INDEX. ABDUCTION. See CRIMINAL LAW, 211. ABORTION. See CRIMINAL LAW, 765. ACCEPTANCE. 1. Release-composition deed-fraud of member of a firm cannot be taken advantage of by firm.] Plaintiffs were creditors of one Black, upon his indorsement of a note, and also creditors of the firm of H., N. & Co., of which Black was a member, upon its acceptances. After commencement of the action against the firm upon its acceptances, Black sought a compromise with his creditors, and a composition deed and release was executed by a number of them. Plaintiffs refused to sign the release on the ground that they would thereby release H., N. & Co. on their acceptances; but upon being assured by Black that he was only a special partner and not liable on the acceptances, they consented to assign their claim on the note to one Ritchie, with the understanding that he was to execute the release, and accordingly this was done and Ritchie executed a release of the claim. It turned out that Black was a general partner and had falsely represented that he was a special partner in order to induce plaintiffs to consent to the release. Defendants subsequently amended their answer and alleged the release and invoked the principle that a creditor who is a party to a composition between a debtor and his creditors, or who assents thereto, is not permitted to make a secret reservation of a part of his claim from the operation of the compromise or stipulate for a secret advantage over the other creditors. Held, that the facts did not constitute a defense to the action against the the firm on its acceptance; that the fraud of one member of a firm could not be taken advantage of in behalf of such member or his copartners. Almon et al. v. Hamilton, N. Y., 78. 2. Accord and satisfaction - note indorsed by third party.] If a debtor gives his creditor a note indorsed by a third person, for a less sum than the debt, but in full satisfaction of the debt, and it is received as such, the transaction constitutes a good accord and satisfaction. Varney v. Conery, Me., 25. ACCOUNTING. See TRUST, 495. ACCRETION. Constructing pier in front of plaintiff's property measure of damages.] When soil is by natural causes gradually deposited in the water opposite the upland, and thus the water line is carried further into the ocean or other public water, it becomes attached to the upland, and the title of the upland owner is still extended to the water line, and the accretion thus becomes his property. The same rule applies when the soil in front of the upland has been wrongfully placed there by human hands. The plaintiff was the owner, by virtue of his paper title and acts of the legislature, of the fee of the land to the center of the street, and extending to the water line of the East river, subject, however, to the public easement for travel over the street, and he had a right to maintain a wharf in front of his land and his one-half of the street. The city built a pier at the end of the street, shutting off the plaintiff's wharf across his half of the street from the water. Held, that this was a wrongful interference with plaintiff's property and franchise, and that the pier was an accretion to the mainland, and so much of it as was attached to plaintiff's land became his. In such a case the plaintiff is entitled to recover the reasonable wharfage received by the defendant from the portion of the pier erected on his premises; and in estimating the amount plaintiff is entitled to recover, it is not proper to indulge in speculation as to whether he would have collected so much from his bulk-head had the pier not been built, nor to prove the cost of building the pier, or of keeping it in repair; nor should the defendant be allowed for the expense of collecting the wharfage. Steers v. City of Brooklyn, N. Y., 439. ACTION. 1. Ex contractu - order of arrest-execution against person.] In an action ex contractu for neglecting and refusing to pay a debt due to the plaintiff out of the proceeds of property which had been placed in the defendant's hands for that purpose, and where no order of arrest was issued in the action, a judgment therein does not authorize an execution against the person. Chapin v. Foster, N. Y., 206. 2. In Federal court - when no bar to another in State court.] While an action is pending in the United States circuit court against defendants jointly indebted, upon service of process upon one of them, a new action in the courts of this State may be brought and maintained for the purpose of charging another of the defendants personally. Oneida County Bank v. Herenden et al., N. Y., 754. ADULTERATED MILK. See CONSTITUTIONAL LAW, 558. ADVERSE POSSESSION. See EJECTMENT, 855. AFFIDAVIT OF DEFENSE. 1. What should set forth.] Suit was brought by a church corporation against A. to recover moneys received by him as treasurer of such corporation, and which he refused to pay to his successor in office. The corporation filed a statement of claim, in answer to which A. filed an affidavit of defense, setting forth, inter alia, "Defendant furthermore avers, that he accounted for and paid over to the said First Reformed Presbyterian Congregation of Pittsburgh all the money arising from the contributions aforesaid, which was received by him as treasurer of said fund, and that he is not indebted to the First Reformed Congregation in the sum of $550.27, with interest from the 1st day of December, 1882, as is alleged in the aforesaid affidavit of claim, nor in any other sum or amount whatever." Held, that as the affidavit of defense was too indefinite, the common pleas court had properly entered judgment for want of a sufficient one. An affidavit of defense need not have all the particularity and technicality necessary to a special plea, but it ought so to set out the defense on which the defendant defends, that the plaintiff may know, with some degree of certainty, what will be interposed to defeat his claim. Where the defense is, that the sum claimed was properly paid to a corporation (the claimant), the affidavit of defense should set forth the agent to whom the money was paid, and also the special circumstances attending such payment. McCracken v. The First Reformed Presbyterian Congregation of Pittsburgh, Penn., 632. 