duties, irrespective of the question whether or not the corporation has property within the state, or whether the cause of action arose therein. (Pope agt. Terre Haute Car Manufacturing Co., ante, 419.)

GENERAL TERM.

1. This appeal was taken from a judgment dismissing the complaint in this action, which was brought to have certain railroad bonds, issued by the town of Greenwood, canceled on the ground that an act (ch. 638 of 1874), which undertook to cure certain irregularities in the petition for their issue, was invalid. Upon the hearing of the appeal, it appeared that the validity of the bonds, and of the act in question, had already been passed upon by the general term of the fourth department, upon an appeal from an order, made in this action, continuing a temporary injunction granted therein, and that the judg ment below conformed to this decision:

Held, that the former decision of the general term should be accepted as final and conclusive. (Rogers agt Rochester, &c., R. R. Co., 21 Hun, 44.)

2. Under the Code of Civil Procedure (sec. 1338), where an order of general term, reversing a judg ment entered upon the report of a referee, does not state that it was made on questions of fact, it will be deemed to have been made on questions of law only. (Weyer agt. Beach, 79 N. Y., 409.)

3. A general term of the supreme court has power to amend its record, after an appeal to this court, by inserting in an order of reversal that its decision was made upon questions of fact. (Guernsey agt. Miller, 80 N. Y., 181.)

HABEAS CORPUS.

1. In a contest between husband and wife for the custody of their two children, aged five and six years, where there is no objection to the mother personally, it is for the welfare of the children, considering their tender years, that they be left with her. An inquiry as to the father's ill-treatment of his wife is pertinent as bearing upon the father's right to take the children from their mother. (In the Matter of Pray, ante, 194.)

2.

One Lampert, while returning home, after attending at the marine court, in a proceeding to which he was a party, was arrested upon an execution against his person, issued upon a judgment recovered against him in that court, by one Faendler. After he had given bail for the limits, and been discharged from custody, a writ of habeas corpus was issued to the sheriff commanding him to bring Lampert before one of the justices of the supreme court, to which the sheriff made a return that he was unable to obey the writ, for the reason that Lampert was not in his actual custody. Upon the hearing, at which Lampert voluntarily appeared, an order was made directing that Lampert be released from the execution, and discharged from all imprisonment in pursuance thereof:

Held, that Lampert was not at the time of the issuing of the writ, imprisoned by the sheriff, nor was his bond for the limits such a restraint by that officer as authorized a resort to the writ of habeas corpus.

That the writ could not be issued to inquire into a mere matter of temporary privilege by which the applicant was exempted from arrest, but that his remedy for a violation of such privilege was by an ex parte application to the court, before which he was attending, or to the court out of

which the process had issued. (Matter of Lampert, 21 Hun, 154.)

HUSBAND AND WIFE.

1. Under section 2 of chapter 782 of the Laws of 1876 a wife is not a competent witness against her husband, and cannot be called against him by the people without his consent. (The People agt. Briggs, ante, 17.)

2. In a contest between husband and wife for the custody of their two children, aged five and six years, where there is no objection to the mother personally, it is for the welfare of the children, considering their tender years, that they be left with her. An inquiry

as to the father's ill-treatment of his wife is pertinent as bearing upon the father's right to take the children from their mother. (In the Matter of Pray, ante, 194.)

INDICTMENT.

1. Where the defendant in an indictment moves to quash the indictment for irregularity, a grand juror may be examined and testify to facts showing the irregularity, if it do not arise out of misconduct

by the grand jury. (The People agt. Briggs, ante, 17.)

2. If an indictment be improperly and irregularly found the defendant may, before plea, move upon affidavit to quash it for such irregularity. (Id.)

3. The moving affidavit may allege the facts constituting the alleged irregularity upon information and belief, if they should be within the knowledge of the district attorney; and if so alleged they may be sufficient to call upon him to dispute them if not correctly set forth in the moving affidavit. (Id.)

4 If an indictment be found or based VOL. LX

75

wholly, or in part, upon evidence clearly incompetent and illegal it will be quashed and the defendant remanded, that his case may be passed upon by another grand jury upon competent and proper evidence. (Id.)

