Volume 51 — Howard's Practice Reports

<p>A contract by a life insurance company to pay a sum certain on a future day, or on the death of a party before that day, on condition that the other party should pay to it a certain sum yearly, is violated by the company when it transfers all its assets to another company and ceases to do business.</p> <p>Such violation of the contract, during its term, gives the policyholder the right to rescind, and sue for and recover the whole amount of premiums paid, with interest, as money had and received for his benefit.</p> <p>The policyholder in such a case may bring an action, in the nature of a bill in equity, on his own behalf and on behalf of all others similarly situated, to recover premiums and prevent the transfer of property of the company; and in such an action an injunction will issue and a receiver be appointed.</p>

<p>Pandmers—secret a/rrangement by one pm'tner with persons dealing with the firm — accounts between — lien of pa/rtners on the shares of copa/rtners— equitable set-off— opening accounts.</p> <p>The plaintiffs’ firm engaged the defendants’ firm, who are bankers, to buy and sell gold for them, for which service the defendants’ firm were to charge commissions and interest, as was their custom with other dealers. Rosenfeld, a member of the defendants’ firm, was secretly, and without the knowledge of his partners, interested with the plaintiffs in the account. Rosenfeld failed, and with his failure the account was closed, showing a debit balance in favor of the defendants’ firm against the plaintiffs’ firm of $73,000. Statements of this account had been regularly rendered to the plaintiffs’ firm.</p> <p>On the day of his failure Rosenfeld made an assignment for the benefit of his individual creditors, notice of which was directly given to his copartners. Rosenfeld’s interest in his firm was adjusted and ascertained, and was found to amount to §60,000, which was claimed by his assignees. In reaching this result no notice was taken of his interest in the plaintiffs’ account with the defendants’ firm.</p> <p>Held,, that the interest of Rosenfeld in the defendants’ firm could not in equity, at the plaintiffs’ instance, be subjected to the payment of his proportion of the indebtedness of the plaintiffs, as appears by the accounts between plaintiffs and defendants’ firm, to the prejudice of the individual creditors of Rosenfeld, provided for in his assignment for then- benefit, the plaintiffs having no equity superior to that of such creditors.</p> <p>Also, that plaintiffs had no lien growing out of their interest with Rosenfeld in the account in question upon his share or interest in the defend- ■ ants’ firm.</p> <p>Also, that the defendants’ firm were not called upon in equity to set Off against the claims of the individual creditors of Rosenfeld, as interposed through his assignment, to the plaintiffs’ advantage, his share of the indebtedness arising under the account in question, they being ignorant of his interest therein until after his failure. They were not, under the circumstances, obliged to regard him as a debtor to them under that account, opened on then books and carried on exclusively in the name of the plaintiffs’ firm. The plaintiffs were their debtors.</p> <p>Also, that parties cannot, by secret arrangements made between themselves, for their own individual gain, compel others standing in some well-defined relation to them, and who are innocent and ignorant Of such secret arrangements, to change the ordinary and accustomed method of treating accounts, apportioning interests and discharging claims, and become involved in complications and contests with others. Also, while equity favors the doctrine of set-off, it follows the same general rule as courts of law. The debts must be due by and to the same parties.</p> <p>Also, that the validity of the assignment of Rosenfeld could not be attacked collaterally in this action/ A judgment creditor’s action is the proper remedy to determine the validity of that assignment.</p> <p>The plaintiffs also claiming that there should be a readjustment of the accounts themselves, between then firm and the defendants’ firm, upon the ground of a promise made by Rosenfeld to the plaintiffs that, upon the closing of the accounts, there should be a concession made to the plaintiffs from the rate of charges, such promise being made without the knowledge of his copartners:</p> <p>Reid, that any promise Rosenfeld had made was clearly in his own interest, and to the pecuniary prejudice of his copartners, and was not binding upon them, it appearing that the accounts had been regularly rendered, and the charges made were the same as those against other ■ dealers with defendants’ firm.</p>

Motion on behalf of the defendant Jennie L. Hughes for a stay of proceedings. The suit was brought to foreclose a mortgage. The defendant Jennie L. Hughes was the owner of the fee. She was a married woman, and was suing her husband to annul her marriage, on the ground that he had another wife at the time he married her. There were also several other suits between them respecting property.

<p>In an action brought in a justice’s court for trespass caused by defendants’ cattle in breaking and entering the close of the plaintiff and destroying the crops of the latter, where the evidence is sufficient to sustain the action, a joint liability against the two defendants is prima facie made out.</p> <p>Where it does not appear that one of the defendants is a married woman she must be treated as a feme sole. If the defendants claim a nonsuit on the ground that she is a married woman and has no joint interest with the other defendant in, or control over, the cattle doing the damage, such facts should have been set up in the answer and proved on the trial.</p> <p>Bare possession of a chattel is sufficient to maintain trespass against a wrong-doer. Therefore evidence offered to show title or an interest in the crops damaged, in a third person, was properly excluded, it appearing that the plaintiff was in the exclusive possession of the premises and of the property damaged.</p> <p>A question put to a witness, “How many bushels of corn would there have been on the piece that was damaged ? ” called for the opinion of the witness, and was admissible only where the witness possessed the requisite knowledge, and was able by experience to form an intelligent judgment from such experience, skill or observation, as to the amount of damage which the question called for.</p> <p>It appeared that the witness was abundantly qualified to give such evidence, and consequently there was no error in its admission.</p>

<p>Appeal by the defendant Mott from a judgment of the special term of this court in favor of the plaintiffs.</p>

The defendant, a corporation organized under the laws of this state, entered into two contracts with the plaintiffs, dated respectively February 25, 1864, and October 25,1869, for the sale and delivery of ice during a period of several years at a stipulated price.