2.] An affidavit of defense to be effective must disclose a state of facts sufficient to exhibit the elements of a substantial defense; the facts should not be set forth in any equivocal or evasive manner, but with reasonable precision, so that the plaintiff may be accurately advised of the true nature of the defense, if any exists. It must set forth facts specifically; mere general denials, or general averments, which involve questions of law as well as of fact, are insufficient. Averments that the defendant "has a just, full and legal defense;" that he “is not legally indebted to the plaintiff in any sum of money whatever;" that he "is not legally bound and cannot be liable," are by reason of their generality, when not connected with specific facts, insufficient to prevent judgment. Noble v. Kreuzkamp, Penn., 708. AGENCY. 1. Commissions - estoppel-question of fact.] There was evidence in this case from which the referee was justified in finding as a question of fact that the defendants, by their conduct, had led plaintiff to believe that commissions would not be claimed except upon actual shipments, thus inducing plaintiff to forego giving the year's notice of the termination of the contract, and that defendant was thereby estopped from claiming such commissions. Belgian Glass Co. v. Pabst, N. Y., 770. 2. Factor- may sell on credit.] The law authorizes a factor to sell his principal's goods on credit if there be no instructions to the contrary, and the sale upon credit is not in defiance of a usage. A factor is liable to his principal for any loss occasioned by the neglect of the factor in making the sale or attending to his principal's interests after the sale. Pinkham v. Crocker, Me., 373. 3. Failure to disclose name of principal - evidence - market value of goods sold.] Whether the defendants in this case disclosed the name of their principal or not was a question of fact, and properly submitted to the jury, and a verdict against defendants will not be disturbed. Where no sales were made of a particular brand of goods at or about the time that their market value is sought to be shown, it is competent to prove what similar goods were worth in the market at that time to enable the jury to arrive at the value of the goods in question. Dean v. Van Nostrand, N. Y., 666. See INSURANCE, 277; MARRIAGE, 555. AMENDMENT. Warrant - intoxicating liquors.] A warrant for search and seizure of intoxicating liquors under the statute of Maine, served by an officer legally authorized to serve such process but to whom the warrant was not directed, is legally amendable at any time before final judgment; the omission of such a direction is only matter of form. State v. Hall, Me., 900. APPEAL. 1. Insolvency.] There is no appeal from a decree of the court of insolvency granting a discharge to an insolvent who has made a composition with his creditors. This is so though one ground claimed for an appeal be the refusal of the judge to require the insolvent to undergo an examination concerning his property at the request of creditors who were dissatisfied with the settlement. Morgan v. Boothby, Me., 511. 2. Order of reversal-presumption.] Where an order of reversal does not state that it was based upon questions of fact, it must be assumed that it was on errors of law alone. Billings v. Sawyer, N. Y., 850. 3. What is " final order."] A ruling of the court below must, in order to form the proper basis for an appeal, be so far final as to determine and conclude the rights involved in the action, or deny to the party who seeks redress by an appeal "the means of further prosecuting or defending the suit" in the court of original jurisdiction. Waverly, etc., Building Association of Baltimore Co. v. Buck, Md., 137. 4. Order — appeal to be taken within sixty days-defective notice of appeal — failure to assent to judgment absolute.] Appellant cannot extend his time to appeal by delaying to enter order of the general term granting leave to appeal. Lane v. Wheeler, N. Y., 326. 5. Decision of orphans' court.] When an order of the orphans' court has been appealed from, the decision of the court of appeals is not final and conclusive with respect to the litigating parties. The original jurisdiction being only prima facie, "the exercise of the appellate jurisdiction does not increase its effect." Levering v. Levering, Md., 689. 6. When court will review the facts-measure of damages.] On appeal from a decision of the general term reversing a judgment entered upon the report of a referee, which is reversed upon questions of fact as well as law, the propriety of the determination of the general term is opened to review in this court. Upon considering the whole evidence in this case, held, that the general term was in error in reversing the referee's finding, as a question of fact, that no part of the damage complained of was due to the unskillful manufacture of the goods. Barrets v. Wharton, N. Y., 838. 7. Harmless error.] Although there may be error in the ruling of the lower court, yet, if upon the whole record this court should be of opinion that the appellant was not injured by such ruling, the judgment will not be reversed. Hyatt v. Pollard, Md., 682. See ASSESSMENT, 432; BILL OF PARTICULARS, 326; CRIMINAL LAW, 453; PRACTICE, 206; QUESTIONS OF FACT, 326; SCIRE FACIAS, 411. ARBITRATORS. 