1 Kern., 237, 35,259 Battle v. Rochester City Bank, 3 Comst., 88, 150, 242, 616 • Same points as Magie v. BaJc^, pp. 40, 41, 48. t Same points as LaM (Mario, £a., B. B. Co. v. Maion, p. 652 CASES KEPOKTED. ■BAC — BIS. FAGS. Eaucus, Mattisonr., lComst.,29Sij; ...-. Ill, 255 Bay, Albany Fire Insurance Company v., 4 Comst., 9, 191, 299, 431, 643 Beach V. Grain, 2 Comst., 86, -. 174 Beach, Gilbert r., 16 N. Y. K., 6G6j.. 604 Beach, Matthews v., 4 Seld., 173, * -. 396 Beach v. Nixon, 5 Seld., 35, 354, 376 Beal V. Finch, 1 Kem. ,128, 187, 341, 646 Becker, Ha verly V;, 4 Comst., 169, 398, 598 Beckwith v. The Union Bank, 5 Seld., 211 54 Beebev. Griffing, 4- Kem., 235 203, 470 Beebev. Griffing, 2 Seld., 465, 39 Beebe, HUl v., 3 Kern., 556, 114,263, 480 Beebe, New York Life Insurance and Trust Company v., 3 Seld., 364,. . 157, 514, 608 Beecher V. Conradt, 3 Kem., 108, 175, 618 Beekman V. Bigham, 1 Seld., 366 198, 584 Beers T. Keynolds, 1 Kem., 97, 471 Belknap V. Waters, 1 Kem., 477 46 Belknap V. Sealey, 4 Kem., 143 274,500, 616 Bell V. Leggett, 3 Seld., 176, 65 Belmont v. O'Brien, 2 Kern. , 394, 234, 424, 483, 511, 602, 604 Beman, Babcock v., 1 Kem., 200 92, 516 Benedict v. Field, 16 N. Y. R., 595, 481, 554 Benedict, Shoemaker t., 1 Kem., 176, 407 Benjamin v. Benjamin, 1 Seld., 383, 362, 375 Benjamin, Benjamin v., 1 Seld., 383, 362, 375 Bennett v. Brown, 4 Comst., 254, 171, 355 Bennett, Crofoot v., 2 Comst., 258;; 559 Bennett, Huffv., 2 Seld., 337 247 396 Bennett, Walter v., 16 N. Y. R., 250.* Bergen, Powers v., 2 Seld., 358 i ; 136 Beyeaet aJ., Norris,E xeoutor, v., 3 Kem, 273; 634 Biddlecum, Stewart v., 2 Comst., 103, 58 303 Bidwell, Astor Mutual Insurance Company t., 16 N. Y. R., 263, 22, 352, 363, 645 Bieme v. Dord, 1 Seld., 95, gsg Bigelow, Orr v.,4K«m., 556 176 Bigham, Beekman v., 1 Seld., 366, 198 584 Billings, Catlin v., 16 N. Y. R., 622, ' 40 Bingham, Harmony v., 2 Kern., 99, 21, 151, 152, 418, 481, 497 Bingham v. Weiderwax, 1 Comst., 509, I73 46O Binninger, Barker v., 4 Kem., 270, 35, 226, 239, 254, 256, 394, 562*, 563 Bisbey v. Shaw, 2 Kem., 67 57O Bishop V. Bishop, 1 Kem., 123 ; 367 Bishop, Bishop v., 1 Kem., 123, 267 Bishop, Edwards v., 4 Comst., 61, 211 222 636 * Case of failure of proof: variance not amendable. CASES REPORTED. ' 653 FAQE. Bishop, Tucker v. , 16 N. Y. R. , 402, 388 Black V. Gaffe, 3 Seld., 281, 89 Blaoksmitli v. Fellows, 3 Seld. , 401 306 Blair, Dillaye v., 2 Comst., 189, 506 Blake V. Ferris, 1 Seld., 48, 26, 445 Blakeley V. Calder, 16 N. Y. R^ 617, 470 Blakeman, NoyesT.,2Seld.,567 ...601 Blanchard, Pattisonv., 1 Seld., 186, 473 Blanchard, Thompson v., 2 Comst. ,561 , 45 Blanchard, Thompson v., 3 Comst., 335 281, 606 Blancliard, Thompson, v., 4 Comst., 303 113, 225, 245, 270, 271, 6i5 Bliss, Sheldon v., 4 Seld., 31 208, 258, 300, 626 Blodgett V. Morris, 4 Kern., 482, 646 BloodgoodT. Bruen, 4 Seld., 362, 259,404,406, 408 Bloomer, Hunt v., 3 Kern., 341, 41 Blossom V. Griffin, 3 Kern., 569, 122, 461 Blot V. Boioeau, 3 Comst., 78 181, 265 Blydenburgh, Brown v., 3 Seld., 140, 398,424 Blydenburgh v. Cotheal, 4 Comst., 418 46, 587 Bodle V. Chenango Mutual Insurance Company, 2 Comst., 53, 32p, 327 Bogardus, Parker v., 1 Seld., 309 633 Bogardus v. Rosendale Mining Company, 3 Seld., 147, 160 Bogertv. Morse, 1 Comst., 377 233, 509 Boiceau, Blot v., 3 Comst., 78, 181, 265 Booth V. Swezey, 4 Seld., 276, 432 Borst V. Corey, 15 N. Y. R., 505 405 Borst V. Empie, 1 Seld, 33, 26,197, 236, 625 Borst V. Spelman, 4 Comst., 284 45,286,300, 301 Bostwick V. Atkins, 3 Comst., 53 288, 309, 353, 577, 621 Bouchaudv. Bias, 1 Comst., 201, 53, 167 Bowenv. Newell, 4 Seld. , 190, 90, 115 Bowen at al. v. Newell, impleaded, 3 Kern., 290, 94 Bowers, Emerson v., 4 Kern., 449, 258, 577 Brady v. Donnelly, 1 Comst., 126.* Brady V. McCosker, 1 Comst., 214, 107,356,465,469, 491 Bradley V. Angel, 3 Comst., 475, 560 Bradner v. Faulkner, 2 Kern., 472 260, 338, 393 Brainard, Buffalo and New York City Railroad Company v., 5 Seld., 100,.. 164, 528 Bramhall v. Ferris, 4 Kern., 41, 6,34 Brand, Hutchinson v., 5 Seld., 208, 255, 564 Brazill V. Isham, 2 Kern., 9, S2, 498 Breasted v. The Farmers' Loan and Trust Company, 4 Seld., 299 317 Brennan, Story v., 15 N. Y. R., 524 75, 594 Brewster v. SUence, 4 Seld, 207, 282, 287 * Same point aa in "Appeal," No, 68, p. 45. 654 CASES RBPOETBD. BEE — BDF. PAQB, Brewsterr. Striker, 2 Comst., 19, 224,272,510, 603 Bridges V. Hyatt, 16 N. Y. R., 546 646 BriggST. Brigga and Vose, 15 N. Y. K.,471, 475 Brighamv. TilUnghastctai.,3Keni., 215, ^ 270, 620 Brlnkerhoff, Smith v., 2 Seld., 305, 561 Brisbane v. Adams, 3 Comst., 129, 29, 141, 559 Brisbane, De Witt v., 16 N. Y. R., 508 143, 423 Broadway Insurance Company, Burr v., 16 N. Y. R., 267, 138, 244, 335 Bronson, Newton v., 3 Kern., 587, 39, 259, 279, 351, 517, 571, 605 Bronsonv.Wiman, 4Seld.,182 146, 275 Brooks V. Avery, 4 Comst., 225 609 Brooks, Dresser v., 2 Comst., 559 41, 167, 349, 506 Brower, Cotheal v., 1 Seld., 562 159, 486 B.rowe, Sates v., 5 Seld., 205, 297 Brower V. Harbeok, 5 Seld., 588 159, 314 Brower ctoZ. v. Peabody, 3 Kern., 121, 277, 556 Brown, Baldwin v., 16 N. Y. R., 359 99 Brown, Bennett v., 4 Comst., 254, 171, 355 Brown V. Blydenburgh, 3 Seld., 141, 398, 424 Brownv. Brown, 2 Seld., 106, 39, 349 Brown, Brownv., 2 Seld, 106 39, 349 Brown v. Cayuga and Susquehanna Railroad Company, 2 Kern., 480, . . 252, 452, 530 Brown v. Crooke, 4 Comst., 51, 331 Brownv. Curtis, 2 Comst., 225, 280, 287 Brown, Doty v., 4 Comst., 71 229,458, 461 Brown v. Fargo, 1 Comst., 429.* Brown, Lawrence v., 1 Seld, 394 207,225, 677 Brownv. Lyon, 2 Seld., 419, 637 Brown v. Malller, 2 Kern., 118 238 Brown, Malins v., 4 Comst., 403, 278,425,467, 571 Brown, Rosevelt v., 1 Kern., 148, 574 Brown, Williamson v., 15 N. Y. R., 354, 423, 451, 511 Bruen, Bloodgoodv.,4Seld.,362, 259,404,406, 408 Brumskill v. James, 1 Kern., 294 202, 342, 468 Buel V. Trustees of Lockport, 3 Comst., 197 411, 621 Buel V. Trustees of Lockport, 4 Seld., 55 227, 500 Buffalo, City of, V. Le Couteulx, 15 N. Y. R., 451, 55, 583 BufEilo, City of, Heywood v., 4 Kern., 534, 438 Buffalo, City of, v. Howell and Christopher, 15 N. Y. R., 512, 56, 117 Buffalo, City of, v. HoUoway, 3 Seld., 493 435, 445, 494 Buffalo, City of, Ketohum v., 4 Kern., 356, 313, 435 Buffalo Fire Insurance Company, O'Neil v., 3 Comst., 122,. 321, 328 Buffalo and New York City Railroad Company v. Brainard, 5 Seld., 100, . , . 164, 528 Buffalo and New York City Railroad Company v. Dudley, 4 Kern., 336y .... 165, 529 *DisinlfiBal of appeal under judiciary act. OASES REPORTED. 655 BOL — OAE. PAGH. Bulkeleyv. Ketellas, 2 Seld., 384, 413 Bull, MoKyringv.,16N. Y. E., 297 249,484, 499 Bullv. Rice, 1 Seld., 315 610 Bullions, Roberteon v., 1 Kern., 243 '. 647 Bumstead v. Dividend Mutual Insurance Company, 2 Kern., 81 46, 329, 622 Burcle V. Eckhart, 3 Comst., 132 359, 471 Burdick v. Post, 2 Seld., 522.* BurliansT. VanZajidt,3 Seld., 523, 27,230, 586 Burklev. Luce, 1 Comst., 163, 17,241,253, 549 Burkle V. Luce, 1 Comst., 239 167,219, 349, 456 Burr V. Broadway Insurance Company, 16 N. Y. K., 267 138, 244, 335 Burrittv. Silliman c« 89 Cahoon v. Bank of Utica, 3 Seld., 486, 90, 339 Calder, Blakeley v. , 15 N. Y. R., 617 470 Caldwell, CoUomb v., 16 N. Y. E., 484, 273, 475, 620 CaldweU V. Murphy, 1 Kem., 416, 238, 503 Callaghan, Darby v., 16N. Y.R., 71, 301, 464 Camp, Vassar v., 1 Kern., 441, 140 Campbell V. Butts, 3 Comst., 173, 462,497, 669 Campbell v. Hall, 16 K. Y. R., 675 233, 433 Campbell V. Perkins, 4 Seld., 430, 63, 64, 121 Canal and Walker streets. In the matter of, 2 Kern., 406 39, 449 Cancemiv. The People, 16 N. Y. R., 501, 179, 362 Candee v. Lord, 2 Comst., 269 1 38 Carhart, French v., 1 Comst., 96, 191, 460 ^Tolnntarr assignment void wlien it gives autliority to assignee to sell on credit. See " Fraud," No. 3. p. 27(1 tSame as I'rees v.I'ord, pp. 169, 361. tSame as in " Contract," No. 15, p. 878. 656 CASES REPORTED. PAGE. Carlinr. Mayor, &o., of NewTork, 5 Seld., 163 441 Carman v. Mclnrow, 3 Kern., 70 401 Carnal, The People v., 2 Seld., 463, 673 Camley, Hull v., 1 Kern., 601 113, 562 Carpenter, Hubbell v., 1 Seld., 171, 521, 622 Carpenter, Sheldon v., 4Comst., 678, 230, 413 Carpenter v. Stillwell, 1 Kern,, 61 226, 456, 662 Carroll, Farmers' Loan and Trust Company v., 2 Comst., 666, ,. ^ 44 Carroll V. Upton, 3 Comst., 272 , 84 Cartwright, Sage v., 5 Seld., 49 266, 615 Caruthers, PrmdleT.,16N. Y. R., 425, 496, 499 Cary, Barber v., 1 Kern., 397, '. 644 Caryl V. Eussell, 3 Kern., 194 65 Case V. Mechanics' Banking Association, 4 Comst. , 166, 86, 514, 696 Castellanos v. Jones, 1 Seld., 164 18 Castle T. Noyes, 4 Kern., 329, 232 Catlin V. BUlings, 16 N. Y. R. , 622, 40 Catlin V. Gunter, 1 Kern., 368, 93,234,497, 608, 613 Caw V. Robertson, 1 Seld., 126 386,390, 631, 633 Cayuga County Bank v. Warden, 1 Comst., 413, 81 Cayuga County Bank v. Warden, 2 Seld., 19, 34,87,88, 500 Cayuga and Susquehanna RaUroad Company v. Brown, 2 Kern., 486, . . 252, 452, 530 Chalmers, James v., 2 Seld., 209, 39, 88, 510 Chamberlain, Humphrey v., 1 Kern., 27^, 39, 410 Chamberlain, Wesson v., 3 Comst., 331, 254, 347, 360, 564 Champlain v. The People, 2 Comst., 82, 177, 359, 542, 621 Chandler, Terry v., 16 N. Y. R., 354, 99 Chapin, Wood v., 3 Kern., 509 18,238, 244 Chapman, Lewis v., 16 N. Y. R., 369, 395 Chapman V. White, 2 Seld., 412, ^ 69, 88 Chappell V. Chappell, 2 Kern., 215, 347 Chappell, Chappell v., 2 Kern., 215, 347 Chappell, Child v., 5 Seld., 246 211, 227, 378 Charles T. The People, 1 Comst., 180, 177,307, 412 Chase, Sweet v., 2 Comst., 73, 386, 633, 642 Chautauque County Bank v. White, 2 Seld., 236 188, 274, 541 Chegaray v. Jenkins, 1 Seld., 376, 456, 582 Chegaray v. Mayor, &c., of New York, 3 Kern., 220, 19, 582 Chemung Canal Bank v. Judson, 4 Seld., 254 220, 361, 509 Chenango County Mutual Ins. Co., Bodle v., 2 Comst., 63 326, 327 Chenango County Mutual Ins. Co., Murdock v., 2 Comst., 210 320, 328, 585 Cheney T. Arnold, 15 N. Y. R., 345 , 206, 296 Cherry Valley, Commissioners of Highways of. The People v., 4 Seld., 476, ..... 293 Chester v. Bank of Kingston, 16 N. Y. R. , 336, 244, 461, 482, 622 ChUdv. Chappell, 5 Seld., 246, 211,227, 378 Cholwell, McCracken v., 4 Seld., 133, 251,275, 503 CASES REPORTED. 657 CHK — COH. FAQB, ChTetienv. Doney, 1 Comst., 419 365, 375 Christopher v. Austin, 1 Kem., 216, 374 Christophers V. Garr, 2 Seld., 61, 406 Church, Sands v., 2 Seld., 347 603, 612 Church, Taylor v., 4 Seld., 452 396 City of Buffiilo T. HoUoway, 3 Seld., 493 435, 445, 494 City of Buffalo, Heywood -v., 4 Kern., 534 438 City of Buffalo, Howell et al. v., 15 N. Y. E., 512 56, 117, 437 City of Buffalo, Ketchum v., 4 Kern., 356, 313, 435 City of Buffalo v. Le Couteulx, 15 N. Y. R., 451, 55, 583 City of Rochester, Riley v., 5 Seld., 64 162, 195, 434 City of Rochester, White Lead Company v., 3 Comst., 463 21, 161, 436, 457 Clappv. Rogers, 2 Kern., 283,... 475 Clark V. Baird, 5 Seld., 183 196,240,274,409, 462 Clark, Greene v., 2 Kern., 343 21, 63, 122 Clark, Harris v., 3 Seld., 242, 216, 389, 637 Clark, Harris v., 3 Comst., 93, 285 Clark, Lyon v. , 4 Seld., 148, 98, 337, 493 Clark V. Mayor, &o., of New York, 4 Comst., 338, 144, 151 Clark V. Merchants' Bank, 2 Comst., 380 82, 419 Clark V. Rochester and Syracuse Kailioad Company, 4 Kem., 570, 123, 532 Clark V. Rowling, 3 Comst., 216 63,167, 263 Clark T. Sawyer, 2 Comst., 498 276,357, 630 Clark, The People v., 3 Seld., 385, s 219, 439 Clark, The People v. , 5 Seld. ,349, 404 Clarkson v. Hudson River Railroad Company, 2 Kem., 304, 535 Classonv. Cooley, 4 Seld., 426 108 ClaytoAv. Wardell, 4 Comst., 230, 295 Clickmanv. Cliokman, 1 Comst., 611, 433, 505 Clickman, Clickman v., 1 Comst., 611 433, 505 Clift,Coxv., 2Gomst., 118 59,195,357, 426 Clift V. White, 2 Kem., 519, 259, 424 Clowes, Farmers' Loan and Trust Company v., 3 Comst., 470, 155, 608 Clowes V. Van Antwerp, 2 Seld., 466.