the business and divide the estate among his children. On the first accounting the executors were directed to hold the balance of the fund as trustees and were discharged as executors. The daughter is still living. Held, That the attempted change of the ex- ecutors to trustees by the decree was not warranted by the will and the discharge of the executors thereby amounted only to a partial settlement of their accounts.—Id.
16. Testator gave his estate to his executors in trust to pay debts and legacies and build a vault and on the further trust to divide the residue into five equal shares and pay the income of one share to each of his children and on the death of any child to divide the principal of safd share as directed. On a final accounting the executors were directed to hold the estate in their hands as trustees. Held, That the will contemplated a time when the duties of the executors as such should end and they should act exclusively as trustees; that after payment of the debts and legacies and construction of the vault their duties as trustees commenced and that by the decree on accounting the executors were discharged, and are now entitled to commissions as trustees.-Laytin et al. v. Davidson et al., 564.
See EXECUTION, 2; HEIRS, 1; LIMITATION, 5. 8, 9; MORTGAGE, 17; RECEIVERS, 3; TAXATION, 3, 4. TRUSTS, 1.
See Costs, 1, 2, 5, 17; EMINENT DOMAIN, 9.
1. In an action for false imprisonment and malicious prosecution arising out of an arrest on attachment for alleged contempt in disobeying a subpœna issued by defend- ant as chairman of a committee of supervi- sors, the answer, after alleging want of malice, &c., set up that plaintiff controlled a certain railroad; that he was appointed railroad commissioner, his misconduct in office, &c.; the allegations as to his conduct in office were stricken ont as irrelevant. Held, Error; that it was competent for de- fendant to plead and prove any facts which tend to rebut the existence of malicious motives on his part.-Bradner v. Faulkner, 134.
2. A person whom defendant, who was di- rector of manufacturing works in New Jersey, supposed was plaintiff, came to his house in New York and represented that he had been sent there by the superintendent of the works to inform him that a portion of the works had exploded, and that he re- quired money to take him back, not having
received enough to pay his expenses; and defendant, believing his statement, gave him five dollars to pay his expenses. The state- ment made to defendant was false, and de- fendant caused plaintiff's arrest in conse- quence. In an action for false imprison- ment, Held, That the offense was not lar- ceny, but merely false pretenses. — Thorne v. Turck, 200.
3. The court refused to dismiss as to the sec- ond cause of action (for malicious prosecu- tion), and charged that if the jury believed that defendant was under the honest sup- position that plaintiff was the culprit and it was a reasonable supposition, that would be the end of the second cause of action. Held, No error; that the jury were merely called upon to assess the damages as to the first cause of action if they found the sec- ond was not sustained.-Id.
See MASTER AND SERVANT, 1: PLEADING, 1.
1. Defendant agree with M. to buy for him 100 shares of stock, M. to pay 20 per cent. down, defendant to hold the stock until full payment and to credit M. with divi- dends earned in the meantime. The pur- chase was made by defendant in April, 1873, and M. continued to pay until April, 1877, when defendant acknowledged full payment. In fact, defendant sold the stock in March, 1874. Defendant was indicted for false pretences based on a payment made by M. to him in March, 1876. Held, That statements rendered M. by defendant of dividends earned after the sale and be- fore March, 1876, were properly admitted and were representations by defendant that he still held the stock; that the question of the effect of the lapse of time (two months) between the last dividend statement and the payment of the money laid in the indict. ment was for the jury; also, that conversa- tions relative to the purchase had in March, 1873, between M. and the defendant were properly admitted.-The People v. Baker, 112.
See FALSE IMPRISONMENT, 2.
FALSE REPRESENTATIONS. See AGENCY; DAMAGES; FRAUD, 7; PLEAD- ING, 21, 22.
1. An applicant for a license to run a ferry between Troy and West Troy, under Ch. 226, Laws of 1854, must make proof of service of the notice required by that act and also of that required by Tit. 2, Art 7, Ch. 16, pt. 1 R. S.-In re application of Tal- cott, 384.