On the 24th day of May, 1873, the plaintiffs’ firm, “ Wills, Edmands & Co.,” of Boston, entered into an agreement with the defendants’ firm, “Simmonds, Hunt & Co.,” of London, England, in writing.

<p> When executors can pm'UUon the resúMumj estate under the provisions of the will—amdthylaw. • </p> <p>The third clause of the will, which directs the division of the residuary estate of the testator, is as follows: “After paying or providing for the foregoing legacies I direct my executors to divide all the residue of my estate, both real and personal, into as many equal shares as will allow one share for my wife, if she shall survive me, and one share for each of my children,” &c.</p> <p>Held, that there is clearly no ambiguity in this language. The testator directs -his executors, as soon as the legacies are paid, to divide the estate. If he had fixed any later period for the division it might have made all the limitations attached thereto void, as contravening the statute against perpetuities.</p> <p>In a case like this, if there are limitations fixed upon the several shares, and the executors have the power to make partition, they are bound to make partition as soon as the residuary estate is ascertained, without any directions from the testator.</p> <p>The executors undoubtedly have a right to keep the estate in bulk for the purposes of administration, but, as soon as the administration has been had—that is, debts and legacies have been paid—they are bound to partition the estate. The directions in this will'are in exact accordance with this principle of law.</p> <p>The legacies in this case are all paid, and, unless there is something to modify this direction contained in this clause of the will, the executors are bound now to make partition.</p> <p>The will further provides, after directing his estate to be divided as above mentioned, he gives each of said shares, by separate devises, to his executors, or some of them, in trust, to collect rents, &c. He then authorizes and empowers “the trustees of everyone of the trusts herein contained ” to lease, sell or mortgage any of the real estate comprised in his trust; also authorizes his executors to partition his real estate as well as personal amongst the parties who maybe entitled thereto, as previously expressed in his will.</p> <p>He then authorizes them, until such partition has been effected, to collect the rents of all my real estate, and apply the same to the. payment of debts he may owe, and also to payment of taxes, insurance and repairs, &c.</p> <p>Then follows the clause which, the executors claim, gives them full discretionary powers in respect to the making of partition, to wit: "I hereby declare that all the powers herein given are intended to be discretionary, and to be exercised or not, as the said executors or trustees shall think proper, hereby authorizing a majority of trastees in any share to exercise such discretion, if there occur any difference of opinion between them.”</p> <p>Held, that a careful examination of this clause, in connection with the other provisions of the .will, will show that it does not, nor was it intended by the testator that it should, confer any discretion whatever upon the executors as such. The whole discretion is vested in them as trustees of the several trusts, and does not relate to a single act which the will requires them to do as executors.</p>

<p> Reformation of contract claimed—or annulled for fraud. </p> <p>Where the plaintiff claims a reformation of the contract, and the evidence on his behalf clearly shows that he signed the contract in writing, with a full knowledge of all its particulars — that the contract in its contents was what he knew it to be, his application for a reformation will be denied.</p> <p>Where the plaintiff claims that the contract should be set aside because fraud on the part of the defendants induced him to execute it, he must fail in Ms application, where it appears that he has acted upon the contract after the time he knew that defendants intended to hold him to the performance of its provisions.</p> <p>Nor can it be sustained on the ground of fraud, by reason of certain alleged promises made in behalf of the defendants, before the execution of the contract, that the defendants would not hold the plaintiff to the performance of certain stipulations in the written contract. Because a person is conclusively bound to know the law, that oral promises are merged in a written contract made in reference to the same subject, and especially where both parties are on a level, with equal knowledge of the facts.</p>

<p> Plaintiff in interest must bring the action. </p> <p>Where an action is brought in another state, in the common-law form, requiring the assignor of a chose in action to sue in his own name, although to the use and benefit of the assignee, who is the real and sole owner of the property, and judgment passes against the defendant, an action here upon that judgment must be brought in the name of the assignee, the real party in interest.</p>

<p>A sale of personal property made without being accompanied hy an immediate delivery and followed hy an actual and continued change of, possession of the thing sold, is, as against creditors, presumptively fraudulent and void.</p> <p>An actual change of possession means an open, visible, palpable change, manifested by such outward signs as render it evident that the possession of the vendor or owner has wholly ceased.</p> <p>A constructive, secret and symbolical delivery is insufficient to pass title.</p>

The facts in this case were as follows: Plaintiff was the owner of the premises No. 125 East Fiftieth street, in New York city, situated on the north side ■of Fiftieth street, sixty feet west of Lexington avenue, and being twenty feet in width by forty-nine feet deep. Defend..ant owned premises on the west side of Lexington avenue, forty-nine feet north of Fiftieth street, twenty feet in width and eighty feet deep.

