This action was commenced in the Cayuga county court, to recover damages for the conversion of a cow. The defendant, among other things, demurred to complaint on ground that complaint did not state that defendant was a resident of said county, etc. Held, that to confer jurisdiction on the county court the complaint must, upon its face, show that the defendant is a resident of the county in which the action was commenced, otherwise the court has not jurisdiction; that the want of jurisdiction appears on the face of the complaint within the meaning of section 144 of the code, and the demurrer was the proper mode of presenting the defect. The order of special term overruling demurrer reversed, with leave to plaintiff to come in and amend on payment of costs. Judge v. Hall.

COUNTY JUDGE.

Effect of new judiciary article on term of office. This action is in the nature of a quo warranto commenced and prosecuted to oust the defendant from the office of county judge of Niagara county, and to install the relator. Held, that for certain, purposes the new judiciary article of the constitution was adopted when the State canvassers declared the result of the vote in November, 1869; for other purposes the time of its adoption was when it went into effect, viz.: January 1, 1870; that defendant, having been elected in the fall of 1869, was entitled to hold the office for the term of four years prescribed by the constitution of 1846, and that the new judiciary article did not affect him. Held, further, that the limitation of the new judiciary article as to age, beyond which a judge cannot hold office, has no application to judges elected before the first of January, 1870, and continued in office by the new judiciary article. The People ex rel. C. E. Davis v. Gardner.

EVIDENCE.

1. In an action for assault and battery, held, competent for defendant to prove threats on the part of the plaintiff "that he would beat defendant whenever the latter should furnish him with an excuse," on the ground that, in connection with the evidence of previous difficulties between the parties, it would aid the referee in arriving at a conclusion as to who was probably the aggressor on the occasion of the affray. Murphy v. Dart.

2. A witness who is asked whether he has ever been arrested for certain crimes has the right to explain why he was arrested; and, if his explanation involved conversations with third persons, he was entitled to have such conversations received in evidence. Ib.

INSURANCE.

1. Accident insurance by parol. — Action to recover under a policy of insurance. Defendant, on the 2d of September, 1869, was a duly incorporated insurance company. One French was its agent at Auburn. On the day aforesaid plaintiff, on his way to the cars with his wife, met French and handed him fifty cents as premium for insuring himself and wife for the term of one day. French received the money and promised to make out a policy as soon as he reached his office. Plaintiff was in a hurry and would not wait for the tickets. On the same day (2d September) plaintiff sprained his knee. He continued at his labor until the 18th of September when he wrenched his knee in some way, and from that time he was incapable to labor till the following March. Shortly after the second injury plaintiff applied to said French for the policy, and French refused to deliver it. Plaintiff made the return

as to the injury, etc., as required by the insurance company, but omitted to mention the second injury received about the 18th of September. Referee gave judgment for plaintiff for $236. Held, that the insurance was good; that, failing to make out and deliver a policy, the defendant might be liable either on the agent's agreement to insure or upon his agreement to issue a policy. The measure of damages would be the same in both forms of action. That, in the absence of any statutory provision requiring contracts of insurance to be in writing, they may be by parol. That it does not appear that the laws of Connecticut or New York contain any provision prescribing the form or manner of making contracts of insurance, and that, therefore, a parol contract is valid, and that a lawfully constituted general agent, in the absence of any limitation on his power, might make a parol contract to insure. Rhodes v. The Passenger Assurance Co., of Hartford, Conn.

2. That, had it appeared from the nature of the first injury on September 2d that the plaintiff would at some time have become incapable of labor from it, it might be that the happening of the second injury about the 18th would not deprive plaintiff of the right to recover the damages sustained by him; but when it is shown that for sixteen days after the injury the plaintiff was able to labor, and that before he became incapable another and additional injury was sustained, it is impossible to hold that he ever became totally incapable from the injury insured against. Judgment of referee reversed. Ib.

MORTGAGE FORECLOSURE.