2. And the objection that this latter notice was not given may be insisted on by one
not an owner of the land through which the highway adjoining to the ferry shall run, but who is only interested as licensee of a ferry which the proposed ferry will in- jure.-Id.
1. A statement in an application for insur- ance which in no way affects the risk will not aunul an express provision in the policy itself. Where there is no mistake or fraud, the policy will control.-Smith et al. v. Knapp, 95.
2. A clause in an insurance policy provided that the company might require the insured to submit to an examination of the circum- stances of his alleged loss. A loss occurred, and the company before answer in this ac- tion on the policy enforced this rule. Held, That it could not thereafter claim that the policy was invalid.- Wise v, The Phanix Ins. Co., 128.
3. For the purpose of refreshing his memory, a witness may use an inventory made by him at the time the policy was issued of the articles insured and their values, and may testify therefrom both as to the nature and value of the articles.-Id.
4. The policy of insurance upon which this recovery was had covered "their lumber in piles in yard situated near their mill on the Raquette River. It is understood
that no lumber is to be piled within 75 feet of the mill." Held, That the intent of the agreement was that no lumber should be permanently piled within the 75 feet and that temporary placing or piling the lum- ber within the limit would not work a for- feiture of the policy-Sherman v. The Me- chanics' & Traders' Fire Ins. Co., 164.
5. Where an error in the name of the owner of the property is caused by the mistake of the insurance agent and not through any fraud or misrepresentation of the assured there is no breach of warranty, and the in- surer is liable on the contract actually made.
-The Poughkeepsie Sargs. Bk. v. The Man- hattan Fire Ins. Co. et al., 216.
6. The authority of an agent of an insurance company can only be properly proved by the production of the power of attorney is- sued to him on his appointment, or of a res- olution of the company's board of directors under which agents are employed and by which their powers and duties were pre- scribed. -Benninghoff v. The Agricultural Ins. Co., 218.
7. Plaintiff made oral application for insur- ance and disclosed the existence of all in- cumbrances. The agent, without plaintiff's knowledge, made out a written application in which no incumbrances were mentioned. Held, That under the circumstances the existence of incumbrances would not con-
stitute a breach of a condition in the policy that if the property was incumbered it must be so represented to the company in the application or the policy would be void; that the reception, by plaintiff, of a policy containing a general reference to an application, without disclosing its contents or character, was not such a ratification of the agent's act as would bind plaintiff by the statement contained in such application. -Id.
8. After several transfers of title had been made defendant, through its agent, who was authorized to consent to such transfers, consented to an assignment of the policy to plaintiff, and defendant had immediate no- tice thereof, and did not object until after a loss. Held, That defendant waived the cause of forfeiture which had accrued and reinvested the owner of the policy with a valid cause of action.-Id.
See CONSTITUTIONAL LAW, 1, 2.
1. Chap. 734, Laws of 1868, is valid. 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 exer- cise such power through the supervisors and justices of the peace of a town within whose limits such waters are situate.- The People v. Thompson, 145.
2. 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.-Id.
1. Slate mantels hung upon hooks in false chimneys are personal property and not fix- tures.-Cottrell v. Griffin et al., 270.
See EASEMENT. 1; EVIDENCE, 1; MECHANIC'S LIENS, 1-3; MORTGAGE, 7, 12, 17; RE- CEIVERS, 9, 10; SERVICE, 2.
1. An averment of fraudulent intent is an es- sential element of an indictment for forgery in the second degree committed by making a plate in the form and similitude of an evidence of debt of a foreign bank without the authority of such bank; but, in order to take advantage of the omission of such
averment, a motion in arrest of judgment must be made for that reason before or at the time when defendant is called for judgment; and, if such motion is not made at that time, defendant cannot after- wards complain of the defect in the indict- ment.-The People v. D'Argencour, 532.
2. In such a prosecution the incorporation of the foreign bank can be legally proved for the purposes of the trial by a witness who knows the fact, or even by general reputa- tion, and it is not necessary to produce the law under which the bank was incorpo- rated.-Id.
