Volume 56 — Howard's Practice Reports

<p>Examination of pa/rties before suit brought— Code of Oivil Procedure § 870</p> <p>The eight hundred and seventieth section of the Code of Civil Procedure does not provide for the examination of parties before suit brought, on application of a party merely stating that he expected to bring an action against them, and that such an examination was necessary in order to frame a complaint in the action which he contemplated.</p> <p>This section only provides for the examination of an expected party when he himself applies for it, and not for the examination of a party not yet sued, at the instance of another, who contemplates a suit against the former.</p>

<p> Naturalization—Admission of aliento citizenship—Jurisdiction—Duty of clerk of court as to record of judgment, admitting to citizenship. </p> <p>The superior court of the city of New York has power and jurisdiction to entertain and grant an application, to have a record of the proceedings in such court, admitting the applicants to citizenship of the United States, perfected hy an entry nunc pro tunc of the fact of such admission in the minute book of the court, provided a proper case has heen made out for its exercise.</p> <p>As a general rule the court will not permit a party to suffer through any delay or. mistake of its own, nor hy the delay or mistake of its officers.</p> <p>It is only when the rights of third persons which have in the meantime heen acquired in good faith intervene, that relief will not he given; hut even such third persons cannot rely upon a-mere technical error which leaves no doubt about what was intended.</p> <p>In the admission of aliens to citizenship, the only record required to he kept hy the court, where the application is made, and the certificate of citizenship issued, is a record showing the declaration of intention, the oath to support the Constitution of the United States, and the renunciation of the foreign jurisdiction and title or order of nobility.</p> <p>No provision is made as to how the judge presiding over the court should proceed to satisfy himself of the fulfillment of the conditions prescribed, and no provision is made for the preservation of the oral proofs to he given or the attestation of the adjudication to he made, or for the entry of the fact of such adjudication in any hook. In the absence of statutory regulations upon the subject, the extent and manner of keeping the record of court proceedings, is left very much to the sound discretion . of the court.</p> <p>Where it is shown hy the applicant, that on full preliminary requirements of the statutes of the United States, he duly applied in open court to he admitted a citizen of theIJnited States; that he took the requisite oaths, and and supported his application by the necessary and to the court satif actory proof; that the court gave judgment to admit to citizenship, and that the officiating judge signified his “fiat” to that effect to the clerk of .the court, to the applicant and to all whom it might concern, by superscribing the initials of .his name upon the written and oath attested proofs in the case, and delivered the same to the clerk to do thereupon and therewith all that the law required; that the clerk then and there, in pursuance of such judgment and fiat duly administered, and the applicant duly took and subscribed, the oath commonly called the oath of allegiance ; and that thereupon the clerk issued to the applicant, under the seal of the court, a certificate as evidence of the fact of the adjudication made; that the clerk then indorsed and filed the papers and fiat among the court records, as a part thereof, and entered the name of the applicant and other facts connected with the application in a book of index of naturalization records, which is one of several books of like character, regularly kept and permanently preserved among the records of said clerk’s office:</p> <p>Held, that, the clerk, in the performance of the duties assigned to him in these proceedings, was guilty of no omission, which rendered the record, as made up by him, invalid.</p> <p>When the presiding judge, on giving judgment admitting the applicant to citizenship, attested the fact thereof by affixing his initials to the preliminary proofs, and delivered the papers so attested to the clerk with the direction, express or implied, to do all that remained to be done, the judicial function was completed, and only ministerial acts remained to be done; and the papers so handed over, together with the oath of allegiance thereupon administered, became the judgment record of the court on being filed as such by the clerk and by reason of such filing. The record thus made up constituted a sufficient memorial or remembrance within the requirements of the common law.</p> <p>If it be deemed of importance that an entry should be made in some book, the entries contained in the books marked “Naturalization Index” and “Naturalization Record” fully answer every requirement that can be made in that respect.</p>

Demurrer by the plaintiffs to the first defense set forth in the answer to the complaint on the ground that the same is insufficient in law on the face thereof.

<p> Promissory note—Bona fide holder. </p> <p>Where the plaintiff receives a note from the payee in payment of a precedent debt, hut surrenders no security or evidence of indebtedness and parts with no value, he is not a bona fide holder for value, and the note in his hands is subject to all defenses, legal and equitable, which existed against it in the hands of the original payee.</p> <p>Note. — The above case is partially reported in memoranda, in 53 New York, at page 650, and has been considered of sufficient importance to publish in full. [Ed.</p>

Appear from an order of the New York marine court general term reversing a judgment of the trial term of that court in favor of the plaintiff.

This was an action brought by the husband (the plaintiff above named) to recover for loss of services of his wife in consequence of injuries received, she being at the time - a passenger upon the defendant’s cars for hire. Such damage is alleged to consist of expenses incurred and to be incurred fpr medical attendance, &c., together with the following allegation of damage : “ Seventh.

This action was brought to foreclose a mortgage for $5,000 given by defendant Mulock to the plaintiff on premises in the city of New York. It appeared that one Berry, an attorney, had been requested by the mortgagor ( defendant Mulock) to procure him a loan on the property, and Berry applied to plaintiff to make same; plaintiff consented and told Berry he should expect him to see that the title was right.

Action to collect a judgment recovered against Eliza Seeber out of real estate which she inherited from her father, Samuel W. Shepherd, deceased. He left four children and Eliza inherited an undivided one-fourth from her father who died intestate, January 25, 1875.

This was a motion upon the minutes to.set aside a verdict in favor of the defendant rendered by the 'jury by direction of the court and for a new trial. The action was upon a promissory note made in March, 1875.

Motion to confirm report of commissioners of estimate and assessment. The commissioners of streets and roads appointed by chapter 115, Laws of 1807, on the 1st day of April, 1811, filed a map laying out the city of New York north of Houston street. On said map a street, designated as One Hundred and Twenty-seventh street, was laid out, and upon the map relaying out a portion of said city, filed March, 1868, by the Central, Park commissioners the said street was retained.

<p> Pawnbrokers—their liability. </p> <p>A pawnbroker is liable only for ordinary diligence, and where his place of business is broken into and articles pledged are taken therefrom he is not liable, if he exercised ordinary diligence.</p>