1. Statutory foreclosure: error in note: when right to redeem barred. -Action to redeem certain property from a foreclosure sale. In July, 1841, Sawyer and Alfred Hubbell acquired title to the land in question. On the 1st of December, 1846, they executed a mortgage to defendant to secure the payment of $7,000. In February, 1848, they executed a mortgage to a bank in Rochester for $2,000, upon said premises, defendant agreeing at the time that the $2,000 mortgage should be a prior lien to his. On the 12th of January, 1849, Alfred Hubbell assigned all his property for the benefit of his creditors. On the 6th of January, 1854, the assignees of Alfred Hubbell assigned their interest in the property to plaintiff, Alrick Hubbell, who was a creditor of Alfred Hubbell. Proceedings to foreclose by advertisement were commenced February 13, 1849, and premises were sold on the 24th of May, 1849, the sale having been postponed from the 8th of May, 1849. This action was commenced on May 14, 1869. Held, that the object of the statute for foreclosure by advertisement was to relieve the parties from the expense of a chancery suit, and also to enable persons not learned in the law to conduct such foreclosures, and that, therefore, the construction of the statute should be liberal, and not technical.

After the notice of foreclosure and sale had been published for nearly the required time, it was discovered that the bank mortgage was described as being for $4,000 instead of $2,000. The error was corrected and the notice published as corrected for the remaining time from its first publication. Held, the referee having found that the misdescription of the bank mortgage was by mistake, that the correction was sufficient, and the publication for twelve weeks after the correction was not necessary. Held, further, that plaintiff's right of action to redeem was barred by ten years' limitation

in § 97 of the Code. Cases cited: 27 How. Pr. 145; 24 How. (U. S.) 284; 26 N. Y. 613, 617; 25 id. 194; 5 Barb. 511 Judgment affirmed. Hubbell v. Sibley.

2. Notice to subsequent purchaser: release. - Action for foreclosure of a mortgage. In October, 1828, Mellen conveyed some land in Oswego county to Aspinwall, who purchased for himself. Nott & Stevens each advanced one-third of the purchase-money. Aspinwall, while he held title, executed contracts for sale of portions of said land to sundry persons, and afterward conveyed two-thirds of his interest in said land to Stevens & Nott. The persons who purchased from A. went into possession. After the deed from A. to S. & N., other parcels of said land were contracted to be sold, and deeds afterward delivered. In 1833 Nott conveyed his third interest to Stevens, and took back a bond and mortgage for $2,800 on all the said premises originally conveyed to Aspinwall. In 1834 Nott assigned the bond and mortgage to plaintiff. After assignment, Nott, without plaintiffs' knowledge or consent, released to Stevens a portion of said mortgaged premises, and Stevens thereupon conveyed the premises so released. The referee ordered judgment dismissing plaintiffs' complaint as to lands sold prior to the mortgage, and as to all lands released after the same was given, and directs foreclosure and sale only of the remaining land. Held, that, Nott having paid one-third of the purchasemoney, the conveyance to Aspinwall did not destroy his interest. By the statute then in force, a trust resulted to Nott to the extent of one-third. That, as between A., S. & N., A. acted as agent for Nott in the sale of the lands, and he (Nott) was bound by the sales so made. That, if Nott was foreclosing, the defendants would have a perfect defense to the action; but the plaintiff, being a bona fide purchaser of the mortgage for value, is not chargeable with the notice which Nott had of the rights and equities of the purchasers, but is chargeable with constructive notice of the interest the purchaser had in the lands actually occupied by them. That the occupancy which is sufficient to charge a subsequent purchaser or incumbrancer with notice of occupant's rights must be open and visible, and he must actually improve the premises; fencing, pasturing or cutting timber is not such an occupancy as will charge an incumbrancer, etc., with notice. That the occupancy of those of the defendants who merely cut timber on the land purchased and sold the same, or fenced or cleared the same, was not such an occupancy as to give plaintiffs notice of their rights. That the release by Nott to Stevens being executed after the assignment of mortgage to the plaintiffs, but before the same was recorded, was, in the absence of any proof of notice to Stevens of such assignment, operative to release the premises described in it from the lien of the mortgage. Judgment reversed and new trial ordered. The Trustees of Union College v. Wheeler.

