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count the cargo was shipped or payment of the draft. The referee the rights and interest of parties held that the bank acquired a lien, therein. On the same day a pol- or an interest in the nature of an icy of insurance was taken out on equitable assignment, . upon the the wheat, in which the firm were property, which followed the fund, mentioned as owners. On the next and directed payment of the draft day, Harwood, in the firm name, out of the game. drew his draft on the consignee William E. Hobby, for applt. for $5,000 at 30 days, payable to Thomas C. Montgomery, for the order of the plaintiff's cashier, respt. and had it presented to plain- Held, No error. It was the astiff for discount, which was ar- signee's duty, as against any claim ranged, and the proceeds were of the consignees, to seize the cargo paid over in cash to the drawer. and take charge of ihe same, subThe bank sent the draft forward ject to such liens and equities as for acceptance, which the draw the law gave the owner of the ees refused, and the draft was pro-draft. The draft, in connection tested and remains unpaid. On with the agreement of the parties, the day the draft was dis. in legal effect, is an order upon a counted the drawer forwarded particular fund for the payment to the consignees a letter of advice, of the moneys loaned thereon, and inclosing the bill of lading and the the property became hypothecated insurance policy, with the request for its payment, prior to the conthat they would accept the draft. version of the same into money. On the following day Harwood, Standing alone, the draft would being in insolvent circumstances, not indicate a purpose in the made a general assignment to de- drawer to

drawer to pay it out of a special fendant for the benefit of credi- fund to be realized from a partitors. Before the wheat reached cular source. 2 Seld., 412. the consignees defendant took Plaintiff invokes the principle possession thereof, converted it of equitable assignments. into money, and has deposited the Burn v. Carvelho, 4 Milne & avails, $9,000, under an agreement Craig, 690; Parker v. Baxter, 19 by the parties to abide the result Hun, 410, S. C., aff’d, 86 N. Y., of litigation. The referee found 586 ; Bank v. Jones, 4 Comst., 497, as facts, that at the time the bank considered. discounted the draft it was in- Plaintiff had an equitable lien formed that the wheat had been on the wheat, which adheres to the shipped to Ege and Otis as con- avails thereof. 1 Barb., 148 ; 3 signees ; that such discount was

was Barb., 263 ; 3 Paige, 373 ; 1 Hill, made upon the credit of the 583 ; 47 N. Y., 637; 49 id., 77. wheat, which had then been ship- Judgment affirmed, with costs. ped to the drawees; and that Opinion by Barker, J.; Hardin, plaintiff relied upon the avails of P.J., and Dwight, J., concur. the wheat for the acceptance and


FRAUDULENT CONVEY- C. A. Kellogg, for applt.

Russell, Poste & Robinson, for N. Y. SUPREME COURT. GENERAL


Held, Error. The mortgagee had

a just debt against the mortgagor; Samuel Billings, applt., v. Leslie

a debt which arose in good faith W. Russell et al., respts.

and to which no taint of fraud ap Decided Nov., 1883.

plied. He was a bona fide crediThe father of plaintiff, being indebted to

tor long before the mortgage was him, gave him a mortgage to the exact given him. He had a right to secure amount of the debt ; but the referee found

himself. The diligent creditor is that the intent of the father was to hinder

favored in the law. Preferences and defraud his creditors and to secure a home for himself and family, and the are not improper as the law now referee held the mortgage void. lleld, stands. The creditor could have Error; that plaintiff as a bona fide creditor gotten judgment with the tacit was entitled to secure himself as against other creditors, and that his acts in allow

consent of the debtor, and thus ing his father to live on the premises and had a lien; this would have been in refraining to foreclose for several years valid, whatever its intent. The were not in fraud of their rights.

