legal services necessary to secure his client legal title to certain premises and to save him harmless from all expense, etc., and at the same time, as consideration and advance payment therefor, received a deed of an undivided half of the premises, and per- formed the services agreed upon, which in- volved the title to said premises. Held, That the agreement was champertous under 2 R. S., 288, § 72, prohibiting attorneys from advancing moneys, etc., as considera- tion for placing a debt, demand, etc., in their hands for collection, and that the deed was therefore void, and possession of the property therein referred to could not be recovered by the attorney thereunder.- Fowler v. Callan et al., 534.
11. It seems, that the law of champerty and maintenance does not exist in this State, except as preserved by the Statutes.Id. See COSTS, 7; PLEADING, 17; REFERENCE, 1.
1. Plaintiff entered into a written agreement with one A., who held a chattel mortgage on his property, which provided that said property should be sold by defendant, an auctioneer, and fixed his commissions at 5 per cent. This was not signed by defendant but was carried into effect. Held, That the agreement having been signed by the owner of the property must be considered as a written agreement between the parties with the auctioneer which fixed the amount of his fees, and that no action could be main- tained against him for a penalty for violation of the provisions of 1 R. S., 532, § 24.- Carpenter v. LeCount, 55.
1. The Utica Bank and the Rochester Bank sent to each other for collection such com- mercial paper as was payable in their vicinity upon an agreement that each should charge the other with paper sent and credit the other with paper collected, and that at the end of each week a balance should be struck on the whole collection business of the week, and the bank found indebted should pay such balance to the other. No separa- tion of the funds collected was made or intended. A receiver of the Rochester Bank having been appointed, Held, That petitioner failed to establish any lien or impress any trust on any specific money of
the debtor bank which would enable it to obtain payment in preference to other credi- tors.- The People v. The City Bank of Roch- ester, 32.
2. The cashier of a bank in Missouri, to en- able the bank to tide over a crisis, agreed with defendants that if the latter would ac- cept certain drafts the bank would at all times keep on deposit with defendants a sum equal to the amount of the drafts; that defendants should have a lien thereon as security for their liability and the right at any time to appropriate the deposit or so much as was necessary to pay their accept- ances. The bank thereafter failed and made a voluntary assignment on the same day, but after defendants had charged up the acceptances. Held, That the agreement was one the cashier was authorized to make and was not invalid as against public policy, and that defendants had a right to charge against the bank the face of the drafts and hold that amount to meet them when they came due.-Coates v. Donnell et al., 243.
3. The statute prohibiting preferences by in- solvent corporations applies to domestic and not to foreign corporations.-Id.
4. As between a bank and its depositor the statute of limitations begins to run against the latter only from the time when he de- mands his deposit in person or by an au- thorized agent; the presentation of a check of the depositor by its payee is not such a demand as will set the statute running against the depositor.- Viets v The Union Nat'l Bank, 372.
5. The fact that a stockholder and director of a bank took part in negotiations out of which arose certain promissory notes which came to the hands of the bank does not, of itself, affect the bona fides of the bank's holding. The Discount & Deposit Bank v. Osterhout et al., 538.
6. Defendant's testator subscribed for stock and bonds of a foreign railroad corporation by authority and for the benefit of plaintiff' to the extent of one-half the amount that should be allotted to him. In an action to recover the profits on plaintiff's share, Held, That the action could not be maintained; that the contract was ultra vires and con- trary to public policy, and that testator could not be treated as a trustee for plain- tiff's benefit.-The Nassau Bank v. Jones et al., 567.
See NATIONAL BANKS; REFERENCE, 6, 7.
1. Prior to the passage of § 1278 of the Code a judgment by confession against one joint debtor was a bar to an action against the others.--Candee v. Smith, 1.
2. A general offer of judgment accepted, upon
which judgment is entered concludes the party accepting it from bringing a action for any part of the claim embraced in the complaint and which might have been litigated in the action.-Davies v. The Mayor, &c., of New York, 62.