* Coats V. Darby, 2 Comst., 517 363, 692 Coatsworth, White v., 2 Seld., 137, 230 Cobbv. Comish, 16 N. Y. R., 602, 504 Cochran T. Lampman, 16 N. Y. R., 275 186 Coddington V. Davis, 1 Comst., 186 80, 137 Coffin, Tallman v., 4 Comst., 134, 174, 368 Coffin V. Tallman, 4 Seld., 465, 174 Coggill V. The American Exchange Bank, 1 Comst., 113, 80 Gohoes Company, Hay v., 2 Comst., 159, 21 Cohoes Company, Tremain v., 2 Comst., 163, 21 •AflBnnance of 4 Bari., 416, for reasons there given. 83 658 CASES REPORTED. PAGE. Coit, Winter v., 3 Seld., 288, 265 Cole, Esterly v., 3 Comst., 502, 45, 337, 547 Coleman V. Wade, 2 Said., 44 52, 263, 619 Colgate, Mayor of New York v., 2 Kern., 140 402, 419 CoUomb V. Caldwell, 16 N. Y. R., 484, 273,475, 620 Colver, Griffin v., 16 N. Y. R., 489, 183 Colvinv. Holbrook, 2 Comst., 126 29, 419, 516, 663 Commercial Bank of Pennsylvania v. Union Bank of New York, 1 Kem., 203, . . 92, 201, 468 Commercial Bank of Buffalo v. Warren, 15 N. Y. R., 577, 473, 515 Comstook, Giles v., 4 Comst, 270, 243,373,431, 462 Comstock, McGregor v., 3 Comst., 408, 32 Congdon, Morgan v., 4 Comst., 551, 63 Congdon, Pitts t., 2 Comst., 252 519 Conkey V. Hart, 4 Kern., 22, 114, 132, 551 Conley V. Palmer, 2 Comst., 182 465,485, 573 Conner, Embury v., 3 Comst., 511, 134, 234, 350, 447, 621 Conner v. The Mayor, &e., of New York, 1 Seld., 285, 135, 455 Conover v. The Mutual Insurance Company of Albany, 1 Comst., 290, 76, 326, 467, 513 Conrad V. Village of Ithaca, 16 N. Y. R., 159 437, 444 Conradt, Beecher v., 3 Kern., 108, 175 618 Cookv. Litchfield, 5 Seld., 279 91 Cook, MoDoel v., 2 Comst., 110 .' 170 354 Cook, Mitchell v., 3 Seld., 538 69 Cook, Spraker v., 16 N. Y. R., 567 377,481, 546 Cook, The People v. , 4 Seld., 67, 215, 252, 276, 454, 486, 509, 526 Cooley, Classon v., 4 Seld., 426, 108 Coon, Grover v., 1 Comst., 536, 38, 45, 130 Coon T. Knapp, 4 Seld., 402 638 Coon T. The Syracuse and Utioa Railroad Company, 1 Seld., 492, 27, 533 Coons, Norton v., 2 Seld., 33, 462 524 Copley T. Rose, 2 Comst, 115, 170,238,456,' 589 Corbitt, Donnelly v., 3 Seld., 500, 56 316 Corey, Borst v., 15 N. Y. R., 505, ,'405 Comes T. Harris, 1 Comst, 223, 452 492 Comingv. Coming, 2 Seld., 97, 35, 248, 59li 594 Coming, Corning v., 2 Seld., 97, 35,248, 591, 594 Coming v. McCnllough, 1 Comst, 47, I60, 406 485 Corning, Pullman v., 5 Seld., 93.* Corning, People v., 2 Comst, 9, I77 219 Coming, Sehroeppel v., 2 Comst, 132 493, 596' 613 Coming, Schroeppel v., 2 Seld., 107, ".".' ....'4O8' 613 Corning V. Steson, 16 N. Y. R., 294, '."..".".'.'.'.'.'.'.'.'.' .' 351 • DsUding contract unskJllfHUy performsd No acceptance, no recovery. CASES REPORTED. 659 PAGE. Coming V. Smith, 2 Seld., 82, 428, 465 Corning, Village of, Sill v., 15 N. Y. R., 297, 136, 356 Cornisli, Cobb v., 16 N. Y. R., 602, 504 Corwiu V. Corwiii, 2 Seld., 342 610 Corwin, Corwin v., 2 Seld., 342, 510 Corwin v. Freeland, 2 Seld., 560 255, 304 Corwin v. New York and Erie Railroad Company, 3 Kern., 42, 22, 443 Coeter's Executors, Union Bank v., 3 Comst., 203 281, 288, 519 Cotbeal, Blydenburgh v., 4 Comst., 418 46,287 Cotheal V. Brower, 1 Seld., 562, 159, 486 Cothesdv. Talmage, 5 Seld., 551, 185 Couoli V. Delaplaine, 2 Comst., 397, 54,204,577, 588 Covell, Hill v., 1 Comst., 522, 200, 507, .^70, 596 CoveU V.Hill, 2 Seld., 374, 655, 595 Cowell, Ruokman v., 1 Comst., 505,..., 64, 256, 456 Cowing T. Geib, 16 N. Y. R., 600, 249 Cowles, The People ex rd. Davies v., 3 Kern., 350, 137 Cowperthwaite v. Sheffield, 3 Comst., 243, 83, 483 Coxv. Clift, 2 Comst., 118, 59,195,357, 426 Craft V. Merrill, 4 Kern., 456, 263, 345,427,433, 481 Crafts T. Aspinwall, 2 Comst., 289, 427, 618 Crafts V. Mott, 4 Comst., 603, 63, 518, 523 Craig V. Wells, 1 Kern., 315, 194 Crain, Beaohv.,2Comst., 86, 174 Cram, Freeman v., 3 Comst., 305, 400 Crandall, Wendell v., 1 Comst., 491, 223, 637 Crary v. Goodman, 2 Kern., 266, 214, 217, 498 Craryv. Smith, 2 Comst., 60...... 357,358,571, 586, 618 Crippen v. Hudson, 3 Kern., 161, 188 Crofutv. Bennett, 2 Comst., 258, 559 Crofoot, Morse v., 4 Comst., 114, 614, 645 Crofoot, Thomas v., 4 Kern., 474 348, 624 Cromwell, Meakings v., 1 Seld., 136 627, 644 Cromwell, McClusky v., 1 Kern., 593, 364 Cromwell V. Selden, 3 Comst., 253, 193 Crook, Brown v.., 4 Comst., 51 331 Cropsey, Baconv., 3 Seld., 195, 253, 561 Cropsey V. Ogden, 1 Kern., 228, 206,296 Crosby v. Wood, 2 Seld., 369, 344 Cruger v. Douglass, 2 Comst., 571, 38 Cruger v. Hudson River Railroad Company, 2 Kern., 190, 49, 137, 636 Culver V. Sisson, 3 Comst., 264 112 Cunliff, Mayor, &c., of Albany v., 2 Comst., 165, 22, 160, 444, 516 Curtis, Brown v., 2 Comst., 225, 280, 287 Curtis, Farmers' Loan Company v., 3 Seld., 466 156, 421 660 CASES RBPOBTED. CUE — DEE. PAQB. CmiJs a al. r. Leavitt, 15 N. Y. R., 9 70, 129, 140, 612, 619 Curtis, Swarthout v., 4 Comst., 415, 38, 46 Curtis, Swarthout v., 1 Sold., 301, 289, 310, 424 D. Dain V. WyoofF, 3 Seld., 191, 459 Dake, Toung v., 1 Seld., 464, 280, 379 Dana V. Fiedler, 2 Kern., 40, 182, 244, 338, 461 Dana, Receiver, v. Howe, 3 Kern., 306, 47 Danforth, Gilbert v., 2 Seld., 585, 148 Danforth v. Suydam, 4 Comst. , 66, 101 Daniels v. Lyon, 5 Seld., 549 168 Daniels v. Patterson, 3 Comst., 47 17, 339, 519, 549 Danks v. Quackenbusli, 1 Comst., 129, 103, 132 Darby V. Callaghan, 16 N. Y. R., 71, 301, 464 Darby, Coats v., 2 Comst., 517, . . . . , 363, 592 DavisT. Allen, 3 Comst,, 168, 30, 225, 474, 477, 647 Davis, Coddlngton v., 1 Comst., 186, 80 137 Davis V. Garr, 2Seld., 124 88, 406, 493, 611 Davis V. Gorton, 16 N. Y. R., 255, 4O5 Davis V. Mayor, &c., of New York, 4 Kern., 506, 23, 36, 292, 313, 452, 468 Davis V. Mutual Benefit Life Insurance Company, 2 Kern., 569, 268, 317, 511 Davis v.Tallcott, 2 Kern., 184 231 Dayharsh V. Enos, 1 Seld., 531, 362, 507, 592, 622 Dean v. Thornton, 3 Kern. ,266, g45 Decker v. Furniss, 4 Kern., 611, 557 Decker v. Gardner, 4 Seld., 29 168 Decker V. Judson, 16 N. Y. R., 439, 228 Decker v. Matthews, 2 Kern., 313 21 93 596 Delamater, Pierce v., 1 Comst., 17, 136 Delaplaine, Couch, v., 2 Comst., 397, 54 204 577 588 Delaplaine v. Lawrence, 3 Comst., 301 260 578 De Lancey V. Ganong, 5 Seld., 9 213 370 De Launy, Leavitt v., 4 Comst., 364, gQ9 Dennis, King v., 2 Comst., 189.* Denniston, Jermain v., 2 Seld., 276, 237 De Nottebeck v. Astor, 3 Kern., 98,... 632 De Peyster v. Hasbrouok, 1 Kern., 582 277 433 De Peyster v. Michael, 2 Seld., 467, jgg 355 De Peyster v. Snyder, 2 Seld. , 510.t ' Deraismes v. The Merchants' Mutual Insurance Company, 1 Comst. 371 331 Derby, Jones v., 16 N. Y. R., 242 40 • Same !19 Umimston v. Badoliff, p. 41. t Same as id. v. Mduut, pp. 199, S6B. CASES REPORTED. 661 : EUY — DRY. DeRuyterv. St. Peter's Church, 3 Comst., 238, 165 Dea Arts V. Leggett, 16 N. Y. R., 582, ...' 97, 687 Des Arts, Moore v., 1 Comst,, 359 419 Despard T. Walbridge, 15-N. Y. R., 374 228, 370 Dewey, Wardv., 16N. Y. R., 519, 367, 688 De Witt, Allen v., 3 Comst., 276 643 De Wittv. Barley, 5 Seld., 371, 236 De "Witt V. Brisbane, 16 N. Y. R., 608, 143, 423 DeWittT. Walton, 5 Seld., 570 , 91, 515 Dias.BouohaudT., 1 Comst, 201, 53, 167 Dibble, The People v. , 16 N. Y. R., 203, 306 Dickinson, Thomas v., 2 Kern., 364 22, 220, 279, 363, 594 Dillaye V. Blair, 2 Comst., 189, 506 Dimon T. Dunn, 15 N. Y. R., 498, 499 Dividend Mutual Insurance Comijany, Bumstead v., 2 Kern., 31, 46, 329, 622 Dobsonv.Pearce, 2Kern., 156 217,236,346, 498 Dobsonv. Racey, 4Seld., 216, 426, 432 Dodge V. Manning, 1 Comst., 298 392 Doke V. James, 4 Comst., 667, 51, 462 Dole, Gridley v., 4 Comst., 486, 474 Dolph v. White, 2Kem., 296, 23, 174 Doney, Chretien v., 1 Comst., 419, 365, 376 Donnelly, Brady v., 1 Comst., 126.* Donnelly V. Corbitt, 3 Seld., 500, 66, 316 Dord, Bierne v., 1 Seld., 95, 658 Dorr V. New Jersey Steam Navigation Company, 1 Kern., 485, 121 Doty V. Brown, 4 Comst., 71, 229,458, 461 Doubleday v. Heath, 16 N. Y. R., 80, 132, 169, 352, 470 Doughty V. Hope, 1 Comst., 79 ;... 252,673,581,584, 593 Douglass, Auburn and Cato Plankroad Company v., 6 Seld., 444 488 Douglass, Cruger v., 2 Comst., 571, 38 Douglass, Monroe v., 1 Seld., 447 234, 269 Douglass, Wright v., 2 Comst., 189.t Douglass, Wright v., 2 Corast., 373 546 Douglass, Wright v., 3 Seld., 564, 56, 699 Dow V. Platner, 16 N. Y. R., 562, 54,347, 619 Downs, Erwin v., 15 N. Y. R., 576, 96,228, 287 Dows V. Perrin, 16 N. Y. R., 325,.: , 77, 239 Drake v. Price, 1 Seld., 430, 262 Draper et at. The People, ex rd. Woo"d, v., 16 N. Y. R., 632 136 Dresser v. Brooks, 2 Comst., 559 41, 167, 606 Drummond v. Husson, 4 Kei-n., 60, 41, 606 Drury, Winter v., 1 Seld., 525 ; 87, 401 Dry Dock Bank v. American Life Insurance and Trust Company, 3 Comst., 344,. . 608 • Same point as in " Appeal," No. 68, p. 45. t Same ae IMngeitm v. MaddW. p. 41. 662 CASES REPORTED. DUA — EMB. PAGE. Duane v. Northern Railroad Company, 3 Comst., 545, 38 Dudley v. Buffalo and New York City Railroad Company, 4 Kern., 336, .... 165, 529 Dudley v. Mayhew, 3 Comst., 9, 350, 478, 573 Duke of Cumberland T. Graves, 3 Seld., 305 33 Dunokel V. Wiles, 1 Kern., 420, 231 Dunham V. Pettee, 4 Seld., 508, 153 Dunham v. Watkins, 2 Kern., 556, 44 Dunlop V. Edwards, 3 Comst., 341, 38, 45 Dunlop, MoKnightT.,1 Seld., 537, 284, 508,593, 622 Dunn, DimonT., 15 N. Y. R., 498, 499 Durant, Andrews v., 1 Sern., 35 567, 588 Durgin v. Ireland, 4 Kern., 322, 48, 107, 244, 463, 464, 481 Durham v. Maurow, 2 Comst., 533 281, 287 Duryea, Seaman v., 1 Kern., 324, 580 Dusenhury, Nichols v., 2 Comst., 283 60, 251, 371, 496, 542, 549 Dutilh, Almgren v., 1 Seld., 28, 109, 461, 566 Dwight T. Enos, 5 Seld., 470, 341 Dwight V. Newell, 3 Comst., 185, 398, 424 Dyckman v. The Mayor, &o., of New York, 1 Seld., 434 50, 235, 358, 686, 621 E. East River Insurance Company, Wall v., 3 Seld., 370 323 Eastern Plankroad Company v. Vaughan, 4 Kern., 546 490 Eastwood V. The People, 4 Kern., 562, 241, 440 Eokhart, Burkole v., 3 Comst., 132, 359, 471 Edgellv. Hart, 5 Seld., 213, 113, 272 Edgerton v. Thomas, 5 Seld,, 40, 297, 422 Edmonston v. McLoud, 16 N. Y. R., 543 189, 505, 595 Edwards v. Bishop, 4 Comst., 61, 211, 222, 636 Edwards, Dunlop v., 3 Comst., 341, 38, 45 Ehle, Ely v., 3 Comst., 506 550, 590 Eighth Avenue Railroad Company, Hegan \., 15 N. Y. R., 380, 292, 532 Elder, Olmsted v., 1 Seld., 144 198, 215, 410, 426 Eldridge v. Mather, 2 Comst., 157.* Ellicott V. Mosier, 3 Seld,, 201, 209 212 465 Elliott, Rankine v., 16 N. Y. R,, 377, .' 536* 542 Ellis, Stanton v., 2 Kern,, 575 31g Ellis V. Willard, 5 Seld., 529 ', 76,186,461, 538 Elmer, Green v., 4 Seld,, 422, 476 614 Ely V. Ehle, 3 Comst., 506 55O 590 Ely V. Holton, 15 N. Y. R., 595 ..., ............... 40' 572 Emhury v. Conner, 3 Comst., 511, I34, 234, 350, 447, 621 • Partial faUure of consideraUon of note not admissible in eyidence under plea of non-assumpsit. CASES REPORTED. 