fendant's indebtedness to the new firm, and defendant continued to deal with it under such understanding. After C.'s death defendant bought about $8,000 worth of goods from the new firm and made payments to it, which were entered to his credit generally upon the said books, amounting to some $7,000. He was indebted to the old firm before C.'s death in some $5,000.

Held, That said parol agreement to extend the mortgage to cover new advances and obligations not within the original agreement is invalid. 23 N. Y., 556; 8 Hun, 603; 3 Barb. Ch., 293.

The mortgage was only valid for the purpose of securing the existing and future indebtedness of C. & Co., and it could not be extended by parol to cover the indebtedness of defendant to the new firm. 6 Duer, 208, 219.

That inasmuch as, in the absence of any authority to continue the joint property of the old firm subject to the risks of the general trade, it was the plain duty of the surviving partner, immediately upon C.'s death, to wind up the affairs and to keep the assets from any general new business, and as plaintiff was guilty of legal wrong in carrying over the old assets into the new firm and entering into it as trustee, the payments of defendant cannot be applied to his indebtedness to the old firm of C. &. Co. That while That while it is the rule, in cases of an open current account, the items of which do not form distinct debts, but are blended together in one account,

that in the absence of any application by the debtor the payments shall be applied as they are made to the charges in the order of time in which they accrue, yet no case is found in this State holding the doctrine as applicable to a case where a partnership has been dissolved by the death of one of the parties and an entirely new firm has been formed. has been formed. In Pemberton v. Oakes, 4 Russell's Rep., 154, there was in effect the case of a new member taking the interest of a retiring member without substantial change and subject to all the burdens and relations incident thereto. Its authority if invoked save in the respect stated may be doubted. Clayton's Case, 1 Mer., 585, and Bodenhurn v. Purchus, 2 B. &. A., 39, the authorities quoted by the Chancellor, do not establish the principle here sought, for in the first case the transactions were with the surviving partners, and the second case was decided on a point foreign to this discussion. Pemberton v. Oakes is criticized in Collyer on Part., § 635, while Lord Abinger made a decision at variance therewith in Jones v. Maund, 3 Young. & Coll., 347.

That the mortgage is still a valid security for the payment of the indebtedness due the old firm at the death of C.

That defendant's wife is entitled to an inchoate right of dower in the entire fee of the mortgaged premises. That the legal estate remained in the defendant, subject to his wife's right of dower notwithstanding the form of the in

strument. 68 N. Y., 499, 503; 46 N. Y., 605; 52 N. Y., 258; 31 N. Y., 399. That C. was merely a mortgagee, and his deed to defendant was simply a method for exchanging the mortgage for one not joined in by the wife. That it was nothing less than a satisfaction of it, and to perfect the arrangement of exchange it was necessary that the satisfaction should be in the same form, i. e., that of a deed, to make the record in the registry complete. That this being done, the first mortgage was superseded by the second, in which as the wife did not join. her inchoate right of dower was restored to her free and clear. 57 N. Y., 325; 61 N. Y., 145; 46 N. Y., 111.

That the claim of the plaintiff must be limited to the amount stated in the mortgage and in

terest.

Decree may be amended accordingly and then judgment of affirm ance entered, without costs in this Court.

Opinion by Pratt, J.; Barnard, P. J., and Dykman, J., concur.

LAW OF PLACE. CONTRACT.

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

Wallace Shillito et al., applts., v. Emma B. Reineking et al., respts.

Decided Aug. 7, 1883.

In every forum a contract is governed by the law with a view to which it is made, because, by the consent of the parties, that

law becomes a part of their agreement, and it is to be presumed, in the absence of any express declaration or controlling circumstances to the contrary, that the parties had in contemplation a law according to which their contract would be upheld, rather than one by which it would be defeated. A court may look into the surroundings and consider all the facts and circumstances bearing upon the making of the contract, for the purpose of ascertaining the intended place of performance, and ascertain whether the principle above stated is applicable. When a married woman, who has previously expressed a willingness to apply her separate property to the payment of her husband's debt, executes her promissory note therefor, expressly binding such separate estate, in a state where such note is not enforceable, but dates it in a state where it is valid and where the payees reside, and specities no place of payment, the plaintiff in an action upon such note is entitled to have the question as to where the contract was intended to be performed, and in reference to what law it was made, submitted to the jury.

Appeal from a judgment dismissing the complaint.