MUNICIPAL CORPORATION.

Liability for accidents on sidewalks. This action was brought to recover damages sustained by plaintiff by reason of a fall on a defective sidewalk on Court street, in the village of Penn Yan, in April, 1870. On the trial the jury rendered a verdict for the plaintiff for $50. The trustees of the village, by the charter, have power to cause sidewalks to be repaired, etc., and to compel the owners and occupants of any lands to make such repairs. The trustees are also required to serve a notice on the owner or occupant to make such repairs, etc., specifying the time within which, and the

material of which, the said walk is to be repaired; and if such owner or occupant does not comply with the notice, the trustees may cause the work to be done, and the expense thereof assessed on, and collected out of, the property adjoining the walk. The trustees are also commissioners of highways of the village. Held, that the trustees having, in pursuance of the above section of the charter, caused a notice to be served on the owner of the sidewalk in question to repair the same within sixty days, upon the expiration of the sixty days it was their duty to repair the walk, and assess the expense as provided above; and that, having neglected to make such repair, and the accident in question having occurred after the expiration of the sixty days, the defendant was liable. Haskell v. The village of Penn Yan.

2. Held, that the owner of the sidewalk would be also liable. Ib.

3. Held, that the want of funds in the highway or other fund of the village is no defense to this action. Ib.

OFFICIAL BOND.

Liability of sureties on. -This action was brought to recover $35, on a bond given by W. B. Garrett as principal, and the other defendants as his sureties, by plaintiff as trustee of a school district. In October, 1868, defendant, W. B. Garrett, was elected collector of the school district, and gave the bond in question. At the expiration of the year he had $40 in his hands as collector. At the annual meeting of the district in 1869 defendant was again elected collector, and gave a new bond, with new sureties. Shortly after the annual meeting plaintiff made an order on defendant, the collector, for $35, and payment was refused. This action was brought on the bond of 1868. Held, that the sureties in the official bond of an officer elected for one year are not liable for any breach of the condition happening after the expiration of his term, although he may be continued in office under the same, or a new election or appointment. Overacre v. Garrett.

PRACTICE.

Plaintiff claimed in complaint $100 damages; the jury rendered verdict for $200, and the court, after verdict, granted plaintiff leave to amend, so as to conform the complaint to the verdict. Held, that the court had no power to allow the amendment, and the order is reviewable on appeal. Coulter v. The Am. Mer. Union Express Co.

SCHOOL DISTRICT.

1. Conveyance to: action by or against.—The plaintiffs, as trustees of a school district, and defendants own adjoining premises. This action is to recover possession of a strip of land now claimed by defendants. Appeal from judgment on report of referee in favor of plaintiffs. Held, that a school district is a quasi corporation, and a conveyance to these persons described as trustees, and their successors, is a valid conveyance of the title to the district; that the district must sue and be sued in the names of the persons composing the board of trustees, adding thereto the words: "Trustees of district number." Winchester et al. v. McKee et al.

COURT OF APPEALS ABSTRACT.

COMMON CARRIERS.

1. Checking baggage: duty of carrier as to baggage: connecting lines of railway: negligence.—The plaintiff purchased a ticket at a station on defendants' road for New York, and checked his baggage for that place. The defendants' road extended only a portion of the route to New York, but passengers and baggage were transported by a connecting road. On plaintiff's arrival at his destination he did not at once call for his trunk, but left it until the second day, when, on demanding it, it was discovered to be lost. Held, that the fair construction of the contract was, that the defendants agreed, for a consideration, to transport plaintiff and his trunk to New York, and deliver the latter to him on its arrival, if called for; if not, that it should be properly stored and reasonable care exercised to prevent injury or loss until it was called for. Burnell v. N. Y. C. R. R. Opinion by Church, C. J. 2. The connecting railroad company being the agents of the defendants in performing the contract, and the contract of storage being a part of the original contract of carriage, it follows that the defendants are liable, if any one is. Ib.