663 EMB — PER. pAoa Emerson V. Bowers, 4 Kern., 449, 258, 577 Emmett v. Reed, 4 Seld., 312, 332 Empie, Borst v., 1 Seld., 33 26, 197, 236, 625 Engell, Seeley v., 3 Kern., 642 249, 498 Englishbe V. Helmuth, 3 Comst., 294, 130, 221, 546 Eno, MuUer v., 4 Keru., 597 183, 659 Eno V. Woodworth, 4 Comst., 249, 147, 417, 498 Enos, Dayharskv., ISeld., 631 362, 507, 592, 622 Enos, Dwight v., 5 Seld., 470, , 341 Erwin, V. Downs, 15 N. Y. E., 575, 96, 228, 287, 477 Erwine, Van Alstyne v., 1 Kern., 331, , , 18 Esselstynv. Weeks, 2 Kern., 635 407, 408, 495 Esterly V. Cole, 3 Comst., 502, 45, 337, 547 Evans v. Millard, 16 N. Y. E., 619 215 Evans v. Boot, 3 Seld., 186 266 F. Falrchild v. Ogdeusburgh, &o., Railroad Company, 15 N. Y. R., 337 95, 532 Fairohild, Staples v., 3 Comst., 41, 18, 354 Fannan, Spoore v., 16 N. Y. R., 620 47, 200 Fargo, Brown v., 1 Comst., 429. * Farmer, Hall v., 2 Comst., 553, 281, 287 Farmer, Hastings v., 4 Comst., 293, 305 Farmers' Loan and Trust Company, Breasted v., 4 Seld, , 299, 317 Farmers' Loan and Trust Company v. Carroll, 2 Comst., 566, 44 Farmers' Loan and Trust Company v. Clowes, 3 Comst., 470, 155, 608 Farmers' Loan and Trust Company, v. Curtis, 3 Seld., 466 156, 421 Farmers' Loan and Trust Company v. Kursoh, 1 Seld., 658, 212 Farmers' Loan and Trust Company, Lawrence et al. v., 3 Kern., 200 427 Farmers' Loan and Trust Company, Minturn v., 3 Comst., 498, 357, 612 Farmers' Loan and Trust Company, Morey v., 4 Kern., 302, 409, 571, 618 Farmers' Loan and Trust Company v. Walworth, 1 Comst., 433 29, 415, 425, 458, 512 Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 4 Kern., 623, . .96, 98 Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 16 N. Y. R., 125 i 515 Faulkner, Bradner v., 2 Kern., 472 260, 338, 393 Faure v. Martin, 3 Seld., 210, 146 Fellows, Blacksmith v., 3 Seld., 401, 306 Felt, Sherman v., 2 Comst., 186 38, 350 Felton, Teall v., 1 Comst., 537, 21, 359, 456, 512, 595 son V. Ferguson, 2 Comst., 360, 428 * Dismissal of appeal under judiciary act. 664 OASES REPORTED. FER FUB. FAQE- Fergoson, Ferguson y., 2 Comst., 360, 428 Ferguson, Fumiss V. 15 N. Y. R., 437, 559 FeroT. Ruscoe, 4 Comst., 162 568, 569 Ferris, Blake V,, 1 Said., 48, 26, 445 Ferris, Bramhall v., 4 Kern., 41, 634 Fiedler, Dana v., 2 Kern., 40, 182, 244, 338, 461 Field, Benedict v., 16 N. Y. E., 595, 481, 554 Field T. The Mayor, &c., of New York, 2 Seld., 179, 116, 496 Finch, Beal v., 1 Kern., 128, 187, 341, 645 Fisher, Kain v., 2 Seld,, 597, 206,258, 626 Fitzhughv. Wiman, 5 Seld., 558, 76, 341,401, 462 Flagg T. Hunger, 5 Seld., 483, 429 Fleming, People v., 2 Comst., 484, 517, 543 Fletcher v. Button, 4 Comst., 396 418, 481, 614, 615 Floyd, Rice v., 1 Comst., 608, 38 FoUett et at, Canal Commissioners, v. The People, 2 Kern., 268, 32 Foote, Pratt v., 5 Seld., 463, 91,252, 480 Ford, Barrows v., 2 Seld., 176.# Ford, Frees v., 2 Seld., 176 169, 351 Ford V. Harrington, 16 N. Y. R., 285, 59, 598 Ford v. Williams, 3 Kern., 577, 114,249, 273, 517, 590 Forman v. Marsh, 1 Kern., 544, 311 Forney, Towle v., 4 Kern., 423, 571 Fort V. Bard, 1 Comst., 43, 37 Fort Edward, &o., Plankroad Company t. Payne, 15 N. Y. R., 583 141 Fort Plain and Cooperstown Plankroad Co., Palmer v., 1 Kern, 376, . . . 194, 457, 489 Fosgate v. Herkimer Manu. and Hydraulic Co., 2 Kern., 580 212, 466, 498 Foster T. Pettibone, 3 Seld.. 443 62 Foster, Vail v., 4 Comst., 312, 398,480, 522 Franklin, Tallman v., 4 Kern., 584, 279 Franklin, Pendleton v., 3 Seld,, 508, 400, 565 Freeland, Corwin v., 2 Seld,, 560 265 304 Freeland, Graoie v., 1 Comst., 228, 37 606 Freeman v. Cram, 3 Comst., 305 400 Freeman v. Spalding, 2 Kem., 373, 645 Freeman, Spoor v., 16 N Y. R., 620, 47 2OO •Frees V. Ford, 2 Seld., 176 ..".... m, 351 French v. Carhart, 1 Comst., 96, I9I Fulton, People ex rci. Fulton v., 1 Kern., 94, 547 Furuiss, Decker v., 4 Kern., 611 567 Furniss V. Ferguson, 15 N. Y. R, 437 559 • Same as Frees v. Ford, pp. 161, 359. CASES EBPOETBD. 665 GAS — OOU. G. FAOE. Gage, Martin v., 5 Seld., 398 261,404,409, 58X Ganong, De Lancey v., 5 Seld., 9, .. 213, 370 Gardiner, Decker T., 4 Seld., 29 168 Gardiner V. Suydam, 3 Seld., 357 266, 637 Gardner V. Hart, 1 Comst., 528, 25 Garfield V. Hatmaker, 15 N. Y. E., 475 300,343,597 Garr, Christophers v., 2 Seld., 61, 406 Garr, Davis v., 2 Seld., 124, 88,406,493, 611 Garr V. Selden, 4 Comst., 91, 395,396, 568 Gates V. Brower, 5 Seld., 205, 297 Gates V. Madison County Mutual Insurance Company, 2 Comst., 43, 319 Gates T. Madison County Mutual Ins. Company, 1 Seld., 469 319, 322, 328, 335 Gates V. McKee, 3 Kern., 232, 283, 288 Gates, Wambaugh v., 4 Seld., 138, 346 Gay, The People v., 3 Seld., 378, 647 Geib, Cowingv., 16N.Y. R., 600, 249 Geisler v. Acosta, 5 Seld., 227 • 200, 220, 231, 376, 377 Genesee Mutual Insurance Company, Weston v., 2 Kern., 258, 45, 144, 332 Genesee Mutual Insurance Company, Wilson v., 4 KSrn., 418, 325 Gibson, Lake v., 2 Comst., 188 38 Giddings v. Seward, 16 N. Y. E., 365 384 Gihon V. Stanton, 5 Seld., 476, 266 Gilbert V. Danforth, 2 Seld., 585, 148 Gilbert V. Beach, 16 N. Y. E., 606, 504 Gilbert, Partridge v., 15 N. Y. R., 601, 478 Gilbert v. Wiman, 1 Comst., 550, 304, 563 Gilesv. Comstock, 4Comst., 270, 243,373,431, 462 Giles V. Halbert, 2 Kern., 32 46, 168 Gilesv. Lyon, 4 Comst., 599 118, 352 Gilhooley v. Washington, 4 Comst., 217 373 GilletT. Van Eenssela«r, 15 N. Y. R., 397 338 Gilletv. Moody, 3 Comst., 479, 67, 104, 155 Gillet.Eeceiver, V.Phillips, 3 Kern., 114, 68, 104 Gilmore, Spies v., 1 Comst., 321, 81, 286 Glenny, Williams T., 16 N. Y. E., 389, 239 Goddard v. Merchants' Bank, 4 Comst., 147 85 Goodhue, Marfield v., 3 Comst., 62, 264 Goodman, Crary v., 2 Kern., 266 214,217, 498 Goodnow, Hyde v., 3 Comst., 266, 143 Goodwin, The People v., 1 Seld., 568 105, 279, 291, 293, 360 Goold, Morse v., 1 Kera., 281, 131, 171, 253 Gorton, Davis v., 16 N. Y. E,, 255, 405 Gould, Hall v., 3 Kern., 127 , 85 84 666 CASES REPORTED. GOU HAL. PAGE. Gotdd T. Hudson River Railroad CompaBy, 2 Seld., 522 534, 551, 625 Gould, L'Amoreux t., 3 Seld., 349, .141 Gould V. MoCarty, 1 Kem., 575, 204 Gould, Staples v., 5 Seld., 520 142, 574 GoTemors of the Alms House v. American Art Union, 3 Seld., 228, 136, 412 Gracie v. Freeland, 1 Comst., 228 37, 506 Graham, Bate T., 1 Kern., 237, 35, 259 Graham, Stacy v., 4 Kern., 492 25, 201, 203, 247, 418, 587 Granger, TruU v., 4 Seld., 115, 212, 367 Granite Insurance Company, MoComher v., 15 N. Y. R., 495 249 Grant V. Johnson, 1 Seld., 247 ' 175, 617 Grant, Smith v., 15 N. Y. R., 590 43 Graves, Duke of Cumberland v., 3 Seld., 305, 33 Gray, Bangs, Receiver, v., 2 Kern., 477, 332 Gray v. Hook, 4 Comst., 449 142, 458 Gray, Judson v., 1 Kern., 408 58,458, 547 Gray v. Schenck, 4 Comst., 460, 465 Green V. Ames, 4 Kem., 225, 405, 561 Green v. Clarke, 2 Kern., 343, 21, 63, 122 Green V. Elmer, 4 Seld., 422 •. 476, 614 Gregg, Westervelt v., 2 Kern., 202, 298 Gridley V. Dole, 4 Comst., 486, 474 Griffin V. Colver, 16 N. Y. R., 489, 183 Griffin, Barney v., 2 Comst., 365, 104, 270, 620 Griffin, Blossom v., 3 Kem., 569, 122, 461 Griffin V. The Mayor, &c., of New York, 5 Seld., 456 162, 437, 445 Griffing, Beebe v., 2 Seld., 465, 39 Griffing, Beebe v., 4 Kern., 235 203, 470 Griffith, ScoviU v., 2 Kem., 509 122, 244, 461 Grisoom v. Mayor, &c., of New York, 2 Kern., 586, 45, 47 Griswold v. Sheldon, 4 Comst., 580, 113, 133, 169, 271, 351 Grpver v. Coon, 1 Comst, 536, 38, 45, 130 Guion, Marshall v., 1 Kem., 461, 449 Gunter, Catlin v., 1 Kern., 368 93, 234, 497, 608 H. Hackett v. Richards, 3 Kern., 138, 367 Haggart and Dunn v. Morgan, 1 Seld., 422, 18, 21, 251, 497, 594 Haight, Turner v., 16 N. Y. R., 465 40, 43, 153 Haight, White, Receiver, v., 16 N. Y. R., 310 333, 541 Haire v. Baker, 1 Seld., 357, 118 499 Halbert, Giles v., 2 Kern., 32, 46, ifis Hall, Campbell v., 16 N. Y. R., 575 233, 433 HaU V. Farmer, 2 Comst., 553 281 287 CASES REPORTED. 667 HAL — HEN. FAOB. Hallv. Gould, 3 Kern., 127, 35 Hallv. Kellogg, 2 Kern., 325 303, 450 Hallv. Rotinson, 2 Oomst., 293 588, 595 Hall, Tonnele v., 4 Comst., 140, 631 Halliday, Noble v., 1 Comst., 330 , 314, 353 Halsey, Howard Insurance Company v. 4 Seld., 271 428 Halsey v. MoCormick, 3 Kern., 296, 552, 626 Halsey V. Siusebangh, 15 N. Y. E., 485 247 Halstead V. Mayor, &c., of New York, 3 Comst., 430, 161, 434 Hamilton College v. Stewart, 1 Comst., 581, 140 Hamilton y. Wliite, 1 Seld., 10, 591 Handv. Ballou, 2 Kern., 541, 132, 585 Harbeok, Brouwer v., 5 Seld., 558 314 Hargous, Kenard v., 3Kern.,259 18, 354 Hargous V. Stone, 1 Seld., 73, 558 Harmony v. Bingham, 2 Kern., 99 21, 151, 152, 418, 481, 497 Harper, Wilkes v., 1 Comst., 586 393, 401, 518, 521 Harrington, Ford v., 16 N. Y. R., 285, 69, 598 Harris, Barnes v., 4 Comst., 375, 171, 355 Harris v. Clark, 3 Comst., 93 285 Hariis V. Clark, 3 Seld., 242 216, 389, 637 Harris, Comes t., 1 Comst., 223 452, 492 Harris, Newton v., 2 Seld., 345, 246, 622 Harrison, McMahon v., 2 Seld., 443, 257, 510 Hart, Conkey T., 4 Kern., 22, 114, 132, 551 Hart, Edgellv.,5 Seld., 213 113, 272 Hart, Gardner v., 1 Comst., 528, 25 Hart, Stief v., 1 Comst., 20, 255, 501, 573 Hart V. The Rensselaer and Saratoga Railroad Co., 4 Seld., 37, 120, 251, 441, 529 Hartford Fire Insurance Company, McLaren v., 1 Seld., 151, 198, 318, 431 Harvey V. Olmsted, 1 Comst., 483, 636 Hasbrouck, Bank of Poughkeepsie v., 2 Seld., 216, 261, 418, 581 Easbrouck, De Peyster v., 1 Kern., 582, 277, 433 Hasbrouck v. Vandervoort, 5 Seld., 153, 248 Haskins V. The People, 16 N. Y. R., 344, 179 Hastings v. Farmer, 4 Comst., 293, 305 Hatmaker, Garfield v., 15 N. Y. R., 475, 300,343, 597 Havens v. Saokett and Havens, 15 N. Y. R., 365, 635 Haverly v. Becker, 4 Comst., 169, 398, 598 Hawes v. Lawrence, 4 Comst., 345 556 Hay V. Cohoes Company, 2 Comst., 159 31 Heath, Doubleday v., 16 N. Y. R., 80, 132, 169, 352, 470 Hegan v. Eighth Avenue Raikoad Company, 15 N. Y. R,, 380, 292, 532 Hegeman v. Western Railroad Corporation, 3 Kern., 9, 443, 531 Helmuth, Englishbe v., 3 Comst., 294 , 130, 221, 546 Henry v. Bank of Salina, 1 Comst., 83, 485, 608, 593, 614, 646 668 CASES REPORTED. HEB — HOW. PA6B. Herkimer County Mutual Insurance Company, Wilson v., 2 8eld., 53 322 Herkimer Manufacturing Company, Small v., 2 Comst., 330, 160 Herkimer Manufacturing and Hydraulic Co., Posgate v., 2 Kern., 580, . . 212, 466, 498 Herring v. Hoppook, 15 N. Y. R., 409, 305,348, 554 Herter, LaPargev., 5 Seld., 241, 227,476,518, 612 Heywardv. Mayor of New York, 3 Seld.^ 314, 434 Heywood V. City of Buffalo, 4 Kern., 534, 438 Hibbard v. New York and Erie Eailroad Company, 15 N. Y. R., 455 617, 535 Hickock v. Village of PlattsburgU, ( note to ) 16 N. Y. R., 161.* Higbiev; Westlake, 4 Kern., 281 47,260,262, 678 Hill V. Beebe, 3 Kern., 556 114,263, 480 Hill Y. CoYell, 1 Comst., 522, ; 200,607, 670, 596 Hill, Covell v., 2 Seld., 374 ; 555, 595 Hill V. Mohawk Railroad Company, 3 Seld., 152, 528 Hill V. Supervisors of Livingston County, 2 Kern., 52, 291, 418, 576 HUlman v. Stephens, 16 N. Y. R., 278, 260 Himrod, Barto v., 4 Seld., 483 46, 133 Hinman, Moyer v., 3 Kern., 180, 196, 342,^ 399 Hitchcock, Pearce v., 2 Comst., 388 463 Hoag, Baker v., 3 Seld,, 555 660 Hddges V. The Tennessee Insurance Company, 4 Seld. ,416 421 Hoes v. VanHoesen, 1 Comst, 120, 385 Hogan, Loonie v., 5 Seld., 435, 282, 400 Holbrook, Colvin v., 2 Comst., 126 29, 419, 516, 563 Holbrook v. Utica and Schenectady Railroad Company, 2 Kem., 236, . . 220, 442, 530 Hollister, Leitoh v., 4 Comjst., 211 271, 619 HoUister, Morewood v., 2 Seld., 309, 106,315, 360 Hollister Bank of Buffalo v. Vail, 15 N. Y. R., 593, 40 HoUoway, City of Buffalo v., 3 Seld., 493 435,445, 494 Holmes V. Holmes, 5 Seld., 525 500, 586, 622 Holmes, Requav., 16 N. Y. R., 193, 17, 466 Holton, Ely v., 15N. Y. R., 595,.' 40, 572 Hone v, Kent, 2 Seld., 390, 641 . Hone, Mutual Safety Insurance Company v., 2 Comst., 235 334 Hone V. Van Schaiok, 3 Comst., 638 632 Hood V. Manhattan Fire Insurance Company, 1 Kem., 632 319, 567 Hook, Gray v., 4 Comst., 4i9, 142, 458 Hooker, McCotter v., 4 Seld., 497, 121, 538 Hope, Doughty v., 1 Comst., 79, 262, 573, 581, 684, 593 Hoppock, Herring v., 15 N. Y. R., 409 305, 348, 554 Houghtaling v. Kilderhouse, 1 Comst., 530, 248, 569 Houston, Shindler v., 1 Comst., 261, 283 Howard V. Sexton, 4 Comst., 157, 51,486, 567, 569 Howard Insurance Company v. Halsey, 4 Seld., 271, 428 •Same doctrine aS Conrad v. YiUace ctf Ithaca, pp. 437, 444 CASES REPORTED. 