<p>Corporation — Power of trustees — transfer of property to pay debts — delay in seeking equitable relief.</p> <p>Directors and trustees of a corporation are its agents to advance the purposes and objects of its organization, and they have no authority, in virtue of their office, to perform acts, which to all intents and purposes, terminate the corporation by taking away from it the power to accomplish the object of its formation. But, while this is true, yet it is the duty of the trustees of a corporation to pay its debts and to apply the corporate property to this end, although it should exhaust them, and thus disable the corporation from carrying on its business.</p> <p>The plaintiff, a corporation formed for the purpose of blocking and shaping hats, and making and licensing machines for stretching hats, for which it had letters patent, was prosecuted in the federal courts by the defendant corporation, for an infringement of its letters patent for stretching hats; the action resulted in a decree by which it was adjudged that the plaintiff’s process was an infringement of the defendant’s process, and it was perpetually enjoined from using the same, and it was 'adjudged to pay the sum of $97,000 as damages for the infringement, which plaintiff was unable to pay.</p> <p>Whereupon the trustees of the plaintiff entered into negotiations with the trustees of the defendant corporation for a settlement of the damages, which resulted in an agreement that the plaintiff should transfer to the defendant corporation its patents for blocking, as well as those for stretching hats, which latter had been adjudged to he an infringement, in payment and discharge of the judgment for damages, and which agreement was consummated by such transfer.</p> <p>Held, in an action brought five years thereafter in the name of the plaintiff corporation to set aside such transfer as fraudulent and as ultra tires, that the transfer was valid and should be upheld, it not appearing that the plaintiff had at the time any other means of paying the judgment; and no offer being made, even now, to pay the same, and no readiness or ability to do so being alleged in the complaint:</p> <p>Further, that as to the patent for stretching hats, the offending patent, which could no longer be used by the plaintiff, it was just, under the circumstances; that it should be surrendered and that the process for blocking hats, which could only be profitably used in connection with the stretching process, had no such value as to approximate to the amount of the judgment for damages; and that in making the transfer the trustees of the plaintiff, who directed it, did nothing more than apply its only available means to the payment of an acknowledged indebtedness, and that the value of the property transferred was not in excess of the amount of the claim of defendant.</p> <p>Also, held, that the transfer was not void under the provisions of the Revised Statutes (part 1, chap. 18, tit. 4, see. 4) forbidding the assignment by a corporation of its property in contemplation of insolvency. '</p> <p>The effect of delay in seeking equitable relief in cases of this character considered.</p>

Motion to dissolve temporary injunction granted by judge Donohue to Kattie Mayhew, whereby Messrs. Green and Thompson, John E. McDonough and Messrs. Poole and Donnelly were restrained from producing a certain dramatization of Bret Harte’s story of M’liss, at Eiblo’s theater.

<p>Judgment debtor — death of— proceedings to enforce payment out of his estate under section 376 of the Code of Procedure—who may be summoned.</p> <p>When the statute (sec. 376 of the Code of Procedure) speaks of " tenants of real property owned by the judgment debtor,” it means his tenants, and does not apply to persons holding under a deed in hostility to him, and those who claim through him.</p> <p>The judgment debtor died leaving the judgment unpaid. At his death he was seized of certain real estate in the city of New York. He left a widow and two children, and by his will his widow was to have a monthly allowance from the income of his estate in lieu of dower, and the principal of the estate was given to his children. The real estate was sold by the municipal corporation for taxes, and a lease for 1,000 years was executed to Charles Reed. The proceedings are under section 376 of the Code, and the summons has been served upon the widow, her two children and Reed:</p> <p>Held, that the proceedings as to Reed could not be upheld, as he does not hold as a tenant of the judgment debtor, but under a deed made in hostility to him.</p> <p>Held, further, that the interest of the heirs or devisees is too remote and trifling to authorize these proceedings.</p>

This is an, appeal from an order, confirming the report of a referee, to whom, by an order of this court, it was referred to inquire and report, among other things, who was a suitable and proper person to be appointed a committee of the' person and estate of the above-named Benjamin Page, a lunatic. The applicants for such appointment, before said referee, were twoy to wit: Mr. Stephen H. Olin and Mr. Robert L. Keen.

<p>Negligence—Contributory Negligence—How far corporation liable for five reckless and needless acts of its servants, in removal of property of another •which is upon or against their property— Homages — fury.</p> <p>The ferryboat .of plaintiffs while on one of her regular trips across the Hudson river encountered a quantity of floating ice and was carried and lodged against the bridge of the defendant. Whilst the boat was resting against the bridge the defendant, by its servants, undertook to, remove the same, and in doing so pulled the boat under the bridge, causing a part of that structure to fall upon the boat,' doing her great injury. The boat was sunk and swept by the current to the lower part of the city, where she remained sunken for several weeks, and was finally raised by plaintiffs. In an action for damages, held, that, if the defendant’s servants undertook to remove and did remove the boat at the request or by the. permission .of the plaintiffs, there could be no recovery, because the men became for that act the servants of the plaintiffs. If, however,, there was ho such request or permission, the defendant was answerable for any mid, reckless or intended misconduct of its servants.</p> <p>The boat being there without any fault of the defendant, resting upon and against its property, it was the duty of the plaintiffs to remove her from that position, using all reasonable expedition and haste, consistent with the circumstances of the occasion.</p> <p>If the plaintiffs failed in the discharge of this duty, then defendant had a right to-do it. But in so doing, it was bound to use ordinary care, such care as an ordinary prudent man would exercise in the management of his own property. The defendant is no't to be held liable "for mere errors of judgment upon the part of its servants, but only for such</p> <p>' acts, or such negligence, as the ordinarily prudent man would not have committed in regard to his own property.</p> <p>Although the defendant was not insurers of the plaintiffs against all dam age which might be caused in removing the boat, it may be made liable where the conduct of its servants was needless, reckless or useless, and which an ordinarily prudent man would not have been guilty of under the same'circumstances.</p> <p>Assuming that the boat was in collision and contact with the bridge by the fault of the plaintiffs, the act of the plaintiffs which put her there, or the neglect to remove her therefrom, is not to be deemed contributory negligence on their part, and therefore one which will defeat a recovery.</p> <p>The act and conduct of the plaintiffs did not contribute to the injury in any way. The force which did the injury was an entirely independent one and intended to be applied. A wrong committed by the plaintiffs upon the defendant could not justify a second and independent one by the latter to the former. The injury done by the latter is the result entirely of a separate act of its own, and in the doing of which the plaintiffs were in no wise contributors.</p> <p>Where, therefore, though all the consequences may not have been intended if what was done, was mid and reckless, and intended, and such as no ordinarily prudent man would have committed, the defendant mu?t be accountable therefor, because the acts are entirely its own, and to them the plaintiffs do not contribute.</p> <p>Held, further, that though the conduct of the defendant was negligent and reckless, still what it did was done to remove the property of the plaintiffs, which was injuring that of defendant, and which the plaintiffs should have taken away, and not to convert it to its own use. The removal of the boat having been accomplished, it was the duty of the plaintiffs to have taken possession of the boat as she was; and they had no right to abandon her. The plaintiffs could only recover for the. injury and damage done to the boat by her removal and the fall of the bridge upon her. For all injuries which occurred after the plaintiffs could have relieved her there can be no recovery.</p> <p>It is no error after a jury has come into court and delivered their verdict (the form of which showed they intended to add interest thereto) for the court to send them back to their room to calculate the interest.</p>

Motion by petitioner that he be made a party to each of the above-entitled actions and that he may be allowed for himself and all others similarly situated with him to come in and defend. The petitioner alleges in his affidavits that he is a creditor of the defendant, the Erie Railway Company, which is not only flatly denied, but it is averred that the petitioner is actually indebted to the defendants in a large amount.