8. The failure of the connecting company to produce the subject of bailment, when demanded, prima facie established negligence and want of due care. When there is a total default to deliver the goods bailed on demand, the onus of accounting for the default lies with the bailee. Ib.

4. To show that the bailee is generally careful does not establish as a question of law that he was not careless as to the particular article. Ib.

CONSTITUTIONAL LAW.

1. Constitutionality of act relating to pilotage: effect of U. S. laros concerning pilotage: effect of U. S. laws as to penalties incurred under State laws: aggregated penalties.-The act relating to pilotage (laws of 1853, chap. 467, as amended by laws of 1857, chap. 243) is not in contravention of the State constitution (sec. 2, art. 10) in providing that three of the commissioners of pilots shall be "elected" by members of the chamber of commerce, and the other two by the presidents, etc., of the marine insurance companies. Sturgis v. Spofford. Opinion by Allen, J.

2. The office of commissioners of pilots had no existence at the time of adoption of the constitution of 1846. They are neither county, city, town nor village officers, and may be appointed as the legislature may direct. Ib. 3. The use of the word "elected" in the act must be construed to mean "appointed," and the power of appointment need not be conferred on a body whose officers are responsible to the people. Ib.

4. Though the whole subject of pilotage is within the powers conferred on congress, until that power is exercised by congress, it is competent to the several States to exercise it themselves. Ib.

5. The act of congress of 1866 (14 U. S. Stat. at Large, 228), which included pilots in harbors as well as at sea, suspended the laws of this State with relation to that matter, but on its repeal in 1867 (14 Stat. at Large, 411), those laws became again in force. Ib.

6. While the rule is that quasi criminal prosecutions for penalties created by statute cannot be prosecuted or punished after the statute has been repealed, the act of congress in question did not have the same effect as a repeal of the statute by the State itself, and a person

liable under the State law would be liable to prosecution for penalties incurred before the passage of such act of congress. Ib.

7. A person employing a pilot is not liable under the statute to a separate penalty of $100 for each ship unlawfully piloted by an unlicensed pilot, but only one penalty for employing, no matter how many ships are so piloted by such pilot. Ib.

8. Prosecutions for aggregated penalties should not be encouraged. It is a wholesome rule not to allow a recovery for aggregated penalties, unless the language of the statute clearly requires it. Ib.

CONTRACTS.

1. Construction of. —The defendants agreed to furnish the plaintiffs, and the plaintiffs to transport a cargo of coal, from Cow Bay, N. B., to another port. In the charter party it was stipulated that a full cargo should be furnished on board. It was stated that there was eighteen feet of water at the wharf at Cow Bay, and that vessels drawing a greater amount must be loaded under the directions of the mining company at that place, and was stipulated that the vessel should be loaded according to the customary manner of loading at Cow Bay, and that all lighterage required in loading should be paid by the plaintiff. The vessel would draw, when loaded, twenty feet, and previous to the making of the contract the practice of lightering had been discontinued at Cow Bay. The defendant took his vessel to the wharf and received a part load, when a greater amount was refused, because it would sink his vessel too deep. He then anchored away from the wharf in deeper water, and asked the mining company to deliver the balance of the load by means of lighters or schooners, which was refused. Held, that by the terms of the contract the plaintiff was bound to furnish a full load, and that if it could not be taken on the vessel at the wharf he should have furnished lighters to deliver it; that the custom of the past of not using lighters did not avail him, as he had expressly agreed to furnish them if necessary. Nelson v. Odiorne. Opinion by Andrews, J.

