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.

EXPLOSIVES.

See NEGLIGENCE, 11, 12.

EXTRA ALLOWANCE.

See Costs, 1, 2, 5, 17; EMINENT DOMAIN, 9.

FALSE IMPRISONMENT.

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.

FALSE PRETENCES.

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.

FERRIES.

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.

FIRE INSURANCE.

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 ARBITRATION, 1.

FIREMEN'S FUND.

See CONSTITUTIONAL LAW, 1, 2.

FISHERY.

The

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.

FIXTURES.

1. Slate mantels hung upon hooks in false
chimneys are personal property and not fix-
tures.-Cottrell v. Griffin et al., 270.

FORECLOSURE.

See EASEMENT. 1; EVIDENCE, 1; MECHANIC'S
LIENS, 1-3; MORTGAGE, 7, 12, 17; RE-
CEIVERS, 9, 10; SERVICE, 2.

FORGERY.

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 EVIDENCE, 11.

FORMER ADJUDICATION.

See BAR, 3, 7; ESTOPPEL, 7, 8.

FRAUD.

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.

GIFT.

See TRUSTS, 5; WILLS, 32, 33.

GUARANTY.

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.

GUARDIANS.

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.

HEIRS.

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.

HIGHWAYS.

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