<p> Application for removal of cause into the circuit count of the United States. </p> <p>Where an action is brought by the plaintiff, who resides in this state, as assignee of a person who resides in Massachusetts, against the defendant, also a resident of the latter state, upon attachment proceedings against defendant’s property here, the cause cannot be removed into the circuit court of the United States, pursuant to the provisions of sections 2 and 3 of the act of congress, March 3, 1875, as the circuit court is prohibited by section 1 of said act from taking cognizance of such an action.</p> <p>The discrepancies between sections 1 and 2 of said act of congress examined.</p>

<p> Volunta/ry association—action by expelled member thereof, for restoration to membership—pleading. </p> <p>It is not necessary that the individuals comprising the membership of a voluntary association, consisting of more than seven associates, should he made parties to an action against it. The action is well brought against the president of the association, named as defendant.</p> <p>Where there is open to an expelled member of a voluntary association a remedy under its constitution and laws for a review of the proceedings for his expulsion, and in case of error for his restoration and the association is not a partnership, equity will not interfere.</p> <p>White agt. Brownell (2 Daly, 329) commented upon and approved.</p> <p>Where, by the complaint, it appeared that the name of the plaintiff had been improperly stricken from the list of members of the association, and that he had been deprived of the weekly stipend paid to members when ill, the association being a copartnership, and it not appearing that the plaintiff had any redress within the association itself, held, that an action could be maintained by the expelled member for redress, and that it is within the power of a court of equity to inquire into the reasonableness and propriety of the action of the association, and grant appropriate relief in the premises.</p> <p>In order that a complaint be overthrown by a demurrer, it must present defects so substantial in their nature and so fatal in their character as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever (Richard agt. Edrick, 17 Barb., 260).</p> <p>The rule that once prevailed that a pleading should be construed most strongly against the pleader has been modified by the Code (sec. 159), which ordains that the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties.</p>

Application under the statute before judge Westbrook, as a judicial officer, by Kilbourn to compel Allen to surrender the books and papers belonging to the street commissioner of the city of Albany.

<p>Groton aqueduct depa/rtment — appointment of president of the board — constitutional law.</p> <p>The court of. appeals held, in this case, that the amended charter of the city of New York, in 1849 (Laws of 1849, p. 282), created a new executive department, called “ The Croton Aqueduct Board,” with three officers, viz., president, engineer and assistant commissioner, to form such board. Afterwards, and in the same year, another act was passed, entitled “An act to create the Croton Aqueduct Department in the city of New York ” (Laws of 1849, p. 537).</p> <p>These acts together completely remodeled the Croton aqueduct department. The office of water commissioner was abolished. The board created in its stead was reduced to three members, and with the same and additional duties imposed upon it.</p> <p>Reid, therefore, that the Croton aqueduct board, and the officers composing it, were, in substance and effect, new officers created by the act of 1849.</p> <p>The creation of such offices was within the legislative power; and, being so-created since the adoption of the constitution of 1846, the legislature was not restrained in directing how they should be filled; and might even make the appointment itself, as it assumed to do in this case by the act of April 8, 1867, enacting that “the term of office of the persons now severally discharging the duties and exercising the powers of president, commissioner, assistant commissioner and chief engineer, commissioner of the Croton aqueduct department, is hereby fixed for the term of five years, from the first day of January, 1867,” &c.</p> <p>The officers within the second section of the tenth article of the constitution of 1846 must be created directly by the constitution or by the statute. There has been no statute found nor referred to creating this Croton aqueduct board until the act of April 11th, 1849, and it follows that these offices were created since the constitution of 1846 went into effect, and that they do not, consequently, fall under this restrictive clause.</p> <p>Also, held, that that portion of the act of the legislature of May 4, 1866, entitled “An act to enable .the board of supervisors of the county of New York to raise money by tax for the use of the corporation of the city of New York, and in relation to the expenditure thereof,” which contained the following provision: “The engineer and assistant commissioner of the Croton aqueduct department, now in office, shall continue in office for the term of three years from and after the passage of this act; and any vacancy in their number shall be filled by the members of the board remaining in office,” comes in conflict with section 16, . article 3 of the constitution of the state, and is void.</p> <p>This' court reversed the judgment of the supreme court, which was in favor of the relator (Grover, J., dissenting)-, and, subsequently, on stay of remittitur, and special application by the relator, granted a new trial.</p> <p>On the second trial, before Brady, J., held, that, on looking at the question as res nova, the act of 1867 is in contravention of section 3 of article 10 of the constitution. The president of the Croton aqueduct department was an officer within the authority given by the act of 1843; and, having been designated by ordinance under that act, the position was an office created by act of the legislature.</p> <p>It was not destroyed by the act of 1849, or so changed by its provisions that its identity was lost. It continued, and was recognized by that act and extended by it.</p>

Motion to vacate and set aside order' of arrest. The plaintiffs, who were manufacturers of men’s clothing, gave out to the defendant, a journeyman tailor, in the month of May, 1875, 138 cassimere coats, with the usual trimmings, linings, &e., requisite and necessary to .make the same, and of the value of $700. The defendant took said goods into his possession, and failed and refused to return the same as he agreed.