2. The general intent of a contract is not to be set aside upon doubtful words, and the separate clauses, unless plainly inconsistent, are to be construed in aid, and not in contravention, of the minor purpose of the parties appearing in the instrument. Ib.

3. Impossibility of performance through act of party in default.- When a party contracts to manufacture a certain article to be paid for upon its completion, and, in order to raise money, mortgages the uncompleted article to the vendee, he cannot claim that he is prevented by the vendor from completing it, if before completion he makes default in his agreement under the mortgage, in consequence of which the vendee seizes the article and sells the same. Wallman v. Society of Concord. Opinion by Andrews, J.

EVIDENCE.

1. Presumption as to message coming over telegraph: direct testimony as against presumption.—The receipt of a message at a telegraph office, and delivery by the telegraph company's agent to the person to whom it is addressed as coming from another office on the line, is prima facie evidence as against the company that it was transmitted in the ordinary course of business from the sending office. Elwood v. West. Union Telegraph Co. Opinion by Rapallo, J.

2. While the general rule is, that where unimpeached witnesses testify distinctly and positively to a fact, and

are uncontradicted, their testimony should have the effect of overcoming a mere presumption, the rule is subject to many qualifications, such as improbability of statement, and interest. The general rules laid down in books were made at a time when interest disqualified a witness and assumed that witnesses were disinterested, and that qualification must now be added. Ib.

3. Where it was shown that in the ordinary course of business a telegraph message was received at one of the defendant's offices as coming from another, it was proper to submit to the jury whether it was sent from the latter office, although three of the operators therein directly deny that such message was ever sent from their office. Ib.

See Common Carrier, 4.

GUARANTY.

1. Effect of contract made to protect surety: printed and written agreement: failure of notice to surety of default of principal. - A clause in a lease, that the sureties for the lessor should be notified of default on the part of the lessee in the payment of rent, and that they should have the right to dispossess the lessee, made independently of the sureties, forms no part of the principal contract, and is not within the intent and meaning of the rule that a departure from the terms of the principal contract will discharge the sureties. Barhydt v. Ellis. Opinion by Rapallo, J.

2. In an agreement partly printed and partly written, it is only when the inconsistency between the written and printed parts is totally irreconcilable that a discrimination will be made, as to which part shall be made to yield to the other. Ib.

3. In this State a guarantor is not, in general, entitled to notice of the default of his principal. But there is no inconsistency in his being entitled to notice; and yet, the consequence of a failure to give notice being to exonerate him only to the extent of the damage sustained by reason of the omission. Ib.

4. Rights and liabilities of guarantor.-A contract was made by the plaintiffs with one Crossley to do the carpenter's work on certain houses, and to complete the work before October 15, 1861. Crossley was to furnish the materials. The defendant guaranteed the fulfillment of the contract on the part of Crossley. The work was not completed at the agreed time, after which and before November 1st defendant notified plaintiffs to complete the work before November 1, 1861, and that he would not be responsible for Crossley after that time. The work was not done until June 1, 1862, and the default was on the part of Crossley. Held, that the defendant, if he had not consented to an extension of time, would have been entitled to have had the matter closed on the 15th of October. That the effect of the notice was to extend the time for completion until November 1st, and that it did not operate as an extension of the time indefinitely, but that defendant had the right to insist that his liability as guarantor should be limited to the debt and damages which plaintiffs were entitled to claim as of the date specified in his notice. Hunt v. Roberts. Opinion by Rapallo, J.

5. The fact that defendant entered into an arrangement with the owner of the lots, where the buildings were, after Crossley's default with reference to the furnishing of the materials, and that he had an interes. in the completion of the buildings, did not affect his rights as guarantor of Crossley, so long as he in

formed the plaintiff that he would not consent to be held liable as such guarantor for work done after the specified date. Ib.

