Volume 41 — Jones & Spencer's New York Superior Court Reports

This action was brought to recover five thousand dollars on a policy of life insurance, and was tried before the chief justice and a jury, on June 9 and 10, 1875. The verdict was for the plaintiff. The defendants appeal from an order denying their motion for a new trial, made on the minutes of the court, and from a judgment against them entered on the verdict.

This is an appeal from a judgment entered on a verdict, rendered May 20, 1875, after a trial before Mr. Justice Curtis and a jury ; also from an order denying a motion made by the defendants on the judge’s minutes, to set aside the verdict, on the exceptions taken at the trial, and on the further grounds that the damages are excessive, and that the verdict was contrary to and unsupported by the evidence.

This is an appeal from a judgment entered on a verdict in favor of defendants, rendered March 4,1874, by direction of the court, after a trial before the Chief Justice and a jury. The action was brought by the plaintiff, as administratrix of her deceased husband, to recover the damages sustained by his estate in consequence of his death, which is alleged to have been occasioned by the negligence of the defendants.

This is an appeal from a judgment, rendered at special terra, April, 1873, directing the cancellation and discharge, as against the plaintiff, a married woman, of a mortgage on her separate real property, and perpetually enjoining the defendant, the mortgagee, from instituting any suit or proceeding thereon, or on the bond therein mentioned against her.

Exceptions heard in the first instance at general term. This action was tried before Hon. John Sedgwick, and a jury, on the twenty-first day of October, 1875, when, by the order and direction of the court, made under objection and exception duly taken, a verdict for six thousand and twenty-four dollars and sixty-seven cents was rendered in favor of plaintiff.

<p>Appeal from a judgment.</p> <p>The facts appear in the opinion.</p>

The cause was tried before the Chief Justice and a jury, October 6, 1875. The action was brought to recover damages for an alleged wrongful conversion of certain logs of red cedar and cedar bolts, the property of the plaintiffs. Defense, a general denial. It was conceded, on the argument, that the plaintiffs’ right of property and possession were adequately proved; but the defendant contended that there was no proof of a wrongful conversion.

The action was to recover the possession of real property, and was tried by the court without a jury. The following are the facts found, and the conclusions of law: In 1836, one Samuel A. Porter was seized in fee of the premises. In that year Porter mortgaged the premises to Ellis Potter and McGrown. In August, 1840, Porter conveyed the premises in fee to the plaintiff.

• The action was for false imprisonment. The complaint, setting forth the cause of action, was accompanied by the following affidavit of the plaintiff: “That while this plaintiff was quietly and peaceably attending to his business in his store, the defendant Burns entered the same, and after remaining a short time, demanded that this deponent should go with him to see the captain of the police force of the thirty-third police precinct, which deponent refused to do, and that…

<p> HUSBAND AND WIFE. </p> <p>1. LIABILITY OF HUSBAND FOR GOODS SOLD HIS WIFE ON CREDIT.</p> <p>(a) Necbssabies, liable thebefob.</p> <p>He is liable for articles necessary for her use which he neglects or refuses to supply.</p> <p>(J) Defences to action fob, what abe not, in such case.</p> <p>1. Notice not to sell on his credit, is not.</p> <p>3. Limited divorce; suit for pending, and report of referee fixing alimony, but not confirmed, are not.</p> <p>(a) Subsequent confirmation of the report and payment of the alimony will pot relate baclc so as to affect the rights of one who had previously furnished necessaries.</p> <p>8. Offer by husband to supply is not, if connected with conditions which the wife is not bound to comply with.</p> <p>4. Previous provision by husband, is not, if the husband on separation withheld from the wife that which he had provided.</p>

The complaint alleged that the defendants, with in tent to deceive and defraud the plaintiffs, falsely and fraudulently represented to them, that certain persons composing the firm of Osborne, Bullard & Co., were solvent and safe to be trusted : that they were pecuniarily amply responsible for all their debts: . . .

The action was to recover damages for deceit in fraudulently representing the responsibility of one Stern. The action was tried by the court and a jury. None-of the evidence taken on the trial is given in the printed case. Exceptions were taken by the defendant to the charge of the judge, and also to his refusals to charge. The cause of action as alleged in the complaint was a conspiracy to defraud.

Exceptions heard in first instance at general term. Complaint dismissed.