3. Whether a former suit is a bar to a pending one is to be determined as a legal question from the record of the former suit and the proceedings had upon the trial. The mag- istrate's mental conclusions on the law or facts of the case tried before him, not ex- pressed in the record, cannot properly be given in evidence.--Agan v. Hey et al., 115. 4. A party may prosecute as many remedies as he legally has, provided they are consis- tent and concurrent.-Bowen v. Mandeville, 452.
5. An action to recover damages for fraud on the sale and guaranty of a bond and mort- gage is not barred by the prior recovery of judgments upon the guaranty for interest accruing upon the mortgage. The two remedies are consistent and independent of each other and are each maintainable until full satisfaction is obtained.-Id.
6. The rule of res adjudicata applies not only to judgments of courts, but to all judicial determinations, whether made by courts in ordinary actions or in summary or special proceedings, or by judicial officers in mat- ters properly submitted for their determi- nation. Leavitt v. Wolcott, 500.
7. The trust in question in an action to con- strue a will had been held to be wholly void in a prior action of partition to which all the legatees, devisees, heirs, and next of kin of testator were parties defendant. Held, That the former adjudication was a bar.-ld.
See CREDITOR'S BILL, 4; ESTOPPEL; LIMI-
1. Plaintiff's testator was a member of the defendant organization, which agreed to pay $1,000 on his death to such person or persons as he may have formally designated to his lodge prior to his death. He desig nated his mother, who died before he did. He designated no other person to his lodge, but assumed to dispose of said sum by will, of which disposition the lodge had no notice during his lifetime. Held, That a designa- tion was the condition precedent to de- fendant's liability and that the one in the will was not valid.-Hellenberg v. Dist. No. 1, I. O. Bnai Berith, 421.
See TAXATION, 2; WILLS, 32, 33, 36, 37.
See CONSTABLES; GUARDIANS, 2; SHERIFFS, 3, 4; SURETYSHIP, 1-7.
1. Where a minor son enlists with his father's consent bounties paid the son are his own. -In re estate of Wasser, 188.
1. Where a bridge is built on the line divid- ing two towns, being situated partly in each, both towns are liable for the expense of maintaining it, and for that purpose it is not to be considered as wholly within the town to which the road district has been allotted under the town line road act.-Day v. Day, 242.
1. A stop order directing the brokers to sell bonds at 100 and 1001, ex. July coupons, requires them to sell when the market price declines to 101 or 101 without the cou- pons or, if sold after July 1, when the price equals 100 or 1001 plus the accrued interest. The first descending price is reached when this class of bonds have sold in market for a flat price, which, after de- ducting the accrued interest, would leave 100.-Porter v. Wormser et al., 346.
2. Where the stop order contains no direction as to the manner of sale a private sale made by the broker at fair prices cannot be ob- jected to because not made at the Stock Exchange.-Id.
3. A memorandum of sale of stocks furnished by the broker to his principal, which con- tains his name as purchaser, is not conclu- sive upon the former, but the actual trans- action may be shown and that it was misrepresented in the notices by mistake or inadvertence.-Id.
4. A broker in a stock transaction is not bound to close it after the death of the principal without awaiting the appointment of a representative, but is authorized, acting in good faith, to maintain the existing situ- ation until a representative of the estate should be appointed. -Hess et al. v. Rau, 560.
See USURY, 1. CERTIORARI.
See HIGHWAYS, 7; TAXATION, 9.
See ATTORNEYS, 10, 11; DEEDS, 13.
1. In an action on a charter party to recover damages for a breach of a contract of freight, when it appears that, according to the terms of the charter party, the "char- terers were to approve the ventilation of the ship," and that they did not so approve, but demanded that increased facilities for ventilation be provided, and, on the refusal of the captain to make such provision re- fused to furnish the freight, it is error to submit to the jury the question whether, upon the evidence, the demand for in- creased ventilation was a reasonable one, with instructions that if it was unreason- able the refusal to comply with it would be no justification of the refusal to furnish the freight. Russell et al. v. Allerton, 275.