6. There is authority for the proposition that a surety cannot before breach, by his own act, terminate a subsisting suretyship for a third person, so as to exempt himself from liability for future defaults of his principal; although an agreement to guarantee obligations to be incurred may be revoked before it is acted upon. After a breach which will justify the termination of the contract, the surety has the right to require that the contract with the principal be terminated and the claim against the surety be confined to the damages then recovered. Ib.

LARCENY.

What is: rights of owner of stolen property.-The plaintiff sold one Carreras certain goods which were to be shipped to New York and were to be paid for on delivery to Carreras there. The plaintiff, upon shipping the goods, took a receipt from the carrier for the same, which he gave to a clerk. The clerk waited upon Carreras in New York, informed him of the arrival of the goods and of his readiness to deliver them upon payment. Carreras stated that he would pay at a later hour, and that he would like to examine the goods. The receipt was given him "for the purpose of examining the goods." The clerk called twice for payment, which, not being made, he made search for the goods, when he found they had been removed by Carreras and shipped for Havana on a vessel belonging to defendant's testator. The vessel was at once visited and a démand made for the goods by the plaintiff. Those in charge refused to give them up, on the ground that they were stowed in the hold, and it would delay the vessel and cause great trouble to get them, but offered to give them up when the vessel should return from Havana. An action of replevin was brought against defendant for the goods. Held, that the receipt having been placed in the hands of Carreras only for the purpose of examining the goods, his taking possession of and removing them was larcenous; that, never having parted with title, the owner could follow the stolen property, and take possession of it from any one, whether purchaser or bailee, and that the defendants were liable for their nondelivery on demand. Bassett v. Spofford. Opinion by Allen, J.

NEGLIGENCE.

1. In passing over unsafe railroad crossing. - Where the plaintiff led his horses across a dangerous railroad crossing on the highway, which the company, while repairing, had delayed restoring to a passable condition, when, by going a short distance in one direction, he could have secured a safe crossing, he was guilty of such negligence as will prevent his recovering damages for injury to his team. Burdick v. The Erie Railway Co. Opinion by Peckham, J.

2. If the defendant kept the crossing out of order too long, the remedy of the plaintiff was by action for the injury and inconvenience thus caused, if any. Ib. See Common Carrier.

PARTNERSHIP.

1. Rights of surviving partner: presumption of payment of judgment.-The law vests in the surviving partner of a firm the legal title to the choses in action of the firm, and casts upon him the duty to get in the debts and settle the affairs of the partnership. The jus accrescendi exists for this purpose. Daby v. Erricson. Opinion by Andrews, J.

2. The right to assign is incident to the possession of the legal title, and a defendant in an action by the assignee cannot question the consideration on which it was made. The code has not changed the rule upon this subject. Ib.

3. The survivor takes the legal title with its incidents, however limited his equitable interest may be, and notwithstanding on an accounting nothing might remain to him. Ib.

The mere lapse of time between the rendition of a judgment and the commencement of a suit on it raises no presumption that it has been paid. Ib.

4. When one partner can sue another at law. The plaintiff, defendant, one S. and others, composed a joint-stock association. For the purpose of raising money for the uses of the company, the defendant made his note payable to the order of S., by whom it was indorsed. On maturity, it was paid by plaintiff to whom it was transferred. Held, that defendant is liable to plaintiff for the amount due on the note, and cannot vary this liability by evidence of a verbal agreement made by plaintiff to pay one-third of the note before or at the time of making the instrument. Cruter v. Binninger. Opinion by Allen, J.

5. There is no rule forbidding one partner to sue another at law, in respect of a debt arising out of a partnership transaction, if the obligation is separate and distinct from all other matters in question between the partners, and can be determined without going into the partnership accounts. Ib.