A motion was made at special term to set aside a verdict rendered herein for defendant, for irregularity in the conduct of the trial. The irregularity complained of, consisted in written communications having passed between the jury and the judge, of which the counsel was not apprised. The facts suffici nitty appear in the special term opinion. At special term an order was made setting aside the verdict, from which the defendant appealed to the general term.

The action was for trespass, in wrongfully taking and converting personal property. The defense was that the alleged taking, &c., consisted in the defendant’s levying an attachment against the goods of a firm, Meyers & Lohse, upon the goods in question, and that said Meyers & Lohse, or one of them, had a leviable interest in the goods. The answer contained a general denial, excepting, &c. On the trial, it appeared that Meyers and Lohse were retail dealers in house furniture.

The facts appear in the report of the motion for re-argument, and the opinion of Chief Justice Mokell thereon, reported in vol. 40, p. 169.

The complaint was upon contract made by the de fendant, whereby, for and in consideration of the plaintiff granting a license to the defendant to use certain patents owned by plaintiff, for a certain kind of new and improved pavement for streets, the defendant covenanted 16 to use and employ his best endeavors to obtain contracts for laying said pavement on the streets of the said Metropolitan Police District,” and to pay the plaintiff twenty-five cents for each square yard…

<p>I. EVIDENCE.</p> <p>1. HEARSAY, when conversations and declarations not in the presence of the party to be affected, do not fall -within the rule excluding hearsay evidence.</p> <p>(a) Where a party in support of his case proves and relies on an act done by the other, the conversation aad declarations by such other party to and with a third party at the time of doing the act which induce it are admissible as characterizing the act.</p> <p>1. Series oe acts. So of a series of similar acts, the party being moved to each subsequent one by the issue of the previous one being in accordance with the statements and declarations made at the time of doing the first act. Such statements and declarations, and evidence as to the issue, are admissible to characterize each subsequent act.</p> <p> (a) Semble.—This though the party against whom the evidence is offered■, has only proved and relied on the subsequent acts. </p> <p>1. The prinr'ple - f res gest.e, not that of inter Alios acta applies,</p> <p>n. WITNESS, EXAMINATION OF,</p> <p>1. CONTRADICTING YOUR OWN, what does not fall within the rule against.</p> <p>(1.) Proving a fact material to the issue to be contrary to what the witness has testified although the testimony was given in response to your’own question.</p> <p>Cross-examination. The rule applies as well wit ere you have made a witness your own on cross-examination, as when you call a witness in your own behalf.</p>

The complaint sets out two causes of action, one for services, as an attorney on the employment of Rufus L. Lord, defendant’s testator, and the other for a part of a reward offered by Mr. Lord and Mr. Barron. On the trial, the court practically withdrew from the jury the second cause of action.

This is an appeal by the defendant from a judgment for seven thousand five hundred and fifty-eight dollars 'and eighty-five cents, entered upon a verdict directed by the court, in favor of the plaintiff. The action is brought against the sheriff to recover damages for the non-return of three executions in favor of the plaintiff.

The plaintiff claimed that there was an agreement that the defendant should purchase the shares for their joint account, and that the profits and losses should be equally divided between them.

At the trial a verdict was direc'ed for the plaintiff for six hundred and thirty-nine dollars and seventy-eight cents, subject to the opinion of the court at general term.

.Appeal from a judgment in defendant’s favor, entered upon a verdict directed by the court. The plaintiffs sue to enforce a liability against the trustees of the American Seal Lock Company, for failing to file and publish ieports, as required by § 12 of the act for the formation of corporations for manufacturing purposes, &c., passed February 17, 1848.

The appeal is from an order denying a motion to suppress a commission issued on behalf of the plaintiff, to take the testimony of Ezekiel S. Candler. Jr., at Iuka, Miss.