<p>WiU—lost or destroyed codicil—Surrogate’s power as to — effect of destn'uction of codicil as to revival of will—effect of acts and declarations of testator at time of such destn'uction — Parol republicaiion.</p> <p>S. made his will in 1871, disposing of his entire estate; in 1872 he executed a codicil making a different disposition of personalty to the amount of §50,000; in 1876 he burned the codicil with the intention of revok-, ing it; he'then held the will of 1871 in his hand and declared in the presence of two witnesses: “ This is my last will and testament, I shall never make another; ” wrote a direction to his executors referring to the will as his last will, inclosed it and the will in an envelope and wrote upon it: “The last will of William Simpson, dated August 18, 1871;” sealed the envelope so that it could not be opened without detection, and carefully preserved it among his valuable papers until his death. Upon proceedings being taken by the next of kin within one year after its probate to contest its validity and the competency of its proofs. Held:</p> <p>(1.) That in proceedings to prove a will the surrogate has power to inquire whether a subsequent testamentary instrument has not been executed revoking the will propounded, even though such subsequent will may have been lost or destroyed.</p> <p>Such power is necessarily implied in the jurisdiction given to the surrogate to determine whether the instrument submitted for probate is the last will of the testator.</p> <p>(2.) Where a codicil impliedly revokes a will in part, by reason of inconsistent provisions, the destruction of the codicil animo revocandi, revives the provisions of the will revoked by its execution.</p> <p>Such a codicil is not a “ second will ” within the provisions of section 51, 8 Revised Statutes (6f/t ed., p. 65), which declares that the destruction of a “ second will ” shall not, ipso facto, revive a former will.</p> <p>(8.) Where a second will is revoked by destroying it, acts and declarations of the testator accompanying the destruction, evincing an intention to revive and give effect to a former will, are not sufficient for that purpose unless they amount to a republication of the former will.</p> <p>(4.) A parol republication of a revoked will, if made in the presence of two witnesses, is valid.</p> <p>Re-execution and reattestation are not necessary.</p> <p>Prior to the Revised Statutes a will of personalty in this state and in England could always be republished by parol. It was otherwise with respect to a will of lands, which, after the statute of frauds (29 Om\, 2, c. 3), could not be republished except by an instrument, in writing, attested by three witnesses. Nor was any particular form of. words required to constitute a good publication of any will, or a republication of a will of personalty. *</p> <p>Any thing which indicated a present intention on the part of the testator that the instrument should operate as his will was sufficient.</p> <p>The Revised Statutes have so far changed this rule as to require in the case of all wills a parol declaration of the testator in the presence of two witnesses that the instrument signed by him is his last will and testament and to that extent only have modified the requirements necessary to con. stitute a valid publication or republication of a will.</p>

Proceedings under the non-imprisonment act were commenced in the marine court of the city of LTew York against Marks H. Julian as a fraudulent debtor. After an examination and hearing Mr. justice Mo Ad am found him guilty and committed him to jail according to the provisions of the act.

<p>Insurance company—proceedings under act of 1853 to distribute assets— Beceirer — suit against—power of supreme court to enjoin action—whme and when such power may be exercised.</p> <p>The supreme court, in special proceedings pending before it for the purpose of distributing the effects of a dissolved corporation, i. e. (a life insurance company), (pursuant to chapter 463, Laws of 1853, and chapter 903, Laws of 1869), has power to enjoin an action brought by a policyholder of such corporation against the receiver appointed in such special proceedings for the purpose of ascertaining and declaring the debts and obligations of the corporation, and for the distribution of its assets. y</p> <p>A motion by the receiver to stay such suit need not, of necessity, be made in the district where the action is pending.</p> <p>Even where an action is pending in one district and a suit is brought in another to restrain it, the court may interfere in the latter district.</p> <p>The jurisdiction of the court to interfere is undoubted where the case is pending in one district, and on a second suit being brought in another, for the same pwpose, the party who is thus sued moves in the first action to stay the second.</p> <p>The fact that the proceeding first instituted is not an action, eo nomine, makes no difference. As the court has power in this proceeding to distribute the assets of the dissolved corporation, it will enjoin and restrain any individual who seeks by a new and unnecessary action to deprive it of its power.</p> <p>A proceeding to wind up and dissolve a corporation and distribute its effects was specially provided for by the act (Laws of 1853, chapter 463, section 11), and, consequently, no action can now be maintained by a creditor or a stockholder under the Revised" Statutes for a similar object. What a creditor or a stockholder could not do before 'the attorney-general and the court have acted under the statute of 1853, it ought not to he allowed to do after such action (¡See Attorney-General agt. The Continental Life Insurance Company, 53 Mow., 16).</p> <p>Under the Revised Statutes, when an action had heen brought to dissolve and distribute the assets of an insolvent corporation, the remedy of every creditor was in that suit.and proceeding only, and in the district in which the same was pending, and the same rule applies in proceedings to dissolve and distribute the assets of an insolvent corporation under the act of 1853.</p> <p>Where an order has been granted by a judge of the supreme court allowing a suit to he brought against a receiver upon its being made evident that such order was improvidently granted, there is no impropriety in another judge directing an order to be entered withdrawing the consent to bring such suit. It was the consent of the same court which was obtained, and it can properly be withdrawn by the same tribunal which granted it though sitting now in another district (See McArdle agt. Barney and others, 50 Mow., 97).</p>

<p> New trial on the minutes amd on ground of surprise. </p> <p>Where a party moved at the circuit for a new trial on the minutes and on the ground of "surprise:”</p> <p>Meld, that under section 1002 of the Code of Civil Procedure the motion could not be heard at the cirauit, in so far as “surprise ” was urged as a ground, but should be brought on at special term.</p> <p>Section 999 discloses the grounds upon which a new trial may be granted at the circuit.</p> <p>Litiby agt. Straslwrgm' (14 Run, 120) applied in a case where fraud was charged in contracting a debt claimed to be discharged in bankruptcy.</p>

Motion by defendant that order of arrest be vacated, or that plaintiff be required to amend complaint by striking out all causes of action except that on which he is entitled to an order of arrest, and that he be required to elect npon which cause of action he will rely.

<p> .Public administmtor—when the city of New York not liable for his acts. </p> <p>The mayor, aldermen and commonalty of the city of New York are liable for all moneys received by the public administrator according to law, and for the faithful execution of the duties of. his office. But for acts illegal and done outside of his office the city is not liable.</p> <p>Thus where the public administrator, who has in certain cases authority to take charge of the goods, chattels and personal effects of persons dying intestate; took into his possession money and property of a third parson as of the effects of a decedent intestate:</p> <p>Held, that the city was not responsible for his act.</p> <p>Loom agt. Bussed (42 N Y, 254) applied.</p> <p>Also, held, that the record of a judgment against the public administrator, as such, is not evidence in an action against the city of New York, to establish a liability, where the judgment was recovered for acts of the public administrator, which he was not by law authorized to perform.</p>