<p> Demwrm' to petition in imolrnitwry bwnk/rwptey. </p> <p>In a petition in involuntary bankruptcy it is sufficient, as a matter of pleading, that the creditor states upon belief, without alleging either knowledge or information, that he constitutes one-fourth in number of the creditors of the alleged bankrupt, whose demands exceed $250, and are provable; and that his demand constitutes one-third of the provable debts under the act.</p>

<p> Action by creditor of a deceased debtor to recover .for administration assets assigned by administrator without consideration. </p> <p>An action may he maintained by a creditor of a deceased judgment debtor against the administrator and his assignee to set aside an assignment made by such administrator of assets of the deceased debtor without consideration, and to have the same declared to be assets belonging to the estate, and to he applied to the payment of the debts of the intestate. Ordinarily a creditor of the estate cannot maintain an action against a fraudulent vendee alone, or against him and the executor or administrator, to set aside a fraudulent transfer. But if the executor or administrator collude with the fraudulent vendee, or, after reasonable request, refuse to take proceedings to impeach his title, a creditor may maintain an action against him and the executor or administrator for the purpose. In order to have satisfaction of his claim (in this case a judgment) out of these assets, and in order to compel their application, under the statute, to the payment of his demand, it is not necessary that the creditor should have exhausted his remedy at law by judgment and execution.</p> <p>The plaintiff by commencing such action gets no preference over other creditors, and no priority in the payment of his claim.</p>

This was a motion to dismiss an order granted by a justice of this court, requiring the defendant to appear before him, at the chambers, &c., in the city of Hew York, and be examined concerning his property.

The plaintiff recovered judgment in this court against the defendant on the 27th day of March, 1869, for $533.20 damages and $515.20 costs. The defendant appealed to the general term where the judgment was affirmed. From that judgment an appeal was taken to the court of appeals, and it was again affirmed and judgment, entered in favor of the plaintiff, for $164.49 costs, on the 10th day of May, 1871.

<p> Judgments obtained, by fraud and perjury—hove aggrieved, pa/rty may obtain relief. </p> <p>Where a trial has been, had and an adverse result has been produced through a fraudulent conspiracy and perjury, the proper course for the aggrieved party to adopt is to apply for relief in the action itself by a motion for a new trial on the grounds of surprise, newly discovered evidence or other matter out of which the claim for relief arises,</p> <p>The rules and maxims of law forbid the review of the verdict and judgment, in an independent action, in another court.</p> <p>The legal presumptions are that the decisions of a court of competent jurisdiction are well founded; and that facts, without proof of which the verdict would not have been found, were proved on the trial. Furthermore, that tire testimony which justified the jury in finding their ‘ verdict was true.</p>

<p>Attachment under the Code — conflicting claims—action by sheriff.</p> <p>Where an attachment under the Code, was served upon a person, who held, as trustee, moneys and property, in which several persons, including the defendant in the attachment suit, were interested as beneficiaries, the proceedings under the attachment presented no legal obstacle to an adjustment by the trustee of the claims of the beneficiaries, and payment over and delivery of the property to the parties entitled thereto, although such disposition should terminate dll claim of the defendant in the attachment suit thereto.</p> <p>Whether the provisions of the Code authorize an action by the sheriff to reach the unadjusted interest of a beneficiary, under a deed of trust, which will involve the determination of conflicting claims and liens, and which must be disposed of before it can be ascertained whether the defendant has an interest, questioned.</p>

<p>Appeal from judgment, and from order of reference, to compute the amount due upon the bond and mortgage set out in the complaint.</p>

On the 30th day of December, 1848, Nathaniel C. Bishop, caused his life to be assured by the Mutual Benefit Life Insurance Company, for the sum of $2,500, “for the sole me of his wife Sarah a/nd children The policy of insurance further provided that in case Sarah, the wife, should die, before the decease of her husband, the amount of the insurance should “be payable to their childrenf within ninety days after notice and proof of the death of the assured.

<p> Motion by plaintiffs to vacate a judgment on demurrer. </p> <p>Where an order is entered at special term for the defendants on demurrer, in an action to set aside a contract for fraud, and it is arranged and agreed between the counsel for the respective parties that the defendants shall waive the costs in the action, and the plaintiffs would not appeal from the decision, and “ that no further proceedings should be taken in the action, but the same should be considered at an end and finally disposed of,” such agreement does not preclude the defendants ■ from entering and filing a judgment roll upon the decision.</p> <p>Where the„order was entered in the minutes of the court “judgment for the defendants upon their demurrer,” but was stated in the judgment roll “ judgment for the defendants upon their demurrer upon the issues thereby joinedHeld, that the plaintiffs were entitled to have the judgment roll modified, according to the entry of the decision in the minutes.</p>

<p>Motion by defendants for a nonsuit.</p>

<p>1Will—when real estate of the testator not cha/igeaMe with payment of legacies- — demwrer to complaint.</p> <p>Where the testatrix, by her will, gave certain legacies, and then gave and devised “ all the rest, residue and remainder of her estate, real and personal,” to her two sisters, and it appeared that the personal estate was ■ insufficient to pay the legacies —</p> <p>Held, that the real estate, devised as above mentioned, was not chargeable with the payment of the legacies.</p>