1. Finding of fact by referee, when not reviewable.-It is a legal error to find a material fact unsupported by any evidence, but when such evidence is given, showing the probable truth of the fact, it must by this court be assumed to have been correctly found, irrespective of any rebutting evidence given by the opposite party, no matter what the weight of such rebutting evidence may be. Burgess v. Simonson. Opinion by Grover, J. 2. Preference in court of appeals.-This court will grant no preference in the hearing of a cause, on the ground that the question involved therein has been decided by this court. Bassett v. Bassett. Opinion by Grover, J.

1. Payment of money on void contract: valid contract referring to terms of void one. -Moneys paid upon a contract invalid by the statute of frauds cannot be recovered back, provided the other party is ready and willing to perform the contract on his part. Allis v. Read. Opinion by Church, C. J.

2. The plaintiffs made a verbal agrement with the defendants for the sale of certain goods of considerable value, giving bills of sale not signed, but containing the terms of the sale, including price and terms of payment, but nothing was paid, which contract was not valid. At a subsequent time when a payment become due the parties met, at which time the plaintiff delivered to defendant a note for $2,000, which was to be collected and applied on the purchase price, consigned certain goods to defendants to be sold, the avails of which were likewise to be applied, and agreed that the defendants should sell all the property in their hands for plaintiff at a commission. Held, that the negotiations at the second meeting constituted a valid contract, although they adopted the price stipulated in the original void one. Ib.

3. Although the original contract was void, there is

nothing in the statute to prevent the parties from making a valid contract afterward, and adopting a part or the whole of the terms of the original void one. Ib. 4. Void parol contract: where and how far enforceable in equity. The plaintiff brought action for a specific performance of a verbal contract for sale of real estate, with mills and water privilege, and a quantity of growing flax, to recover compensation for certain deficiency in the quantity of the lands, and also for a breach of warranty in respect to the flax. The contract was entire for the sale of the realty and the flax for a sum in gross; the purchaser paid a part of the purchase price, and entered into possession of the premises. Held, that, although the contract was not in writing, the plaintiff having in part performed it, and entered into possession of the premises, he was entitled to an action for specific performance. Harsha v. Reid. Opinion by Allen, J.

5. The contract, which may be performed by the court, is the agreement to convey the land, and the vendor is estopped in equity from insisting upon the statute of frauds as against the claim for specific performance. Ib.

6. But a conveyance of the land would have completed the performance of the contract by the vendor, and the plaintiff could have made no claim beyond that. It was a single contract embracing the realty and the personalty, and was void as to every part of it and could not be the foundation of an action at law. Ib. 7. No action at law or equity could have been maintained upon the warranty in respect to the flax. The plaintiff's right of a claim is not upon or for a breach of that warranty, and has no connection with the contract for the flax, except as incidentally connected in the same agreement. Ib.

8. An existing cause of action in equity will not create and secure to the party an independent cause of action, which would not exist and could not be enforced but for the equitable action. Ib.

9. Verbal contract for the joint purchase of real estate: trust resulting therefrom. - The plaintiff and defendant made a verbal agreement for the joint purchase of certain real estate at auction. It was agreed that the defendant should do the bidding; that the bid should be taken in his name, but that the deed should be in the joint name of the two parties as tenants in common, and that the bonds and mortgages pursuant to the terms of sale should be executed by both parties. The defendant bid off the property, but refused to let plaintiff participate in the purchase, though tendering to defendant a pro rata share of the payment, and offered to join in the required bond, etc. Held, that an action will not lie by one party against another for the breach of a verbal agreement to unite with him in the purchase of a designated piece of land, the title to be taken by them in common having been made. Such an agreement is within the statute, as no party can be charged for the breach of a contract to purchase lands when there has been no sale. Levy v. Brush. Opinion by Grover, J.

10. When the defendant received the contract for the purchase of the land, no trust attached thereto in favor of the plaintiff. A trust in the defendant in favor of the plaintiff cannot be supported upon secs. 50 and 53, Vol. 1, R. S. p. 728, for the reason that the latter paid no part of the consideration money paid upon the contract. Ib.

11. The agreement in question does not constitute a partnership. Ib.