1. By virtue of "An act relating to the improvement of streets and the construction of sewers in the cities of this State," passed March 27, 1882 — P. L. 1882, 190-streets in the city of Newark may be repaved without consent or request of property-owners, and an assessment for benefits may be levied for such repaving, although the cost of the work may have been already raised by general tax. In attempted pursuance of the act above mentioned, the tax ordinance of the city of Newark directed that $50,000 be raised by tax "For repaving of streets." Held, that after a street had been repaved under an ordinance of the city, which stated that property benefited would be assessed for such repavement, and which was duly published according to the city charter, property-owners could not defeat the assessment on the ground that the tax ordinance did not mention the particular streets to be repaved and the sum to be spent on each. Said act is a general law, although it applies only to cities. The fact that a street has been once paved and property benefited thereby has been assessed for the cost thereof does not render invalid an assessment upon the same property for the repaving of the street with an improved payment. The direction in the act above mentioned, that moneys realized from assessments for street improvements, which have been first paid for by general tax, shall be used in making other street improvements, is constitutional and does not invalidate the assessments. The provisions in said act that assessments for improvements under it shall be levied and collected in conformity with existing laws in force in the city where the improvements were made, are not unconstitutional, as provisions of a special or local character embraced in a general law. The judgment of the commissioners of assessment, as to the area over which special benefits extend, and as to amount of such benefits, will prevail, unless there be very convincing evidence against it. If a general tax be levied in a city to raise money to pay for a street improvement, under a law which provides that land specially benefited by the improvement shall be assessed therefor, the fact that part of that tax was levied on land will not relieve the lands from assessment for special benefits. Jelliff v. City of Newark, N. J., 889. 2. Confirmation - equitable action to vacate title of act-"private or local act."] The party bringing an equitable action to set aside an assignment on the ground that the proceedings were irregular and illegal has the burden of establishing the irregularity complained of. In such a case the law will not presume that the municipal officers acted illegally or neglected to perform their duty, and the onus is upon the party attacking the assess ment, to show it. Objections made to assessment proceedings for street improvements, founded upon irregularities which might have been corrected, on appeal from the report of the commissioners, are foreclosed by the final order of confirmation, assuming that the parties interested had legal notice of the proceedings. An act of the legislature entitled "An act to amend chapter 245 of the Laws of 1875, entitled 'An act to amend chapter 818 of the Laws of 1868, entitled an act to incorporate the village of Port Chester, and to amend chapter 227 of the Laws of 1877,'" is void so far as it assumes to amend the act of 1877, being in contravention of section 16, article 3 of the Constitution, which requires the subject of an act to be expressed in its title. Tingue v. Village of Port Chester, N. Y., 860. 3. Department of public parks- title of act.] By the act, chapter 367, Laws of 1866, the department of public parks of New York city was given full power and discretion to initiate and prosecute the improvements referred to in that act, independent of any action of the common council; and the department was not bound to advertise for proposals to do the work. The act above referred to was not superseded or repealed by the act, chapter 696 of the Laws of 1867. The subject of the act of 1866 is sufficiently expressed in its title to answer the constitutional requirement. Matter of Petition of Knaust, N. Y., 781. 4. Special proceeding - final order-railroad property - assessed as real estate-public improvement.] The tunnels, tracks, substructures, stations, viaduct and masonry of a railroad company constitute "land within the definition of that term as used in the statute — 1 R. S., tit. 1, chap. 13, part 1, § 2; and as such they are liable to assessment to whomsoever has that interest in the real estate which will protect the erection or affixing thereon of those structures and their possession. There is no authority contained in the act, chapter 702 of the Laws of 1872, under which certain improvements were made in Fourth avenue in connection with changing the grade of the New York and Harlem railroad, and nothing in the nature of work performed exempting the railroad company from taxation upon such portions of the work as were for the exclusive use and purpose of its road. People, ex rel., v. Commissioners of Taxes, N. Y., 569. See CERTIORARI, 432; CORPORATION, 203; RES ADJUDICATA, 756; TAXATION, 75, 1. Benefit of creditors - reassignment — ultra vires - distribution.] A. made a voluntary assignment for the benefit of creditors to B., who recorded the same, but never assumed any of the duties as assignee, and who subsequently reconveyed the trust property to his assignor. Upon application of a creditor B. was dismissed and C. appointed his successor. A portion of the property which passed by the deed of voluntary assignment consisted of a fund in court which was part of the assignor's claim against a certain decedent's estate. This fund was claimed by C. for the benefit of all the creditors of A., while on the other hand, it was claimed by two of the creditors, one by virtue of an execution attachment issued subsequent to the reconveyance, the other by virtue of an assignment of said fund shortly after said attachment execution. Held, that as the reassignment was ultra vires and inoperative, and the title in trust for the creditors remained all the while in the assignee and his successor in the trust, therefore the assignee was the proper person to receive the fund in court. Golden v. Mosgrove, Penn., 316. 2. reconveyance to assignee.] Voluntary assignments for the benefit of creditors are so regulated by statute and governed by principles of equity, that when duly executed and delivered, neither the assignor or assignee, nor both together, can defeat the trust created. An assignee for the benefit of creditors cannot legally reconvey the assigned estate to the assignor other than in the manner prescribed by section 2, act of May 4, 1864, or with the VOL. III.-116 |