669 HOW HTN. PAOB, Howard Insurance Company, Matthews v., 1 Kern., 9, 328, 330, 446 Howard Insurance Company, Wolfe v., 3 Seld., 583, , 328 Howe, Dana, Receiver, &o., v. 3 Kern., 306, 47 Howell and Christopher v. City of Bufialo, 15 N. Y. E., 512 56, 117, 437 Howell V. Ruggles, 1 Seld., 444, 235 Howland v. Myer, 3 Comst., 290 331 Howland v. The Union Theological Seminary, 1 Seld., 193, 641, 642 Howland v. WUletts, 6 Seld., 170 248, 251, 252, 363, 507, 665, 694 Hoyt V. Martense, 16 N. Y. R., 231 423 Hoytv. Thompson, 1 Seld., 320, 156, 640 Hubbard v. Hubbard, 4 Seld., 196, 627 Hubbell v. Carpenter, 1 Seld., 171 521, 522 Hubbell, Thomas v., 15 N. Y. R., 406, 232, 624 Hudson River Fire Insurance Company, Westfall v., 2 Kern., 289, 324 Hudson River Railroad Company, Clarkson v., 2 Kern., 304, 635 Hudson River Railroad Company, Cruger v., 2 Kern., 190 49, 137, 536 Hudson River Railroad Company, Gould v., 2 Seld., 522, 634, 551, 625 Hudson River Railroad Company, Sheldon v., 4 Kern., 216, 242, 446, 536 Hudson River Railroad Company, Tillotson v., 5 Seld., 675, 294, 534 Hudson, Crippen v., 3 Kern., 161, 188 Hudson, Wilbur a al. v., 3 Kern., 161.* Huff V. Bennett, 2 Seld., 337, 247, 396 Huff v. Knapp, 1 Seld., 65, 414 Hughes, Trotter v., 2 Kern., 74 430 HuUt. Camley, 1 Kern., 501 113, 562 Humphrey v. Chamberlain, 1 Kern., 274 39, 410 Humphrey V. Parsons, 16 N. Y. R., 696 40 Hunt V. Bloomer, 3 Kern., 341, 41 Huntv. Maybee, 3Seld.,266, ; 89,261, 450 Hunter.Youngv., 2Seld., 203 126,479, 622 Husson, Drummond v., 4 Kern., 60 41, 606 Husson, Morris v., 4 Seld., 204, 503 Hutchinson V. Brand, 5 Seld., 208 255, 564 Hutchinson, Williams v., 3 Comst., 312, 469 Hutson V. Mayor, &c., of New York, 6 Seld., 163, 162, 437, 441 Hyatt, Bridges v., 16 N. Y. R., 646, 646 Hyatt v. Seeley, 1 Kern., 52, 46,310, 571 Hyde V. Goodnow, 3 Comst., 266, 143 Hyde T. Lynde, 4 Comst., 387, 168,335,464, 540 Hymers, Marvine v., SKern., 223, 167, 611 Hynds v. Schenectady County Mutual Insurance Company, 1 Kern., 554, 323 * Same Orippen, t. Sudeon, p. 188. 670 CASES REPORTED. I. PAOIS, niius T. New York and New Haven RaUroad Company, 3 Kem., 597 39, 536 Ingersoll, Peck v., 3 Seld., 528, 369 Ingraham v. Baldwin, 6. Seld., 45, 227, 375, 409, 422, 425 Ireland, Durgin v., 4 Kern., 322 48, 107, 244, 463, 464, 481 Ireland v. Oswego, &o., Plankroad Company, 3 Kern., 526, 292, 442, 491 Isham, Brazill v., 2 Kem., 9, 52, 498 Ithaca, Village of, Conrad v., 16 N. Y. R., 158 437, 444 J. Jacks V. Nichols, 1 Seld., 178 108,496, 608, 611 Jackson v. Babcock, 16 N. Y. R., 246, 585 Jackson, Burwell v., 5 Seld., 535, 615 Jackson, Stagg v., 1 Comst., 206 261, 353, 580, 600 James, Brumskill v., 1 Kem., 294, 202, 342, 468 James V. Chalmers, 2 Seld., 209, 39, 88, 510 James, Doke v., 4 Comst., 567, 51, 462 James V. Patten, 2 Seld., 10, 284,458, 510, 573 Jenkins, Chegaray t., 1 Seld., 376, 456, 582 Jenks T. Smith, 1 Comst., 90, 170, 377, 508, 587, 593, 621 Jennings v. Jennings, 3 Seld., 547 602 Jermain v. Denniston, 2 Seld., 276, 237 Jewell V. Schouten, 1 Comst., 241, 57 Jewett, Freeborn &., Memorial of, 16 N. Y. R., 624 iv Jewett, Lester v., 1 Kern., 453, 151, 493, 586 Jewett, Van Rensselaer v., 2 Comst., 185, 336, 507, 593 Jewett, Van Rensselaer v., 2 Comst, 141 211, 215, 371 Joel, Reubens v., 3 Kern., 488, 218 Johnson, Grant v., 1 Seld., 247 175, 617 Johnson et al, Kilpatriok et al. v., 15 N. Y. R., 322, 20 Johnson v. Whitlock, 3 Kern., 344 42, 503 Jones, Bank of Rochester v., 4 Comst., 497 113, 265, 553, 595 Jones, Castellanos v., 1 Seld., 164 18 Jones V. Derby, 16 N. Y. R., 242, 40 Jones V. Judd, 4 Comst., 412 125, 152 Jones, Ledyard v., 3 Seld., 550, 562 Jones, Mason v., 3 Comst., 375, 169 Jones V, Osgood, 2 Seld., 233 502 Jones V. The Phoenix Bank, 4 Seld., 228, , 127 310 Jones, Vilas v., 1 Comst., 274, 357, 518, 612, 613 Joy, White v., 3 Kern., 83 -. 495, 539 Joyce V. Adams, 4 Seld., 291, 148 CASES EEPOETBD. 671 PAGE. Judd, Jones v., 4 Comst., 412, 125, 152 Judd, McKee v., 2 Kern., 622, 54, 688, 596 Judd, Seymour v., 2 Comst., 464 170, 351, 623 Judson, Decker v., 16 N. Y. R., 439 228 Judsou V. Gray, 1 Kern., 408 58, 458, 547 Judson, Murray v., 5 Seld., 73, 54, 272, 346, 612, 619 Judson, The Chemung Canal Bank v., 4 Seld., 254 220, 361, 509 K. Kainv. Fisher, 2 Seld., 697, 206, 258, 626 Kain V. Masterton, 16 N. Y. R., 174 579 Kane v. Astor's Executors, 5 Seld., 113, 642 Kearney, Post v., 2 Comst., 394, 173, 365, 367 Keegan V. The Western Railroad Corporation, 4 Seld., 175, 441, 503, 530 Kellogg, Hall v., 2 Kern., 325, 303 KeUogg V. Slausson, 1 Kern., 302 272, 619 Kellogg V. Theological Seminary of Auburn, 16 N. Y. R., 83, 384, 388 KeUogg's Executors, Wall v., 16 N. Y. R., 385.* Kelly T. Mayor, &o., of New York, 1 Kern., 432, 27, 436, 445 Kelsey v. Barney, 2 Kern., 425, 446 Kelsey, Van Dewater v., 1 Comst., 533 37, 311 Kelsey v. Western, 2 Comst., 500, 263, 385, 496 Kendall V. Stone, 1 Seld., 14, 670 Kent, Hone v., 2 Seld., 390, 641 Kent V. New York Central Railroad Company, 2 Kern., 628, 364, 531 Kerr, Smith v., 3 Comst., 144 171, 175, 463, 472 Keteltas, Bulkeley v., 2 Seld., 384 413 Ketchum V. City of Buffalo, 4 Kern., 356,.. 313, 435 Kidd, Van Rensselaer v., 2 Seld., 331 467, 590 Kilderhouse, Houghtaling v., 1 Comst., 530 248, 569 Kilpatrick et al. v. Johnson et al., 15 N. Y. R,, 322, 20 King V. Dennis, 2 Comst, 189.t King V. The Merchants' Exchange Company, 1 Seld., 547, 39 King, Truscott v., 2 Seli., 147 50, 846, 346, 421, 422, 461, 483, 496 Kingman, Sparrow v., 1 Comst., 242, 207, 213, 226 Kingsland, Spaulding v., 1 Comst., 426; 44 Kingston Mutual Insurance Company, Tillou v., 1 Seld., 405 327, 477 Kinney v. Nash, 3 Comst., 177 668 Kinney, Winter v., 1 ComsL, 365, 420, 455, 564 Kline, Stanton v., 1 Kern., 196 426 Knap, Coon T., 4 Seld., 402 538 * Liability of executors to damages, on sale of real estate under a power, t Same as Livinffafon v. BadcUff, P. 41, 672 CASES EEPORTED. FAQE. Knapp, Huff T., 1 Seld., 65 414 Knight, Eexford v., 1 Kern., 308 131 Knight V. Wilcox, 4 Kern., 413 416, 460 Koplin, Labar v., 4 Comst., 546, 362, 450, 507, 608, 593, 594 Knndolf T. Thalheimer, 2 Kern., 593, 133, 169 Kursch, Farmers' Loan and Trust Company v., 1 geld., 558, 212 L'Amoreux, Astor v., 4 Seld., 107 595 L'Amoreux V. Gould, 3 Seld., 349 141 L'Amoreux v. Vischer, 2 Comst., 278 224 Lahar v. Koplin, 4 Comst., 546, 362, 450, 507, 508, 593, 594 La Parge v. Herter, 5 Seld., 241, ' 227, 476, 518, 612 La Farge, Ogsbury v., 2 Comst., 113.* Lake v. Gibson, 2 Comst., 188, 83 Lake, The People v., 2 Kern., 358, 241 Lake v. Tysen, 2 Seld., 461, 233, 510 Lake Ontario, &c., Railroad Company v. Mason, 16 N. Y. R., 451, 529 Lampman v. Cochran, 16 N. Y. R., 275, 186 Lampman, Rawson v., 1 Seld., 456, 421, 599 Langdon v. Astor's Executors, 16 N. Y. R,, 9 391, 630, 633 Langley v. Warner, 1 Comst., 606, 41, 345, 606 Langley v. Warner, 3 Comst., 827 219, 419, 570 Lansing v. Russell, 2 Comst., 563 38 Lamed, The People v., 3 Seld., 445 248, 361 Lawrence v. Ball, 4 Kern., 477, 214, 410, 483, 616 Lawrence v. Brown, 1 Seld., 394, 207, 225, 577 Lawrence, Delaplaine v., 3 Comst., 301, 260, 578 Lawrence et al. v. Farmers' Loan and Trust Company, 3 Kern., 200, 427 Lawrence, Hawes v., 4 Comst., 345 , 556 Lawrence v. Miller, 16 N.-Y. R., 235 ■ 97, 511 Lawrence v. Miller, 2 Comst., 245 132, 207, 210, 577 Lawrence, Palmer, Receiver, v., 1 Seld., 389, 130, 363, 507, 592 Lawrence, Palmer, Receiver, v., 1 Seld., 455 348 506 Leavitt, Curtis v., 15 N. Y. R., 9 70, 129, 140, 541, 612, 619 Leavitt v. De Launy, 4 Comst., 364, 609 Leavitt, Nicholson v., 2 Seld., 510, 270 Leavitt v. Palmer, 3 Comst., 19 66, 107, 140, 492 Leavitt v. Putnam, 3 Comst., 494, 84 Le Couteulx, City of Buffalo v., 15 N. Y. R., 451, 55, 583 Ledyard, Acker v., 4 Seld., 62 662 Ledyard v. Jones, 3 Seld., 550 662 •Decree by default Is rea judicata. CASES EEPORTBD. 673 IiEE LTN. FAOK. Lee, Warner v., 2 Seld., 144, 418 Lee, Impleaded, Youngs r., 2 Kern,, 651 94 Leods y. The Mechanica' Insurance Company, 4 Seld., 3S1, 325, 329 Leggett, Des Arts v., 16 N. Y. E., 582 97, 587 Leggett, BeU v., 3 Seld., 176, 65 Leggett V. Perkins, 2 Comst., 297, 601 Leitoli V. HoUister, 4 Comst., 211 271, 619 Lemon, Anderson v., 4 Seld., 236, 473 Lester v. Jewett, 1 Kern., 453, 151, 493, 586 Levinus, Smith v., 4 Seld., 472, 130, 575 Lewis V. Chapman, 16 N. Y. R., 369 395 Lewis V. Lewis, 1 Kern., 220, 629 Lewis, MUler v., 4 Comst., 553, 106, 168, 187, 344, 427, 545 Lewis V. Smith, 5 Sold., 502 209,432, 615, 644 Lewis V. Woodworth, 2 Comst., 512 224 Litchfield, Cook v., 5 Seld., 279, 91 Litchfield T. White, 3 Seld., 438, 620 Little, Wilson v., 2 Comst., 443, 181, 501, 586 Livingston, Lynch v.. 2 Seld., 422, 193, 195, 196, 301, 427, 455 Livingston v. MiUer, 4 Seld. ,283 ^74 Livingston V. MiUer, 1 Kern., 80 336, 374 Livingston, Moss v., 4 Comst., 208 30, 86 Livingston V. Radcliff, 2 Comst., 189 41 Livingston, RusseU v., 16 N. Y. R., 515, 123 Livingston v. Tanner, 4 Kern., 64, 215, 378 Livingston, Vassear v., 3 Kern., 248, 168,495, 645 Lloyd V. The Mayor, &c., of New York, 1 Seld., 369, 26 Lockport, Trustees of, BueU v., 4 Seld., 55, 227, 600 Lockport, Trustees of, Bnell v., 3 Comst., 197 411 Lockwood V. Thorn, 1 Kern., 170 20 Lohmanv. The People, 1 Comst., 379, 245,307,362, 646 Loomis, Olmsted v., 5 Seld., 423, 409, 625 Looniev. Hogan, 5 Seld., 435 282, 400 Lord, Amory v., 5 Seld., 403 602 Lord, Candee v., 2 Comst., 269, 38 Lorillard, Baker v., 4 Comst., 257, 227, 309, 358, 469, 644 Lorillard V. Town of Monroe, 1 Kern., 392, ". 458,512, 582 Lott V. Wyckoff, 2 Comst. ,355 223 Low V. Archer, 2 Kern., 277 305 Low V. Payne, 4 Comst., 247, 171, 236 Luce, Burkle v., 1 Comst., 163, 17, 241, 253, 549 Luce, Burkle v., 1 Comst., 239 167,219,349, 456 Lyke, Van Leuven v., 1 Comst., 515, 36, 590 Lymev. Ward, 1 Comst., 531, 167, 505, 506 Lynch v. Livingston, 2 Seld., 422, 193, 195, 196, 301, 427, 455 Lynde, Hyde v., 4 Comst., 387 158,335,464, 540 85 674 CASES EEPOETED. PAGE. Lynes, Smith v., 2 Comst.. 569, 41, 606 Lynes, Smith v., 1 Seld., 41, 402, 553 Lyon, Brown v., 2 Seld., 419, 637 Lyon T. Clark, 4 Seld., 148, 98, 337, 493 Lyon, Daniels v., 5 Seld., 549, 168 Lyon, Giles v., 4 Comst., 599 118, 352 M. Mabbett v. White, 2 Kern., 442, 252, 473 Mabie, Mayor of New York v., 3 Kern., 151, 173, 542 Madison County Mutual Insurance Co., Gates v., 1 Seld., 469, 319, 322, 328, 335 Madison County Mutual Insurance Company, Gates v., 2 Comst., 43, . 319 Magie V. Baker, 4 Kern., 435 40, 41, 48 Mailler, Brown v., 2 Kern., 118, 238 Main, Minturn v., 3 Seld., 220, 59 467 Malius V. Brown, 4 Comst., 403, 278, 425 467 571 Mallory, Vanderheyden v., 1 Comst., 452, 65 298 Maflory v. Willis, 4 Comst., 76 gl Manhattan Fire Insurance Company, Hood v., 1 Kem., 632, 319 567 Mauice d al. v. Mayor, &c., of New York, 4 Seld., 120, 443 Manley V. The People, 3 Seld., 295, 104,308, 360 Manrow, Durham v., 2 Comst., 553, 281 287 Manning, Dodge v., 1 Comst., 298 332 Mannv. Pentz, 3 Comst., 415, 163,537, 639 Marfield v. Goodhue, 3 Comst., 62,- 264 Marquat y. Marquat, 2 Kern., 336, 47 4gg ggg Marquat, Marquat v., 2 Kern., 336, 47 4gg jqj Marsh, Forman v., 1 Kern., 544 g,-. Marsh, McCarthy v., 1 Seld., 263, 32 44Q Marsh, Montgomery County Bank v., 3 Seld., 481 89' g45 Marsh, New York and Harlem Eailroad Company v., 2 Kern., 308 23 482 528 Marsha,ll v. Guion, 1 Kern., 461, aaq Marshall, Ogden v., 4 Seld., 340, ..'.... 153 Martense, Hoyt v., 16 N. Y. R., 231, 423 Martin, Faure v., 3 Seld., 210, " ' j^g MartiuT. Gage,5.Seld., 398 261,4041409, 681 JIartin v. Martin, 1 Comst., 473 ' oq^ Martin, Martin v., 1 Comst., 473 aqR Martin v. McCormick, 4 Seld., 331, ' ' " 41 7 Martin, The People v., 1 Seld., 22, ^^ 453 Martin v. Wilson, 1 Comst., 240, a jg Marvin, New York Central Railroad Company v., 1 Kern., 276 39 528 Marvin V. Seymour, 1 Comst., 635 '37 Marvine V. Hymers, 2 Kern., 223, .....'.'... 157 611 CASES REPORTED. 575 MAS — MAY. FAOB, Mason's Executors r, Alston, 5 Seid., 28, 189 Mason, Lake Ontario, &o.. Railroad Company v., 16 N. Y. R., 451, 529 Mason v. Jones, 3 Comst., 375, 169 Masterton, Kain v., 16 N. Y. R., 174, 579 Masterton, &o., Stone Dressing Company, Townsend v., 15 N. Y. R., 587, ... 