such evidence was material. The testimony which the plaintiff in error is charged with having falsely and corruptly given may have been entirely immaterial, each count being vitiated by all of the defects above pointed out, and each defect being a fatal one. It is unnecessary to consider any of the other points made as to the validity of the indictment on any of the questions arising as to the admissibility of evidence offered at the trial. Judgment of the court of general sessions reversed. The People, etc., v. Geston. Opinion by Barnard, J.

2. In an indictment for perjury, charged to have been committed on the trial of a cause before the court, or an officer thereof, it is essential, 1st. That the name of the court should be stated, and that such court shall have a legal existence; 2d. That the offense should be charged to have been committed in the county in which the indictment was found; and, 3d. That it should appear on the face, or be alleged in the body of the indictment, that the evidence on which the assignment of perjury is based was material to the determination of the issue, or, at least, proper to be offered on the trial of such issue. Ib.

PLEADINGS. See Husband and Wife.

RECEIVERS. See Corporations.

REFERENCE. See Appeal.

SHERIFF'S JURIES. See Waiver and Affirmance.

UNKNOWN OWNERS.

Awards to unknown owners.- In 1860, certain property then belonging to the plaintiffs was taken for public use as a street, by proceedings duly instituted by the mayor, etc., of New York, pursuant to the statutes in relation to the opening and laying out of streets in that city. The commissioners of estimate and assessment in that proceeding awarded to unknown owners the damages consequent upon the taking of such property for public use, fixing the amount at $13,800. In April, 1862, the defendants paid into court $11,049.43 from the said award, retaining the $2,740.57, which they claimed to be then due and payable to them for the principal and interest of an assessment imposed upon said premises for widening Centre street, in said city, in the year 1837. On the 28th of August, 1869, this action was brought to recover the amount so claimed. The complaint was dismissed, and judgment entered in favor of the defendants, and thereupon the plaintiffs make this appeal. Held, the statute of 1813 (Valentine's laws, p. 1202), after providing, by the 193d section, as to awards made to persons by name, proceeds, by the 194th section, to provide as to awards to unknown owners, infants, etc. The design of the statute was plainly to protect the city from harrassing actions and from payments to the wrong persons. It provides a perfect system. As to those as to whom there could be no point or doubt, the payment was to be made direct to them, and, in case of neglect to make the payment within the time allotted for that purpose, an action was authorized to be brought. § 193. But, as to unknown owners or infants, etc., as to whom the question of right to receive the award might be disputed and doubtful, the legislature designed to protect the city against a multiplicity of claimants and the hazard of payment to the wrong person, and therefore provided for bringing that money into court to be disposed of properly. If the city do not bring it into court, a mandamus may issue

to compel the proper authorities to do so, but no action for the money can be brought against the city. No action is authorized by the statute, and it would defeat the object of the law, which plainly means to have the fund brought into court and the right to it, as between all claimants for it, determined as in cases of claims to surplus moneys, etc., if any such action as the present were sustained. Jndgment affirmed. Fisher v. The Mayor, etc., of the City of New York. Opinion by Cardozo, J.

WAIVER AND AFFIRMANCE.

In the case on appeal, the sheriff allowed testimony to be taken in several other cases, before submitting this case to the jury. Held, that this was clearly irregular. Van Waggoner v. McDonald, 3 Wend. 478, cited. This might have been waived by defendant; but some definite act on their part was necessary to show acquiescence in the irregularity. There was nothing to indicate this here. After their case had been closed there was no time for them to object and, therefore, that they did not do so, cannot be deemed a consent upon their part to the irregular course adopted. Samuels v. Bryant, etc. Opinion by Cardozo, J.

NEW YORK COMMON PLEAS.

OPINIONS DELIVERED DECEMBER, 1871.

ATTORNEYS AT LAW.

