count the cargo was shipped or the rights and interest of parties therein. On the same day a policy of insurance was taken out on the wheat, in which the firm were mentioned as owners. On the next day, Harwood, in the firm name, drew his draft on the consignee for $5,000 at 30 days, payable to the order of the plaintiff's cashier, and had it presented to plaintiff for discount, which was arranged, and the proceeds were paid over in cash to the drawer. The bank sent the draft forward for acceptance, which the draw ees refused, and the draft was protested and remains unpaid. On the day the draft was dis counted the drawer forwarded to the consignees a letter of advice, inclosing the bill of lading and the insurance policy, with the request that they would accept the draft. On the following day Harwood, being in insolvent circumstances, made a general assignment to defendant for the benefit of creditors. Before the wheat reached the consignees defendant took possession thereof, converted it into money, and has deposited the avails, $9,000, under an agreement by the parties to abide the result of litigation. The referee found as facts, that at the time the bank discounted the draft it was informed that the wheat had been shipped to Ege and Otis as consignees; that such discount was made upon the credit of the wheat, which had then been shipped to the drawees; and that plaintiff relied upon the avails of the wheat for the acceptance and The referee payment of the draft. held that the bank acquired a lien, or an interest in the nature of an equitable assignment, upon the property, which followed the fund, and directed payment of the draft out of the game. William E. Hobby, for applt. Thomas C. Montgomery, for respt. Held, No error. It was the assignee's duty, as against any claim of the consignees, to seize the cargo and take charge of the same, subject to such liens and equities as the law gave the owner of the draft. The draft, in connection with the agreement of the parties, in legal effect, is an order upon a particular fund for the payment of the moneys loaned thereon, and the property became hypothecated for its payment, prior to the conversion of the same into money. Standing alone, the draft would not indicate a purpose in the drawer to pay it out of a special fund to be realized from a particular source. 2 Seld., 412. Plaintiff invokes the principle of equitable assignments. Burn v. Carvelho, 4 Milne & Craig, 690; Parker v. Baxter, 19 Hun, 410, S. C., aff'd, 86 N. Y., 586; Bank v. Jones, 4 Comst., 497, considered. Plaintiff had an equitable lien on the wheat, which adheres to the avails thereof. 1 Barb., 148; 3 Barb., 263; 3 Paige, 373; 1 Hill, 583; 47 N. Y., 637; 49 id., 77. Judgment affirmed, with costs. Opinion by Barker, J.; Hardin, P.J., and Dwight, J., concur. FRAUDULENT CONVEY ANCE. MORTGAGE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Samuel Billings, applt., v. Leslie W. Russell et al., respts. Decided Nov., 1883. The father of plaintiff, being indebted to him, gave him a mortgage to the exact amount of the debt; but the referee found that the intent of the father was to hinder and defraud his creditors and to secure a home for himself and family, and the referee held the mortgage void. Held, Error; that plaintiff as a bona fide creditor was entitled to secure himself as against other creditors, and that his acts in allow ing his father to live on the premises and in refraining to foreclose for several years were not in fraud of their rights. The action was to foreclose a mortgage given to plaintiff by G. B. and wife in August, 1878. In December, 1879, the defendants Russell and Sawyer recovered judgment against G. B. upon an indebtedness which existed prior to August, 1878. The consideration of the mortgage in suit was work and labor done during five years next prior to its date, and the full amount was due plaintiff; and the referee so found. But the referee found that G. B. offered to secure plaintiff, his son, by this bond and mortgage, with intent to hinder, delay and defraud his creditors and for the purpose of placing the lands beyond their reach and to secure for himself and family a home; and that plaintiff with like intent accepted the mortgage; and as a conclusion of law the referee held the mortgage void as to the creditors of G. B. C. A. Kellogg, for applt. Russell, Poste & Robinson, for respts. Held, Error. The mortgagee had a just debt against the mortgagor; a debt which arose in good faith and to which no taint of fraud ap plied. He was a bona fide creditor long before the mortgage was given him. He had a right to secure himself. The diligent creditor is favored in the law. Preferences are not improper as the law now stands. The creditor could have gotten judgment with the tacit consent of the debtor, and thus had a lien; this would have been valid, whatever its intent. The execution of a mortgage is no worse. 34 N. Y., 388; 48 Barb., 344; 7 Hun, 150. This case is very similar to Jewett v. Noteware, 17 W. Dig., 438. As to the finding that the mortgage was made with the purpose of retaining a home for the family, it may be said that the equity of redemption is subject to the lien of these judgment creditors. That the mortgagee did not foreclose and in the meantime permitted the family to reside on the premises is not a fraud upon other creditors. We are referred to the statute declaring that a conveyance made. with intent, &c., shall be void. But the statute continues: "as to the persons hindered, delayed or defrauded." This means that some creditor must be actually defrauded, and that does not occur where one creditor is secured in preference to another. Where property which ought to go to creditors has The sale of the ticket to M. was purely a violation of a criminal statute, and it made no difference that the lottery itself was authorized by the laws of Louisiana. 23 Wend., 420; 1 N. Y., 184; 73 id., 476. The statute of this State destroys no vested right of property innocently acquired, and in no manner regulates commerce between the states. The defendant N. was examined on his own behalf, and, on crossexamination, was asked whether since prior to 1877 he had been engaged in the business of lottery tickets and lottery policies. He was also asked whether he had been tried and convicted in the United States Court for violating the law prohibiting the sending of matters through the mail with On the trial of an indictment for selling reference to the drawing of any lottery tickets the defendant on crossexamination may properly be asked wheth er he has been engaged in that business prior to the offence charged and whether he has been convicted for sending matter in relation to lotteries through the mail. Affirming S. C., 16 W. Dig., 528. The defendants were indicted for having sold to one M. a half-ticket in the Louisiana State Lottery. M. made the purchase with intent of informing against the seller. Charles W. Brooke, for applts. Held, That M. was in no sense a party to the criminal act or intent, so as to become an accomplice. There is no impairment of a contract obligation in the law of this State against lotteries. Ormes v. Dauchy. 