<p>EXTRA ALLOWANCE UNDER § 309 OF THE CODE.</p> <p>In an action for an injunction, when it is impossible to ascertain a money basis upon which to calculate a percentage, no allowance can be made under this section of the Code (See the cases cited at the close of the opinion of the court).</p> <p>In the case at bar, the only matter involved in the action and adjudication upon by the court, was the rights of the plaintiffs, to restrain by injunction the consummation of a contract by the defendants.</p> <p>The papers do not show that the pecuniary interest of the parties, in the subject matter of the action, was a question to be settled or adjudicated upon, and the findings of the judge show that he passed upon the controversy, irrespective of any specified amount of pecuniary interest of the parties to the action, and simply upon the respective rights of the parties as a question of law.</p> <p>The words of this section of the Code are not broad and full enough to embrace interests remotely or indirectly affected by the decision, but they refer to matters or questions included in the issues and covered by the adjudication.</p>

<p>COMMON CARRIER.</p> <p>It seems to he now clearly established that where goods are intrusted to a common carrier for transportation, and there is a loss from a cause excepted by the contract (for example as in the present case by fire),that the onus of showing negligence on the part of the carrier rests upon the party claiming damages for the loss (Lamb e. Camden and A. R. R, Co., 46 JV, 7, 271; Cochran v. Dinsmore, 49 M T, 249),</p> <p>The fact of a loss by fire or from the cause excepted in the contract, while the goods are in the custody of the earlier, does not establish a presumption of negligence on the part of the carrier, Where there was evidence of tbe'destrdctioii of the goods by fire, or from the cause excepted by the contract, Without evideace of fault or negligence on the part of the earner, the judge should not direct a verdict in favor of the plaintiff, and against the carrier, but should submit the case of the defence to the consideration of the jury.</p>

This case comes np on exceptions taken by defendants, at the trial before Hon. John Sedgwick, Judge, and a jury, October 25, 1875. The court directed a verdicfcfor the plaintiffs and ordered defendant’s exceptions to be beard, in the first instance, at general term, judgment in the mean time being suspended. A verdict was thereupon rendered in favor of the plaintitfs, for six thousand one hundred and seventy dollars, and fifty-eight cents.

The action was brought by the plaintiff as administrator of James Jones, deceased, pursuant to Laws of 1847, ch. 450, to recover the damages alleged to have been sustained by the next of kin of decedent by reason of his death, through the wrongful act, neglect or default of the defendants.

Appeal by defendant from an interlocutory judgment requiring him to surrender the possession of land and premises at the corner of Madison Avenue and Thirtieth Street, in the city of New York, formerly demised by him to one Lauriston White ; to execute and deliver to the plaintiff a lease of such premises ; and to account for the rents and profits thereof, received by him since May 15, 1878.

<p>TRUSTEES, AND THEIR DUTIES.</p> <p>Pledge, and its incidents.</p> <p>Pleadings and practice.</p> <p>A trustee charged with the management and disposition of trust property, cannot become the purchaser thereof, at a sale under the trust agreement. Such purchases are null, ipso jure, and may be avoided by the cestui que trust, at his option, and irrespective of the question, as to whether the bargain was advantageous or detrimental to either party.</p> <p>Nor can such trustee purchase as the agent, or for the benefit of a third party (See cases cited in the opinion).</p> <p>Upon the rules and principles laid down in the foregoing propositions and the cases cited, the court held in the case at bar,</p> <p>That an agent of the trustee, charged as such agent, with the disposal of the property, and the execution of the trust, could not become the purchaser of the trust property at the sale thereof. Nor could he purchase the same for a third party, for in his ease, as in that of his principal, there is a conflict between duty and interest, inclination and obligation.</p> <p>In the case at bar, a defease was established by the proofs, but it was unavailing, because it was not pleaded in the answer, and the judgment was sustained for that reason.</p>

The action was brought on or about July 1, 1874, for the purpose of procuring the avoidance and cancellation of record of an assignment of lease, executed by plaintiff to defendant. On that day, the plaintiff filed in the office of the clerk of the City and County of New York, a notice of the pendency of the suit. The lease transferred to defendant by such assignment, was for a term of thirteen years from May 1, 1867, and will, therefore, not expire till May 1, 1880.

The action was against the sheriff and one of his deputies, for the value of certain property seized by the sheriff, through his deputy, under an order of attachment against the property of one of the plaintiffs, a partner in a firm composed of the plaintiffs, and not returned to the plaintiffs after the attachment had been vacated, and also for damage to such of the property seized as was returned. , The sheriff did no personal act in levying on, or in taking charge of the…

Appeal by defendant from order of reference. The complaint is wx % promissory note. The answer makes, 1. ¿Vhat for the purpose of this appeal is to be taken as a legal defense. 2.