2. The defendant, having secured the right by the charter party to approve of the ven- tilation of the ship, was entitled to all the benefit and advantage of that element of the contract. He was made the sole arbiter on that subject, and when such a provision is inserted in a contract the party against whom it operates must take the conse- quences.-Id.
1. Fomral notice of sale under a chattel mortgage may be waived by the mortgagor attending the sale and not objecting to it. Nor can the mortgagor afterwards object that the mortgagee purchased at such sale where such purchase was made at the mortgagor's request.-French v. Powers, 86.
2. The law of the domicile of the owner of personal property determines the validity of a mortgage thereof made by him.- Nichols v. Mase, 277.
3. A railway corporation in Connecticut de- faulted the payment of its obligations, and under the terms of the security for the same, a mortgage, executed in Connecticut, on its road from Hartford to the State line, together with all of its equipments, etc., used on the same, surrendered said prop- erty to plaintiff, the mortgagee. In an ac- tion brought against the sheriff for levy under attachment on personal property in this State, Held, That the conditions prece- dent to possession in the mortgage were for. the benefit of the company, and waived by the voluntary surrender; that the mortgage was properly executed by a deed executed by the president under the corporate seal; that it was not incumbent on the plaintiff in the first instance to show that the bonds were issued conformably to the charter; that the mortgage was not required to be filed or recorded in this State, and
that the mortgage being valid in Connecti- cut the mortgagee should be protected in all his rights given him by the mortgage.—Id. 4. Special statutes intended to govern partic- ular transactions are not controlled by gen- eral statutes unless the legislative intent to that effect is clearly manifested.—Id. See FRAUD, 9.
CODE CIVIL PROCEDURE.
See APPEAL, 15; ARREST, 1; ATTACHMENT, 9; ATTORNEYS, 3-5; BAR, 1; CORPORA- TIONS, 6, 19; Costs, 2, 4, 6, 12, 14, 15, 19, 20; COUNTY COURT; DEPOSITIONS, 3, 4; DISCOVERY, 1; DIVORCE, 7; DOWER, 4, 6; EVIDENCE, 5, 19, 23, 25. 30; EXECUTORS, &c., 5, 12; INJUNCTION, 6; LIMITATION, 2, 3, 5, 10, 11; PARTITION, 1; PLEADING, 1, 12, 16; PRACTICE, 4, 10, 13; REFEREE, 1; SERVICE, 3, 4; SHERIFFS, 5, 6, 8, 9; SUB- MISSION; SURROGATE, 3, 5; UNDERTAKING; VENUE, 2, 3.
CODE CRIMINAL PROCEDURE. See CRIMINAL LAW, 1; INDICTMENT.
See APPEAL, 7; ATTACHMENT, 1, 2; PRAC- TICE, 11.
COMMON CARRIERS.
1. In an action against common carriers for goods alleged to have been abstracted from a box through defendant's negligence, it was shown that the box was delivered to defendant; that more time was taken in transporting it than was necessary; that the consignees kept the box in their basement three days before opening, when the goods were found to be missing, and there was evidence rebutting the inference that they might have been abstracted during those three days. Held, That it was competent for the jury to find that the goods had never been delivered to the consignees at the place of destination.-Canfield et al. v. The B. & O. RR. Co., 165.
2. Although the burden of proof of negli- gence is upon plaintiff in the first instance, yet when the fact of an injury is establish- cd and negligence on defendant's part is shown to which such injury can be reason- ably imputed as a cause the question whether it was caused by such negligence is a question of fact.-Id.
3. A delivery, by a carrier of merchandise, of goods carried under a bill of lading to the consignee named in such bill without re- quiring a surrender and cancellation of the bill, as required by Chap. 326, Laws of 1858, and Chap. 353, Laws of 1859, is a conversion of such goods as to a person to whom the consignee has transferred the
bill of lading previous to such delivery; but is not a conversion as to such person if the transfer of the bill of lading was not made until after such delivery.-Colgate et al. v. The Pennsylvania Co., 333.
