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lease. Plaintiff was a member of the corporation. In that event

the corporation.

H. Sturgis, for applts.

James A. Lynes, for respt.

Held, That defendants having entered into no personal obligation with plaintiff and having contracted in the name of a known principal, who would have been liable upon the contract if it had been properly executed, are not personally liable to the plaintiff; that having executed a lease running to them and their successors in office, the interest of the persons named in it would cease upon the expiration of their official terms, and it would then enure to the use of the corporation under the administration of such officers as should thereafter be elected.

In the absence of a personal promise or covenant, one signing a contract who therein represents himself to be the agent of a disclosed principal and who assumes to contract for such principal only cannot be held personally liable upon the covenants contained in such contract.

Kiersted v. O. & A. RR. Co., 69 N. Y., 345; Briggs v. Partridge, 64 id., 357; Taft v. Brewster, 9 Johns., 334 Stone v. Wood, 7 Cow., 452; Guyon v. Lewis, 7 Wend., 26, distinguished.

It is immaterial that the contract was sealed or that it was signed only by their individual names if it appears on the face of the instrument that they contracted with reference to corporate business, and had authority to make such contract on behalf of

the signers do not become liable individually. 21 Wend., 101; 21 N. Y., 179; 75 id. 378; 19 Johns., 60; 17 Wend., 40.

Although, owing to the absence of a corporate seal, the corporation might not have been liable to the technical action of covenant on the contract, it was liable in an action of assumpsit for the use and occupation of the premises, and plaintiff was thus furnished the only remedy he contemplated at the time of making the contract. 19 Johns., 60.

Plaintiff being a member of the corporation and having contracted with it in its corporate capacity, neither he nor it could have disputed its corporate capacity had the contract been properly executed. 19 N. Y., 119; 26 id. 78. It is sufficient for plaintiff's purpose that it was a corporation de facto, exercising the powers and functions of a de jure corporation and assuming to act as such.

The lease in suit was executed by defendants February 5th, 1871, and by the mutual consent of them and plaintiff it was left with one K. to procure the signatures to it of the other parties named therein, and upon his accomplishing this object he was instructed to deliver it to the town clerk.

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Opinion by Ruger, Ch. J. All certain to control; and did not try

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N. Y. COURT OF APPEALS.
Tice, respt., v. Munn, applt.
Decided Nov. 20, 1883.

In an action for injuries alleged to have been caused by defendant's negligence it appeared that defendant's horse was spirited, nervous and excited; that defendant failed to turn him into the open road as quickly as he should and when he did so hit and broke plaintiff's carriage injuring her; that defendant then returned with his horse and stated that he couldn't manage his horse, which was tender-mouthed and had neglected to put on the check-bit that day. Held. That a refusal to nousuit was proper; that it was possible for the jury from the evidence to infer negligence.

A party who has caused an injury by his neg. ligence is liable for the consequences thereof although they are aggravated by the imperfect bodily condition of the party injured.

This action was brought to recover damages for injuries received through the alleged negligence of defendant. The injuries complained of were received in consequence of a collision between defendant's horse and a buggy in which plaintiff was driving in Central Park. It occurred in daylight, and both parties were going in the same direction. It appeared that defendant's horse was spirited and nervous, and had on previous occasions tested the skill and coolness of his rider, and on the day of the accident was excited by being out-trotted by plaintiff's horse and the spatter of the muddy roads; that defendant had omitted to use a check-bit more

to turn his horse into the open road as quickly as he should; that after pulling his horse's head around toward the open road the animal "shot off in that direction,” hitting and breaking plaintiff's carriage, whereby she was injured; defendant then jumped from his horse, held him by the bridle and led him quietly up to the scene of the accident. One of plaintiff's witnesses swore that immediately after the accident defendant said "he had neglected to put on the check-bit; that his horse was very tender-mouthed; that he couldn't manage his horse which was tender-mouthed, and he had neglected to put on the check-bit that day.' This was denied by defendant. A motion for a nonsuit was denied. and a verdict rendered for plaintiff. Robert P. Harlow, for applt. N. C. Moak, for respt.