<p>Appeal by defendant from judgment, entered on report of referee.</p> <p>The action was upon a policy of insurance, issued by defendant upon the life of Albert Cahen, for the benefit of his wife, the plaintiff. The premiums were payable by her.</p> <p>Upon the trial it appeared, that May 81, 1873, Albert Cahen made in writing jointly with the plaintiff, an application for insurance, to the Empire Mutual Life Insurance Company. In this application, Albert Cahen stated he had not “during the last seven years any sickness or disease,” that no physician had attended him for such a sickness, and also that he had not been subject to cough. Upon this, and on the same day, May 81, 1873, the Empire Mutual Insurance Company issued a policy. The terms of this policy were not put in evi ence. The plaintiff paid the premium on this policy.</p> <p>Between June 1, 1872, and October 2, 1872, an agreement was made in writing between the defendant and the Empire Company in regard to an assumption by the former of the risks taken by the latter in the course of its business. The testimony on this subject was oral, and objected to, and the nature of the agreement did not appear in evidence.</p> <p>On October 2, 1872, the defendant made its policy, in consideration of premiums paid and to be paid by plaintiff upon the life of Albert Oahen. This policy began, “This policy witnesseth that the Continental Life Insurance Company, in consideration of the representations made to the Empire Mutual Life Insurance Company, in the application for Policy No. 13,346, of said comp ny surrendered, which application and representations apply to and made a part of this policy, and warranted true by the assured, and of the sum,” &c.</p> <p>On this policy was endorsed a credit, which had been given by The Empire Company to the plaintiff, as of a loan made under May 31, 1872, one hundred and eighteen dollars and fifty-seven cents.</p> <p>On September 29, 1873, the defendant received from the plaintiff eighty-nine dollars and seventy cents, for premium due last day of September, 1873, insuring ten thousand dollars for four months ending on January 31, 1874, at noon, or within thirty days thereafter.</p> <p>The defendant’s policy contained a provision, viz. : “ that if the declaration made by, or for the assured, in the application for said Empire policy or any part thereof, shall not have been discovered to be in any respect untrue, within one year from the date hereof, the same shall be considered incontestable by the company, provided, however, that in case the said decíaration, or any part thereof, shall at any time be discovered to be wilfully and fraudulently untrue, or said, premiums shall not have been paid, as above specified, then, and in such case, this policy shall be null and void.”</p> <p>There was evidence that on June 1, 1872, the day after the policy was made by the Empire Insurance Company, Albert Cahen was in poor health, and had a cough ; that on June 5, 1872, a physician was called to attend him. There was testimony by declarations of the plaintiff, that Albert Cahen had the disease of the kidneys, called diabetes. The physician attended him for about three months. He died about November 13, 1873, of the disease of the kidneys.</p> <p>The defense was that by the true construction of the policy, the applications and the statements therein were warranted to be true on the 2nd October, 1872, when the defendant’s policy was made, and the answer averred that their statements in reference to Albert Cahen not being subject to cough, and not having had any sickness or disease within seven years prior to the application, and as to a physician having been consulted by him within that time, “were willfully and fraudulently untrue, and that the same were discovered to have been willfully and fraudulently untrue prior to the 2nd day of October, 1873.”</p> <p>The referee by whom the case was tried, found in favor of plaintiff, and the defendant appeals from the judgment entered on the report</p>

<p>An order obtained ex parte, requiring a defendant to file Ms answer within ten days, or that Ms defense be deemed abandoned, may be vacated or modified by the judge making the same, ex parte or upon notice and a hearing.</p>

This is an. appeal from an order made at special term, setting aside a verdict for five thousand dollars, and granting a new trial.

This was an appeal from a judgment entered upon an order made at the trial directing a verdict in favor of the defendant. The action was brought for the wrongful conversion by the defendant, of eight cases of merchandise, the property of the plaintiffs, of the value of seven thousand dollars. The plaintiffs claim to have purchased the goods of John Sanders, on the 10th of June, 1872.

Appeal by plaintiff from a judgment in favor of the defendants. The defendant G-ottwald recovered judgment against Schiefferdecker, an execution issued, and the defendant Murphy, a city marshal, levied upon the property in question while in the possession of the mortgagor. The property seized by the marshal consisted of a phaeton, two horses, two sets of single harness, a double harness, and a number of other articles.