39, 623 Mather, Eldridge v., 2 Comst., 157.* Mathews V. AiWn, 1 Comst., 595 427, 521 Mathews, Decker v., 2 Kern., 313 '. 21, 93, 251, 596 Mathews v. Howard Insurance Company, 1 Kern., 9, 328, 330, 446 Mathews v. Morehouse, 2 Com.st., 514 240 Matthews v. Beach, 4 Seld., 173, 396 Mattison v. Baucus, 1 Comst., 295, Ill, 256 Maxwell, Stevenson v., 2 Comst., 408, 336, 617 Maybee, Hunt v., 3 Seld., 266 , 89, 251, 450 Maybee v. Sniffen, 16 N. Y. R., 560, 232 Mayhew, Dudley v., 3 Comst., 9, ' 350, 478, 573 Mayor, &c., of Albany, v. Cunliff, 2 Comst., 165 22, 160, 444, 516 Mayor, &c., of Brooklyn, People v., 4 Comst., 419, 134, 438 Mayor, &c., of Brooklyn, Radoliff's Executors v., 4 Comst., 195, 22, 134, 436 Mayor, &o., of New York, Carlrn et al. v., 5 Seld., 163, 441 Mayor, &c., of New York, Chegaray v. 3 Kern., 220, 19, 582 Mayor, &c., of New York, Clark v., 4 Comst., 338, , 144, 151 Mayor, &o., of New York v. Colgate, 2 Kern., 140, 402, 449 Mayor, &c., of New York, Conner v., 1 Seld., 285, 135^ 455 Mayor, &c., of New York, Davis v., 4 Kern., 506 '. . 23, 36, 292, 313, 452, 468 Mayor, &c., of New York, Dyckman v., 1 Seld., 434, 50, 235, 358, 586, 621 Mayor, &o., of New York, Field v., 2 Seld., 179, 116, 496 Mayor, &o., of New York, Grisoom v., 2 Kern., 586 45, 47 Mayor, &c., of New York, Griffin v., 5 Seld., 456, 162, 437, 445 Mayor, &o., of New York, Halstead v., 3 Comst,, 430, 161, 434 Mayor, &c., of New York, Heyward v., 3 Seld., 314, 434 Mayor, &c., of New York, Hutson v., 5 Seld., 163, 162, 437, 441 Mayor, &o., of New York, Kelly v., 1 Kern., 432, 27, 436, 445 Mayor, &c., of New York, Lloyd v., 1 Seld., 369 26 Mayor, &o., of New York v. Mabie aal.,Z Kern., 151, 173, 542 Mayor, &c., of New York, Manice v. 4Seld., 120, 448 Mayor, &c., of New York, Martin v., 1 Seld., 22 453 Mayor, &o., of New York, Moore v., 4 Seld., 110, 208 Mayor, &o., of New York, Pack v., 3 Comst., 489, 181, 459, 645 Mayor, &c., of New York, Pack v., 4 Seld., 222, 436, 445 Mayor, &o., of New York, v. Schermerhom, 1 Comst., 423, 37, 44 Mayor, &c,, of New York, Sherman v., 1 Comst., 316,. 149, 462 Mayor, &c., of New York, Sun Mutual Ins. Co. v., 4 Seld., 241, 135, 159, 583 Mayor, &c., of New York, Thompson v., 1 Kern., 115, 448 • Partial failure of consideration of note, not admissible in evidence under plea of non-assumpsit. 676 CASES REPORTED. MAT — MEK. PiOE. Mayor, &o., of New York v. Williams and Price, 15 N. Y. K., 502 435 MoCann T. The People, 16 N. Y. B., 58, •••• 132, 179 MoCarron v. The People, 3'Kern., 74, 170, 340 McCarthy V. Marsh, 1 Seld., 263, 32 McCarty, Gould v., 1 Kern., 575 ■ 204 McCluskey v. Cromwell, 1 Kern., 593, 364 McComher v. Granite Insurance Company, 15 N. Y. B., 495, 249 McCoon, Silsburyv., 3 Comst., 379, 19, 588 MoCormick, Halsey v., 3 Kern., 296 : 652, 626 McCormick, Martin v., 4 Seld., 331, 417 McCormiok V. Pickering, 4 Comst., 276, 64,130, 499 McCosker, Brady v., 1 Comst., 214, 107, 356, 465, 469, 491 MoCotter v. Hooker, 4 Seld., 497 121, 538 McCracken v. Valentine's Executors, 5 Seld., 42 429 McCrackenv. Cholwell, 4 Seld., 133 251,275, 503 McCuUough, Comingv., 1 Comst., 47, 160, 406 McDoel V. Cook, 2 Comst., 110 170, 354 McDonald, Townseud v., 2 Kern., 381 651, 625 M'Dermott v. Palmer, 4 Seld., 383.* McFarland, Schneider v., 2 Comst., 459, 309, 353, 577 McFarlanv. Watson, 3 Comst., 286 369 McGraw, Van Pelt v., 4 Comst., 110, 431,510,588, 624 McGregor v. Comstock, 3 Comst., 408, 32 Molncrow, Carman v., 3 Kern., 70, 401 Mcintosh, Van Wyck v., 4 Kern., 439, 245 Mclntyre V. The People, 5 Seld., 38, 248, 308 McKee, Gates v., 3 Kern,, 232 ' 283, 288 McKee v. Judd, 2 Kern., 622, 54, 588, 596 McKnight v. Dunlop, 1 Seld., 537, 23, 284, 508, 593, 622 McKyring V. Bull, 16 N. Y. B., 297 249, 484, 499 Motaren v. The Hartford Fire Insurance Company, 1 Seld., 151, 198, 318, 431 McLean and Wife y. Swanton, 3 Kern., 535, 34 McLoud, Edmonston v., 16 N. Y. B., 543, 189, 505, 595 McMahon V. Harrison, 2 Seld., 443, 257, 510 McMahon, The People v., 15 N. Y. B., 384, 239 Mead v. Northwestern Insurance Company, 3 Seld., 530, 76, 323 Mead v. York, 2 Seld, 449 .t Meakingsv. Cromwell, 1 Seld., 136, 627, 644 Mechanics' Bank v. N. Y. and New Hayen B. E. Co., 3 Kern., 599,. . . . 226, 515, 535 Mechanics' Banking Association, Case y,, 4 Comst., 166, 86, 514, 596 Mechanics' Insurance Company, Leeds v., 4 Seld., 351, 325, 329 Meech v. Patchin, 4 Kern., 71, ' 114 Merchants' Bank, Clark v., 2 Comst., 380, 82, 419 * Mechanics* lien In city of New York does not extend to contracts for flagging sidewalks and areas, t Same as TrueeoU v. Kijig, p. 442, that a paid mortgage cannot be made to stand as a lien for liabilitr, as against creditors. CASES REPORTED. 677 MEE — MOO. PAGB. Merchants' Bank, Goddard v., 4 Comst., 147 85 Merehauts' Bank v. Spalding, 5 Seld., 53 69 Merchants' Exchange Company, King v., 1 Seld., 547, . . . .• 39 Merchants' Mutual Insurance Company, Deraismes v., 1 Comst., 371, 331 Merriam, People ex ret., v. Sohoonmaker, 3 Kern., 238, 458 Merrill, Craft v., 4 Kern., 456 263,345,427, 481 Merrill, The People v., 4 Kern., 74, 220 Merrittv. Seaman, 2 Seld., 168, 240,310,467,508, 593 Merritt, White v., 3 Seld., 352 230, 276 Merry, Sturgis v., 2 Comst., 189.* Mersereau v. Ryers, 3 Comst., 261, 290, 465 Mesick V. New, 3 Seld., 163, 222, 636 Messerve v. Sutton, 3 Comst., 546 ; 45 Metoalf V. Van Benthuysen, 3 Comst,, 424 197, 242, 460 Michael, DePeyster v., 2 Seld., 467 199, 365 Millard, Evans v., 16 N. Y. R., 619 215 Miller, Butler v., 1 Comst. ,428 : 44 MUler, Butler v., 1 Comst., 496 112, 262, 270, U7 MiUer, Lawrence v., 2 Comst., 245, 132, 207, 210, 577 MUler, Lawrence v., 16 N. Y. R., 235 97, 511 Miller v. Lewis, 4 Comst., 533 106, 168, 187, 344, 427, 545 Miller, Livingston v., 4 Seld., 283 374 Miller, Livingston v. , 1 Kem., 80, 336 Miller v. Soherder, 2 Comst., 262, 254 Miller, Seacordv., 3 Kern., 55, 94 MiUer, Sperry v., 4 Seld., 336 370, 483 Miller, Sperry v., 16 N. Y. R., 407 370 Miller, Wright v., 4 Seld., 10, 276, 604 MUlward, Mulvehall v., 1 Kern., 343, 416, 460 Minard, Onondaga County Mutual Insurance Company v., 2 Comst., 98, 251 Minturn v. Farmers' Loan and Trust Company, 3 Comst., 498 357, 612 Mmtum V. Main, 3 Seld., 220 59, 467 Missionary Society Methodist Episcopal Church, Owens v., 4 Kem., 380, 109, . 311, 358, 383, 628 Mitchell V. Cook, 2 Seld., 538, 69 Moffattv. Smith, 4 Comst., 226, 368, 372 Mohawk Bank, Schermerhorn v., 1 Comst., 125 37, 45 Mohawk, &c.. Railroad Company, Hill v., 3 Seld., 152, 163, 528 Monroe V. Douglass, 1 Seld., 447 234, 269, 610 Montgomery County Bank v. Albany City Bank et al, 3 Seld., 459 31, 167, 500, 505 Montgomery County Bank v. Marsh, 3 Seld., 481 89, 646 Montgomery County Mutual Insurance Company, Babcock v., 4 Comst., 326, 318 Moody, Gillet v., 3 Comst., 479 67, 104, 155, 539 • Same as I^TiffsUm v. ^adcliff', p. 41. 678 OASES EBPOETED. PAGE. Moore v. Des Arts, 1 Comst., 359, 410 Moore V. Moore, 1 Seld., 256 30,431,512,598 Moore T. The Mayor, &c., of New York, 4 Seld., 110, 208 Moore and another, Quin, Administrator, v., 15 N. Y. E., 432, 22, 24, 459, 646 Morey v. Farmers' Loan and Trust Company, 4 Kern., 302, 409, 483, 571, 618 Morehouse v. Mathews, 2 Comst., 514 240 Morewood V. HoUister, 2 Seld., 309, 106,315, 360 Morgan V. Bank of the State of New York, 1 Kern., 404, 115 korgau T. Congdon, 4 Comst., 551, 63 Morgan, Haggart & Dunn v., 1 Seld., 422, 18,21,497, 594 Morris, Blodgett v., 4 Kern., 482 646 Morris v. Husson, 4 Seld., 204, 603 Morris, Taylor v., 1 Comst., 341, 643 Morris, Thatcher v., 1 Kern., 437 143, 412, 494 Morse, Bogert v., 1 Comst., 377 .^ 233,484, 509 Morse v. Crofoot, 4 Comst., 114, 614, 645 Morse V. Goold, 1 Kern., 281, 131, 171, 253 Morton, Oakley v., 1 Kern., 25, 147, 151^ 493 Moseley v. Moseley, 15 N. Y. R., 334, 228 Hosier, EUicott v., 3 Seld., 201, 209, 212, 465 Moss V- livlngston, 4 Comst., 208, 30 86 Mott, Crafts v., 4 Comst., 603 , 63, 518, 523 Mott V. Palmer, 1 Comst., 564, I73 267 371 Moyer v. Hinman, 3 Kern., 180, 196, 342, 399 MuUer v. Eno, 4 Kern., 597 183 559 Mulvehall y. Millward, 1 Kern., 343, 416 460 Mumford v. Amerjoan Life Ins. and Trust Co., 4 Comst., 463, . . 67, 155, 217, 484, 610 Munger, Plaggv., 5 Seld., 483, 429 Munger v. Tonawanda Railroad Company, 4 Comst., 349, 23, 446, 633 Munn, Worrall v., 1 Seld., 229, 145, 191, 221, 278^ 462* 614 Murdock v. Chenango Mutual Insurance Company, 2 Comst., 210, 320, 328, 685 Murphy, Caldwell v., 1 Kern., 416, 238, 503 Murray V. Judson, 5 Seld., 73, 54, 272, 346, 612, 619 Murray, Noel et al. v., 3 Kern., 167 480 511 Mussey v. Atlas Mutual Insurance Company, 4 Kem., 79, 331 Mutual Benefit Life Insurance Company v. Davis, 2 Kern., 569, 268, 317, 511 Mutual Insurance Co. of Albany v. Couover, 1 Comst., 290, 76, 326, 467, 513 Mutual Ins. Co. of Buffalo v. Supervisors of Erie County, 4 Comst., 445, 333 Mutual Safety Insurance Company v. Hone, 2 Comst., 235 334 Myer, Howland v., 3 Comst., 290 33I Myers v. Baker, 4 Kern., 435.* Mygattv. Washhurn, 15 N. Y. R., 316, 55,354, 582 * Same pointa as MaoU t. Baker, pp. 40, 41, 48. CASES EEPOETED. 679 N. PAQB. Nash, Kinney v., 3 Comst., 177, 668 NationalBank, PoUookv., 3Seld.,274 156,180, 217 National Protection Ins. Co., N. Y. Centrallns. Co. v., 4 Kern., 85, 334,498, 515 Neass, Seneca County Bank v., 3 Comst., 442, 84 New, Mesickv., 3Seld., 163, 222, 636 Newbould, Wheeler v., 16 N. Y. E., 392, 501 Newoombv. Newoomb, 2 Kern., 603 137, 470 Newell, Bowen T., 4 Seld., 190, 90, 115 Newell, impl'd, Bowen et al. v., 3 Kern., 290, 94 Newell, Dwight v., 3 Comst., 185 398, 424 Newell v. The People, 3 Seld., 9 133 Newton v. Bronson, 3 Kern., 587, 39, 259, 279, 351, 517, 571, 605 Newton T. Harris, 2 Seld., 345 246, 622 Newton, Vanderslioe v., 4 Comst., 130, 151, 186 New Hope and Delaware Bridge Co. v. Phoenix Bank, 3 Comst., 156,. . 158, 451, 513 New Jersey Steam Navigation Company, Dorr v., 1 Kern. , 485, 121 New York Bible and Common Prayer Book Society, Andrews v., 4 Seld., 598.* New York Central Ins. Co. v. National Protection Ins. Co., 4 Kern., 85, . . 334, 498, 515 New York Central Raihoad Company, Kent v., 2 Kern., 628, 364, 531 New York Central Railroad Company v. 'Marvin, 1 Kern., 276 '. 39, 528 New York Central Railroad Company, Poler v., 16 N. Y. R., 476, 444, 533 New York Central Railroad Company, The People v., 3 Kern., 78 486, 531 New York Central RaUroad Company, Williams v., 16 N. Y. R., 97, 293, 633 New York and Erie Railroad Company, Corwin v., 3 Kern., 42, 22, 443, 631 New York and Erie Railroad Company, Hibbard v., 15 N. Y. R., 445 517, 535 New York and Erie Railroad Company, Niooll v., 2 Kern., 121 127, 165 New York and Erie Railroad Company, Ransom v., 15 N. Y. R., 415 182, 532 New York and Erie Railroad Company, Wiebert v., 2 Kern., 245, 121, 534 New York and Harlem Railroad Company v. Marsh, 2 Kern., 308, 23, 482, 528 NewYorkandHarlemR. R.Co.,01dfleldv.,4Kern., 310,.. 47, 252,442, 459,495, 532 New York and Harlem R. R. Co., Story v., 2 Seld., 85, 181, 345, 535 New York Life Ins. and Trust Co. v. Beebe, 3 Seld., 364, 157, 514, 608 New York and New Haven R. R. Co., Illius v., 3 Kern.,'597, 39, 536 New YorkandNewHavenR.R. Co., Mechanics' Bankv.,3Kern., 599,.. 226, 515, 535 New York Union Insurance Company, Ames v., 4 Kern., 253, 325, 329 Nicoll V. New York and Erie Railroad Company, 2Kern., 121, 127, 165 Nichols V. Dusenbury, 2 Comst., 283, 60, 251, 371, 496, 542, 549 Nichols, Jacks v., 1 Seld., 178 108, 496, 608, 611 Nicholson V. Leavitt, 2 Seld., 510, 270 Nixon, Beach v., 5 Seld., 35, 354, 376 Nixon V. Palmer, 4 Seld 398,. 514, 516 * Cited in note to Williams v. Williama, p. 883, and decided on same grounds. 