execution of a mortgage is no worse. The action was to foreclose a 34 N. Y., 388 ; 48 Barb., 344; 7 mortgage given to plaintiff by G. Hun, 150. This case is very simiB. and wife in August, 1878. In lar to Jewett v. Noteware, 17 W. December, 1879, the defendants Dig., 438. Russell and Sawyer recovered As to the finding that the mortjudgment against G. B. upon an gage was made with the purpose indebtedness which existed prior of retaining a home for the family, to August, 1878. The considera- | it may be said that the equity of tion of the mortgage in suit was redemption is subject to the lien work and labor done during five of these judgment creditors. That years next prior to its date, and the mortgagee did not foreclose the full amount was due plaintiff ; and in the meantime permitted and the referee so found. But the the family to reside on the premireferee found that G. B. offered to ses is not a fraud upon other credsecure plaintiff, his son, by this itors. bond and mortgage, with intent to We are referred to the statute hinder, delay and defraud his cred- declaring that a conveyance made itors and for the purpose of plac- with intent, &c., shall be void. ing the lands beyond their reach But the statute continues : “as to and to secure for himself and the persons hindered, delayed or family a home; and that plaintiff defrauded.” This means that some with like intent accepted the creditor must be actually defraudmortgage; and as a conclusioned, and that does not occur where of law the referee held the mort- one creditor is secured in prefergage void as to the creditors of ence to another.

Where property G. B.

which ought to go to creditors has been transferred to one not a credi- The sale of the ticket to M. was tor, a case under the clause above purely a violation of a criminal quoted is made out. That is not statute, and it made no difference so here.

that the lottery itself was authorJudgment reversed; new trial ized by the laws of Louisiana. 23 ordered; referee discharged; costs Wend., 420; 1 N. Y., 184 ; 73 id., to abide event.

476. The statute of this State deOpinion by Learned, P. J.; stroys no vested right of property Boardman, J., concurs. Bockes, innocently acquired, and in no J., not acting

manner regulates commerce be

tween the states. LOTTERY. EVIDENCE.

The defendant N. was examined

on his own behalf, and, on crossN. Y. COURT OF APPEALS. examination, was asked whether

The People, respts., v. Noelke since prior to 1877 he had been et al., applts.

engaged in the business of lotDecided Nov. 20, 1883.

tery tickets and lottery policies.

He was also asked whether he had One who purchases a lottery ticket with the been tried and convicted in the

intent of informing against the seller is not United States Court for violating an accomplice. The statute against lotteries is not unconsti

the law prohibiting the sending of tutional.

matters through the mail with On the trial of an indictment for selling reference to the drawing of any

lottery tickets the defendant on cross lottery. These questions were obexamination may properly be asked whether he has been engaged in that business jected to, and the objections overprior to the offence charged and whether ruled. he has been convicted for sending matter Held, No error.

83 N. Y., 460; in relation to lotteries through the mail.

72 id., 393; Penal Code, $ 714. Afirming S. C., 16 W. Dig., 528.

People v. Crapo, 76 N. Y.,

288; The defendants were indicted for People v. Brown, 72 id., 571; Ry. having sold to one M. a half-ticket an v. People, 79 id., 594, distinin the Louisiana State Lottery. guished. M. made the purchase with intent Judgment of General Term, af. of informing against the seller. firming judgment of conviction,

Charles W. Brooke, for applts. affirmed.
John Vincent, for respts.

Opinion by Finch, J. All conHeld, That M. was in no sense a party to the criminal act or intent, so as to become an accomplice.

PLEADING. There is no impairment of a con

N. Y. COURT OF APPEALS. tract obligation in the law of this State against lotteries.

Bradner, respt.,v. Faulk ner,applt. Ormes v. Dauchy, S2 N. Y., Decided Oct. 23, 1883. 443; Van Voorhis v. Brintnall, 86

The court will not strike out as irrelevant id., 18, distinguished.

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.

Co., of whose stock they held a The rules by which the sufficiency of a pleading is ordinarily determined cannot controlling amount as the reprebe applied in all their strictness to a partial sentatives of the town.