5. The objection that an indictment has no caption, or that it does not show in what court it was presented or found, cannot be raised after a conviction by a motion in arrest of judgment. (Gray agt. People, 21 Hun, 140.)

6. An indictment for stealing a satchel containing trade dollars, describing them as "sixty silver coins (of the kind usually known as dollars) of the value of one dollar each " is sufficient. (Miller agt. People, 21 Hun, 443.)

7.

The supreme court may, upon application of the prosecution, issue a writ of certiorari to remove an indictment into that court from the oyer and terminer. (Jones agt. The People, 79 N. Y., 45.)

8. As to whether a certiorari may be brought for that purpose without the assent and in spite of the authority of the supreme court, quære. (Id.)

9. It is not necessary to give notice

of application for the writ. (Id.)

10. It is discretionary with the supreme court after having obtained jurisdiction of the case either to quash the writ upon cause shown, to remand the case to the oyer and terminer, or to proceed to its disposition as in other cases pending before it. (Id.)

11. An indicment charged perjury in evidence given by the accused on the trial of a civil action before a referee; the indictment did not allege, in terms, the commencement and pendency of the civil action; it charged that a referee was duly appointed in an action

then pending in the supreme court of this state, naming the parties:

Held, that this was a sufficient averment to show that the court

had jurisdiction of the parties. (Eighmy agt. People, 79 N. Y., 547.)

12. The indictment charged that the referee was "duly and legally appointed in the action" by a Jus tice of said court, "by an order duly made *** in said action at the chambers of said justice;' also, that the referee was duly authorized and qualified to perform the duties of that office." It was objected that the indictment was defective, as it did not state that the order of reference was made by the court, but set up an ex parte chamber order:

Held, untenable; that it was to be presumed the justice acted in accordance with law, and as he had a right to hold special term at his chambers, and as the appointment was alleged to have been lawfully made, the legiti mate inference was that the order was made at special term. (Id.)

13. It is not necessary, in an indictment charging perjury committed before a court of general jurisdiction, to set out all the facts showing jurisdiction; an averment that the court had sufficient and competent authority to administer the oath will suffice. (Id.)

14. Also, held, that proof of the entry of the order of reference was not required, the granting of the order gave the referee jurisdiction. (Id.)

INJUNCTION.

See TRADES UNION.

Johnston Harvester Company agt.
Meinhardt, ante, 168.

INSURANCE COMPANY (LIFE).

1. Where on a motion on the part of the receiver of an insolvent insurance company to confirm the

actuary's report upon the condition of such company, it is objected that the act of 1869, under which the order appointing the receiver was made is no longer in force, but was repealed or suspended by chapter 161 of the Laws of 1879:

Held, that the act of 1869, which provides for the deposit of securities with the superintendent of insurance for the benefit of regis tered policies and for their oversight and supervision is in no wise changed, altered or affected by the act of 1879. (The People agt. Globe Mutual Life Insurance Company, ante; 57.)

2. It is further objected that the order appointing the receiver was unauthorized, because preliminary to the action being taken by the attorney-general, there was no report to that officer by the superintendent of insurance that the defendant was "in such a condition as to render the issuing of additional policies and annuity bonds by said company, injurious to the public interests:"

Held, that the manner of the making of such a report, whether it should be oral or written, is not prescribed, nor is it made necessary by the act, that the fact that such a report had been made should be stated to the court. There would seem to be no good reason to require it to be so stated, for after the proceeding is brought the court must satisfy itself by the allegations and proofs of the respective parties * that

the assets and funds of said company are not sufficient to justify the further continuance of the business of insuring lives, granting annuities and incurring new obligations, as authorized by its charter," before it can "issue an order enjoining and restraining the said company from further prosecution of its business, and appoint a receiver of all the assets and credits of said company."

Held, second, that conceding the necessity of a report from the superintendent of insurance, the statute was in substance complied with. The only possible object of this provision in regard to the action by the superintendent of insurance was that the judgment of that officer should concur in the need of the proceeding, and if he does so concur, there would seem to be no good reason to require it in advance of action by the attorney-general, and that, therefore, the report made before the order appointing a receiver was sufficient.