4. In the latter case, it seems that the person to whom the bill of lading was transferred can maintain an action against the carrier on the contract contained in the bill of lading.-Id.
CONSPIRACY.
See EVIDENCE, 1; PLEADING, 5.
1. A constable's bond drawn according to the Revised Statutes, but which does not con- tain the conditions required by the act of 1872, is not an indemnity against all his possible official delinquencies, but has a specific and limited purpose.-The People ex rel. Comstock v. Lucas et al., 2.
2. An action cannot be maintained on such a bond for a levy and sale of property of a party other than the execution debtor.-Id. See CRIMINAL LAW, 7.
CONSTITUTIONAL LAW.
1. Plaintiff's charter and the acts amendatory thereof are not violative of 18 and 20 of Art 3 or § 10 of Art. 9 of the Constitution, -Trustees of Firemen's Ben. Fund v. Roome, 32.
2. Section 7 of said charter was not repealed by the acts providing for the taxation of corporations.-Id.
3. Chap. 631, Laws of 1868, providing for the widening of Sackett St., in the City of Brooklyn, imposed a direct liability on the city to pay the awards made in the pro- ceeding and was not unconstitutional.- Genet v. The City of Brooklyn, 340.
4. Provisions in regard to the power and au- thority of a city over its streets, containing restrictions of its liability in case of acci- dents from the bad condition of said streets, may properly be included or inserted by amendment in its charter without any spec- ification of that subject in the title of the -Van Vranken v. The City of Schenec-
5. Section 1 of Chap. 93, Laws of 1883, pro- hibiting the manufacture of cigars, &c. in any rooms or apartments in N. Y. City which are used for the purpose of living, sleeping or doing any household work, is violative of 16, Art. 3, of the Constitution, and void.—In re application of Paul, 487.
6. Chap. 40, Laws of 1878, and the acts amendatory thereof are not unconstitu- tional in providing for the appointment of commissioners in place of the Common Council to act in opening Flushing avenue. -In re application of Woolsey et al., 546.
7. Section 18, Art. 3 of the Constitution does not apply to streets and avenues of cities, but only to roads and highways.-Id.
See CRIMINAL LAW, 14; EMINENT DOMAIN, 1 ; FISHERY, 1; JUSTICES OF THE PEACE, 1, 2; LOTTERY, 2; PERJURY, 2; REMOVAL 2; SCHOOLS, 2; SHERIFFS, 5; WAIVER; WITNESS.
CONSTRUCTION OF STATUTES.
See CORPORATIONS, 13; INJUNCTION, 9, 10; RECEIVERS, 15.
1. In every forum a contract is governed by the law with a view to which it is made, be- cause, 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 circum- stances 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.-Shil- lito et al. v. Reineking et al., 13.
2. 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 wheth- er the principle above stated is applicable.— Id.
3. When a married woman, who has previ- ously expressed a willingness to apply her separate property to the payment of her husband's debt, executes her promissory note therefor, expressly binding such sepa- rate 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 spe- cifies 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.—ld.
4. Where by law the approval of a bill by certain commissioners is made a condition precedent to the right of a creditor for pay- ment, an unreasonable refusal by such com- missioners to approve same obviates the necessity of establishing such approval as a part of the creditor's right to recover.- Frazier v. The Mayor, &c., of N. Y., 16.
5. The refusal of such approval upon the ground that an injunction is outstanding against such commissioners restraining them from acting is an unreasonable refu- sal.-Id.
6. Where the vendor in an executory contract for the sale of lands agrees to convey cer- tain real estate, viz.: A tanyard property ** subject to a mortgage of $3,500," the vendee is justified in refusing to take said premises subject to easements, . g., a right to certain water power; also to keep up a dam and to the use of a spring.- Wheeler v. Tracy, 26.