3. Courts will take judicial notice that the island of Cuba is a dependency of the King- dom of Spain, and subject to its govern- ment.-Id.
See BAR, 3, 7; ESTOPPEL, 7, 8.
1. Although a sale of the stock of a store, without actual change of possession, is presumptively fraudulent as to creditors, still, when evidence is given tending to prove that its full value was paid for such stock and that it remained in the possession of the vendor only as agent for the pur- chaser, the question of the good faith of the sale should be determined by the jury. -Roeber v. Borce, 14.
2. In an action against the sheriff for trespass in selling such property under an execu- tion against the vendor, it is competent for a person who has been employed in the business, and has, by such employment and by an examination of the books of the busi- ness, familiarized himself with the condi- tion, extent and value of the stock, to tes- tify as to such value.-Id.
3. When the good faith of a conveyance of personal property is drawn in question, statements of the vendor concerning his title to such property subsequent to the conveyance can be given in evidence against the vendee only when the vendor is, at the time, in the actual possession of the prop- erty, holding it ostensibly as the agent of the vendee, and engaged in the perform- ance of some act within the range of such agency.—Id.
4. A transfer to one of the partners of an in- solvent firm by the other partners of all their right, title and interest in the firm property, which is made for the purpose of allowing such partner to transfer all the firm's property to an individual debtor, is fraudulent as against the creditors of the firm; and such partner's individual creditor
to whom he transfers the firm property is not a bona fide purchaser thereof if he knew of the insolvency of the firm at the time of its transfer to his individual debtor. -Calkin v. Conner et al., 24.
5. Plaintiff proved his debt in bankruptcy proceedings as an unsecured claim, resisted the passage of composition proceedings, and finally accepted the dividend on his claim under protest after a petition was pre- sented for leave to deposit it to his credit. Held, That the part taken by him in such proceedings did not amount to a waiver of his right to hold the debtors for a fraud in contracting the debt.-Talcott v. Harris et al., 81.
6. The court received in evidence the order of arrest and the ex parte affidavits on which it was granted. Held, Error; that defend- ant had a right to move to vacate the order at any time before final judgment.-Id.
7. Where plaintiff purchased a house in re- liance upon defendant's statement that the cellar was dry and that the water she then saw in it was the result of a freshet and in- duced her not to make inquiries of the neighbors upon this question, and the cellar turned out to be damp. Held, That an action for fraud in defendant's represen- tation could be supported.-Greenman v. Watkins, 122.
8. The father of plaintiff, being indebted to him, gave him a mortgage to the exact amount of the debt; but the referee found that the intent of the father was to hinder and defraud his creditors and to secure a home for himself and family, and the re- feree held the mortgage void. Held, Error; that plaintiff as a bona fide creditor was en- titled to secure himself as against other creditors, and that his acts in allowing his father to live on the premises and in re- fraining to foreclose for several years were not in fraud of their rights.-Billings v. Russell et al., 133.
9. A fraudulent purchaser of real or personal property may deal with it as the owner, and whoever purchases the property or takes a mortgage thereon from him or under him in good faith in reference thereto will be protected against the claim of the defrauded vendor.-Simpson v. Del Hoyo et al., 144.
10. In an action to set aside a deed as fraud- ulent, evidence that at the time of such con- veyance a suit was pending against the grantor and that his attorney attempted to delay the recovery of a judgment therein is competent as showing a motive for the con- veyance.-Wright v. Nostrand et al., 248.
11. Where one of two creditors of a certain firm, holding the notes of said firm for its indebtedness, at the request of the other creditor, and to enable the latter to collect his claim against the firm, promises to de- lay proceedings for the collection of said
notes till a certain time after their maturity, in consideration of which the other cred- itor agrees to pay the notes at such date, such agreement to pay said notes is an original undertaking and is not within the Statute of Frauds, and is therefore enforce- able though not in writing.- White v. Rin- toul, 263.