On April 21st, 1876, the health department was in occupation of certain rooms in the building covering premises No. 300 Mulberry street and 301 Mott street; and the police department was in occupation of the rest of the building.

The plaintiff obtained an order of attachment against the defendant as a non-resident of this State. Thereupon defendant, upon affidavits tending to show his residence in this State (among which affidavits were those of his wife, his daughter, and himself), obtained an order requiring plaintiff to show cause why the attachment should not be set aside.

This is an appeal from an order, compelling Lewis Allen to complete the purchase of certain premises, bid in by him, on a sale made under a judgment of foreclosure in this action. The purchaser objected to the title, on the alleged grounds that William J. Barnes and George F. Hopper had each an estate and interest in, and a lien upon the mortgaged premises, and had not been made parties to the foreclosure proceedings.

This is an appeal from an order made at Special Term, denying the defendant’s motion for an order requiring the plaintiff to furnish a further and more specific bill of particulars. The action is in tort, being to recover damages for an alleged trespass upon the plaintiff’s premises, by which his stock and fixtures were damaged, and his business greatly injured.

Appeal by the defendant from a judgment entered upon the verdict of a jury for six thousand six hundred and one dollars and fifty-five cents. In February, 186?, the plaintiff was a stock-broker and a member of the open Board of Brokers in the city of Hew York. As a condition of admission into that Board and into the rooms occupied by it, the plaintiff had agreed to be bound by certain rules.

Appeal by plaintiff and defendant from the judgment entered herein at Special Term, also from the second order of reference, and also an appeal by the defendant from the order over-ruling exceptions and confirming the referee’s report. This action was commenced July 30, 1883, to recover possession of five lots of land in Madison Avenue, in the city of New York, with a church and lecture room thereon.

The action was against the defendant as maker of certain promissory notes. The defense was that plaintiff was a purchaser of the notes after maturity, and that the notes had been given by the defendant, to a third person, his creditor, upon the latter requiring it as a condition of signing a composition deed in fraud of other creditors. The plaintiff contended that one Avery had bought the notes before maturity bona fide, and that plaintiff took Avery’s rights.

An appeal from judgment, and from order denying motion to set aside verdict, and for a new trial upon the judge’s minutes.

On the motion below, the following facts were shown : The action was to recover eighteen thousand dollars upon an account stated. The issues were referred for trial. On the trial the defendant offered in evidence a general release by plaintiff of defendant. This release was executed after the action was brought, and was not pleaded. The referee refused to receive it in evidence. On the ground of this release the defendant moved.

<p>EJECTMENT, ACTION IN THE NATURE OP.</p> <p>. DeLiveky of deed. Evidence of, and issue in.</p> <p>The date of a deed, and the possession of it by a party claim- . ing under it, is presumptive evidence of’its delivery.</p> <p>Although it may be necessary to have a commissioners’ certificate of the execution of the deed and a county clerk’s certificate of official character of the commissioner, and the genuineness of the signature, to entitle the same to be recorded, yet they are not necessary, upon the deed, to make the same valid and effectual as a conveyance to pass the title to real estate.</p> <p>The production of a deed by a defendant properly executed in . the possession of the party plaiming under it, is presumptive evidence of its delivery at .the time of its execution as appears from its date, or the date of its acknowledgment, and the plaintiff has the affirmative of the issue thus raised. He must show affirmatively, and beyond reasonable doubt, that the deed was not delivered; and if his proofs are contradicted by other proofs, so as to leave the matter in doubt, 1 that doubt may be considered in favor of the delivery of the deed.</p> <p>The plaintiff, having the affirmative to sustain, namely : that •• the deed was not delivered, he must satisfy the jury that he had made out his case and established the fact of nondelivery. If he does not satisfy the jury of the fact leyond a reasonable doubt, he is not entitled to the verdict, and the defendant is entitled to a verdict sustaining the delivery of the deed.</p> <p>JUDGE’S CHARGE TO THE .JURY.</p> <p>'An appellate court will not seize hold of isolated portions of a . charge for the discovery of error. If the charge, as a whole, conveys to the jury the correct rule of law upon a given ques- . tion, the judgment will not be reversed.</p> <p>If the language of a charge is capable of different constructions, that one will be adopted which will lead to the affirmance of an judgment, unless it fairly appears that the jury were or might have been misled (Caldwell v. N. J. Steamboat Co., 47 N. T. 888),</p>