7. When a contract grows immediately out of and is connected with an illegal or an im- moral act, and is thus tainted, a court of justice will not lend its aid to enforce it. A contract made with a public officer, and the result of collusion and conspiracy to ab- stract the public funds, is invalid.—Baird v. The Mayor, &c., of N. Y., 39.
8. Defendant agreed with plaintiff's assignor to purchase a house which, at the time of entering into the contract, was in excellent condition, with gas fixtures, water pipes, etc., throughout, which, by the terms of the contract, were to pass with the house. On the day fixed for completing the pur- chase, when plaintiff's assignor tendered the deed, the house had been denuded of gas fixtures, water pipes, gas pipes and other things which, by the contract, were to pass with the house. Held. That defend- ant properly refused to complete his pur- chase and accept the deed, as he was not bound to accept a deed of the property in the condition it was in, the house being substantially different from the one defend- ant agreed to purchase.-Smyth v. Stur- ges, 43.
9. In an action for extra work done under a building contract plaintiff testified that the articles mentioned in a plumber's bill which he held were put in the defendant's house. The bill was admitted in evidence as a memorandum of materials and labor fur- nished on the house, but not as evidence of the value of the labor. Held, That it was properly received. — Robbins v. Carll, 60.
10. Plaintiff demanded payment and was told to call on another day. He called again and stated that he had called to settle and defendant replied he would never settle and would resist payment if sued. Held, A suf- ficient presentation and demand to set the interest running on plaintiff's claim.-Id.
11. Where a mortgage was held as collateral security by a bank, under an agreement that the proceeds of the mortgage, when collected, were to apply on the principal debt, payment of the mortgage before matu- rity is good consideration for a promise made by the bank.-McCraith v. The Natl. Mohawk Bunk, 80.
12. As to measure of damages under cer- tain circumstances, quære.-Id.
13. Defendants contracted to deliver to plain- tiff alongside vessel 500 bbls. alcohol per month, C. O. D., provided name of vessel and number of pier were previously made known to them. In an action for non-de- livery it appeared that plaintiff's agent in- quired of defendant if it was necessary for his principals to do anything by way of tender or performance to keep the contract alive, and was informed it was not. Held, That it was sufficient that plaintiffs were ready and willing to pay the contract price of the alcohol when delivered and no tender was necessary; that an assignment by de- fendants for the benefit of creditors re- lieved plaintiffs from making a tender and that evidence of a waiver of tender and of plaintiff's readiness to perform was admis- sible. Woolner et al. v. Hill et al., 171.
14. B., who was engaged in the business of refining oil, entered into an agreement with defendant by which the latter was to fur- nish capital, manage the business, and pay half the profits to B., who agreed not to sell any of the goods, utensils, &c., without defendant's consent. Thereafter B., on behalf of plaintiffs, sold to the defendant certain empty oil barrels and coal which were used up in the business. Held, That the personal property covered by the agree- ment did not include the barrels and coal, but only such property as was permanently used in carrying on the business, such as tanks, machinery, &c.; and that a subse- quent release by B. of all claims founded on the agreement did not cover the purchase price of the coal and barrels.—Brady et al. v. Read, 194.
15. In construing a provision of a contract the whole contract must be considered and such construction placed upon such pro- vision, in the light of the circumstances under which the contract was made, as will carry out the intention of the parties.- Hurd v. The Hannibal & St. Jo. RR. Co.. 239,
16. A variance between the complaint and the proof, consisting in an allegation in the complaint of a contract of purchase and sale with a credit of thirty days, while a contract proved does not give credit, is not a material one in an action by the purchaser against the seller for breach of contract in failing to deliver the goods sold.-Dough- ty et al. v. The Manhattan Brass Co.,
17. Where a contract is unambiguous, and the rights of the parties under it are clearly defined by the law, such rights cannot be affected or controlled by evidence of a mer- cantile usage not in accordance with them. -Colgate et al. v. The Pennsylvania Co., 333.
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