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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. Heid, That the
agreement having been signed by the owner
of the property must be considered as a
written agrement between the parties with
the auctioneer which fixed the amount of
his fees, and that no action could be main-
tained agaivst him for a penalty for violation
of the provisions of 1 R. S., 532, $ 24.-
Carpenter v. Le Count, 55.


1. An agreement tending to avert investiga-

tion into the validity of a chattel mortgage,
which, if valid, creates a preference of
creditors of a bankrupt, is void as being
against the policy of the bankrupt act. –

Story v. The Cuba State Bk., 269.
See FRAUD, 5, 12, 13.


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
weck, 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 Bunk v. Jones

et al., 567.


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

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3, 4; SURETYSHIP, 1-7.

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,

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 1004 and 1007, ex. July coupons,
requires them to sell when the market price
declines to 101° or 1011 without the cou.
pons or, if sold afler July 1, when the
price equals 100or 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

1001. -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

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

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,

&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,

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-
iers 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




See CONTRACT, 21-23.


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. —ILllenberg v. Dist. No.

1, I. 0. Bnai Berith, 421.
See TAXATION, 2; WILLS, 32, 33, 36, 37.


See Usury, 1.


See HighwAYS, 7; TAXATION, 9.

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.


TIONS, 6, 19; Costs, 2, 4, 6, 12, 14, 15, 19,
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-
VENUE, 2, 3.





TICE, 11.

1. In an action against common carriers for

goods alleged to have been abstracted from
à 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. & 0, 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 cause the question
whether it was caused by such negligence

is a question of fact.-ld.
3. A delivery, by a carrier of merchandise, of

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-


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. Pourers, 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 Connecticui 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, lleld, That the conditions prece-
dent to possession in the mortgage were for.
the benefit of the company, and were
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

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 bas transferred the
3. When a married woman, who bas previ.
Brooklyn, imposed a direct liability on the


bill of lading previous to such delivery; but 6. Chap. 40, Laws of 1878, and the acis
is not a conversion as to such person if the amendatory thereof are not unconstitu-
transfer of the bill of lading was not made tional in providing for the appointment of
until after such delivery.- Colgate et al. v. commissioners in place of the Common
The Pennsylvania Co., 333.

Council to act in opening Flushing avenue.

--In re application of Woolsey et al., 546.
4. In the latter case, it seems that the person

to whom the bill of lading was transferred 7. Section 18, Art. 3 of the Constitution does
can maintain an action against the carrier not apply to streets and avenues of cities,
on the contract contained in the bill of but only to roads and highways.-Id.



See CONTRACT, 11, 22.

Schools, 2 ; SHERIFFS, 5; WAIVER ;




1. A constable's bond drawn according to the

Revised Statutes, but which does not con- See CORPORATIONS, 13; INJUNCTION, 9, 10;
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. Lucis et al., 2.

1. In every forum a contract is governed by
2. An action cannot be maintained on such a

the law with a view to which it is made, be-
bond for a levy and sale of property of a

cause, by the consent of the parties, that
party other than the execution debtor.-Id.

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
1. Plaintiff's charter and the acts amendatory

one by which it would be defeated.-Shil.
thereof are not violative of $$18 and 20 of

lilo et al. v. Reineking et al., 13.
Art 3 or $ 10 of Art. 9 of the Constitution.
-- Trustees of Firemen's Ben. Fund v. Roome,

2. A court may look into the surroundings and

consider all the facts and circumstances

bearing upon the making of the contracı,
2. Section 7 of said charter was not repealed

for the purpose of ascertaining the intended
by the acts providing for the taxation of place of performance, and ascertain wheth-

er the principle above stated is applicable.-

3. Chap. 631, Laws of 1868, providing for the
widening of Sackett St., in the City of

ously expressed a willingness to apply her
city to pay the awards made in the pro-

separate property to the payment of her
ceeding and was not unconstitutional.-

husband's debt, executes her promissory
Genet v. The City of Brooklyn, 310.

nole therefor, expressly binding such sepa-

rate estate, in a state where such note is not
4. Provisions in regard to the power and au- enforceable, but dates it in a state where it is
thority of a city over its streets, containing

valid and where the payees reside, and spe-
restrictions of its liability in case of acci- cifies no place of payment, the plaintiff in
dents from the bad condition of said streets, an action upon such note is entitled to have
may properly be included or inserted by the question as to where the contract was
amendment in its charter without any spec. intended to be performed, and in reference
ification of that sulject in the title of the to what law it was made, submitted to the
act.- Van Vranken v. The City of Schenec- jury.-Id.
tady, 359.

4. Where by law the approval of a bill by
5. Section 1 of Chap. 9:3, Laws of 1883, pro- certain commissioners is made a condition

hibiting the manufacture of cigars, &c. in precedent to the right of a creditor for pay-
any rooms or apartments in N. Y. City ment, an unreasonable refusal by such com-
which are used for the purpose of living, missioners to approve same obviates the
sleeping or doing any household work, is necessity of establishing such approval as 8
violative of $ 16, Art. 3, of the Constitution, part of the creditor's right to recover.-
and void.-In re application of Paul, 487. Frazier v. T'he 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-

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 $3,51 0,” 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 bis 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.

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, Č. 0. 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 adinis-
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.

ges, 43.

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..


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 defendaut'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. Carl. 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.

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.,

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.

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