680 CASES REPORTED. NOB — OSW. PAGE Noble T. HalUday, 1 Comat., 330,. ; 314, 353 Noel a al. T. Murray, 3 Kern., 167, 480, 511 Nolton T. Western Railroad Corporation, 15 N. Y. R., 444 443, 533 Norris, Executor, v. "Beye&etal, 3 Kern., 273 634 North American Trust Company, Ohio v., 3 Seld., 328 156, 641 North American Tmgt Company, Talmadge v., 3 Seld., 328, 156, 541 Northern Railroad Company, Duane v. 3 Comst., 545, 38 Northwestern Insurance Company, Mead v., 3 Seld., 630, 76, 323 Norton v. Coons, 2 Seld., 33 462, 524 Norton, The People v., 5 Seld., 176, 241, 358, 466, 500, 605 Norton v. Woodruff, 2 Comst. ,153, 62 Norwich, Overseers of the Poor of v. Overseer, &o,, of Pharsalia, 15 N. Y. R., 341, . . 456 Noyes v. Blakeman, 2 Seld., 567, 601 Noyes, Castle v., 4 Kern., 329, 232 0- Oakley T. Aspinwall, 3 Comst., 547 169, 340, 349 Oakley v. Aspinwall, 4 Comst., 514, 340 Oakley v. Aspinwall, 3 Kern., 500,* Oakley V. Morton, 1 Kern., 25 147, 151, 493 O'Brien, Behnontv-., 2 Kern., 394 234, 424, 483, 611, 602, 604 Ogden, Cropsey v., 1 Kern., 228, 206, 296 Ogden T. Marshall, 4Seld., 340 153 Ogdensburgh, &c.. Railroad Company, Fairchild v., 16 N. Y. R., 337 95, 632 Ogsbury v. La Farge, 2 Comst., llS.f Ohio V. North American Trust Company, 3 Seld., 328, 156, 541 Oloott v. Wood, 4 Kern., 32, 52 Oldfleld V. New York and Harlem R. R. Co., 4 Kern., 310, 47, 252, 459, 495, 532 Olmsted v. Elder, 1 Seld., 144 198, 216. 410 Olmsted, Harvey v., 1 Comst., 483, 636 Olmsted v. Loomis, 5 Seld., 423, 409, 625 Olmstead v. Olmstead, 4 Comst., 56 , 222, 636 Olmstead, Olmstead v., 4 Comst., 56 222, 636 Olmstead v. Webster, 4 Seld.,'4l3 476 O'Neil V. Buffalo Fire Insurance Company, 3 Comst., 122, 321, 328 Onderdonk, Scott v., 4 Kern., 9, ; 56, 217 Onondaga County Mutual Insurance Company v. Minard, 2 Comst., 98, 251 Orr V. Bigelow, 4 Kern., 556 176 Orvis, Titus v., 16 N. Y. R. 617, 43 Osgood, Jones v., 2 Seld., 233, 502 Oswego, Hannibal and Sterling Plankroad Company, Ireland v., 3 Kern., 526, 292, 442, 491 * Decree by default ia reajudieaia. t Adhering to decision oijd., i Comet., p. 340. CASES REPORTED. ggl OSW — PAT. PAGE, IV. Oswego Canal Company, 2 Seld., 257, 189, 291 Oswego Canal Company, Oswego v., 2 Seld., 257 189, 291 Oswego and Syracuse Eallroad Company, Parmelee v., 2 Seld., 74, 126, 479 Otis V. Spencer, 16 N. Y. R., 610* Ottv. Schroeppel, 1 Seld., 482 51, 510 Overbagh v. Patrie, 2 Seld., 510.t Overseers, &o., of Norwich v. Overseer, &o., ot Pharsalia, 15 N. T. R., 341, 456 Owens V. Miss. Society of tlie M. E. Clinrch, 4 Kern., 380, . . . 109, 311, 358, 383, 628 P. Pack V. Mayor, &o., of New York, 3 Comst., 489 ' 181, 459, 645 Pack v. Mayor, &o., of New York, 4 Seld., 222, 436, 445 Paddock v. Springfield Fire and Marine Insurance Co., 2 Kern., 591 39 Palmer, Conley v., 2 Comst., 182, 465, 485, 573 Palmer v. Fort Plain and Cooperstown Plankroad Co., 1 Kern., 376,. . . 194, 457, 489 Palmer, Receiver, v. Lawrence, 1 Seld., 389 130, 363, 592 Palmer, Receiver, v. Lawrence, 1 Seld., 455, 348, 506' Palmer, Leavitt v., 3 Comst., 19 : 66, 107,140, 492 Palmer, McDermott v., 4 Seld., 383. t Pahner, Mott v., 1 Comst., 564, 173, 267, 371 Palmer, Nixon v., 4 Seld., 398, 514, 516 Parker V. Bogardus, 1 Seld., OT9 633 Parsons, Humphrey v., 15N. Y. R., 595, 40 Parmelee v. Oswego and Syracuse RaUroad Company, 2 Seld., 74, 126, 479 Parmelee, Van Keuren v., 2 Comst., 523, 406, 474 Parmelee, Worrali V, 1 Comst., 519, 219,237, 623 Partridge V. Gilbert, 15 N. Y. R., 601, 478 Patchin v. Astor Mutual Insurance Company, 3 Kern., 268, 246 Patchin, Meeoh v., 4 Kern., 71, 114 Patchin, Provost v., 5 Seld., 235, 566 Patchin Bank, Bank of Genesee v., 3 Kern., 309, 69, 95, 157 Patrie, Overbagh v., 2 Seld., 510. § Patten, James v., 2 Seld., 10, 284,458,510, 573 Patterson, Butler v., 3 Kern., 292, 645 Patterson, Allen ct ot v., 3 Seld., 476, 494 Patterson, Daniels v., 3 Comst., 47, 17,339,519, 549 Pattison V. Blanchard, 1 Seld,, 186, 472 Payne, Fort Edward, &c., Plankroad Company v., 15 N. Y. R., 583, 141 Payne, Low v., 4 Comst., 247 171, 236 Payne, Sheldon v., 3 Seld., 453, 562, 563 * Report of referee good, though not stating in detail the facts found, &o, tSame as Ve P&ysier v. Michael, pp. 199, 365. t Mechanics' lien in city of New Yorlc does not extend to contracts for flagging sidewall£S and areas. i Same as J)6 Feyater v. MicJiael, pp. 199, 365. 86 682 CASES REPORTED. PAY — PEO. PAGE. Payne T. Young, 4 Seld., 158, 57 Peabody, Brower c( ai. v., 3 Kern., 121, 277, 556 Pearoe, Dobson v., 2 Kern., 156 217,235, 346 Pearce t: Hitchcock, 2 Comst., 388, 463 Pearoe T. Wilkins, 2 Comst., 469, 83, 476 Peck v. IngersoU, 3 Seld., 628, 369 Peck V. Tiffany, 2 Comst., 451, : 253, 257 Peddie, Bagley v., 16 N. Y. K., 469 186 Pell, Talmage v., 3 Seld., 328 156, 541 Pendleton T. Franklin, 3 Seld., 508, 400, 565 Pentz, Mann v., 3 Comst., 415,., 163, 537, 539 People, Adams v., 1 Comst., 173, 177, 355 People V. American Art Union, 3 Seld., 240 412 People V. Arnold, 4 Comst., 508, _. 403, 408 People T. Bancker, 1 Seld., 106, ' 314, 622 People, Barringer v., 4 Kern., 593, 221 People, Barron v., 1 Comst., 386, 248 People, Cancemi v., 16 N. Y. R., 501 ■. 179, 362 People V. Carnal, 2 Seld., 463 573 People, Champlain v., 2 Comst., 82, 177, 359, 542, 621 People, Charles v., 1 Comst., 180, 177, 307 People V. Clark, 3 Seld., 385, 219, 439 People T. Clarke, 5 Seld., 3i9, 304 People V. Cook, 4 Seld., 67, 215, 252, 276, 454, 486, 509, 525 People T. Corning, 2 Comst., 9, 177, 219 People, ex rel. Davis, v. Cowles, 3 Kern., 350, 137 People V. Commissioners of Highways of Cherry Valley, 4 Seld., 476, 293 People V. Dibble, 16 N. Y. R., 203 306 People, ex rel. Wood, v. Draper, 15 N. Y. R., 532, 186 People V. Eastwood, 4 Kern., 562, 241, 440 People V. Fleming, 2 Comst., 484 517, 643 People, Follett et al. v., 2 Kern., 268, 32 People, ex rel. Fulton, v. Fulton, 1 Kern., 94, 547 Peopley. Gay, 3Seld,378, 647 People V. Goodwin, 1 Seld., 568, 105, 279, 291, 293, 360 People, Haskings v., 16 N. Y. R. , 344, 179 People V. Lake, 2 Kern., 358, 241 People V. Lamed, 3 Seld., 445, 248, 361 People, Lohman v., 1 Comst, 379 245, 307, 362, 646 People 7. Manley, 3 Seld., 295, 104, 308, 360 People V. Martin, 1 Seld., 22, 463,589 People V. Mayor, &o., of Brooklyn, 4 Comst., 419 134, 438 People, McCann v., 16 N. Y. R., 58, 132, 179 People, McCarron v., 3 Kern., 74, 170, 340 People, Mclntyre v., 5 Seld., 38 248, 308 People v. MoMahon, 15 N. Y. R., 384, 239 CASES REPORTED. ggS FAQH. People T. Merrill, 4 Kern., 74, 220 People, Newell v., 3 Seld., 9 133 People V. New York Central Railroad Company, 3 Kern., 78, 486, 531 People V. Norton, 5 Seld., 176 241, 358, 466, 500, 605 People V. Powers, 2 Seld., 50 308 People V. Ransom, 2 Comst., 490 544, 623 People, ex rel. Chase, v. Rathbun, 15 N. Y. R., 528, 545 People, ex rel. Crane, v. Ryder, 2 Kern., 433, 464, 494, 499, 527 People V. Schuyler, 4 Comst., 173, 457, 520, 561, 565 People, ex rel. Merriam, v. Sohoonmaker, 3 Kern., 238, 101, 458 People, Shorter v., 2 Comst., 193 178, 251, 439 People T. Snedeker, 4 Kern., 52, , 48 People V. Soper, 3 Seld., 428, 106, 306 People V. Sturtevant, 5 Seld., 263, 312, 352 People V. Sullivan, 3 Seld., 396, 439 People, ex rel. Mygatt, v.' Supervisors of Chenango County, 1 Kern., 563,. .. 414, 576, 582 People, ex rel. Humphrey, &c., v. Supervisors of Chenango County, 4 Seld., 317, . . 131, 414, 511, 575 People, ex rel. Mutual Life Insurance Company of New York, v. Supervisors of New York, 16 N. Y. R., 424 333 People V. Toynbee, 3 Kern., 378 * People V. Van Rensselaer, 5 Seld., 291, 403, 479 People, Wynehamer v., 3 Kern., 378 134, 363 Perine, Barnes v., 2 Kern., 18 46, 130, 252, 548 Perkins, Campbell v., 4 Seld., 430, 63, 64, 121 Perkins, Leggett v., 2 Comst., 297 601 Perrin,Dowsv.,16N.Y. R., 325, 77, 239 Pettibone, Bush v., 4 Comst., 300 53 Pettibone, Foster v., 3 Seld., 433, 62 Pettee, Dunham v., 4 Seld., 508 153 Pettie, Shields v., 4 Comst., 122, 552 Pharsalia, Overseer of thevPoor of, Overseers, &c., of Norwich t., 15 N. Y. R., 341, 456 Phillips, GUlett, Receiver, v., 8 Kern., 114 68, 1Q4, 541 Phillips, Purdy v., 1 Kern., 406 337 Phillips, Tilley v., 1 Comst., 610 '. 38 Phoenix Bank, New Hope and Delaware Bridge Company v., 3 Comst., 156, . . 158, : 451, 513 Phoenix Bank, Jones v., 4 Seld., 228 ■. 127, 310 Pickering, McCormick v., 4 Comst., 276, 64, 130, 499 Pierce v. Delamater, 1 Comst., 17, 136 Pierce v. Bank of Salina, 1 Comst., 83, 485, 508," 593, 614, 646 Pierrepont T. Barnard, 2 Seld., 279, 397 Pike V. Butler, 4 Comst., 360.t * Same as Wynehamer v. The People, pp. 134, 363. t Same as la "Contract," No. 16, p. 378. 684 OASES EEPOBTED. PAOE. Pistor, Russell T., 3 Seld., 171, 428 Pitcher, Euckinan v., 1 Comst., 392, 75, 200, 463 Pitts V. Congdon, 2 Comst., 352 519 Pitts V. Wilder, 1 Comst., 525, 27, 237 Platner, Dow v., 16 N. Y. R., 562, 54, 347, 619 Poler T. New York Central Railroad Company, 16 N. Y. R., 476, 444, 533 Pollock V. National Bank, 3 Seld., 274, 156, 180, 217 Poole V. Bard, 2 Kern., 495, 140, 144, 268, 466, 612 Porter, Tifft v., 4 Seld., 516 210, 384 Porter V. Williams, 5 Seld., 142, 54, 270, 538, 620 Post, Burdick v.. 2 Seld., 522.* Post V. Kearney, 2 Comst., 394 173, 365, 367 Potter V. Rowland, 4 Seld., 448, 451 Powell, Price v., 3 Comst., 322, 62, 76, 238 Powell V. Tuttle, 3 Comst., 396 410, 426 Powers V. Bergen, 2 Seld., 358 136 Powers, Tlie Peopte v., 2 Seld., 50 308 Pratt V. Andrews, 4 Comst., 493, 246 Pratt V. Poote, 5 Seld., 463, 91, 252, 480 Price, Drake v., 1 Seld., 430 262 Price V. Powell, 3 Comst., 322, 62, 76, 238 Price, Wakeman v., 3 Comst., 334 3g Prindle v. Caruthers, 15 N. Y. E., 425, 495 499 Prosser, Bush v., 1 Kern., 347, 569 Provost V. Patchin, 5 Seld., 235 666 Pruyn, Van Vechten v., 3 Kern., 549, 95 Pugsleyv. Aikin, 1 Kern., 494, 367, 375 Pullman v. Coming, 5 Seld., 93.t Purdy V. Phillips, 1 Kern., 406, 337 Purdy V. Vermilyea, 4 Seld., 346 jOg Putnam, Leavitt v., 3 Comst., 494, 84 Q. Qnackenbush, Danks v., 1 Comst., 129, IO3 132 Quin, Administrator, v. Moore a al, 15 N. Y. R., 432, 22, 24, 459, 646 R. Racey, Dobson v., 4 Seld., 216, 42$ 432 Radoliflf's Executors V.May or, &c., of Brooklyn, 4 Comst., 195, 22, 134 436 RadolifF, Livingston v., 2 Comst., 189 41 * Same doctrine as in "Fraud," No. 8, p. 270. t Building contract unskiUfully perfonned : no acceptance, no recovery. CASES REPORTED. 685 KAN — ROW. PAl K. Rankinev. Elliott, 16 N.y.R., 377,.. 536, 642 Ransom, Barry v., 2 Kern., 462, 243, 282,461, 523 Ransom v. New York and Erie Railroad Company, 15 N, Y. R., 415, 182, 632 Ransom, The People v., 2 Comst., 490 544, 623 Rathbun, The People ex rel. Chase v., 15 N. Y. R., 528, 645 Rawson y. Lampman, 1 Seld,, 456, 421, 599 Rector, &o., of St. Clement's Church, Tucker v., 4 Seld., 558, 382 Reed, Emmet v., 4 Seld., 312, 332 Renardv. Hargous, 3 Kern., 259 18, 354 Renard v. Sampson, 2 Kern,, 561 149 Rensselaer and Washington Plankroad Company v. Barton, 16 N. Y. R,, 457.* Rensselaer and Saratoga Railroad Company, Hart v., 4 Seld., 37 120, 251, 441 Requa V. Holmes, 16 N. Y. R., 193 17, 466 Reubens V. Joel, 3 Kern., 488 218 Rexford v. Knight, 1 Kern., 308, 131 Rexford V. Widger, 2 Comst., 131 612 Reynolds, Beers v., 1 Kern., 97 471 Reynolds v. Reynolds' Executors, 16 N, Y. R., 257, 392 Reynolds, Stephens v., 2 Seld., 454 136, 508 Rice, Bull T., 1 Seld., 315, 610 Rice V.Floyd, 1 Comat., 608, 38 Rice, VaU T., 1 Seld., 155 245, 558 Richards, Hackett v., 3 Kern., 138 367 Richmond Turnpike Company, Vanderhilt v., 2 Comst., 479, 29, 513 Richtmyer, Bartley v., 4 Comst., 38 416, 459 Riley v. The City of Rochester, 5 Seld., 64, 162, 195, 434 Robertson v. Bullions, 1 Kern., 243, 547 Robertson, Caw v., 1 Seld., 125 386,390,631, 633 Robinson, HaU v., 2 Comst., 293 588, 595 Robinson V. Wiley, 15 N. Y. R., 489 267, 276 Roby, Turner v., 3 Comst., 193, 359, 497 Rochester City Bank, Battle v., 3 Comst., 88 1 50, 242, 616 Rochester, City of, Rochester White Lead Co. v., 3 Comst., 463, 21, 161, 436, 457, 624 Rochester and Syracuse Railroad Company, Clarke v., 4 Kern., 570, 123, 532 Rochester White Lead Co. t. City of Rochester, 3 Comst., 463, 21, 161, 436,467, 624 Rogers, Clapp v., 2 Kern., 283, 475 Rogers, Tobias v., 3 Kern., 59, 64, 623 Root, Evans v., 3 Seld., 186, 266 Rose, Copley v., 2 Comst., 115 170, 238, 456, 589 Rosendale Manufacturing Company, Bogardns v., 3 Seld., 147, 160 Rosevelt v. Brown, 1 Kern., 148 574 Rowland, Potter v., 4 Seld., 448 451 * Same points aa Lak6 Ontario, <&c., B, B, Co, t. Mason, p. 629. 