82 N. Y., 443; Van Voorhis v. Brintnall, 86 id., 18, distinguished. lottery. These questions were ob jected to, and the objections overruled. Held, No error. 83 N. Y., 460; 72 id., 393; Penal Code, § 714. People v. Crapo, 76 N. Y., 288; People v. Brown, 72 id., 571; Ryan v. People, 79 id., 594, distinguished. Judgment of General Term, affirming judgment of conviction, affirmed. Opinion by Finch, J. All con cur. PLEADING. N. Y. COURT OF APPEALS. Bradner, respt., v. Faulkner, applt. Decided Oct. 23, 1883. The court will not strike out as irrelevant on motion facts alleged that can in any form of relation be material to be proved agement of the E. & G. V. RR. on the trial. The rules by which the sufficiency of a pleading is ordinarily determined cannot be applied in all their strictness to a partial defense by way of mitigating circumstances. In an action for false imprisonment and malicious prosecution arising out of an arrest on attachment for alleged contempt in disobeying a subpœna issued by defendant as chairman of a committee of supervisors, the answer, after alleging want of malice, &c., set up that plaintiff controlled a certain railroad; that he was appointed railroad commissioner, his misconduct in office, &c.; the allegations as to his conduct in office were stricken out as irrelevant. Held, Error; that it was competent for defendant to plead and prove any facts which tend to rebut the existence of malicious motives on his part. Reversing S. C., 16 W. Dig., 240. The complaint in this action sets up two causes of action, growing out of the same transaction, viz. one for false imprisonment and an other for a malicious prosecution. The alleged malicious prosecution and arrest grew out of an attempt on the part of the Board of Supervisors of Livingston county to investigate, among other things, the validity of the title of plaintiff and others to the office of railroad commissioners of the town of North Danville, in said county. The illegal arrest complained of was made upon an attachment for an alleged contempt in disobeying a subpoena signed by defendant as chairman of a committee of the Board of Supervisors. The Board was apparently incited to make the investigation by charges, made with more or less authority, of official misconduct and gross irregularities on the part of the commissioners in discharging their duties in connection with the man Co., of whose stock they held a controlling amount as the representatives of the town. The answer set up facts in mitigation, absence of malice, and that defendant acted under the advice of counsel; that the cause was barred by the statute of limitations. The third count of the answer contains a history of the E. & G. V. RR. Co. for some years prior to the prosecution, which, it is alleged, was wholly influenced and controlled by the plaintiff; the ap pointment of plaintiff and others railroad commissioners, their misconduct in office as such commissioners, &c. A motion was made to strike out as irrelevant certain portions of the answer, and an order was granted striking out such portions of the answer as related to the conduct of plaintiff in connection with said RR. Co. as railroad commissioner or director, in both of which capacities he acted as representative of the town. Charles J. Bissell, for applt. J. R. Vanderlip, for respt. Held, Error; that the test of the relevancy of the matter stricken out is whether the jury would have the right to infer from the defendant's knowledge and belief of the facts set forth in his answer and the circumstances surrounding the prosecution that he believed the plaintiff had been brought within the exercise of the power conferred upon the Board of Supervisors by Ch. 190 of Laws of 1858, under which the subpoena was issued and the ar rest made. Knowledge of the manner in which the plaintiff conducted his representative duties is quite as important and material as the knowledge that he was a railroad commissioner or director. Although the court has decided that the facts alleged against plaintiff did not bring him within the jurisdiction of the Board of Supervisors, 87 N. Y., 171, that decision does not preclude defendant from proving his belief in those facts, and his honorable conviction that they rendered plaintiff liable to the penalties imposed by the act of 1858. Questions which may be properly raised to a pleading upon demurrer or upon objections to evidence offered thereunder are not necessarily presented by a motion to strike out. The court will not strike out on such a motion facts alleged that they do not constitute a total defense to the action, but are those facts from which the party acting upon them might reasonably suppose that the offense for the punishment of which the prosecution was instituted had been committed by the defendant therein. The rules by which the sufficiency of a pleading is ordinarily determined, viz.: materiality and relevancy, cannot be applied in all their strictness to a partial defense by way of mitigating circumstances. Order of General Term, affirming order granting motion to strike out, reversed and motion denied. Opinion by Ruger, Ch. J. All concur, except Earl, J., taking no part. NEGLIGENCE. EXPLOSIVE. that could in any form of relation N. Y. COMMON PLEAS. GENERAL be material to be proved upon the trial. If a pleading sought to be stricken out contain the semblance TERM. Richard Rollins, respt., of a cause of action or defense Patrick Farley, applt. It was competent for defendant to plead specially and give in evidence any facts which tend to rebut the existence of malicious motives on his part in causing the prosecution in question. Section 536 of the Code of Civil Procedure precludes a defendant in an action to recover damages for a personal injury from proving such circumstances by way of mitigation only as are not set forth in the pleading. It is of the essence of mitigating circumstances. Decided June 25, 1883. V. It is negligence to leave upon the sidewalk of a public street, unwatched and uncared for, blasting cartridges, the explosive power of which is excessively great, and which require the greatest care in handling. Where such cartridges, so left, explode from an unknown cause, it raises a presumption of negligence on the part of the person so leaving them unprotected. Damages may be recovered for injuries to the windows of adjacent property caused by the explosion. Appeal from judgment and from order denying motion for new trial. Plaintiff, in his own right and |