The andefense by way of mitigating circumstances. swer set up facts in mitigation, In an action for false imprisonment and absence of malice, and that demalicious prosecution arising out of an

fendant acted under the advice of arrest on attachment for alleged contempt in disobeying a subpæna issued by defendant counsel; that the cause was barred as chairman of a committee of supervisors, | by the statute of limitations. The the answer, after alleging want of malice,

third count of the answer contains &c., set up that plaintiff controlled a certain railroad ; that he was appointed rail

a history of the E. & G. V. RR. road commissioner, his misconduct in office, Co. for some years prior to the &c.; the allegations as to his conduct in prosecution, which, it is alleged, office were stricken out as irrelevant.

was wholly influenced and conHdd, Error ; that it was competent for de

trolled by the plaintiff; the ap. fendant to plead and prove any facts which tend to rebut the existence of malicious pointment of plaintiff and others motives on his part.

railroad commissioners, their misReversing S. C., 16 W. Dig., 240.

conduct in office as such commisThe complaint in this action sets sioners, &c. A motion was made up two causes of action, growing to strike out as irrelevant certain out of the same transaction, viz. : portions of the answer, and an one for false imprisonment and an order was granted striking out other for a malicious prosecution. Such portions of the answer as reThe alleged malicious prosecution lated to the conduct of plaintiff in and arrest grew out of an attempt connection with said RR. Co. as on the part of the Board of Su. railroad commissioner or director, pervisors of Livingston county to in both of which capacities he investigate, among other things, acted as l'epresentative of the the validity of the title of plaintiff town. and others to the office of railroad Charles J. Bissell, for applt. commissioners of the town of J. R. Vanderlip, for res pt. North Danville, in said county. Held, Error; that the test of The illegal arrest complained of the relevancy of the matterstricken was made upon an attachment for out is whether the jury would an alleged contempt in disobeying have the right to infer from the a subpæna signed by defendant defendant's knowledge and belief as chairman of a committee of the of the facts set forth in his answer Board of Supervisors. The Board and the circumstances surroundwas apparently incited to make ing the prosecution that he bethe investigation by charges, made lieved the plaintiff had been with more or less authority, of brought within the exercise of the official misconduct and gross irreg- power conferred upon the Board ularities on the part of the com- of Supervisors by

of Supervisors by Ch. 190 of missioners in discharging their Laws of 1858, under which the duties in connection with the man- subpæna was issued and the ar

rest made.

Knowledge of the that they do not constitute a total manner in which the plaintiff con- defense to the action, but are ducted his representative duties is those facts from which the party quite as important and material as acting upon them might reasonthe knowledge that he was a rail- ably suppose that the offense for road commissioner or director. the punishment of which the prosAlthough the court has decided ecution was instituted had been that the facts alleged against committed by the defendant plaintiff did not bring him within therein. The rules by which the the jurisdiction of the Board of sufficiency of a pleading is ordinaSupervisors, 87 N. Y., 171, that rily determined, viz. : materiality decision does not preclude defend and relevancy, cannot be applied ant from proving his belief in in all their strictness to a partial those facts, and his honorable con- defense by way of mitigating cirviction that they rendered plain- cumstances. tiff liable to the penalties imposed Order of General Term, affirming by the act of 1858. Questions order granting motion to strike which may be properly raised to out, reversed and motion denied. a pleading upon dem urrer or upon Opinion by Ruger, Ch. J. All objections to evidence offered concur, except Earl, J., taking no thereunder are not necessarily part. . presented by a motion to strike out. The court will not strike

NEGLIGENCE. EXPLOSIVE. out on such a motion facts alleged that could in any form of relation N. Y. COMMON PLEAS. GENERAL be material to be proved upon the

TERM. trial. If a pleading sought to be

Richard Rollins, respt., stricken out contain the semblance of a cause of action or defense Patrick Farley, applt. it ought not to be changed by the Decided June 25, 1883. court. 85 N. Y., 621. It was competent for defendant It is negligence to leave upon the sidewalk of

a public street, unwatched and uncared for, to plead specially and give in

blasting cartridges, the explosive power of evidence any facts which tend to

which is excessively great, and which rerebut the existence of malicious quire the greatest care in handling. Where motives on his part in causing the

such cartridges, so left, explode from an un

known cause, it raises a presumption of prosecution in question.

negligence on the part of the person so Section 536 of the Code of Civil

leaving them unprotected. Procedure precludes a defendant Damages may be recovered for injuries to the in an action to recover damages

windows of adjacent property caused by

the explosion. for a personal injury from proving such circumstances by way of Appeal from judgment and from mitigation only as are not set forth order denying motion for new in the pleading. It is of the es- trial. sence of mitigating circumstances Plaintiff, in his own right and

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