<p>I. APPORTIONMENT. Between principal and income.</p> <p>1. Equitable doctrine of, when it does not prevail.</p> <p>(a) When a trust deed contains the law governing the action of the trustees.</p> <p>II. APPLICATION OF PRINCIPLE.</p> <p>1. Asset, expense of collection.</p> <p>1. A trust deed of real and personal estate directed and empowered the trustees to take possession of the real estate, manage, let, demise, repair, insure, mortgage and sell the same; and to receive, audit and settle all claims and demands as to the real estate, and as to the personal estate and the income of the. same, making such compromises or allowances as to the same as they may think just; and to invest and keep invested the proceeds of any real estate and also the personal estate; and to apply the net rents, issues and profits of all the trust property to the use of the grantor of the trust for life, and upon her death to convey the whole trust property according to the provisions of the trust deed which disposed of the remainder in every possible contingency). A part of the principal of the trust property consisted of a bond for $7500, secured by a second mortgage; the first mortgage was foreclosed, and nothing was realized on the second mortgage, and the bondsman being insolvent, an action was commenced by the trustees, against the sole devisee and legatee of the investor of the seven thousand five hundred dollars. This action was compromised and the whole seven thousand five hundred dollars and interest obtained ; the trustees paid their attorney in that action five hundred dollars.</p> <p>One of the trustees claimed that the five hundred dollars should be deducted from the income; and in accounting for the income to the life-tenant deducted the amount and refused to pay it. Thereupon the other trustees and the life-tenant commenced this action against the refusing trustee to compel him to unite with the plaintiff trustee in paying to the plaintiff life-tenant four hundred and forty-nine dollars and sixty-three cents (being the proportion of the five hundred dollars which plaintiff claimed to be chargeable to principal), and to have that sum charged to principal as a necessary payment for its rescue and preservation.</p> <p>Held,</p> <p>that under the terms and scope of the trust deed, the whole of the five hundred dollars was chargeable on and to be paid out of the income; that the equitable doctrine of apportionment had no application ; that the trust deed contained the law governing the action of the trustees; that it was their plain duty to pay the five hundred dollars out of the income; and consequently that the complaint stated no cause of action for the relief demanded.</p> <p> HEAD NOTE TO SPECIAL TERM DECISION. </p> <p>1. Holds same propositions as held at General Term.</p> <p>H. TAXES AND ASSESSMENTS.</p> <p>1. Act of Mat 35, 1841, as to apportionment.</p> <p>1. Action must be brought bringing all the parties before the court, and giving proper data for ascertaining the value of the estate of each party.</p> <p>3. Personal estate. The remedy does not extend to personal estate or charges on it of the character of the one in question.</p> <p>Curtis, J.</p>

<p>GONTBMPT. What cannot be punished as.</p> <p>1. Payment of money. Disobedience of a judgment or order directing the payment of money cannot be punished as.</p> <p>(a) Trust Fund. This although the payment is directed to be made out of a trust fund, and in priority to all other payments.</p>

This is an appeal from a judgment, entered on a verdict of the jury, directed by the court. The defendant seized and took ont of the barque John Campbell, owned by the plaintiff, ten hundred and fourteen barrels of flour, and detained the vessel, and broke up the cargo.

<p>MECHANICS’ LIEN, DISCHARGE OF.</p> <p>Bond, filing of,—under section 18, act of 1875, cha/p. 379, what liens cannot he discharged thereby.</p> <p>Liens on which proceedings were commenced before July 1, 1875, cannot be.</p>