12. The mere fact of knowledge, or presump. tive knowledge, on the part of debtors of an assignor in bankruptcy, that such as signor has omitted from his list of asse's the debt owing by them, will not raise a presumption of fraud on their part against the bankrupt's creditors, so as to take their debt out of the Statute of Limitations en- acted by $ 5057 of the Revised Statutes of the United States.-Adams et al. v. Stern et al., 311.
13. Some actual connection or collusion with such assignor to the disadvantage and in- jury of the creditors by enabling the assignor to conceal the indebtedness, or in any other way to defraud his creditors, must be shown for that purpose; and the knowledge of such omission is a circum- stance to be considered by the jury, in con- nection with any other evidence tending to show such collusion, in arriving at their verdict upon the subject.-Id.
13. A series of letters between plaintiffs and defendants, in the first of which defendants offer to sell hoop brass to plaintiffs for a certain price; in the second of which plain- tiffs say, "Please ship us two tons of hoop brass, November 1st; two tons December 1st," and in the third of which defendants write, "Your order for November and December to hand and booked," constitute a valid contract under the Statute of Frauds, and said contract is not invalid as not sufficiently describing the article con-- tracted for, although it appears that hoop brass is usually described by its two dimen- tions of width and thickness, while the only description contained in the plaintiffs letter was the width of the brass desired.- Doughty et al. v. The Manhattan Brass Co., 327.
15. Where an action is brought to impeach an account on grounds which imply the existence of a formal contract the plaintif cannot question the validity of the contract under the Statute of Frauds.-Porter v. Wormser et al., 346.
16. A memorandum or note of a contract for the sale of goods, etc., does not conform to the statutory requirements unless the name of the party to be charged thereby is signed at the end of or below such memorandum; and it cannot be held that if the name of such a party be found on the memoran- dum, e. g.. in the centre thereof, he sub- scribed all that part which precedes his said signature.-McGivern v. Fleming, 386.
17. A mortgage belonging to plaintiff's testa- tor had been foreclosed by plaintiff and a sale was about to be had. Defendant then said to plaintiff that the mortgagor had placed in his hands stock to bid off the property and pay plaintiff his claim in full if the sale was adjourned for ten days; that in ten days he would be prepared to pay. In reliance on this promise the sale was adjourned, and when had resulted in a large deficiency. Held, That it was not an original undertaking and should have been in writing. Ackley v. Parmenter, 427. 18. The title of a purchaser of personal prop- erty for a valuable consideration cannot be defeated by the circumstance that the prop- erty purchased was allowed to remain in the possession of the vendor, even though it was the intention of the vendor in mak- ing the sale to hinder, delay and defraud his creditors, unless such purchaser had previous notice of the fraudulent intent of his grantor.-Leach v. Flack et al., 444. See AGENCY; ASSIGNMENT FOR CREDITORS, 3-5, 8, 9; BAR, 5; ESTOPPEL, 2; Evi- DENCE, 20, 21; MORTGAGE, 16.
FRAUDULENT TRANSFER.
See CORPORATIONS, 15, 16; CREDITORS BILL; FRAUD, 1, 3, 4, 10, 12, 13, 18.
See TRUSTS, 5; WILLS, 32, 33.
1. Plaintiff discounted certain drafts relying upon a letter written by defendants to B. Bros., the drawers, whereby they guaran- teed the payment at maturity of any drafts that B. Bros. might draw on one F. No bills of lading or consignments accompanied the drafts, and one of them was accommo- dation paper. Held, That the guaranty was a special one and no right of action under it was acquired by plaintiff. In the absence of evidence of a consideration no cause of action accrued to B. Bros.-The Evans- ville Nat'l Bank v. Kaufman et al., 77.
2. A special guaranty contemplates a trust in the person of the promisee and is not as- signable until a right of action has arisen thereon.
3. Defendant was indebted to plaintiff on a bond and mortgage. A payment becoming
due the former tendered the latter the note of a third party, which plaintiff agreed to ac- cept if guaranteed by defendant. This was done and plaintiff credited the amount of the note. In an action on the guaranty the answer was a general denial. Held, that under it defendant could not show that the bond and mortgage were usurious and the guaranty therefore without consideration. Such a defence is, in fact, one that the
guaranty is usurious; and usury must be pleaded.-Cone v. Warner, 90.