On the 20th day of March, 1867, the defendant, through its local agent at the city of Buffalo, issued to the plaintiff a policy of insurance, properly executed, upon the life of her husband, Frederick Meyer, for the sum of $4,000, payable to her on the event of his death, in consideration of the payment by the plaintiff to the defendant of the sum of $200.44, and upon the condition that the plaintiff should pay to the defendant an annual premium of like amount during the…

<p> Decree of fm'edosure and sale of mortgaged premises—no bar to a second suit for the same. </p> <p>The entry of a decree of foreclosure and sale of mortgaged premises does not bar a second action for the same cause. It is the sale under the decree which cuts off the equity of redemption, and not the decree itself. The mortgagor has, until a sale has actually taken place, the right to redeem.</p>

This was a proceeding under general order No. 34, instituted by the assignee to re-examine and expunge the proof of debt of H. IÍ. Thurber & Co., on the ground that they, as creditors of the bankrupt, had received a preference, which disabled them from proving their debt. The case was briefly this : That on the 5th of November, 1873, John Riorden was adjudicated bankrupt under a petition filed on the 13th day of September, 1873, against him.

This action was brought after the death of H. W. Matteson, the appointment of his widow under his will as executrix, and after she had qualified and entered upon her duties as such executrix, for the construction of the will of H. W. Matteson. Ho proof was given as to the responsibility of the widow, nor as to fitness to carry out the will.

The relator was employed in 1871 by the respondents to survey certain streets in the village of Edgewater. He received warrants or orders on the city treasury, but the warrants not being paid by the treasury, and payments for his services having been refused, he brought an action and recovered judgment in the sum of $937. Execution was issued, but the sheriff was unable to find any goods of respondents which could be seized by him.

Motior by the defendant for an order allowing defendant to serve an amended answer. Second, “ and also that plaintiff be compelled to pay the defendant a reasonable sum- to enable -her to prepare and defend this action,. or for such other or further rule or order as the court may see fit.” The affidavit of the defendant and one of her attorney’s affidavit in support of the motion were read, and a stipulation that the motion be heard at the chambers of justice Hakdijv.

<p> Alleged breach of covenant in building a stable. </p> <p>Where the defendant covenanted to build a stable for the plaintiff in a certain manner, and that “the stable shall be constructed to correspond of like Philadelphia brick, with like trimmings; there shall be no openings in the sidewalk in front of the stable which shall be used only as a private stable, and shall be so managed as to leave the street in front of it free from stable rubbish or unnecessary annoyance of any kind:”</p> <p>Held, that there being left an opening in front of the stable some five feet wide, would be, if it was in the sidewalk, a breach of the covenant. But the evidence showed that the opening was inside the line of fence adopted by the owners of all the lots from the Third to Lexington avenue; that no part of the opening was within the boundaries of the sidewalk.</p> <p>A “sidewalk” defined.</p>

<p>Appeal from a judgment of the special term in favor of the defendant Hamilton, dismissing the plaintiff’s complaint, with costs.</p>

<p>Life insurance company — action for amount of policy and share of profit, — pleading—parties.</p> <p>Where the defendant, a life insurance company, insured the lives of two persons, with a right to a participation by the survivor in the profit accruing to the business, and it appearing by the complaint that the defendant had made profit in which the plaintiff, administrator of the deceased, was entitled to participate:</p> <p>Held, on demurrer to the complaint, that other policyholders and the stockholders of the corporation, are not necessary parties to an action for the recovery of the amount of the insurance and the plaintiff’s share of the profits.</p> <p>Also, that there was no misjoinder of causes of action in claiming the amount of the insurance, and the share of the profits.</p> <p>Also, that it was the duty of the corporation, at stated intervals, to ascertain and make entry on their books of the profits of the business, so as-to enable the policyholders to ascertain the precise amount of profits coming to them, without a formal accounting.</p> <p>The relief to which a party may be entitled does not depend so much on the prayer for relief in his complaint as upon the allegations in the pleadings and the proofs on the trial.</p>

Appeal by the defendant from a judgment of the sixth district court, of the city of New York, in favor of the plaintiff, for forty-six dollars and fifty cents and costs.

<p>Claim upon insuo'ance funds in the hands of a reeeim&r—by various weditors — tlm/r priority determined.</p> <p>Creditors of an insolvent insurance company claimed preference, in payment from the fund in the hands of the receiver to whom they had been paid over by the state superintendent, as follows :</p> <p>1. R. P., who subscribed for stock on the formation of the company and paid his subscription and never received any stock.</p> <p>2. Holders of claims for death losses.</p> <p>3. The assignees of claims for death losses.</p> <p>4. The claims of those who have advanced money to pay the losses incurred upon particular policies, and who appear upon the books of the company as credited with so much money to be applied towards the payment of a loss incurred upon a particular policy.</p> <p>5. The claims of judgment creditors.</p> <p>6. The claims of general creditors.</p> <p>7. A claim by the landlord of the premises occupied by the company.</p> <p>Eeld, that the holders for claims for death losses, and the holders of assignments of such claims, are to be first paid by the receiver, and that the balance remaining in his hands to be divided pro rata among all the other creditors.</p>