686 OASES EEPOETBD. EOW — SEA. PAGE. Rowley, Van Dusen v., 4 Seld., 358 286 Eowluig, Clark v., 3 Comst., 216,... 63, 167, 263 Kuokman v. Cowell, 1 Comst., 505, 64, 256, 456 Ruokman v. Pitcher, 1 Comst., 392, 75, 200, 463 Ruggles, Howell v., 1 Seld., 444 235 Rusooe, Fero v., 4 Comst., 162 668, 569 Russell V. Allen, 3 Kern., 173, 650 Russell, Caryl v., 3 Kern., 194, 65 Russell, Lansing v., 2 Comst., 563 • • • • 38 Russell V. Livingston, 16 N. Y. R., 515 123 Russell V. Pistor, 3 Seld., 171, 428 Ryder, The People ex. rel. Crane v., 2 Kem., 433, 464, 494, 499, 527 Ryerss, Mersereau v., 3 Comst., 261, 290, 465 S. Sackettrtai, Havens v., 15 N. Y. R., 365, 635 Sage v. Cartwright, 5 Seld., 49 256, 615 Sage V. Sherman, 2 Comst., 417, 29,472, 510, 621 Sampson, Renard v., 2 Kem., 561, 149 Sands V. Church, 2 Seld., 347, 503, 612 Sanger, Smith v., 4 Comst., 576 453, 584 Sawyer, Clark v., 2 Comst., 498, 276, 357, 630 Sohenck, Gray v., 4 Comst., 460 465 Schenectady and Saratoga Plankroad Co. v. Thatcher, 1 Kern., 102, .... 220, 225, 489 Schenectady County Mutual Insurance Company, Hynds v., 1 Kem., 654, S'23 Soherder, Miller v., 2 Comst,, 262, 254 Schermerhom v. Anderson, 1 Comst., 430, 40, 606 Schermerhorn v. Mohawk Bank, 1 Comst., 125, 37, 45 Schemierhorn v. Tallman, 4 Kern., 93, 65, 68, 608, 613 Schermerhorn, Thompson v., 2 Seld., 92, 162, 434 Schermerhorn v. The Mayor, &o., of New York, 1 Comst., 423, 37, 44 Schneider v. McFarland, 2 Comst., 459 309, 353, 577 Sohoonmaker, The People ex rel. Merriam v., 3 Kem., 238, 101, 458 Sohouter, Jewell v., 1 Comst., 241, 57 Sohroeppel v. Corning, 2 Seld., 107, 408, 613 Schroeppel V. Coming, 2 Comst., 132, 492, 596, 613 Schroeppel, Ott v., 1 Seld., 482, 51, 510 Schroeppel v. Shaw, 3 Comst., 446, 519, 522 Schuyler, People v., 4 Comst., 173, 457, 520, 561, 565 Scott V. Onderdonk, 4 Kem., 9, 55, 217 Soovill V. Griffith, 2 Kern., 509 122,244, 461 Seacord v. Miller, 3 Kern., 55, 94 Sealey V. Belknap, 4 Kern., 143, 274,500, 616 Seaman v. Duiyea, 1 Kern., 324 680 CASES REPORTED. 687 PAGE. Seaman, Merritt v., 2 Seld., 168, 240, 310, 467, 508, 693 Searing, Austin v., 16 N. Y. R., 112 53 Sears v. Shaffer, 2 Seld., 268 , ; 404 Seoor T. Stnrgis, 16 N. Y. R., 548, , 24 Sedgwick v. Stanton, 4 Kern., 289, 106 Seeley V. Engell, 3 Kern.,^542, 249, 498 Seeley, Hyatt v., 1 Kem., 52, 46, 310, 671 Selden, CromweU v., 3 Comst., 253, 193 Selden v. Vermilyea, 1 Comst., 634, 37, 311 Selden v. Vermilyea, 3 Comst. ,525 469, 600 Selden, Garr v., 4 Comst., 91, 395, 396, 668 Seneca County Bank v. Neass, 3 Comst., 442 84 Seward, Giddings v., 16 N. Y. R., 365 384 Sexton, Howard v., 4 Comst., 157, 51, 486, 567, 669 Seymourv. Judd, 2Comst.,464 170, 351, 623 Seymour, Marvin r., 1 Comst., 535, 37 Seymour v. Van Wyck, 2 Seld., 120, 629 Seymour v. Wilson, 4 Kern., 567, 241, 273 Shafer, Sears v., 2 Seld., 268, 404 Sliannon, Baskins v., 3 Comst., 310, 112, 271 Sharpsteen, Wadsworth v., 4 Seld., 288, 289 Shaw, Bisbey V. 2 Kern., 67. 570 Shaw, Schroeppel v., 3 Comst., 446, 519, 522 Shaw V. Tobias, 3 Comst , 188, 493, 550, 621 Sheffield, Cowperthwaite v., 3 Comst., 243, 83, 483 Sheldon V. Bliss, 4 Seld., 31 208, 258, 300, 626 Sheldon v. Carpenter, 4 Comst. ,576, 230, 413 Sheldon, Griswold v., 4 Comst., 580, 113, 133, 169, 271, 351 Sheldon v. Hudson River Railroad Company, 4 Kern., 218 242, 446, 536 Sheldon V. Payne, 3 Seld., 453 562, 563 Sheldon v. Van Buskirk, 2 Comst., 473,. . . ., 119, 256, 359, 455, 456, 460, 575, 583 Sheldon V. Wright, 1 Seld., 497, 198, 235, 353, 576, 578 Sherman v. Felt, 2 Comst., 186, 38, 350 Sherman, Sage v., 2 Comst., 417, 29, 472, 510, 621 Sherman v. The Mayor, &c., of New York, 1 Comst., 316, 149, 462 Sherman, Wakeman v., 5 Seld , 85, • 407 Sherwood V. Stone, 4 Kern., 267, 267, 283 Shields v. Prttie, 4 Comst., 122, 552 Shindler v. Houston, 1 Comst., 261, 283 Shoemaker v. Benedict, 1 Kern., 176, 407 Shorter v. The People, 2 Comst., 193, 178, 251, 439 Shuler, Walrod v., 2 Comst., 134 170 Sibley V. Waffle, 16 N.Y.R.,m 58,214,277,353,579 Silence, Brewster v., 4 Seld., 207 282, 287 Sill V The Village of Corning, 15 N. Y. R, 297, 136, 355 Sillima,iefaZ..Burrittv.,3Kern., 93, 204, 511, 605, 645 688 CASES EEPOETED. PAGE. Silsbury v. McCoon, 3 Comst., 379, 19> 588 Sinsebaugh, Halsey v., 15 N. Y. R., 485, 247 SissoD V. Barrett, 2 Comst., 406 507, 518, 570 Slsson, Culver v., 3 Comst., 264 112 Slade T. Warren, 1 Comst., 432, 199 Slajison, Kellogg v., 1 Kern., 302 '. 272 619 Slosson, Corning v., 16 N. Y. R., 294 351 Small y. Herkimer Manufacturing Company, 2 Comst., 330, 160 Smith, Allen v., 16 N. Y. R., 415, 464 Smith T. Brinkerhoff, 2 Seld., 305 561 Smith, Coming v., 2 Seld, 82 428, 465 Smith, Crary v., 2 Comst., 60, 357, 358, 571, 586, 618 Smith V. Grant, 15 N. Y. R., 590, 43 Smith, Jenks v., 1 Comst., 90, 170, 377, 508, 587, 693, 621 Smith V. Kerr, 3 Comst,, 144, 171, 175, 463, 472 Smith V. Levinus, 4 Seld., 472 ; 130, 575 Smith, Lewis v., 5 Seld., 502, 209, 432, 615, 644 Smith V. Lynes, 2 Comst., 569, 41, 606 Smithy. Lynes, 1 Seld., 41, 402, 553 Smith, Moffatt y., 4 Comst., 126, 368, 372 Smith V. Sanger, 4 Comst., 576, 453, 584 Smith, Vemam v.; 15 N. Y. R., 327, 373, 375 Smith, Zabriskie v., 1 Kern., 480, 41 Smith, Zabriskie y., 3 Kern., 322, 17, 116, 252, 275, 466, 495, 589, 694 Snedeker, The People y., 4 Kern., 52 48 Snedeker v. Warring, 2 Kern., 170, ., 268 Sniffen, Maybee y., 16 N. Y. R., 560 232 Snyder, Ue Peyster y., 2 Seld., 510.* Suyder, Van Rensselaer v., 3 Kern., 299, 132 Soper, The People y., 3 Seld., 428 106, 306 Spalding, Freeman y., 2 Kern., 373 645 Spalding, The Merchants' Bank y., 5 Seld., 53, 69 Sparrow y. Kingman, 1 Comst., 242, 207, 213, 226 Spaulding y. Kingsland, 1 Comst, 426, 44 Spear y. Warden, 1 Comst., 144 303,450, 467 Spelman, Borst y., 4 Comst., 284 45, 286, 300 Spencer, Otis y., 16 N. Y. R., 601.t Spencer, White v., 4 Kem., 247, 498 Sperry y. MUler, 4 Seld., 336, 370, 483 Sperry y. Miller, 16 N. Y. R., 407, : 370 Spies y. Gtilmore, 1 Comst., 321, 81, 286 Spoore y. Fannan, 16 N. Y. R., 620 47, 200 Spraker y. Cook, 16 N, Y. R., 567 377, 481, 546 * Same as Pe Peynter v. JUleMel, pp. 199, 365. f Keport of referee good, though not stating in detail the facts found, &c. CASES REPORTED. 689 PAOS. Springfield Fire and Marine Insurance Company, Paddock v., 2 Kern., 591 39 Stacy v. Graham, 4 Kern., 492 25, 201, 203, 247, 418, 587 Stegg V. Jackson, 1 Comst., 206, 261, 353, 580, 600 Stanton V. Ellis, 2 Kern., 575 .' 316 Stanton, Gihonv., 5Seld.,476 266 Stanton, Kliiie v., 1 Kern., 196 426 Stanton, Sedgwick v., 4 Kern., 289, . ; 106 Staples V. FaircMld, 3 Comst., 41, 18, 354 Staples V. Gould, 5 Seld., 520, 142. 574 Steam Navigation Company, Wells v., 2 Comst., 204, .,. 62 Steam Navigation Company, Wells v., 4 Seld., 375, 146, 441 Stephens, Hillman v., 16 N.Y. R.,278, 260 Stephens V. Reynolds, 2 Seld., 454, 136, 503 Stephens v. Vrooman, 16 N. Y. E., 381.* Stevens V. Armstrong, 2 Seld., 435, 445 Stevenson v. Maxwell, 2 Comst., 408 336, 617 Stewart v. Biddleoum, 2 Comst., 103 58, 303 Stewart, Trustees of Hamilton College v., 1 Comst., 581 140 Stiefv. Hart, 1 Comst., 20 255,501, 573 Stillwell, Carpenter v., 1 Kern., 61, 225,456, 662 St John v. American Mutual Fire and Marine Insurance Co., 1 Kern., 516, 319 St. John V. American Mutual Life Insurance Company, 3 Kern., 31 317 St. Lawrence Bank, Bank Commissioners v., 3 Seld., 513, 157 Stocking, Butler v., 4 Seld., 408 473 Stone, Hargous v., 1 Seld., 73 558 Stone, Kendall v., 1 Seld., 14, 570 Stone, Sherwood v., 4 Kern., 267, 267, 283 Storey v. Brennan, 15 N. Y. R., 524, 75, 594 Story V. New York and Harlem Railroad Company, 2 Seld., 85 181, 345, 535 St. Peter's Church, De Ruyter v., 3 Comst., 238, 165 Striker, Brewster v., 2 Comst., 19, 224,227,510, 603 Strong, Bangs v., 4 Comst., 315 229,263,518, 519 Sturgis Y. Merry, 2 Comst., 189.t Sturgis, Seoor v., 16 N. Y. R., 548, 24 Sturtevant, The People v., 5 Seld., 263 312, 352 Sullivan, The People v., 3 Seld., 396, 439 Sun Insurance Company v. Mayor, &o., of New York, 4 Seld., 241, .... 135, 159, 683 Supervisors of Chenango County, Town of Guilford v., 3 Kern., 143, 135, 569 Supervisors of Chenango Co., People ex rel. Mygatt v., 1 Kern., 563, . . 414, 576, 582 Supervisors of Chenango Co., People ex rel. Humphrey v., 4 Seld., 317, 131, 414, 611, 575 Supervisors of Erie Co., Mutual Insurance Co. of Buffalo v., 4 Comst., 442 333 Supervisors of Livingston County, Hill v., 2 Kern., 52 291, 418, 576 • What statements of a party amount to mere hearsay evidence, t Same as JjvsinosUm v. Badcli0\ p. 41. 87 690 CASES EEPOETBD. PAGE. Supervisors of New York Co., The People ex rd. N. Y. Mutual Life Ins. Co. v., 16 N. Y. E., 424 333 Sutton, Messerve v., 3 Comst., 546, 45 Suydam, Danforth v., 4 Comst., 66, 101 Suydam, Gardiner v., 3 Seld., 357, 266, 537, 588 SwantoD, McLean and Wife v., 3 Kern., 635, 34 Swarthoutv. Curtis, 4 Comst., 415, 38, 46 Swarthout V. Curtis, 1 Seld., 301, 289,310, 424 Sweet V. Cliase, 2 Comst., 73, 386, 633, 642 Sweet V. Tuttle, 4 Kern., 465, ._ 17, 232, 241, 466, 498, 646 Swezey, Booth v., 4 Seld., 276^ 432 Syme, Ward v., 4 Comst., 171, 219, 520 i and Utioa Railroad Company, Coon v., 1 Seld., 492, 27, 533 Talmadge, Noi-tli American Trust Co., v. Pell and others, 3 Seld., 328 156, 541 Talmadge, Wright v., 15 N. Y.K., 307, 300 Talmage, Cotheal v., 5 Seld., 551, 185 Talmage, Tracy v., 4 Kern., 162 22 Taloott, Davis v., 2 Kern., 184, 231 Tallman V. Coffin, 4 Comst., 134, 174, 368 Tallman, Coffin v., 4 Seld., 465 174 Tallman v. Franklin, 4 Kern., 584 279 TaUman, Schermerhorn v., 4 Kern., 93 65, 68, 608, 613 Tallman V. White, 2 Comst, 66 584 Tanner, Livingston v., 4 Kern., 64, ; 215, 378 Taylor, AverUl v., 4 Seld., 44 366, 425 Taylor v. Church, 4 Seld., 452 396 Taylor V. Morris, 1 Comst., 341 643 Teall v. Felton, 1 Comst., 537, 21, 359,456, 512, 595 Tennessee Insurance Company, Hodges v., 4 Seld., 416, 421 Terry y. Chandler, 16 N. Y. R., 354, 99 Thalheimer, Kundolf v., 2 Kern., 593, 133, 169 Thatcher t. Morris, 1 Kern., 437, 143, 412, 494 Thatcher, Schenectady and Saratoga Plankroad Co. v. , 1 Kern., 102, ... 220, 225, 489 Theological Seminary of Auburn y. Kellogg, 16 N. Y. R., 83, 384, 388 Thomas v. Crofut, 4 Kern., 474 348, 624 Thomas v. Dickinson, 2 Kem., 364 22, 220, 279, 363, 594 Thomas, Edgerton v., 5 Seld., 40, 297, 422 Thomas v. Hubbell, 15 N. Y. R., 405, 235, 524 Thomas v. Winchester, 2 Seld., 397, 441 Thompson v. Blanchard, 2 Comst., 561, 45 Thompson v. Blanchard, 3 Comst., 335 281 Thompson v. Blanchard, 4 Comst., 303 113, 225, 245, 270, 271, 645 CASES EEPORTED. ggi THO TYS. PAGE. Thompson, Hoyt v., 1 Seld., 320 156, 26S, 540 Thompson v. Mayor, &o., of New York, 1 Kern., 115, 448 Thompson V. Scliermerhorn, 2 Seld., 92, 162, 434 Thompson, Valarino v., 3 Seld., 576 139, 361 Thompson, Veltman v., 3 Comst., 438 399, 565 Thompson, Walrath v., 2 Comst., 185 ,. 288 Thompson, Wescott v., 16 N. Y, R., 613, 504 Thome, Lockwood v., 1 Kern., 170, 20 Thornton, Dean v., 3 Kern., 266, 645 Tiffany, Peek v., 2 Comst.. 