1. Unauthorized appearance.-The plaintiff was a fireman on board of a rescuing vessel at the time of the salvage service. He came with her to New York, but left immediately thereafter for Boston. During his absence from the city, the vessel for which the salvage service was performed was libeled for the benefit of the salvors, and the defendant was directed by the master and owner of the salvor to appear as plaintiff's proctor in the United States district court so as to enable an adjudication of the whole matter to be had. Held, that defendant should have been allowed to show the directions of the master and owner to appear for plaintiff. The appearance, it is to be assumed, was beneficient to him, as a suitable allowance is made him in the decree. When an attorney or proctor appears under such circumstances as these, and acts throughout in good faith for the benefit of a party he does not. know and has never seen, he should be protected. Potter v. Parsons, 14 Iowa, 286, and case cited. It was not only commendable, but the duty of the master to see that a seaman, who was not present to protect himself, should be adequately represented in a proceeding affecting his rights. Harrington v. Huntley. Opinion by Daly, C. J.

2. If an attorney appears without authority, his appearance is good, and the court will not, after judgment, disturb the proceeding on that account, unless the attorney is shown to be irresponsible, because the party has a remedy by action against the attorney for any loss or injury he may have suffered. Originally the remedy of the defendant was a writ of deceit against the attorney to recover the damages which had been sustained. To warrant a substantial recovery in such an action, therefore, the party must have been injured, for if no injury resulted from the appearance of the attorney, though without authority, there is either no cause of action, or the damages would be nominal. The amount in the decree in the plaintiff's favor would, prima facie, be the measure of damage, in an action against a proctor for giving a satisfaction of a judgment without the plaintiff's authority. That

would be presumed to be the measure of his loss; a presumption, however, which the defendant would be at liberty to rebut, by showing that what was done, instead of being an actual loss, was a positive benefit. Ib.

BROKERS.

1. What is authority to sell.-The defendants, who are brokers in New York city, acting as agents for the plaintiff in buying and selling stocks, had in their possession as such agents and brokers on September 20, 1867, one hundred shares of the capital stock of the Chicago & North Western R. R. Co., which they had purchased by order of the plaintiff. On that day they sold all the one hundred shares, leaving in their hands, to the credit of the plaintiff, $17.20 of the margin originally deposited by him with them. The plaintiff claims that such sale was unauthorized and made without notice of the time and place of sale. Defendants rely upon letters of plaintiff as their authority for the sale. The essential portion of the correspondence is as follows: On September 12th, the plaintiff wrote to defendants that should Northwest look like reaction or weaken, or have a downward look, to sell him fifty or one hundred shares, as the case may look. On September 14th defendants replied that they thought the market would recover from its present depression. On September 20th, telegraphed and wrote to defendants of the sale in question. On October 16th plaintiff wrote that he would hold defendants for the amount of his margin with them. Held, that, if the sale was unauthorized, the plaintiff would be entitled to a verdict under the authority of Markham v. Jandon, 41 N. Y. 335. The letter of September 12th from plaintiff was, however, an authority to sell in the event named therein, and subsisted until revoked by implication. The letter of September 14th from defendants was an expression of their opinion that the market would recover from its depression. The market falling rapidly to the 20th September, justified defendants in selling under the standing order to sell, and they performed their duty to plaintiff by so selling. There was nothing here to submit to the jury. The only question, that of authority to sell, was of law upon uudisputed facts. The plaintiff is entitled to $17.20 and interest, as by the defendants' account, which should be credited on defendants' judgment for costs. Davis ▾ Guynne et al. Opinion by J. F. Daly, J.

2. Exceptions to the dismissal of the complaint.-The plaintiff did not ask the court to submit the question to the jury to draw any inferences or conclusions from the facts, as he might have done. His exception to the dismissal of the complaint only brings up the question whether, on the conclusions of the court on undisputed facts, the plaintiff had failed to make out his case. Barnes v. Perrine, 12 N. Y. 23; Winchell v. Hicks, 18 id., and cases cited. Ib.

COMMON CARRIERS.