Held, No error; that it was possible from the evidence for the jury to infer negligence on the part of defendant.

Defendant asked the court to charge that if plaintiff was in an unhealthy and debilitated condition and the injuries were more serious and lasting by reason of her bodily condition then defendant is only liable for such consequences of the injury as would have resulted if she had been in good bodily health. There was no proof that plaintiff's bodily condition was weakened or imperfect and that her injuries were aggravated thereby. Plaintiff's request was refused and the court charged that if by reason of

a delicate condition of health the consequences of a negligent injury are more serious, still for those consequences the defendant is liable, although they are aggravated by the imperfect bodily condition. Held, That the request to charge was properly refused as it was a request to charge upon an abstract proposition having no just bearing on the case; that the rule laid down by the judge was correct. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

the city of New York. She was induced by the false pretenses and fraudulent representations of one L. to convey said real estate to his daughter R., by an absolute deed with full covenants, and R. took possession thereunder. Thereafter R., upon some alleged consideration passing to her from her father, L., executed to him a mortgage for $1,000 on said real estate which was collateral security for the payment of her bond for the same amount. Subsequently L. assigned the bond

Opinion by Finch, J. All con- and mortgage to plaintiff, who, as

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Defendant was induced by false representa-
tions of one L. to convey certain land to
L.'s daughter, who gave a mortgage there-
on to L., and afterward reconveyed to de-
fendant. Plaintiff purchased the mortgage
in good faith and for value. Held, That
plaintiff having bought on the faith and
credit of the mortgagor and being a bona
fide purchaser, defendant is estopped from
denying the title of her grantor and her
right to deal with the property as owner.
A fraudulent purchaser of real or personal
property may deal with it as the owner,
and whoever purchases the property or
takes a mortgage thercon from him or
under him in good faith in reference thereto
will be protected against the claim of the
defrauded vendor.

Reversing S. C., 14 W. Dig., 178.

This was an action to foreclose a mortgage. It appeared that in October, 1877, D. H., the defendant, owned certain real estate in

must be assumed on this appeal, paid value for the same, acting in good faith with no knowledge of the fraud upon D. H., or of her equities. After the assignment of the mortgage R. reconveyed the land to D. H. In her answer D. H. sets up as a defense the fraud perpetrated upon her by L. R. was in possession at the time the mortgage in suit was executed and assigned.

Abram Kling, for applt. John M. Bowers, for respts. Held, That plaintiff having bought the mortgage on the faith and credit of the mortgagor's title, and being an innocent, bona fide purchaser, D. H., is estopped from denying the title of her grantor and her right to deal with the property as owner. 46 N. Y.. 335; 55 id., 41; 64 id., 220. When real or personal property is obtained from one by fraud upon the purchase thereof, and the vendor thus intentionally parts with the title, the vendee can always, by a sale to a bona fide

purchaser for value, give a title by the Court, well founded, and good as against the vendor.

may be alleged and adjusted upon the new trial in case she fails entirely to defeat plaintiff's mortgage. 64 N. Y., 397; 3 Abb. N. C., 138; 6 Abb. N. C., 469.

Judgment of General Term, affirming judgment for defendants, reversed, and new trial granted. Opinion by Earl, J. All con

cur.

FISHERY.

TERM. SECOND DEPT.

A fraudulent purchaser of real or personal property obtains legal title to the property purchased and may convey a good title to any bona fide purchaser from him for value. He may not only convey the property, but may deal with it as owner and may mortgage it, and whoever purchases the property or takes a mortgage thereon from him or under him in good faith, for value, or deals. with him in good faith in refer- N. Y. SUPREME COURT. GENERAL ence thereto, will be protected against the claims of the defrauded vendor. The real estate may be conveyed or a mortgage thereon assigned to several successive participants in the fraud or several successive mala fide purchasers, but the moment the real estate or mortgage reaches the hands of a bona fide purchaser for value the rights and equities of the defrauded owner are cut off. 1 Johns. Ch., 213; 3 id., 129; 9 Paige, 315; 4 Abb. Ct. App. Dec., 253; 44 N. Y.,

371.