451 253, 257 Tifft V. Porter, 4 Seld., 516, 210, 384 TUley V. Phillips, 1 Comst., 610 38 TiUinghast et al, Brlgham v., 3 Kern., 215, 270, 620 Tillotson T. Hudson Rirer Railroad Company, 5 Seld., 575, 294, 554 Tillou T. The Kingston Mutual Insurance Company, 1 Seld., 405 327, 477 Titus T. Orvis, 16 N. Y. R., 607, , 43 Tobias V. Rogers, 3 Kern., 59 64, 523 Tobias, Shaw v., 3 Comst., 188, 493, 550 Tonawanda Railroad Company, Mnnger v., 4 Comst., 349, 23, 446, 533 Tonnelev. HaU, 4 Comst., 140 631 Torrey v. Torrey, 4 Kern., 430, 302 Touseley v. Bany, 16 N. Y. R., 497, 240, 423 Towle V. Forney, 4 Kern., 423 571 Town of Guilford v. Supervisors of Chenango County, 3 Kern., 143, 135, 589 Town of Monroe, Loi-illard v., 1 Kern., 392, 458, 512, 582 Townsend v. McDonald, 2 Kern., 381, 551, 625 Townsend v. Masterton, &o.. Stone Dressing Company, 15 N. Y. R., 587 39, 623 Tracy v. Albany Exchauge Company, 3 Seld., 472, 176 Tracy V. Talmage, 4 Kern. , 162 22 Tremaiu v. Cohoes Company, 2 Comst., 163, , 21 Trotter v. Hughes, 2 Kern., 74 430 Trull V. Granger, 4 Seld., 115, 212, 367 Trusoott V. King, 2 Seld., 147 50, 345, 346, 421, 422, 461, 483, 496 Trustees of Lookport, Bnell v., 3 Comst., 197, 411, 621 Trustees of Lockport, Buell v., 4 Seld., 55, 227, 500 Tucker v. Bishop, 16 N. Y. R., 402, 388 Tucker v. Rector of St. Clement's Church, 4 Seld., 558 382 Tucker v. Tucker, 1 Seld., 408 641, 642, 643, 644 Turner v. Haight, 16 N. Y. R., 465, 40, 43, 153 Turner v. Roby, 3 Comst., 193, 359, 497 Tuttle, Powell v., 3 Comst., 396, .' 410, 426 Tuttle, Sweet v., 4 Kern., 465 17, 232, 241, 466, 498, 646 Tysen, Lakev., 2Seld.,461, 233, 510 692 CASES REPORTED. trai — VAN KEN. u. FAGB. Union Bank, Bank of Commerce v., 3 Comst., 230, 83, 417 Union Bank, Beckwith v., 5 Seld., 211 54 Union Bank v. Coster's Executors, 3 Comst., 203 281, 288 Union Bank ( of N. Y.), Commercial Bank of Pennsylvania v., 1 Kern., 203 92, 201, 468 Union Theological Seminary, Howland v., 1 Seld., 193, ; 641, 642 Upton, Carroll v., 3 Comst., 272, 84 Utioa and Schenectady K. E. Co., Holbrook v., 2 Kern., 236, 220, 442, 530 Vail V. Foster, 4 Comst., 312, 398,480, 522 Vail, Hollister Bank of Buffalo v., 15 N. Y. R., 593, 40 Vail V. fiice, 1 Seld., 155 245, 558 Valarino v. Thompson, 3 Seld., 576, 139, 361 Valentine's Executors, McCraoken v., 5 Seld., 42, 429 Van Alstyne v. Erwine, 1 Kern., 331, 18 Van Antwerp, Clowes v., 2 Seld., 466.* Van Benthuysen, Metcalf v., 3 Comst., 424, 197, 242, 460 Van Buskirk, Sheldon v., 2 Comst., 473 119, 256, 359, 455, 456, 460, 575, 583 Vanderbilt v. Eichmond Turnpike Company, 2 Comst., 479, 29 513 Vanderheyden v. Mallory, 1 Comst., 452 65, 298 Vanderpoel v. Valkenburgh, 2 Seld. ,190 465, 540, 579 Vanderslice v. Newton, 4 Comst., 130 151, 186 Vander Volgen v. Yates, 5 Seld., 219, 598 Vandervoort, Hasbrouck v., 5 Seld., 153, 248 Vaudeusen v. Rowley, 4 Seld., 358, 286 Van Dewater v. Kelsey, 1 Comst., 533 37, 311 Van Hoesen, Hoes v., 1 Comst, 120 385 Van Keuren v. Parmelee, 2 Comst., 523, 406 474 VanLeuven V. Lyke, 1 Comst., 515, •. 36 590 Van Nostrand, Wolf v., 2 Comst., 436, 460, 636 642 VanNostrand, Wolf v., 2 Comst., 570 ' 167 Van Pelt V. McGraw, 4 Comst., 110, 43I, 510, s'sS, 624 Van Rensselaer, Gillett v., 15 N. Y. R., 397, 338 Van Rensselaer v. Jewett, 2 Comst., 135, 336 507 593 Van Rensselaer V. Jewett, 2 Comst., 141, 211* 215* 371 Van Rensselaer v. Kidd, 2 Seld.; 331 ' 4,5'j 590 Van Rensselaer v. Snyder, 3 Kern., 299 132 Van Rensselaer, The People v., 5 Seld, 291 403, 479 Van Rensselaer v. Witbeck, 3 Seld., 617, .'."." 55, 457, 58l', 583 * iffilmance of id., 4 Bari., 416, for reasons there given. OASES REPORTED. QQg VAN SCH — WAL. PAGE, Van Schaiok, Hone v., 3 Comst., 538,.'. 632 Van Valkenburgh, Vanderpoel v., 2, Seld., 190, 465, 540, 679 Van Veohten v. Pruyn, 3 Kern., 549, 96 Van Wyckv. Mcintosh, 4 Kern., 439, 246 Van Wyck, Seymour v., 2 Seld., 120, 629 Van Zandt, Burhans v., 3 Seld., 523, 27,230, 686 Vassar v. Camp, 1 Kern., 441, 140 Vaseear v. Livingston, 3 Kern., 248, 168, 495, 645 Vaughan, Eastern Plankroad Company v., 4 Kern., 546, 490 Veltman v.. Thompson, 3 Comst., 438, , 399, 565 Vermilya, Purdy v., 4 Seld., 346 508 Vermilya, Selden v., 1 Comst., 534, 37, 311 Vermilya, Selden v., 3 Comst., 525, , 469, 600 Vernamv. Smith, 15 N. Y. R., 327, 373, 375 Vilas V. Jones, 1 Comst., 274 357, 618, 612, 613 Village of Ithaca, Conrad v., 16 N. Y.R., 159, ." 437, 444 Village of Flattsburgh, Hickock v. (note), 16 N. Y. E., 161.* Vischer, L'Amorenx v., 2 Comst., 278, 224 Vose and Briggs, Briggs v., 15 N. Y. R., 471 475 Vrooman, Stephens v., 16 N. Y. R., 381.t w. Wade, Coleman v., 2 Seld., 44, 52, 263, 619 Wadhams v. American Home Missionary Society, 2 Kern., 415,. 300, 627 Wadsworth v. AUcott, 2 Seld., 6-1, 61, 290, 363, 461, 462, 637, 607 Wadsworth v. Sharpsteen, 4 Seld., 388, 289 Wadsworth v. Wadsworth, 2 Kern., 376, 33, 628 Waffle, Sibley v., 16 N. Y. R, 180, 58,214,277, 353, 679 Waine, Whitbeck v., 16 N. Y. R., 532, 264 Waitv. Wait, 4 Comst., 95 205, 299 Wait, Wait v., 4 Comst., 95, 205, 299 Wakeman V. Price, 3 Comst., 334, 38 Wakeman v. Sherman, 5 Seld., 85 407 Walbridge, Despard v., 15 N. Y. E., 374, 228, 370 Walker v. The Bank of the State of New York, 5 Seld., 682 441, 513 Wall V. East Eiver Insurance Company, 3 Seld., 370, 323 WaU V. Kellogg's Executors, 16 N. Y. E., 385. t WalrathT. Thompson, 2 Comst, 185, 288 Walrod V. Shuler, 2 Comst., 134, 170 Waltemire v. Westover, 4 Kern., 16, 172, 343, 399, 409 Walter v. Bennett, 16 N. Y. E., 250 § •Same doctrine as Canrady. Villace o/ Ithaca, pp. 437, 444. t What statements of a party .amount to mere hearsay evidence. t Liability of executors to damages, on sale of real estate under a power, § Case of failure of proof, variance not amendable. 694 CASES REPORTED. WAL — WHB. PAGE. Walton, DeWittv., 5Seld., 670, 91, 515 Walworth, Farmers' Loan and Trust Company t., 1 Comst., 433, ....'. 29, 415, 425, 458, 512 Wambangli V. Gates, 4 Seld., 138, 346 Ward V.Dewey, 16 N. Y. K., 519, 357, 688 Ward, Lyme v., 1 Comst., 531, 167, 505, 506 Ward V. Syme, 4 Comst., 171, 219, 520 Ward V. Whitney; 4 Seld., 442, 57, 146, 237 Warden, Clayton v., 4 Comst., 230, 295 WardeU, Spear v., 1 Comst., 144, 303, 450, 467 Warden, Cayuga County Bank v., 1 Comst., 413 81 Warden, Cayuga County Bank v., 2 Seld., 19, 34, 87, 88, 500 Warner, Langley v., 1 Comst., 606, 41, 606 Warner, Langley v., 3 Comst., 327, 219, 345, 419, 570 Warner V. Lee, 2 Seld., 144 418 Warren, Commercial Bank of Buffalo v., 15 N. Y. R., 577 473, 515 Warren, Slade v., 1 Comst., 432, 199 Warring, Snedeker T., 2 Kern., 170, 268 Washburn, Mygatt v., 15 N. Y. E., 316, 55, 354, 682 Washington, Gilhooley v., 4 Comst., 217, 373 Waterbuiy v. Westervelt, 5 Seld., 698, 272, 457, 563, 596 Waterman v. Whitney, 1 Kern., 157, .' 236 Waters, Belknap v., 1 Kern., 477 46 Watkins, Dunham v., 2 Kern., 556 44 Watson, McFarlan v., 3 Comst., 286, 369 Webster, Olmstead v., 4 Seld., 413 , 476 Weeks, E.sselstyn v., 2 Kern., 635 407, 408 495 Weiant, Wood v., 1 Comst., 77, 196 Weiderwax, Bingham v., 1 Comst., 609, 173 Wells, Craig- v., 1 Kern., 316 194 Wells V. Steam Navigation Company, 2 Comst., 204 62 Wells V. Steam Navigation Company, 4 Seld., 376, 146, 441 Wendell v. Crandall, 1 Comst., 491 223, 637 Wesoott V. Thompson, 16 N. Y. E,., 613, 604 Wesson v. Chamberlain, 3 Comst., 331, 254, 347, 360, 564 Western v. Genesee Mutual Insurance Company, 2 Kern., 268 45, 144, 332 Western, Kelsey v., 2 Comst., 500, 263 386 496 Western Railroad Corporation, Hegeman v., 3 Kern,, 9, 443 Western Railroad Corporation, Keegan v., 4 Seld., 176, 441, 503, 530 Western Railroad Corporation, Nolton v., 15 N. Y. R., 444, 448, 533 Westervelt v. Gregg, 2 Kern., 202, 298 Westervelt, Waterbury v., 5 Seld., 598 272, 467, 563, 696 Westfall V. Hudson River Fire Insurance Company, 2 Kern., 289 324 Westlake Higbie v., 4 Kern., 281 47, 260, 262, 578 Westover, Waltemire v., 4 Kern., 16, 172, 343, 399 409 Wheeler r. Newbould, 16 N. Y. R.,392, '. ' .' 501 CASES REPORTED. 605 WHI Will. FAGB- Whitteok, v. Waine, 16 N. Y. R„ 532, 264 WMte V. Ambler, 4 Seld., 170, 115, 237 WMte, Chapman v., 2 Seld., 412 69, 88 WMte, Chautauque County Bank v., 2 Seld., 236, 188, 274, 541 White, Clift v., 2 Kern., 619, 259, 424 Whiter. Coatsworth, 2 Seld., 137 230 Wliite, Dolph v., 2 Kem., 296, 23, 174 White, HamUtonv., 1 Seld., 10 691 White v. Joy, 3 Kem., 83, 495, 539 White, Litchfield v., 3 Seld., 438, 620 White, Mahbett v., 2 Kern., 442 252, 473 White V. Merritt, 3 Seld., 352 230, 276 White, Receiver, &o., v. Haight, 16 N. Y. E., 310 333, 541 White V. Spencer, 4 Kem., 247, 498 White, Tallman v., 2 Comst., 66 584 Whitlock, Johnson v., 3 Kem., 344, 42, 503 Whitney V. Allaire, 1 Comst,, 305 274,542, 623 Whitney, Ward v., 4 Seld., 442, 57, 146, 237 Whitney, Waterman v., 1 Kem., 157, 236 Widger, Rexford v., 2 Comst., 131 612 Wiebert v. New York and Erie Railroad Company, 2 Kem., 245 121, 534 Wilber et al. v. Hudson, 3 Kem., 161.* Wilcox, Knight v., 4 Kern., 413, 416, 460 Wilcox T. Wilcox, 4 Kern., 575, 217,354, 460 Wilder, Pitts T., 1 Comst., 525, 27,237 Wiles, Dunckel t., 1 Kem., 420, 231 WUey, Robinson v., 15 N. Y. R., 489 267, 276 Wnkes V. Harper, 1 Comst., 586 393,401, 518 WilMns, Pearce v., 2 Comst., 469 83, 476 Willard, EUis T., 5 Seld , 529, 76, 186, 461 WUlets, Howland v., 5 Seld., 170, 248, 251, 252, 363, 607, 565, 594 WUliams, Ford v., 3 Kem., 577, 114, 249, 273, 517, 590 WilUams V. Glenny, 16 N. Y. R., 389 239 Williams T. Hutchinson, 3 Comst., 312 459 Williams et al., Mayor, &c., of New York, v., 15 N. Y. R., 602 435 WiUiams v. New York Central Railroad Company, 16 N. Y. R., 97, 293, 538 Williams, Porter v., 5 Seld., 142, 64,270, 638, 620 Williams v. Williams, 4 Seld., 624, 382 Williamson V. Brown, 15 N. Y. R., ■354, 423, 461, 511 WiUis, Mallory v., 4 Comst., 76, 61 Wilson V. Genesee Mutual Insurance Company, 4 Kern., 418 325 WUson V. Herkimer County Mutual Insurance Company, 2 Seld., 53 322 Wilson T. Little, 2 Comst., 443 181, 501, 586 Wilson, Martin v., 1 Comst., 240 349 Wilson, Seymour v., 4 Kern., 567, 241, 273 * Same as Orippm v. I{ttd80n, p. 188. 696 CASES REPORTED. WIM — ZAB. PAGE. Wiman, Brunson v., 4 Seld., 182, 146, 275 Wiman, FitzhQgh v., 5 Seld., 558 76,341,401, 462 Wiman, Gilbert v., 1 Comst., 550, .... 304, 563 Winchester, Thomas v., 2 Seld., 397, 441 Winter T. Coit, 3 Seld., 288 '. 265 Winter v. Drury, 1 Seld., 525 .' - .' 87, 401 Winter y. Kinney, 1 Comst, 365, 420,455, 564 Witbeci, Van Rensselaer v., 3 Seld., 617, 55, 457, 581, 583 Wolfe V. Howard Insurance Company, 3 Seld., 683, 328 Wolfe T. Van Nostrand, 2 Comst., 436, 460, 636, 642 Wolfe V. Van Nostrand, 2 Comst., 670, 167 Wood V. Auburn, &c., Railroad Company, 4 Seld., 160, 164, 530 Wood V. Chapin, 3 Kern., 509 18, 238, 244 Wood, Crosby v., 2 Seld., 369, 344 Wood, Olcott v., 4 Kern., 32, 52 Wood T. Weiant, 1 Comst., 77, 196 Woodruff, Norton v., 2 Comst., 153, 62 Woodwortb, Eno v., 4 Comst., 249 147, 417, 493 Woodworth, Lewis v., 2 Comst., 512, 224 Worrall v. Munn, 1 Seld., 229, 145, 191, 221, 278, 462, 614 WorrallT. Parmelee, 1 Comst., 519 219, 237, 623 Wright T. Douglass, 2 Comst., 189.* Wright V. Douglass, 2 Comst., 373 546 Wright V. Douglass, 3 Seld., 664 56, 599 Wright v. Miller, 4 Seld., 10 276, 604 Wright, Sheldon v., 1 Seld., 497 198, 235, 353, 576, 578 Wright V. Talmadge, 15 N. Y. E., 307, 300 Wyooff, Dain v., 3 Seld., 191, 469 Wykoff, Lott v., 2 Comst., 355, 223 Wynehamer v. The People, 3 Kern., 378, 134, 363 Y. Yates, Vander Volgen r., 5 Seld., 219, 598 York, Mead t., 2 Seld., 449.t Young V. Dake, 1 Seld., 464 280, 379 Young V. Hunter, 2 Seld., 203 126, 479, 622 Young, Payne v., 4 Seld., 158 67 Youngs V. Lee, impleaded, 2 Kern., 551, 94 Zabriskie v. Smith, 1 Kern., 480 4X Zabriskie v. Smith, 3 Kern., 322, 17, 116, 252, 275, 466, 495, 589, 594 * Same as Liimigslcm, v. BaOaiff, p. 41. t Same doctrine aa Trmeott t. King, p. 422.