4. Defendants gave a written guaranty of pay- ment of drafts to be drawn between certain dates by one A., provided the amount guar- anteed should not at any one time exceed $13,000; the guaranty to be continuous. Held, That it was not confined to drafts amounting to just the sum specified or to not more than that sum or to just one draft drawn for that sum; but the guarantors are liable up to that sum for the balance due upon any drafts drawn during that period. -The Bank of California v. Webb et al., 295. See BAR, 5; MORTGAGE, 15; RECORD, 2.
1. A petition for the removal of a general guardian alleged insecurity of his bond and irresponsibility, drunkenness and improv- idence," and the belief that the "infant's welfare will be promoted by the appoint- ment of another guardian." The guardian answered, denying the insufficiency of his bond and "all allegations as to his unfit- ness" whereupon trial was had on the merits and a decree of removal was made. Held, That though the petition was defect- ive in not stating facts on which an issue could be made, yet after such answer and trial this does not warrant the reversal of the decree; that the findings of the surrogate must not be disturbed unless clearly against the evidence; that a new citation was not necessary before a removal could be made on the general ground of bettering the in- fant's welfare, and that such decree was within the jurisdiction of the surrogate.- In re guardianship of Moore, 42.
2. The bond of a guardian ad litem appointed in a partition suit must run to the County Treasurer and not to the People.-Mc- Laughlin et al. v. Crawford et al., 314.
See Costs, 1; REFERENCE, 8, 9; TRUSTS, 4.
1. Where the devisee of real property aliens the same before her death, her personal rep- resentative is liable in a proper case, under Art. 2, Tit. 3, Ch. 8, Part 3, R. S., for the debts of her devisor to the same extent that said devisee was in her lifetime, viz., to the extent of the value of the real property so aliened.-Traud v. Magnes et al., 18.
2. Under said statute real property which has been devised and has descended on the death of the devisee to her heirs may be subjected to the payment of the devisor's debts in like manner as before the death of said devisee.-Id.
3. A devisec cannot be charged with a debt of his devisor except in a proceeding to which all the devisees are parties.-Dodge v. Stevens, 284.
4. An heir may convey land which he has in- herited as such notwithstanding lapse of time has not made it certain that the title he gives cannot be affected by the discov- ery of a will or proof of claims against the estate of an ancestor; and the purchaser must take the title he has bargained for, unless there is reasonable doubt as to its validity.-Moser v. Cochrane, 345.
See REFERENCE, 3; WILLS, 20, 21.
1. The objects pointed out by the record at each end of the line of a highway will di- rect the course of the line.-Johnson v. Love- less, 49.
2. It is a bad practice for a party to take ju- rymen home to dinner with him; but under the circumstances of this case such conduct is not ground for reversal.-Id.
3. The statute of 1881, Chap. 696, does not require a certificate of the first twelve names drawn.-Clark v. Stillman et al., 232.
4. If by oversight or inadvertence the names of persons interested in the land or of kin to the owner are deposited in the box and drawn, they cannot be included in the cer- tificate.-Id.
6. The requirements of 1 R. S., *414, § 62, that the commissioners of highways give notice to the occupant of land through which the road is to run after the determination that the road is necessary, and before it shall be laid out, applies equally to referees who lay out a highway pursuant to 1 R. S., *519, § 91, Laws of 1847, Chap. 455.—The People ex rel. Crooks v. Sweet et al., 258.
7. The hearing upon return to certiorari brought to review the order of such referees, reversing order of commissioners of high- ways and laying out a highway, is properly heard at the General Term in the first in- stance.-Id.
See ADVERSE POSSESSION, 1, 2; N. Y. CITY, 1. IMPRISONED DEBTORS. See APPEAL, 1. INDICTMENT.
1. A paragraph contained in an indictment stating its presentment by "the Jurors of the People of the State of New York in and
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