<p>Beferees — amount they a/t'e entitled to demand and home on mahing sale of premises under a deoree of foreclosure.</p> <p>A referee appointed to sell in a foreclosure action is entitled to the same fees and percentage (commissions) as might be taxed for the same services had they been performed by the sheriff, not exceeding in the aggregate fifty dollars.</p> <p>Where there were three sales of the mortgaged premises, all of which it appears were regularly made, the last one only having been consummated by the delivery of the deed, twenty-five per cent of the purchase-money being paid in on each of the first two sales, both of which fell through; on the third sale, the premises were struck off and sold for $5,700 cash, and the title passed; the defendant took the benefit of the purchase, and had the benefit of the moneys paid in on the prior sales, he agreeing to pay and satisfy the referee’s fees and expenses:</p> <p>Held, that the referee was entitled to fifty dollars for the third and consummated sale, inasmuch as the taxable fees and percentage, or legal commissions on the sale alone would amount to the full sum of fifty dollars. He is not entitled to commissions on the first two sales. He can have commissions only on such moneys as were actually or constructively received and paid over under the decree. For making the two ineffectual sales, the referee is entitled to two dollars and fifty cents each, i. e., for receiving and entering the decree in his book, fifty cents; advertising the property for sale, two dollars; in all fifty-five dollars {Per Bocees, J.).</p> <p>Where a resale is had on the failure of the purchaser to complete his purchase, the costs of the resale are properly to be deducted from the deposit (made by the purchaser). Therefore the referee could retain his fees (including commissions), from that deposit, in each of the sales not completed, and as the defendant was, by the agreement, to pay all the referee’s fees, &c., he was liable for these {Per Learned, J.).</p> <p>There was but one sale made; the others were not perfected, and the fees should be fifty dollars, as ,the extreme limit of the law of 1876 {Per Boardman, J.),</p>

Demurrer to complaint. This action is brought for the partition of the lands of Alexander T. Stewart, deceased.

<p>Mechanic’s lien — within what time a lien must he fled—Answer—Demw'rer.</p> <p>A lien, by one who furnishes materials toward the erection, alteration or repair of a building in the city of New York, must be filed within thirty days after the materials are furnished or supplied.</p>

<p>This ease comes up on demurrer interposed by the plaintiffs to the defendants’ answer. The action is brought on a judgment recovered by the former against the latter in the city of Hew Orleans. The present action was commenced by a capias in this court claiming $16,130.16 with interest. The complaint sets up as its cause of action, the recovery of the Hew Orleans judgment. The defendants do not deny the recovery of the* judgment or attempt to plead payment or satisfaction, but attempt to impeach the judgment by an answer setting forth matters which are not defenses at common law against the judgment, but which are-claimed to give the defendants an equitable right to prevent the enforcement of the judgment.</p>

The action is brought to foreclose a purchase-money mortgage on property on One Hundred and Fourteedth street, New York city, and all the parties to it are residents and citizens of New York state. The defendant Wiley made the mortgage to plaintiff and subsequently conveyed the property to Fanny G. Dunning, subject to the mortgage.

<p>Demubbeb to complaint.</p>

The plaintiff, with some eighty others, was a member of an unincorporated German benevolent society known as “ Die Kra/ufken Unterstütsnmgs Verem Deutsche Treu u/nd Evrngkeit,” which being translated into English means,- “ The Sick Benevolent Society Uerma/n Faith and Unityy” becoming dissatisfied he brought an action in the court of common pleas for a dissolution of the society, and- obtained a preliminary injunction against the officers of the society with an order to show…

The plaintiff was committed by the common pleas for contempt for the refusal to pay certain fees of a referee which he had stipulated to pay in a certain contingency.

<p>Motion, under section 758 of the Code of Civil Procedure, for continuance of action against executors of defendant Sackett.</p>

<p>Trustee of an express trust—Gode of Giml Proced/wre, § 449— Validity oj agreement between husband and trustee of wife — Complaint — Lenwrrer — Pan'ties.</p> <p>Where the defendant and his wiife entered into articles of separation whereby the defendant agreed with her and plaintiff, as her trustee, that defendant and his wife should live separate and apart, and in consideration of the premises defendant, among other things, agreed to pay, or cause to be paid, to the plaintiff, as such trastee, twenty-five dollars per week for the support and maintenance of his wife, the trustee covenanting and agreeing with the defendant to indemnify and bear him harmless from all debts of said wife contracted, or, to be contracted, by her or on her account, each of the' parties being bound by mutual covenants to carry out the agreement; in an action by the trustee against the husband to recover the sum of $3,825 balance of unpaid weekly installments:</p> <p>Held, that the contract with plaintiff was for the benefit of another and constituted him a trustee of an express trust within the meaning of. section 449 of the Code of Civil Procedure. He alone would be liable to the husband for the 'wife’s breach of covenants, and the action is properly brought in his name.</p> <p>In articles of separation between husband and wife, through the intervention of a trustee, the covenant on the part of the husband to pay a stipulated sum for her support, and that of her trustee to indemnify the husband from liability for her debts, are not illegal or contrary to public policy.</p> <p>A complaint in such an action which simply sets forth the agreement m extenso and declares a breach of it for failure to pay is riot good pleading. As the law only tolerates such an agreement when it can be enforced by a third person acting in behalf of the wife, all facts, by way of inducement, should be pleaded to enable the court to decide whether or not a prima facie case is presented</p>

Demubeeb to complaint. The ground of demurrer was that the court has not jurisdiction of the defendant, as executrix, &c., nor of the cause of action against her, as executrix, &c., &c.

<p>Trade-mark — what does not constitute an infringement of.</p> <p>In a suit to restrain the use of trade-marks alleged to be simulated, if it appears by the testimony that the marks used by the defendants, though resembling those of the plaintiffs in some respects, have not deceived and are not likely to deceive the ordinary mass of purchasers paying the attention which such persons usually do in buying the article in question, an injunction will not be granted.</p> <p>Where the alleged imitation by the defendants of the plaintiffs’ trademark consisted, among other things, in the directions for the use of the article, which directions were identical with those printed on the plaintiff’s label.</p> <p>Held, that this did not constitute an infringement of the plaintiffs’ trade-mark.</p> <p>Held, also, that the words “tempest” and “hurricame” are not to be regarded as so similar as to warrant the conclusion that the public is liable to be misled into believing that the articles to which these words are applied are of the same manufacture.</p>

<p>Complaint—dismissal of, for neglect to proceed— Code of Civil Procedure, section 822—Referee’s refusal to proceed, without his fees were paid— , remedy in such case.</p> <p>Where a cause was at issue and had been referred and several hearings had been had before the referee, when the latter declined to appoint another hearing until his fees were paid, the case remaining in this condition for over two years:</p> <p>Reid., that the plaintiff had unreasonably neglected to proceed in the action, and the motion to dismiss the complaint was properly granted.</p> <p>It is not a good answer to the motion that the defendants themselves might have noticed the case for trial. The plaintiff had the affirmative. He was the actor until his case was presented and closed, and was himself bound to proceed.</p> <p>If a referee refuse to proceed in the reference he may be removed and another appointed in his place.</p> <p>It seems, that, on sufficient grounds, the court would require the deposit of money to meet the fees of the referee before he would be required to proceed; but such requirement would rest on something unusual and peculiar to the particular case.</p>

<p>Examination of parties before trial — Non-resident — Code of Civil Procedure, sections 872-886, 887.</p> <p>To obtain the examination of a party before trial, each requirement of the</p> <p>Code must be satisfied in the affidavit upon which the order is based. Service upon the attorney only is not always sufficient (See Palee agt.</p> <p>Pi-oal, 54 Now., 93; Mayer et al. agt. Noll et at., ante, 214.)</p>

<p>Action hy cm attorney for services— Answer—generad denial a/nd an allegation that the servites have been fully paid for— Order of reference.</p> <p>It seems that an order of reference may be had in an action by an attorney for professional services. ,</p> <p>Qim'e. Is Marlin agt. Windsor' Motel Company (10 Man, 304) to be followed, or is a different rule to be established?</p>

Motion by plaintiffs to strike canse from the calendar, upon the ground that the issue of law which was urged for trial had been superseded by an amendment of the complaint; and further, that' a separate trial should not be had by one of several defendants.