<p>I. PARTNERSHIP.</p> <p>1. Individual debt.</p> <p>1. Notes, ob indorsements of the firm in payment thereof; (a) One partner has no power, without the assent of his copartner, to give to his individual creditor, in payment of an individual indebtedness due by Mm, a note drawn by Mm in the firm name, or an indorsement made by Mm in the firm name.</p> <p>(1) Assent—burthen of proof as to.</p> <p>(a) Creditors must, in this State, show the assent (Dobs v. Halsey, 16 J. R. p. 38).</p> <p>3. Settlement by one partner with a debtor of the firm.</p> <p>1. When not binding on the firm, so as to call upon the other partners to falsify it by particular allegations of mistake or fraud.</p> <p>(a) Individual transactions. It is not so binding when it comprises individual transactions, wMch the parties engaged in the settlement knew should not enter into the firm , accounts.</p> <p>(1) Debtor remitted in such case to his pri/me obligation.</p> <p>H. PLEDGEE.</p> <p>1. Cessation of rights as such.</p> <p>When the proceeds of the pledge and charges against them are carried by mutual consent into general accounts with the pledgor.</p> <p>HI. ASSIGNEE IN TRUST FOR BENEFIT OF THE CREDITORS OF A FIRM.</p> <p>1. Accounting.</p> <p>(a) Action for, by one of the partners against his copartner and the assignee.</p> <p>1. Application op above principles.</p> <p> Held, </p> <p>1. That the assignee could- not" charge against the' proceeds of the assets of the firm, a note drawn by the defendant partner, and indorsed by him in the firm name, and by him given the assignee (before the assignment) to secure his individual debt due by him to the assignee, it not appearing that the plaintiff partners had assented thereto.</p> <p>3. That notwithstanding a settlement made between tlm defendant partner and the asSignee, yet as the assignee was allowed to charge in the settlement such a note so given, he was thereby remitted to his prime obligation to account for the proceeds of the trust, and the plaintiff partner was not called on to falsify it by particular allegations and mistakes.</p> <p>3. That the assignee was chargeable with the proceeds of property of the firm, which prior to the assignment he had received, and, by mutual consent, carried, with the charges thereon, into general account with the firm, although the property was originally pledged to him by one member of the firm as security for an individual indebtedness.</p> <p>(1) The proceeds and charges thereon having been carried into general account with the firm before the assignment, his right as pledgee ceased, and upon the making of the assignment be became liable thereon as trustee for such proceeds.</p> <p>(a) The effect is either an increase of the assets of the firm, or a diminution of its indebtedness to the assignee.</p>

<p>I. LIFE LBSUBAJLCE.—Policy containing a provision that in case the person whose life is insured shall die by his own hand, it shall be void.</p> <p>1. Insanity, replication of to plea of swidde.</p> <p>(a) Evidence in support of ; what not sufficient.</p> <p>1. Presumption.</p> <p>(a) Presumption of insanity Sows not from the act suicide. 3. Circumstantial.</p> <p>(a) Consistent with both the hypothesis of sanity and that of insanity is insufficient.</p> <p>(b) Definition of the term “insanity” in this bboard.</p> <p>1. The disease of the mind must be such as to</p> <p>either</p> <p>(a) render the party unconscious that the act he did would cause death;</p> <p>or,</p> <p>(b) by an irresistible impulse lead him to the commission of the act.</p>

<p>FRAUDULENT REPRESENTATIONS.—CONTRACT.</p> <p>1. Acceptance by vendee of goods purporting to be such as were contracted to be sold, induced by fraud, effect of.</p> <p>1. Vendok, liability of.</p> <p>(a) Fraud, liable in damages for.</p> <p>(5) Contract, his liability on the contract remains unimpaired.</p> <p>1. Retention of goods. - No question as to its effect on the vendee’s rights can arise, when he immediately on the discovery of the fraud, offers to return the goods.</p> <p>2. Evidence of fraud, what sufficient to avoid acceptance.</p> <p>(a) Inducing vendes to omit, or make but partial, examination.</p> <p>1. When the contract called for new machines, and on the delivery of a part, the vendor asserted the fact, that they had come direct from the factories, and the vendee, on looking at two or three of them, found that they had the appearance of being new, whereas, in fact, they were second-hand, and had been painted and furbished so as to have the appearance of being new.</p> <p>Held,</p> <p>1. That a question of fact was presented for the jury, as to whether the defendant had not painted and furbished the machines, which the plaintiff did look at, so that they had an appearance which deceived the plaintiff, even when making an examination.</p> <p>2. That if the defendant did this fraudulently, an acceptance based on such examination would not be binding.</p> <p>2. Maxim. Caveat emptor does not apply to such a case.</p> <p>3. Statement before the contract.</p> <p>(a) A statement that the machines were to be new, cannot be relied on as one of the false representations.</p> <p>2. Money paid on an acceptance so induced.</p> <p>May be recovered in an action for damages by reason of the ' fraud.</p>