The defendant John W. Reineking was indebted to plaintiffs, who were merchants of Cincinnati, Ohio. The defendant John W. and his wife Emma, the other defendant, who were both residents of Indiana, executed in that state their promissory note in payment of such indebtedness, by which the defendant Emma charged her separate estate. Both the defendants had previously offered to pay the debt in instalments. The note was

dated "Cincinnati," and the place

of payment was not specified. This action was brought to recover upon the promissory note, and on the trial it was conceded that by the laws of Ohio a married woman was permitted to contract in relation to her separate estate, while

ance can be given in evidence against the vendee only when the vendor is, at the time, in the actual possession of the property, holding it ostensibly as the agent of the vendee, and engaged in the performance of some act within the range of such agency.

Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.

Defendant, who was the sheriff of the county of N. Y., levied upon and sold a stock of goods under an execution against the property of one C. Plaintiff claimed that, previous to such levy and sale, he had become the owner of such stock by virtue of a bona fide | purchase from C., and brought this action to recover its value. Upon the trial it was shown that there was no actual or continued change of possession of the prop. erty after the sale, but the vendor continued in the store carrying on the business. On the other hand, evidence was given tending very directly to prove that plaintiff had paid its full value for the stock; that he maintained a general oversight of the business, and that the vendor remained in the store as his employee. Defendant's counsel moved for a dismissal of the complaint on the ground that no such change of possession had been shown as was required by the staThis motion was denied. A. J. Vanderpoel, for applt. E. P. Wilder, for respt. Held, That there was sufficient evidence to entitle plaintiff to have the point submitted to the jury to determine, as a matter of fact, whether the sale had been made in good faith, notwithstanding the

tute.

continued possession of the vendor. 88 N. Y., 418.

Tefft v. Horton, 4 Denio, 171, distinguished.

To prove the value of the stock, a witness was called who had been employed in the business, and who had become familiar, by means of such employment and by an examination of the books of the business, with the condition, extent and value of the stock, and he was allowed to testify as to such value against the objection and exception of defendant.

Held, No error; that if such evidence cannot be taken on the value of a stock of goods after the claimant has been deprived of its possession by the wrongful act of another person, then the law affords him no adequate means of redress for the injury sustained by the appropriation of his property. Practically the evidence was the best of which the case was susceptible, and the law cannot be charged with the absurdity of depriving a lawful claimant of his rights because they cannot be established in a more unexceptionable or certain manner.

In the course of the trial evidence was sought to be introduced of statements which the vendor had made concerning his title or interest in this stock of goods, and the court limited the inquiries to such as were made at the store while the vendor was acting there, allowing such statements to be given in evidence but excluding those made elsewhere.

Held, No error; that if evidence of this character can be

legally and properly received in any case, it would seem to be because of the circumstance that the vendor is, at the time, in the actual possession of the property and holding it ostensibly as the agent of the vendee, and it is only when the agent may be in the performance of some act within the range of his agency that what he may say can be given in evidence against his principal. 56 N. Y.,

273.

Adams v. Davidson, 10 N. Y., 309; Wiles v. Farley, 3 Carr. & P., 395, explained.

Judgment and order affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

MASTER AND SERVANT. N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

Ann Wallach, respt., v. Edward Ridley et al., applts.

Decided Aug. 7, 1883.

In an action for false imprisonment when it appears that the wrongful imprisonment complained of was caused by one of the defendants' servants on suspicion that the plaintiff had stolen articles from defendants' store, the defendants are not liable unless such act of their servant was author. ized by them; and the question as to whether such servant was so authorized, there being a conflict of testimony on that point, is one for the determination of the jury.

Appeal from judgment directed by the court to be entered on verdict of jury assessing damages.

The plaintiff was arrested, detained and searched at the instigation of a floor-walker in defend

ants' store on suspicion of stealing articles from such store. This suspicion proved ungrounded, and she subsequently brought this action to recover damages for false imprisonment. The defendants

swore that the action of the said floor-walker in causing the arrest of the plaintiff was not authorized by the defendants, but there was a fair conflict of testimony on that point. The court, however, directed a verdict for the plaintiff, and submitted nothing but the question of damages to the jury, and to such direction the defendants excepted.

D. S. Riddle, for applts.

Kurzman & Yeaman, for respt. Held, That under the case of Mali v. Lord, 39 N. Y., 381, the defendants were not liable unless

the act of their servant was anthorized by them, and they had a right to go to the jury upon the question of fact whether the acts

which constituted the false imprisonment, all of which were done by others, were authorized or sanctioned by them in such manner as directly or by implication rendered them chargeable with the wrong.

Judgment reversed and new trial ordered.

Opinion by Davis, P. J.; Brady and Daniels, JJ., concur.

CONTRACT. CERTIFICATE. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Geo. Frazier, applt., v. The Mayor, &c., of New York, respt.