The plaintiff resided in Morris county, ¡New Jersey, and the defendants lived and were doing business in Mew York and Brooklyn.

The action was brought to recover excessive prices paid for 800 shares of stock of the Pacific Railroad Company which the plaintiff purchased, as he alleges, on the faith of certain representations made to him by some of the defendants, who were former directors of the road, and charges of fraud are made against them. In action No. 2 a motion was made to punish Mr. Pierce for refusing to answer certain questions put to him on examination before trial.

Motion by plaintiff, Alexander Stewart, to compel Mr. S. F. Xneeland, the attorney who brings the above entitled action, to substitute Mr. Ira Shafer as attorney for the said Stewart.

<p> Supplementary proceedings—right of assignee to maintain—jurisdiction of county judge. </p> <p>An assignee of a judgment has the right to maintain supplementary proceedings on it, after the death of the party recovering the judgment. Where it appeared that the owner of the judgment was B., and that it was assigned to him by the plaintiff in his lifetime, it also appearing that the plaintiff in the action was dead:</p> <p>’Held, that the court could appoint a receiver of the property of the defendant on the application of the assignee.</p> <p>A county judge has jurisdiction in proceedings supplementary to execution based on judgments recovered in the supreme court where the judgment debtor resides or has a place of business in the county, or where a transcript has been filed when the judgment was not recovered in that county.</p>

Demubbeb to complaint. The action is for the foreclosure of a mortgage. The complaint alleges that Henry Luers died on the third day of January, 1865, leaving a last will and testament, which was admitted to probate by the surrogate of the county of Hew York, by which will Lawson H. Fuller, and Peter.

Application to Mr. justice Westbrook for an attachment against Louis D. Pilsbury, the superintendent of the Albany penitentiary, to compel him to give evidence before a committee, consisting of five supervisors of the county of Albany, and the mayor and recorder of the city of Albany, appointed at and in a joint meeting of the board of supervisors of the county of Albany and the mayor and the recorder of the city of Albany.

The defendant was arrested upon an execution issued against Ms body. Thereupon he noticed a motion to set aside the execution for the reason that the plaintiff had not obtained an order of arrest in the action prior to the judgment, and that this was not one of the cases in which a oa sa could issue without, .such preliminary order.

<p>Motion by defendant to suppress deposition.</p>

This is an action on the case to recover damages hy reason of the defendants having wrongfully, maliciously and without reasonable or probable cause, filed in the clerk’s office of the county of blew York, a notice of pendency of action affecting the property of the plaintiff, described in the complaint, charging that said plaintiff was not the owner of the property, and that her title thereto was fraudulent against defendants, who claimed to be creditors of her husband.This…

<p>Motion by defendant for costs pursuant to the statute, and amongst others, under section 317 of the Code of Procedure, on the ground plaintiff, as assignee, has not funds. “There are not funds, belonging to the bankrupt’s estate, represented by him, sufficient to pay said costs, if defendant succeeded in the action.” The action has but recently been brought and no answer has been put in. The defendant says he has a defense.</p>

<p>Mortgage— Covenamt in a deed to pay smne—when it may be released.</p> <p>Where M. conveyed to F. certain lands, subject to a mortgage, which, by the covenants in the (leed, P. agreed to assume and pay, but an agreement was made, contemporaneous with the deed, that M. would take back the land, at any time, should P. become dissatisfied with the purchase, and release P. from the covenants, and P. afterwards reconveyed the land to M., who released him from the covenants in the original deed:</p> <p>Held, that the release of M. to P. discharged him from all claim to pay the mortgage, and that the holder thereof was not entitled to a judgment against P., for any deficiency arising on a sale, in an action of foreclosure (/Si?6 Flagg agt. Mungert', 5 Seld., 483;-OOTiieS'agt. St. Bernards, 27 W. J. K, 650; but. see Whiting agt. Q-earty, 14 Hun, 498, note at end of case.)</p> <p>Note.—Stephens agt. Gasbaeker (8 Hun, 116), referred, to in the foregoing opinion, is cited in Whiting agt. Gea/rty (14: Hun, 498) which holds that the grantor cannot release the grantee from a covenant to pay a mortgage, after knowledge of the covenant is brought to the creditor, and he has commenced proceedings to enforce it. But in this case, it will be observed, the agreement to release was not contemporaneous with the creation of the covenant which is the principal feature in the case above reported. [Rep.</p>

<p>Mortgage — what language in a deed imports an assumption thereof.</p> <p>Where the consideration expressed in a deed of conveyance of land was the sum of $15,000, but the deed contained a clause in these words: “subject, however, to the assumption as a part of the consideration,” of the conveyance, of a mortgage upon the land:</p> <p>Held, that the language of the deed amounted to an agreement on the part of the grantee to pay the mortgage.</p> <p>Collins agt. Howe (1 Abb. N. C., 97), distinguished.</p>

<p>Mortgage—Assumption of payment thereof—when ma/rided woman not liable— covenant to one not liable to pay— Costs.</p> <p>Where a husband purchased land, incumbered by a mortgage, and directed that the deed be made out in the name of his wife, he intending to make her a gift of the land; the deed contained a covenant, on the part of the grantee, to pay the mortgage;, the wife was, however, ignorant of the transaction, and had no knowledge of the deed or its covenant; it appearing that the husband paid, with his own funds, the consideration on the purchase, and, in like manner, discharged the taxes and assessments:</p> <p>Held, that the wife, on a foreclosure of the mortgage, was not liable for any deficiency arising .on the sale.</p> <p>Although a married woman may enter into engagements with respect to her separate estate, there is'nothing in the marital relation which authorizes a husband, without his wife’s knowledge or assent, to create an estate in lands in her and charge her personally 'with a covenant in respect thereto.</p> <p>Where the grantor in a deed is not himself liable to pay a mortgage upon the land, his grantee is not liable to pay the same to the holder thereof, although, by the conveyance to him, he assumes its payment. A promise to pay an incumbrance, of which the holder can take advantage, must be made to one who is liable to pay.</p>