Held, third, that this and every other objection should have been made upon the application, or at least to the order when it was resettled and re-entered. Instead of objecting the defendant expressly consented and affirmatively asked that the order which was made should be made, and upon its resettlement all its provisions were made to conform to the criticisms and wishes of the defendant. Under such circumstances it cannot now object to the validity of the order, for both statute and constitutional rights may be waived by a party and by a corporation, when it is a party, as well as by a natural person. (Id.)

8. It is also objected that the actuary's report should be sent back because such actuary has not taken into account in making his report the future premiums to be received by the company upon its policies, as required by section 8 of the act of 1869:

Held, first, that while the report does not show a detailed valuation of such future premiums, it does not appear that they were not considered in reaching the conclusion of insolvency, for such report does most clearly exhibit all the resources of the defendant and all its liabilities, and states that the latter are in excess of the former $559,271, and that

"it is clearly impossible for the company to resume business." With such a result before him and the court, any detailed calculations of future premiums became unnecessary to enable either to decide that the company's assets could not meet its obligations as they matured.

Held, second, that prior to the amendment of the act of 1869, by the act of May 5, 1880, all the special term could then do was to send the report back to the actuary for correction; the statute gave the court no power to reject it. While it is true that the act of 1869, as amended by that of May 5, 1880, now requires the actuary's report to be confirmed by the court, whether the same is favorable or unfavorable as to the solvency of the company, yet the propriety of rejecting the actuary's report and tans practically keeping the company in life through a receiver must be considered.

Held, also, that the opinion of the general term in People agt. Atlantic Mutual Life Insurance Company (15 Hun, 84), and of the court of appeals in same case (77 N. Y., 336), are directly applicable, and that the report of the actuary should be confirmed and an order entered directing the conversion of the defendant's assets into money pursuant to section 8 of chapter 902 of the Laws of 1869, as amended by section 1 of the act of May 5, 1880. (Id.)

tion." (The People agt. Globe Mutual Life Insurance Company, ante, 82.)

5. Section 430 of the Code of Procedure expressly declares it to be the duty of the attorney-general, "on leave granted by the supreme court or a judge thereof," to bring an action "for the purpose of vacating the charter, or annulling the existence of a corporation, other than a municipal," which has thus conducted itself. (Id.)

moned before a tribunal having, by the law of the land, jurisdiction of the subject-matter of the relief asked, and which by the service of process has also obtained jurisdiction of its person, must object at the proper time or be foreclosed from making any. (Id.)

8. The objections made to the constitutionality of the act of 1869 considered and held to be untenable:

7. Where, in pursuance of the provisions of this section, the attorney-general commenced this action in the supreme court by the service of a summons and complaint upon the defendant, for the purpose of enjoining further business by it as a life insurance company and to distribute its assets, and upon an order to show cause, the defendant appearing by its counsel, an application for the appointment of a receiver was heard; the court hearing the allegations and proofs of the respective parties, and the result of the application being an order made by the court appointing a receiver of the defendant. The counsel for the defendant not only took no objection to the form or manner of procedure, but formally united with the attorney-general in the application and strenuously argued and urged the need of prompt action by the court, as asked for by that state official:

Held, that this appearance in the action and consent to the order waived all irregularities, if any existed, and foreclose the defendant from all objections, constitutional or otherwise. An artificial being, as a natural one, when sum

1.

2.

Held, also, that the order appointing the receiver is valid under the act of 1869. (Id.)

The order entered having been held to be valid is irrevocable by consent of the attorneys for the parties. When individuals have voluntarily placed their property in the hands of a receiver made by the court, by no consent of their's can he be removed and the trust abrogated. The court has assumed a duty which is beyond their control. This doctrine is especially applicable to a proceeding against a life insurance corporation, because the course of procedure is all defined by statute. (Id.)

INTEREST.

Upon a contract for the payment of a sum certain on which interest at seven per cent was lawfully payable prior to January 1, 1880, by the terms of the contract, the rate agreed upon continues as part of the unimpairable obligation of the contract until judg ment, notwithstanding the change in the statute and though the contract matured before such change. (Association for the Relief of Aged and Indigent Females agt. Eagleson, ante, 9.)

In an action for work and labor done and materials furnished where the facts as proved were that no time was fixed under the agreement with plaintiff when the