<p> Liability of a married woman foi' debts of her husband. </p> <p>The separate property of a married woman is liable for such debts of her husband as may be contracted by her as his agent for the support of herself or her children.</p> <p>And where it appeared that for several years prior to the making of the contract she had lived separate and apart from her husband and supported herself and children by her own means, having a separate estate which she disclosed at the time of making the contract, held, that her separate estate was liable.</p>

<p> Powers of national hanlcs to deal in stoehs. </p> <p>Dealing in stocks by national banks is not expressly prohibited, but such a prohibition is implied from the failure to grant the power.</p> <p>In the honest exercise of the power to compromise a doubtful debt owing to a bank, it can hardly be doubted that stocks may be accepted in payment and satisfaction, with a view to their subsequent sale or conversion into money so as to make good or reduce an anticipated loss.</p>

Margaret Louisa Winthrop, the testatrix, was married November 20, 1838. On the 20th of June, '1856, she made the will in question. At this time, Mrs. McKim, then Miss Winthrop, was about sixteen or seventeen years of age, and possessed of two or three hundred dollars. On the 15th of September, 1870, Miss Winthrop was married. Testatrix was at the wedding, and her will was never made known to her children until after her death, which occurred February 26, 1873.

<p> IfaammaMon ofpa/rties. </p> <p>A plaintiff in an action pending may examine the adverse party, on oath, before the service on him of a complaint, and for the purpose of obtaining the facts on which to frame a complaint.</p>

The complaint in this action states that the plaintiff loaned ■to defendant $5,000, which is unpaid. That the plaintiff, in June last, brought his action in this court, to recover the said $5,000, and that the defendant, in his answer, set up a release under seal as a defense, and that this action is still pending.

<p> Pa/rol contract to accept a bill of exchange. </p> <p>Matters bearing upon the execution, the interpretation and the validity of a contract are determined by the law of the place where the contract is made.</p> <p>Matters connected with its performance, are regulated by the law prevailing at the place of performance.</p> <p>Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brougnt.</p> <p>A pm'ol promise to accept a bill of exchange drawn and discounted in the state of Illinois upon a firm residing and doing business in the state of Missouri, is good and binding upon the drawees under the laws of the state of Illinois.</p>

<p> Accounting before the swrogate—testamentary trustees. </p> <p>The surrogate may compel the accounting by testamentary trustees and guardians in the same manner as executors, administrators and guardians appointed by the surrogate are required to account.</p> <p>And such trustees may therefore he compelled to account on the motion of the surrogate himself, and on such accounting the surrogate may determine the correctness of the account so rendered.</p> <p>While in the absence of a petition or citation for that purpose the surrogate has no power to order, under a final decree, the distribution of the estate as upon a final accounting, yet he has authority upon an accounting upon the surrogate’s motion to pass upon the correctness of the account, and for that purpose may examine the trustees in respect thereto.</p> <p>And it is the uniform practice to pass upon and determine the state of the account rendered, when rendered upon the application of a creditor or legatee, and though there was no petition for a final accounting; and there is no good reason why such accounting may not he as conclusive upon all the parties represented therein as though it were final.</p> <p>By the statute (Laws of 1870, p. 359, sec. 6) it is provided that in any accounting in the surrogate’s court, or any other proceeding therein, the surrogate may .appoint a referee to take testimony as to the facts in relation thereto, to examine the accounts rendered to the surrogate, to hear and determine all disputed claims and other matters relating to said accounts, and to make a report thereon subject to the confirmation of the surrogate.</p> <p>Where a reference has been ordered to ascertain the state of an account which is not final, and the auditor’s report is made to the surrogate, which is excepted to, it is his duty to examine and pass upon the report as to the state of the account and the exceptions thereto.</p> <p>Where the trustees are sought to he charged personally with the expenses of a suit brought against the estate, on the ground that they refused to refer the claim under the statute, it is no answer by the trustees in exoneration of their personal liability that they desired to raise the question of the statute of limitations, &c., in that action. That defense and any other which may be interposed in an ordinary action to recover a claim against the estate may be raised on a reference under the statute.</p> <p>In this case the proof before the auditor did not sufficiently define the loss to the estate by reason, of the refusal to refer, and there was no error in his report refusing to charge the trustees personally.</p> <p>But the trustees were chargeable personally with the expenses of the accounting, as it was so provided by the terms of the order, and there was no authority in the auditor to change it.</p> <p>As there had been no annual rest in the account under the order of the court, for the purpose of charging the trustees interest, nor an accounting annually pursuant to. the statute, the trustees were not entitled to full commissions, according to the auditor’s report.</p> <p>There was no good reason based upon the evidence in this matter for charging the trustees with compound interest, on the ground of gross delinquency or intentional violation of duty.</p>

The plaintiff sues to recover his salary as civil justice at the rate of $10,000 per annum. The defendant by answer claims that by the charter of 1873 the salary of civil justices was reduced to $5,000. The plaintiff demurs to this answer.