<p>Will—construction of—Suspension of the poww' of alienation — Equitable conversion.</p> <p>Where a testator, who died leaving a wife, brothers and sisters, by the fifth clause of his will devised his real and personal estate to his wife, as executrix, and two other persons as executors in trust, to take possession of the same and collect the rents, issues and profits thereof, and. out of the proceeds of the same, for six years after his death, to pay certain bequests to his wife, brothers and sisters, the balance of the income, after paying such bequests, to be applied in the payment of any incumbrances or taxes on said property; at the end of six year's the executors were directed to sell, and dispose of, all his estate, both real and personal, the proceeds of the same to be divided amongst his heirs and next of kin as directed:</p> <p>Meld, that the said clause in the will of the testator is void, because it suspends the power of alienation in a manner, and for a term, prohibited by the statute, and that the property, sought to be disposed of, thereby descends to the testator’s heirs at law as if he had died intestate.</p> <p>No absolute term, however short, can be maintained. Hence, a bequest of his real and personal estate directing that the issues and profits shall be applied to certain beneficiaries, for six years after the testator’s death, and that then the same shall be sold and the proceeds divided among his heirs and next of kin, is void.</p> <p>The testator attempted, by means of a trust to receive rents and profits, to render his lands inalienable, for the term of six years from the time of his death. This he could not do as the statute forbids it, and the whole trust estate and the remainder limited upon it, are consequently void.</p> <p>Nor can the provision be upheld by a resort to the doctrine of equitable conversion. The rule of equitable conversion of real into personal or personal into real estate, does not operate until the time arises when the conversion is directed to take place, which, in this case, would he six years from- the death of the testator.</p>

Motion, by plaintiff, to amend judgment by deducting therefrom the item of ten dollars costs taxed and included in the judgment, or that the judgment, as to costs, be reduced by deducting therefrom ten dollars, and judgment roll and docket be accordingly amended.

This is an appeal from only so much of the judgment as awards $715.55 costs to the defendants in an equity action, notwithstanding the plaintiffs have substantially succeeded. The plaintiffs made a case and proposed only a portion of the evidence. The defendants proposed to amend by inserting all of the evidence. As it was voluminous the plaintiffs served a notice to waive the case and rely upon the report and exceptions thereto, and printed the same.

<p>Mortgage foreclosure — taxes md assessments—rights of pmchaser.</p> <p>Where the judgment ordering the premises to he sold expressly provided that the referee should deduct from and pay out of the purchase-money any lien or liens for taxes or assessments, and aonly the balance should be paid to the plaintiff : ■</p> <p>Held, that this provision is equivalent to an express declaration, by the court to the buyer, that he buys free from all liens for taxes.</p> <p>Held, also, that although by. the terms of sale the purchaser was required to present all claims for taxes, and have the same deducted from his bid, he could, if he saw fit, pay to the referee the entire purchase-money, and rely upon the court to carry out its own judgment as to the appli1 cation of the moneys thus paid by him.</p> <p>Where the purchaser paid to the referee the entire purchase-money, which was by him paid over to plaintiff, leaving certain taxes unpaid:</p> <p>Held, that plaintiff should be compelled to pay the same.</p>

Appeal from an order of the special term in Seneca county, sustaining demurrers to the complaint with leave to plaintiff to amend on payment of costsi

<p> Corporation—contract made by president—proof of emthority—ratification of—Evidence. </p> <p>It is an established rule of law that corporations may enter into and become bound by contracts, express or implied, without other formalities than are requisite in respect to like contracts made by natural persons, and under the same circumstances and conditions. But corporations, of necessity, must act solely through the instrumentality of their officers or other duly authorized agents, and such officers and agents must, like the agents of natural persons, be deemed to be clothed with all the powers and authority necessary or proper to effectuate the purposes of their creation, in the manner, with the means and appliances, and according to the usages customary in the conduct of the business and affairs intrusted to them. '</p> <p>Where a corporation, in the execution of powers conferred by its charter upon its board of directors, had made M. the president and manager • of the corporation, he entering into an agreement with plaintiffs by which they were to act as defendant's agents in the sale of coal, for which they were to receive a commission; in an action to recover for such commissions:</p> <p>Held, that what general or special powers were by the board expressly conferred upon M., as such president and manager, can only be determined (in the absence of positive evidence), by inferences from such facts proved as throw light on this point, aided by the presumption that,' as the chief executive officer and manager of the company, he must have been clothed with some powers and duties which, of necessity, pertained to those positions.</p> <p>Held, also, that the same evidence upon which prudent business men ordinarily infer the existence of the authority ought to be sufficient and satisfactory to courts and juries.</p> <p>Held, further, that it is not necessary to show authority by express resolution of the board of directors, or by power of attorney or other formal corporate action; but it is proper, on the question of authority, to prove various acts, statements and declarations, written and verbal, of the president and manager of the corporation, where it appears that they were 'done and made in the discharge of his duties, in the course of the company’s business, and relating directly to current transactions therein.</p> <p>Where a person is employed for a corporation by one assuming to act in its behalf, and goes on and renders the services according to the agreement, with the knowledge of its officers, and without notice that the contract is not recognized as valid and binding, such corporation will be held to have sanctioned and ratified the contract, and be compelled to pay for the services according to the agreement.</p> <p>Having availed itself of the services and received the benefits, it is bound in conscience to pay, and will not be allowed to say that the original agreement was not made by a person legally authorized to contract.</p> <p>Note. —Affirmed by court of appeals, November, 1878. No opinion written. [Ed.</p>

<p>Snureby and co-surety—liability 0/ one to the otlwr.</p> <p>Where a creditor, whose claim against the sureties is valid, commenced an action against them upon an undertaking given on appeal from a judgment, and pending the action, one of the sureties paid the judgment to the creditor, at the request of his co-surety, upon his promise to reimburse him one-half the amount:</p> <p>Held, that the surety who paid the creditor, relying upon such promise, could recover of his co-surety one-half of the judgment, notwithstanding that the law firm of the surety, to whom the promise was made, had procured the judgment to be marked secured on appeal, without notice to the co-surety, the surety himself, at the time he paid the judgment, being ignorant of the irregularity in the order. Vide Green agt. Mil-bank (3 Abb. JV. O., 138) where facts are stated.</p> <p>A surety has the same responsibility for keeping alive securities in favor of his co-surety, from whom he claims contributions, as a creditor has in behalf of sureties.</p> <p>Flemming agt. Waterhouse (40 Superior Court B. [8 J. <6 &], 424) distinguished.</p> <p>A surety who has paid to his co-surety his proportion of the claim of the creditor, which was in judgment, is entitled to - be subrogated to the creditors’ right to enforce the judgment out of the property of the judgment debtor, upon which it was a lien, and to follow land conveyed away by the judgment , debtor, notwithstanding an order marking the judgment secured on appeal, the order being, as to the creditor and the surety, irregular and void.</p> <p>The effect of a mlunta/ry payment made by a. surety of a debt barred by the statute of limitations as void for usury or other cause, considered.</p>

Application by the'company to have its assets taken from the receiver and returned to it, and to permit it again to transact business.