<p> I. STATUTES—CONSTRUCTION OF. </p> <p>1. Repugnancy, what is not.</p> <p>Where an act places restrictions and limitations upon the exercise by A. (a corporation authorized by such act to construct a steam railway) of certain powers thereby conferred, and a subsequent act enacted that any company organized under any act theretofore passed to construct a steam railway, should be bound by the restrictions and limitations established by the commissioners appointed under the act from which its powers were derived, so far as they were consistent with the provisions of the subsequent act; and the subsequent act empowered commissioners to be appointed thereunder to make restrictions and limitations concerning the use of powers of the kind as those conferred on A, there is no repugnancy. (1) The commissioners under the latter act are bound to preserve the restrictions contained in the former one; and cannot make any inconsistent therewith. (2) The reference in the latter act to restrictions made by commissioners appointed under the former, covers restrictions made by the act itself.</p> <p> II. FRANCHISE. RAILWAY TRACK. </p> <p>1. What is not.</p> <p>The right to lay down a track on any kind of structure, and the working of a railroad thereon is not a political franchise to be gained only from the State.</p> <p>2. What is.</p> <p>The right to act as agents of the State in acquiring land under the right of eminent domain, or the power to use the public highway for the purposes of. a railroad, is a franchise.</p> <p> III. CONSTITUTIONAL LAW. </p> <p>1. Amendments of 1876.</p> <p>(a) Prohibition against legislature granting the right to lay down railroad tracks otherwise than by general laws—</p> <p>1. Does not apply to a law giving a general right to lay down a track on any kind of structure, or creating a corporation for such purpose;</p> <p>But</p> <p>does apply to a law giving a right to use a public street, or to acquire land under the right of eminent domain, for the situs of the railroad.</p> <p>2. Power of Legislature to alter, modify, or repeal an</p> <p>EXISTING CHARTER OR LAW, CANNOT BE EXERCISED WHEN.</p> <p>(«) Hot so as to contravene a subsequent constitutional prohibition on the legislative power.</p> <p>3. Result of these propositions.</p> <p>(a) A charter granted before 1875, giving a light to a certain use of the bed of a street, cannot, since the constitutional amendments of 1875, be changed by a special or private act, so as to give a right to another different use of the bed.</p> <p>1. Different use, what is.</p> <p>(a) A right to use certain portions of the bed of the street in the middle thereof, for the purpose of erecting vertical posts, is different, within the meaning of the constitution, from a right to use portions of the bed at the curbs on the sides of the streets.</p> <p>IV. RAPID TRANSIT ACT OF 1875.</p> <p>1. Effect of, on existing corporation.</p> <p>1. An existing corporation cannot become possessed as such of a franchise to be granted thereunder.</p> <p>2. Under it a corporation may be formed and invested with a franchise, inconsistent with that theretofore granted by a former law, the effect of which would be to repeal the former Tarn.</p> <p>3. Section 36 is in effect a private law, and is mamstitutional, so far as it undertakes to give to commissioners the power to, in any manner, vest in an existing coiporation, the right to use a public highway in a manner different from that theretofore possessed by it.</p> <p> V NUISANCE, PUBLIC. </p> <p>1. PARTY TO AOTIOH IH RESPECT THEREOF.</p> <p>(a) Plaintiff. Any one who suffers damages peculiar to himself, may have an action.</p> <p>(1.) The unauthorized erection of posts in a street which interferes with a right to use the street, as given to a corporation, causes an injury peculiar to that corporation, for which it may maintain an action.</p> <p>3. INJUNCTION.</p> <p>(a) An injunction will be sustained to restrain the continuance of a public nuisance at the instance of one who suffers peculiar damages thereby.</p>

<p>I. PERPETUATION OF TESTIMONY. PRACTICE.</p> <p>1. Affidavit to procure order for. Requisites of.</p> <p>(a) It must set forth facts and, circumstances from which the judge can satisfy himself as to the materiality of the witness.</p> <p>1. An affidavit, in the words of the statute, is not sufficient.</p>

<p>life tenant.</p> <p>1. Receiver of rents and profits over, when appointed.</p> <p>(<$) Mdl-are to appropriate the rents and profits to keep down taxes calls for the appointment of a receiver at the instance of the remainder-man.</p>