<p>By agreement between the parties the good-will of a business may be owned in common, and not as partners.</p> <p>So, also, may the business and property, which is of the substratum on which the good-will can alone rest.</p>

<p> Application fór attachment for- contempt, for the non-payment by defendant of a money judgment. </p> <p>Where judgment has been obtained against defendant, as trustee, for the payment of a certain sum of money to the plaintiff out of the trust funds, prior to all other payments therefrom, and the defendant refuses on demand to make such payment, an attachment cannot issue that he be punished as for a contempt in refusing to comply with the said judgment.</p> <p>The plaintiff has mistaken his remedy. The only proper mode of enforcing such a judgment is by execution against defendant’s property.</p>

<p> Action by a judgment creditor for payment by a third parson out of alleged trustfunds. </p> <p>To compel the appropriation of money or property to the satisfaction of a judgment, either under the statute or other proceedings in equity, there is no reason to doubt that money, or any thing into which it has been turned, or in which it has been invested which can be traced or treated in equity as if it were the money itself, can be used to satisfy the judgment.</p> <p>But in creditors’ suits there must be something so specific that as to it, either in law or in equity, the plaintiff’s judgment or execution, or the filing of the bill or the appointment of a receiver, will create a lien or make a title.</p> <p>On the law of this case the action cannot be maintained, and the alleged money in the hands of the defendant not being traced or attempted to be, the plaintiff’s right rests upon an action of tort if there are any facts which would support such an action.</p>

<p> Contract for hiring for one yea/r—failwre to produce an important witness. </p> <p>Where a general engagement of a servant, “at a salary of fifteen hundred dollars a year, payable weekly,” unaffected by any other considerations growing out of the custom of the place, the conduct of the parties, or other extraneous evidence disclosing a contrary intention,v constitutes a contract of hiring for the year.</p> <p>Where both defendants were present and took part in the contract of hiring the plaintiff, which the plaintiff testified was for one year at the rate of $1,500, payable weekly, and one of the defendants testified that he “ made the engagement with the plaintiff at the rate of fifteen hundred dollars a year, payable every week; I made no yearly engagement with him. He agreed to come to us at a salary of fifteen hundred dollars a year,payable weekly.”</p> <p>Held, that it appearing that the other defendant was within reach, and whose evidence could be procured, but was not produced on the trial as a witness, the jury had a right to infer that his non-production was caused by the fact that his evidence would not be beneficial to the defendants.</p> <p>Judgment for plaintiff affirmed.</p>

<p> Mecha/nvís lien—liability to contractor amd workmen. </p> <p>If, according to the terms of the agreement of the owner and contractor for erecting and completing a building, the contractor could not recover of the owner the last payment, on the ground that the building was not completed, which was required by the agreement before such payment would he due, a workman, under the contractor, who had filed a lien, could not recover of the owner.</p>

<p>Appeal from order vacating order of arrest.</p>

<p> Injunction to protect the name of a newspaper—violation of a trade ma/rk. </p> <p>The rule is, that where the whole equity of a complaint is denied, the injunction ought not to be continued pendente lite.</p> <p>But any evasion in not responding to the charges in the bill, or any extreme improbability in the statement of the defendant, will induce the court to retain the injunction.</p> <p>A court of equity will protect a person in the use of a trade mark, such as the name of a newspaper, although the name adopted is one that belongs to the language of the country and may be employed in any way, or for any purpose, which will not defraud individuals or deceive the public. In this case, held,, that after carefully inspecting the two papers, it could not be said that the resemblance between them was such as to justify the court, on a motion, to determine that the defendant’s paper was intended to be passed off upon the public, nor that it would be likely to be purchased by the customers of the plaintiffs as and for the plaintiffs’ paper. Injunction denied.</p>

<p>Action to foreclose mortgage; answer, payment.</p>

<p> Discharge of surety. </p> <p>In an action on the bond of an insurance agent, conditioned for the agent’s paying over to the company all moneys belonging to it which he should receive, the defendant pleaded that the company had concealed from him the fact that the agent was at the time indebted to the company, and that the company also required an agreement by the agent that all his commissions should be applied to pay said indebtedness, and that if he had been informed of the indebtedness and the agreement he would not have signed the bond:</p> <p>Held, that the plea was bad; the agreement of the agent to apply Ms commissions, or money belonging to him derived from any source, in payment of a pre-existing debt to the company, had no such connection with what the sureties stipulated for, as gave them a right to be informed on the subject, except to inqMries they might have made, but did not, before the bond was executed.</p>

<p>Cotton sold to the Confederate States — title to.</p> <p>The Confederate States government could acquire title to cotton by purchase, and such cotton, at the close of the war, passed to the United States.</p> <p>In this case the appellant sold his cotton to the confederacy and took their bonds in payment. He contributed thereby directly to the means of prosecuting the rebellion. He thus knowingly devoted his cotton to the war, and his rights must follow its fortunes. He cannot recover in the courts of the United States the purchase money due from the confederacy, upon the principle that a sale upon credit implies a guaranty of the solvency of the purchaser until the payment is made.</p>

Application by A. M. Perkenson, sheriff of Fulton county, state of Georgia, by habeas corpus to procure the delivery to him of Benjamin W. Briscoe, an alleged fugitive from justice in Georgia, and ordered to be surrendered to him by the governor of this state, upon the demand of the governor of Georgia, and now held and detained by the sheriff of the city and county of Hew York by an order of arrest made by Mr. justice Donohue, in a civil action, pursuant to section 179 of…

Motion by defendant to set aside the service of the summons and order for the examination of the defendant before trial, &c.