The trial judge held it was immaterial to determine whether the plaintiff was an innocent purchaser of the mortgage for value.

Held, Error.

D. H's. claim to be subrogated to an interest in the mortgage for $10,000, which was a lien upon the real estate at the time of the conveyance by her, and until after the conveyance to her, for the amounts paid by her upon that mortgage in ignorance of plaintiff's mortgage, is, upon the facts found

Vol. 18.-No. 7.

Thompson, applt.

The People, respts., v. Hugh

Decided Sept., 1883.

Chap. 734, Laws of 1868, is valid. The State
has the power to limit and abridge the
rights of its citizens to fish in any of the
public waters of the State, and can exercise
such power through the supervisors and
justices of the peace of a town within
whose limits such waters are situate.
The defendant was indicted and convicted
for a misdemeanor in that he had taken
oysters from and distributed oysters upon
a certain oyster bed in a channel of Jamaica
Bay, which oysters had been there planted
by one V., to whom a license had been
granted by the town of Flatlands. Held,
No error.

Defendant was indicted for a misdemeanor under Chap. 734, Laws of 1868, in that he had taken oysters from and distributed oysters upon a certain oyster bed in Pumpkin Patch channel, a part of Jamaica Bay, which oysters had been planted by one Vreeland to whom a license had been granted by the authorities of the town of Flatlands. The defense was that the oyster bed was a part of the

public domain, being a part of the tide waters of Jamaica Bay; that defendant was raking for clams upon a natural clam bed which existed at that point; and that he had the right to rake for clams in the public waters, and that the disturbance of the oysters was a necessary incident to his right to fish for clams.

It was conceded that the object of the proceeding was to determine the validity and force of the license under the act of 1868 and the rights of the licensee as against the public. It was admitted that this oyster bed was within the town of Flatlands, and hence within the territory of the State of New York. It was not pretended that said town ever obtained any exclusive right to the fisheries within the waters which lie within its territories. There was no evidence of any grant to the town and no prescriptive right was claimed in its behalf, and the case, therefore, showed that these waters were a part of the navigable tide water within this State.

Held, That the State has power to limit or abridge the right of any of its citizens to fish in any of the public waters in the State. The right of the king, at common law, to grant to an individual or to the inhabitants of a town the lands under water and the exclusive right of fishing in such waters, 60 N. Y., 456, might properly be exercised by our State, while we find no prohibition or limitation upon such power. The State might have ceded the entire land and water to the town or to indi

viduals subject only to the superior right to use the navigable waters for the purposes of commerce and navigation, 1 Wend., 237; 60 N. Y., 65; while it is only where it undertakes to grant the exclusive right to fisheries disconnected with any right upon or connected with the soil, or in disregard of the rights of owners of the soil, that there appears to be any invasion of private right. Why may not the State, as the owner of the soil and water, subject to the public right of commerce and navigation, grant away the whole or any part of its own aquatic domain, and if so why may it not grant the land without the water, or its rights in the water without the land? This right would seem especially plain for the purposes of planting trees, erecting or extending docks, etc., and why not for planting that kind of product which, although classed as fish, is, nevertheless, a resident and dependent upon the soil almost as much as grain sown upon agricultural lands. We cannot find the precise point decided of an original grant by the State, but it is quite plain that the State has steadily, since its organization, made analogous grants of land under water, and ratified old claims of that nature. The authority for such acts is too old to be questioned. If these views be correct, it would seem to follow that the State might exercise the power of leasing those lands, and its rights in the waters, especially for purposes which chiefly affect the soil under water.

It could cer

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