D. was that he was nominated and moved D. and appointed M. reproposed to the court as such receiver. ceiver by the party asking that a

Opinion by Davis, P. J.; Dan

receiver of defendant be appointed, iels, J., concurs.
and that he should not have been
appointed on such nomination, and
his appointment was made inad-
vertently. From this order all the
parties in the suit appealed.

W. L. Snyder, for receiver Dick, applt.

F. J. Dupignac, for plff. applt. E. H. Hobbs, for Jos. J. Marrin. Held, That the order removing D. as receiver and appointing N. was improper, for before taking such an action some notice should have been given to D. and some opportunity given for him to be heard in respect to the objections or allegations against him. on Receivers, § 824; 5 W. Dig., 25.

High

That it was long the established practice of courts of equity for parties interested in the subjectmatter of the action to nominate a receiver, and there is no provision in the Code of Civ. Pro. or the rules of the courts of record declaring that the parties are not at liberty to name suitable persons from whom a selection may be made, and the bare fact that a party has nominated the person appointed by the court is not sufficient alone to justify his removal, after qualification, when no party to the suit objects to his performing the functions of the office, and no charges are made against him.

Order modified by striking out so much of the previous order as removed receiver D. and appointed N., and vacated in so far as it re

STOPPAGE IN TRANSITU.
INJUNCTION.

N. Y. COMMON PLEAS.

TERM.

GENERAL

Simon Strahlheim et al., applts. v. Abraham Wallach et al., respts.

Decided Jan. 21, 1884.

Where there has been a stoppage in transitu of merchandise in the Custom House before payment of duties on freight, the court, in an action brought therefor, will compel a transfer of the bills of lading by the consignee to the owners to enable the latter to properly enter the goods and take possession under their lien, and an injunction may issue against the sale or transfer of the goods or bills of lading by the consignee or his assignee for benefit of creditors.

Appeal from order refusing to appoint a receiver and vacating a preliminary injunction.

The plaintiffs, at Paris, France, pursuant to an order from defendants, A. & E. Wallach, New York, shipped to the latter a quantity of fans, sold upon a credit of four months. On Sep. 18, 1883, A. & E. W., made a general assignment for the benefit of their creditors. Two days subsequently the goods were duly stopped in transitu, before they had come into possession of A. & E. W. or their assignee. The bills of lading and invoices sent to A. & E. W. came into possession of the assignee, who refused to deliver them to plaintiffs. At the time they were so stopped no entry of them had

which plaintiffs, as vendors of N. Y. SUPREME COURT. GENERAL

of 1858 and Chap. 353, Laws of 1859, providing that no property carried under a bill of lading shall be delivered except upon its surrender and cancellation, delivered said barrels to a person not enti tled to receive them, and was, consequently, guilty of a conversion of the property. Angell on Carriers, 5th Ed., § 432; 50 N. Y. 24; 115 Mass. 233.

peared that defendant was a car- | plaintiffs, violated Chap. 326, Laws rier, and that the oil in question had been received by it at Memphis, Tenn., to be delivered to one S. F. O'Shaughnessy, in N. Y. City, and bills of lading to that effect were made and delivered to him. These bills of lading were delivered to plaintiffs by said O'Shaughnessy as collateral security for loans made by them, and, at the time such transfer of the bills of lading was made, defendant had already delivered to O'Shaughnessy 450 of the said barrels of oil, but without taking up and destroying the bills of lading for that amount; and subsequently, but before notice of the transfer of the bills of lading to plaintiffs, and before any demand by them, defendant delivered the remaining 800 barrels of oil to O'Shaughnessy. Subse quently plaintiffs demanded this oil, and failing to obtain it brought this action, which was referred to a referee, who found that defendant had been guilty of a conversion of the 1,250 barrels of oil, and judgment for their value was entered on his report. From this judgment defendant appealed.

Chas. B. Alexander, for applt. William G. Wilson, for respts. Held, That the delivery of the bills of lading to plaintiffs transferred to them the right to the property so far as it was then in defendants' possession. 69 N. Y. 373; 44 N. Y 136; 115 Mass. 219.

That defendant, in delivering to O'Shaughnessy the 800 barrels of oil that were delivered to him after the transfer of the bill of lading to

That, since neither the law nor the contract made by the bills of lading was in any respect uncertain or ambiguous, and the rights of the parties arising out of their dealings have been clearly defined, evidence of the mercantile usage of delivering goods, carried under bills of lading like those in question, direct to the consignee without taking up and cancelling the bill of lading was inadmissible either to control or affect the rights of the parties. 44 N. Y.

495.

That there was no conversion, as to the plaintiffs, of the 450 barrels of oil that were delivered to O'Shaughnessy before the transfer of the bills of lading to plaintiffs, for, at the time of their delivery, he was the only person entitled to their possession, and the fact that the carrier omitted to take up the bills of lading could not render the delivery to O'Shaughnessy a conversion as to plaintiffs and entitle them to maintain an action therefor, thongh possibly an action might be maintained by them upon the contract contained in the bill of lading.

Judgment reversed, unless plaintiffs stipulate within 20 days to reduce the recovery to the value of 800 barrels of oil, in which case judgment, as so reduced, affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

ASSAULT. EVIDENCE.

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

cutting his head and inflicting a wound upon it about an inch and a half in length.

The case was submitted to the jury as to whether the instrument used was one likely to produce grievously bodily harm used in the manner it was used.

On the trial defendant was asked on cross-examination whether he had not committed other assaults at other times, and upon other persons, and the questions propound

The People, respts., v. James ed to him were objected to, and Irving, applt.

Decided Jan. 25, 1884.

Defendant struck the complaining witness on
the head with a pistol, inflicting a wound
an inch and a half in length. Held, That a
pistol when so used would be likely to pro-
duce grievous bodily harm, and so far as
the nature of the instrument is concerned
came within the provision of the penal
code defining assault in the second degree,
and at least required the case upon that
point to be submitted to the jury.
The defendant in an indictment may be cross-

the objection overruled. The witness answered in the negative with the exception of two instances which he explained in such manner as to show the assaults were excusable.

Thos. F. Brady and W. Bourke Cockrane, for applt.

John Vincent, for respts.

Held, That the pistol when used as the evidence disclosed was like

examined as to other acts of misconduct, ly to produce grievous bodily

not involved in the issue to be tried, which may affect his credit as a witness in the case, but the inquiry should be limited to acts reasonably attended with that result, and such cross-examination should be restricted to such acts as bear directly upon the

harm. Certainly there was such a degree of probability that it might be productive of that result as to require the case upon that

present character and moral principles of point to be submitted to the jury, as was done.

the witness.

The defendant on appeal can get no benefit from the admission of improper evidence by which he was not prejudiced.

Appeal from judgment of the Court of General Sessions of the County of New York, convicting defendant of an assault in the second degree.

The act for which defendant was convicted was striking the complaining witness twice upon his head with a pistol, thereby

It was error to allow the question put to defendant as to whether he had been guilty of other assaults upon other persons, for if he had that would not necessarily or properly tend to impeach his moral character or impair his credit as a witness, and questions asked a defendant to impeach hist credit as to other acts of misconduct not in issue must be restricted to such acts as bear directly upon