<p>Mortgages — agreement by first mortgagor to waive priority of— Latent equities — Ltecoi’ding acts — Pwrehaser in good faith.</p> <p>On October 13, 1869, the bank agreed to loan one E. $7,000. There then existed on the property a first mortgage for $7,200,-on which $5,700 of the principal was due, made by B. to B., dated November 16,1864, and duly recorded; also a mortgage made by D. and R. to W., dated March 31, 1868, and recorded, to secure the payment of $6,700 installments. On closing title the bank paid $5,827.62 to pay amount due on first mortgage. W., the admitted owner of the second mortgage, executed an agreement postponing it to the mortgage to the bank, which agreement was recorded November 22,1869, in liber of conveyances. Upon the faith of this agreement the bank’s mortgage was taken and duly recorded November 22,1869. Nothing further was heard of the matter until W. demanded from D. and R., the makers of his mortgage, made subsequent to that of the bank, payment of the same, and threatened foreclosure when D. and R. agreed to buy for the purpose of foreclosing it themselves. They were advised to take the assignment in the name of a third party and induced F., who is a step-brother of R., to purchase it for a consideration of $1,000, to be paid by two notes. D. and R. knew of W.’s agreement with the bank, though they had never consented to or ratified it, and they assured F. that the mortgage was all right and a first mortgage. Before F. accepted the assignment and gave his notes he retained Wagner, who had been, and then was, the attorney for D. and R., to search the title for him, and in such search he found the agreement on record as above stated. At .about 12 o’clock at noon,, on April 23,1878, at which time the relation of attorney and client existed between F. and Wagner, the latter had an interview with the attorney for the bank, during which the agreement between W. and the bank and certain errors in the recording thereof were discussed. F. took the assignment and parted with the consideration therefor, subsequent to said interview, and put it on record at' 3.45 p. m., on that day:</p> <p>Held, 1. That the agreement between the bank and W., the assignor of F., that W. should waive the priority of his mortgage in favor of a mortgage to be given by E. to the bank, is one not entitled to be recorded under the statute, and, heiice, the record thereof is not constructive notice to anybody.</p> <p>2. That even if it had been thus entitled it should have been recorded in the book of mortgages and not in the book of conveyances in order to make the record effectual, as against subsequent Iona fide assignees or purchasers, from the mortgagee.</p> <p>3. That in no aspect of the case can the bank derive any benefit from the mere recording of said written instrument against F., as subsequent assignee of W., whose assignment was duly recorded, provided F. was a purchaser in good faith and for a valuable consideration.</p> <p>4. That an assignee of a mortgage must take it subject to the equities attending the original transaction, and the true test is to inquire what the mortgagee can do by way of enforcement of it against the property mortgaged.. What he can do the assignee can do and no more.</p> <p>5. That where a mortgage had a valid inception as a subsisting ’and enforceable lien in the hands of the mortgagee to the full extent of its face, equities arising thereafter stand upon a different footing and are to be disposed of upon such other principles of public policy, or, according to such statutory requirements, as the facts of the particular case may call for.</p> <p>6. That the courts have always been discriminating and careful in cases of conflicting equities arising after the inception and during the life of a mortgage to cast the loss, if any, upon the party at fault. But the protection of the statute extends only to purchasers in good faith and' for a valuable consideration. Good faith is not enough without a valuable consideration parted with on the faith of the conveyance; nor is the parting with such valuable consideration sufficient, in the absence of good faith, which cannot be said to exist in case of notice.</p> <p>7. That though F. may have been personally ignorant of the trae state of . affairs, the knowledge Which his attorney had before the final close of the transaction was, in law, equivalent to notice to him; and he having purchased with notice of .the rights of the bank, he cannot be held to have been a purchaser in good faith, though he may have parted with a valuable consideration.</p> <p>8. That the bank is entitled to a finding setting forth this fact; to an adjudication that it has a lien upon the mortgaged premises for the whole amount of E.’s mortgage, superior to the lien of F., by virtue of Ms said mortgage and to the usual decree of foreclosure to carry tMs adjudication into effect.</p> <p>9. That R. and IX, as original mortgagors by the agreement between W. and the bank, it having been made without their knowledge or consent and remaining unsatisfied by them, are discharged from all personal liabilities in the premises.</p>

<p>Motion to set aside an order for the examination of a third party on proceedings supplementary to execution.</p>

The defendant Davies, made a mortgage to the plaintiffs, in 1869, to secure the payment of $44,000, on the first of June, 1870, with semi-annual interest. The mortgage covered lots in the city of New York, owned by Davies. The mortgagor, subsequently to the execution of the mortgage, and during the same month in which it was made, conveyed the mortgaged premises to the defendant Cudlip. By the terms of the conveyance to him, Cudlip assumed the payment of the mortgage.

Motion to vacate order of special term, made under section 297 of the Code of Procedure, directing the Merchants’ National Bank to pay to the plaintiff or Lis attorneys certain sums of money belonging to defendant, on deposit with said bank. The action is brought to recover the sum of $1,400. The plaintiff in the action is not a resident of the state of New York, but resides in the state of Vermont.

The action is brought by Harriet H. Garner, widow of Thomas Garner, Jr., deceased, and her daughter Fanny M. Garner, the only child of Harriet H. and Thomas Garner, Jr., for the purpose of securing and protecting a trust of $1,000,000. A concise statement of the complaint is important to show the origin and history of the trust.

<p>Assessments —for underground cb'ains, when unauthorized — cannot be sustained as a sanitary measure without compensation to owner—Substantial e/rror sufficient to authorize relief—Laches.</p> <p>The construction of an underground drain in the city of New York through private property without the consent of the owner, and with- • out any compensation being awarded to him for the easement acquired in his lands, is unauthorized and an assessment therefor will be vacated and set aside.</p> <p>Nor can the assessment be maintained on the ground of its being a sanitary measure, the health department, through its proper officer, having certified as to the necessity for building the drains for the protection of the public health in accordance with the provisions of chapter 566 of the Laws of 1871.</p> <p>The construction of drains as a sanitary measure, cannot be undertaken or sustained without making just compensation to the owner for the easement thereby acquired in his lands.</p> <p>Where substantial error is shown, in this class of cases, the petitioner may have relief in this form of proceeding, under the provisions of chapter 312 and 313 of the Laws of 1874, and it is not necessary to show actual fraud.</p> <p>A mere neglect to physically resist an illegal or unconstitutional exercise of an'alleged power on the part of the state or of the municipal authorities, does not deprive the individual, when a right is claimed under such illegal or unconstitutional action, from insisting upon his rights.</p> <p>Whether the doctrine of laches applies to legal rights or should be restricted in its application to equitable rights only, guare?</p>

<p> Survivorship of actions. </p> <p>Under the provisions of 2 Revised Statutes (page 447, sees. 1 and 2) a cause of action which a husband has against a railroad company for the loss of services of his wife, who was injured while in the act of getting off their cars while a passenger, through the negligence of the company, survives and may be continued by the personal representative of such husband (Affirming, 8. O., ante, 32).</p> <p>Note.—Would not the cause of action in this casé have survived irrespective of the statute? The action arose out of assumpsit, and though in form for a wrgng, it is founded on contract. It is founded on an “ engagement ” i. e. (to safely carry the plaintiff’s wife), and is technically a “claim.” The failure to safely carry is the breach? [Rep.</p>