The plaintiffs in this action are hankers and brokers in New York and the defendant is a lawyer in Buffalo. In the month of October, 1872, the defendant opened an account with the plaintiffs and remitted to them the sum of $1,000, and also giving them an order by telegram to buy certain stocks. In a letter of the 10th of October, 1872, acknowledging the receipt of this telegram, the plaintiffs say to the defendant, “ we presume Messrs. H. IT.

<p>Motion for a new trial on newly discovered evidence, and because of the relationship of one juror to the plaintiff.</p>

<p> Alleged violation of trade mark. </p> <p>Where the plaintiffs allege that the defendant sells oil under the name of “ Pepper’s Signal Oil,” &c., which in fact is not such, it does not give the plaintiffs a cause of action for the infringement of a trade mark.</p>

<p> Protection of a trade mark by a eomt of equity. </p> <p>In the cases in which the equitable power of granting injunctions against infringers upon trade marks have been applied for, that remedy has been uniformly denied when the trade mark claimed was in any respect of a false or deceptive character, as in this case, on the part of the plaintiffs.</p> <p>' So, also, where the mere trade mark in itself would have been protected but for its being accompanied by false or exaggerated statements intended or calculated to deceive the public as to the character of the article offered for sale.</p> <p>A court of equity is in no'respect to be made subsidiary to any scheme of fraud or deception to which the trade mark is but used as a vehicle. The ground for its jurisdiction is the promotion of honest and fair dealing.</p> <p>Where the evidence shows that the plaintiffs’ trade mark sought to be established and enforced is uniformly used by them in aid of false representations; that the bottles of brandy, the sale of which it is designed to protect, contained neither a quart nor pint, and that such bottles are so deceptively cast, and are offered for sale, so falsely to represent quart and pint’bottles of brandy.</p>

<p>Application for a peremptory mandamus to the auditor of the canal department.</p>

<p> Settlement of a ease on appeal. </p> <p>The settled practice of the court requires that amendments to a ease should specify the particular parts or passages of the proposed case to which objection is made; should designate with certainty the particular points at which new matter is proposed to be inserted; should, so far as practicable, present every alteration desired in such form and manner that the precise difference between the parties may most easily and readily strike the eye of the judge or referee.</p> <p>It is not necessary, generally, to insert in extenso or" any considerable portion of the stenographer’s notes of the trial in a proposed case, or proposed amendments; where they are in possession of the parties or one of them, they may be referred to by the folio or page.</p> <p>The question of the materiality of the testimony to be inserted in a proposed case or amendments should be determined by the judge or referee who tried the cause.</p>

<p>Motion to set aside verdict.</p>

This case was tried before Mr. justice MoCue and a jury and verdict rendered for plaintiff. . The defendant now makes a motion for a new trial on appeal from the judgment.

<p> Dmvwrrer to an answer of counter-claim. </p> <p>Where one defendant is sued upon an individual liability, he cannot set up as a counter-claim a claim which he holds jointly with another against the plaintiff.</p>

<p> Dm/wtre/r to answer of statute of limitations. </p> <p>Where a defendant jointly indebted upon a contract is summoned, under section 375 of the Code, to show cause why he should not be bound by the judgment entered in the action, the same as if he had been originally summoned, he cannot answer that the cause of action did not accrue within six years before the issuing and service of the summons to him to show cause.</p> <p>The action was commenced as to him when the summons and complaint were originally served on his co-defendant.</p>

<p> Iwjwnetion to protect the hoa/rd of health of New York in the possession of thN/r rooms. </p> <p>The charter of the city of New York of 1873 prescribes the powers and duties of the board of health and of the police board.</p> <p>The provisions made by this law for one department are not in any way subject to the control of another co-ordinate department, nor can one be dispossessed from the possession of premises belonging to the city of New York, by another in possession of other premises so belonging to the city, by force and without warrant of law.</p> <p>Where such dispossession is attempted, and it is shown that irreparable injury may ensue if carried out, a court of equity will stay such pro-' ceedings by injunction.</p>

<p>Exceptions ordered by the court to be heard in the first instance at the general term.</p>

<p> Covenant against incumbrcmces—Pa/rol agreement—Evidence. </p> <p>A covenant contained in a deed against incumbrances cannot be enlarged by pa/i'ol, so as to show that the grantor assumed a further liability on the subject of incumbrances, in addition to that expressed in the deed.</p> <p>A collat&ral agreement existing in parol may be shown, notwithstanding the silence of the principal agreement in writing upon the subject. But the parol agreement here sought to be proven was not collateral to, but directly related to the subject of the covenant.</p>

This action was brought to recover damages for the loss and destruction of paper, stock and boxes, caused by a heavy fall of rain on the night of July 25th and 26th, 1872, whilst the defendant, Dickie, was engaged in putting on a new roof on his premises No. 144 Chamber street, New York city, the upper floors of which were occupied by plaintiffs.