<p>Motion for a peremptory mandamus.</p>

<p> Agents—liability for money received and paid over to principals—Semittanee and acceptance by telegram regarded as a payment. </p> <p>Where, for a long time, agents and their principals had telegraphed and acted upon “ exchange accounts,” in the absence of fraud and want of notice, the credit and acceptance by telegram of a certain amount in dispute should be regarded as a payment within the spirit and meaning of judicial authority.</p> <p>Where plaintiff was directed by B. B. & Co., his bankers, to reimburse them by a payment to defendants, their receipt of the money (it being within the scope of their authority) creates no obligation on their part to make restitution after they have, in good faith, accounted for and paid over the proceeds of the collection.</p> <p>Although an action may be maintained against an agent who has received money, to which his principal has no right, a party must be held to some degree of diligence in charging liability upon such agent. He will not be allowed to wait until the agent has parted with the funds and then claim restitution because there was a running account between him and his principals upon which the amount might have been credited.</p>

<p>Arbitrators—power of supreme cowrt over awaA'ds—whsn and when not set aside — what paA'ty alleging error must prove.</p> <p>Where a vessel, by the terms of the charter, was to proceed first to S. M., then to S. and lastly to 0., the omission to go to S. before proceeding to C. was a deviation from the contract for which the defendants would be liable to respond to the plaintiffs in case damage resulted therefrom.</p> <p>Such deviation could, however, be excused by defendants showing that it was the result of a stress of weather, or of causes over which they had no control, and was not the result of carelessness, or neglect or want of skill on the part of the captain of the vessel. •</p> <p>The burden of proof, in making out such excuse, is upon the defendants.</p> <p>An award of arbitrators should not be set aside where the plaintiffs, wfth full knowledge of the situation .and of the action of the arbitrators, accepted the fruits of, and executed, the award.</p> <p>The supreme court has no general supervisory power over awards of arbitrators, and where the arbitrators keep within their 'jurisdiction their awards, in the absence of corruption or misconduct, will not be set aside for error of judgment either in law or in fact.</p> <p>Awards may be set aside for a palpable mistake of fact in the nature of a clerical error, such as a miscalculation of figures, or for an error of law appearing on the face of the award, i. e., where it appears that the arbitrators intended to decide according to law, but through mistake as to the law did not.</p> <p>The party alleging error, in order to sustain his action, must be able to show, from the award itself, that but for the mistake the award would ■ have been different.</p> <p>Although the arbitrators may have misunderstood the effect of their award, yet where the evidence does not justify the conclusion that they were actuated by any other purpose than that of doing justice between the parlies, or that they were guilty of corruption or misconduct in making the award, the award will not be vacated.</p>

Bbown, Pope & Co., were insurance brokers, in Boston, and had collected a considerable amount of money consisting of premiums of insurance belonging to the plaintiff and upon being pressed for payment, they gave their check for the amount. This check, upon being presented to the bank for payment, was not paid.

The plaintiff recovered judgment against the defendants December 31, 1874, for $525.86, and on the 5th day of July, 1876, the defendants were discharged from their debts and liabilities, by and under proceedings in bankruptcy, which resulted in such discharge on that day. The defendants now apply, under section 1268 of the Code of Civil Procedure, for an order discharging the judgment of record.

<p>Deed— Covenant to pay mortgage—Insufficient evidence of the insertion of covenant in deed through fraud or mistake.</p> <p>Parties who have accepted a deed after having had ample opportunity to examine the same before its acceptance, and also upon action being brought to enforce a covenant in such deed before it was placed on record, are not in a position which entitles them to say that it is not in conformity with their agreement of purchase.</p> <p>Where the covenant in the deed sustains the action it should not be changed or altered, or adjudged incapable of enforcement on the ground of fraud or mistake, without a trial in which the grantor may be heard. A deed formally accepted and put on record, and containing in clear and legibly written words the assumption clause or covenants ought to be enforced, is very high evidence of the agreement between the parties at the time of the purchase, and should not be lightly disregarded, nor set aside except upon clear and convincing proof.</p> <p>The evidence in this case examined, commented on and held to be insufficient to maintain the defense, that the covenant in the deed to assume payment of the mortgage, was contrary to the agreement of purchase and was inserted therein by fraud or mistake without the knowledge of the grantees.</p>

<p>Helease — when a/nd when not a ba/r to an action—when obtained by false and fraudulent representations no ba/r—When knowledge by one officer of a bank that representations are false binds the bank—Hmdence of fra/ud in a release competent—Where no consideration is paid for release nothing is required to be returned before bringing action to set aside</p> <p>Evidence that a release of a cause of action was obtained by false and fraudulent representations is competent.</p> <p>Knowledge by one officer of a bank that such representations were false binds the bank, though such officer represents to the hank that such representations are true.</p> <p>Where no consideration is paid by a party for a release of a cause of action, it is no defense to an action to set aside such release that the party bringing the action has not returned, or offered to return, the property received under the settlement.</p> <p>On the facts stated: Held, that the officers of the bank had the means of ascertaining whether plaintiffs’ bonds had been replaced. The vault was under them control, and it was the proper place to deposit the bonds if they had been returned.</p> <p>That S., having told the president and other officers that he had returned the bonds, and such statement being false, does not excuse the bank from liability on a claim of an outside party.</p> <p>The hank cannot escape the consequences of a false representation made to a person dealing with it, and who, by relying on it is injured, by proving that its officers, or some of them, were told the falsehood by some other agent or officer of the corporation.</p> <p>The party has the right to rely upon the representation as being matter within the personal knowledge of the person making it, unless the source from which the information was obtained was disclosed to him "before he entered into the contract.</p> <p>Plaintiff had the right to assume that the person making the representation as to the return of his bonds had personal knowledge of the fact; and especially had he the right to assume they were not making it upon the faith alone of the cashier, S. It cannot be doubted but that the representations influenced plaintiff.</p> <p>The fact that plaintiff made no offer to return the property and- value received under the release, before this action was commenced, does not affect his rights if, as it is claimed, the defendant paid nothing under the settlement. ° .</p>

<p>Commissioners of highways to perfoi'm duties of planTc-road inspectors — thevr determinations must be in writing—Mandamus.</p> <p>The determination of a commissioner or commissioners of highways (who, by the Laws of 1877, p. 171, cha/pter 164, sea. 1 amending chapter 440, sec. 3 Laws of 1873, are made inspectors of plank-roads), that the road is out of repair, or in such condition that it cannot be conveniently used by the public, and ordering the toll-gate to be thrown open, is that of a tribunal acting judicially, and should therefore be in writing.</p> <p>When they have once ordered the gate to be thrown open, and after that, upon a subsequent inspection, on' the application and claim of the plank-road company that the road has been put in repair, they make a determination that the road has been fully repaired and is in proper condition to the satisfaction of such inspector or commissioner, it is not sufficient to evidence such determination by an oral declaration, but it should be reduced to writing.</p>

Demurrer to complaint, the grounds of demurrer assigned, being that the complaint does not state facts sufficient to constitute a cause of action. The demurrants are the defendants The Mutual Life Insurance Company and William II. Leup.