Construction of express receipt.-The plaintiffs delivered to defendants for transportation a package containing three cases of drugs, of the actual value of $113.50 for each case, and took a receipt from the defendants for "one package (3 cases drugs)." In this receipt it was specified and agreed that, in no event, should the holder of the receipt "demand beyond the sum of fifty dollars at which the article forwarded is hereby valued, unless herein expressed." Through defendants' default two of the cases of drugs were lost, and judgment has been given therefor at a valuation of

$50 each. The receipt of defendants was produced on the trial by plaintiffs, and was relied on by them as the evidence of defendants' obligation. On appeal, held, that the parties contracted with reference to a "package," which, as they yet expressed, consisted of three cases. They thus made reference to the particular subjects of their contract (Woodruff v. Conn. Mut. Ins. Co., 2 Hilt. 122, and case cited), and had in contemplation the necessity of defining with particularity their meaning of the word "article," as constituting a designated part or number of the whole package. The effect of thus specifying the contents of the package evidenced that their minds contemplated something beyond its general description, and for the purposes of the contract extended its operation to the particularly designated articles as "three cases," intended as distinguished from the term "package." In Earle v. Cadmus, 2 Daly, 237, it was decided that the term "any article in such a receipt as in question, referred to any separate article. This decision is authoritative in the case at bar. Judgment affirmed. Wetzell et al. v. Dinsmore, President of Adams Express Co. Opinion by Robinson, J.

1. Construction of contracts: measure of damages in contracts of service.-By the agreement between plaintiff and defendants, the defendants employed plaintiff as a clerk in their mercantile agency establishment for four years from April 15, 1857, at a salary increasing by $100 a year from $600 to $1,000, payable in equal monthly installments, and plaintiff agreed so to act for them and their successors and assigns, under their direction and control, in all things for that period. It was provided that, if defendants or their successors became dissatisfied with plaintiff, they might discharge him from employment at any time, on giving him ten days' notice. Defendants' firm dissolved July 1, 1859, and were succeeded in the business by a firm of which the defendant Dun was one, with whom plaintiff continued in such service until about September, 1859, when plaintiff was peremptorily and without previous notice discharged, on an allegation of drunkenness and abuse of one of the senior partners. The referee finds that the alleged causes for discharge were not true, and has awarded $500 damages (exceeding a half year's salary) to plaintiff, on account of his being dismissed for an alleged cause that was unsustained by proof, and not, as he finds, in the exercise of the power reserved in said agreement. Held, that the action for wages was properly brought on the express agreement of the defendants that, notwithstanding a change of firm or succession of others to the business, they would pay the salary. The referee, however, erred in his award of damages. The power to dismiss at discretion on giving ten days' notice was absolute, and without the existence or any necessity for the defendants assigning any cause, and although they may have assigned one, as inducing their conduct, which was capricious and unfounded, their right to this act was none the less assured to them by the agreement. Lynch v. Stone, 4 Denio, 356. It is not a case where the employee was discharged before the end of the term of hiring, upon a groundless cause being assigned, or where the employer is compelled to justify the discharge on grounds different from those first assigned, but one where the power of dismissal was expressly contemplated and reserved, upon the giving of notice for a definite time, and the only projudice the plaintiff under this contract could have sustained by his peremptory dismissal,

Also, see Common Carriers and Reference.

CONVERSION.

JOINDER OF PARTIES.

1. Action to recover damages for the unlawful taking and wrongful conversion of five checks, drawn to the order of the plaintiffs by different persons or firms, and upon which the plaintiffs' firm-name was forged. The checks were received by the defendants-the Camden and Amboy Railroad Company -for value, and without notice of the forgery of the indorsement. They were deposited by that company with the defendantthe Mechanics' National Bank-who caused them to be presented to the several banks upon which they were drawn, and they were duly paid.

Defendants below moved to dismiss the complaint on the following grounds: 1. That the evidence was insufficient to charge the said defendants jointly with any wrongful conversion of the said checks; 2 and 3. That the evidence was insufficient to charge either defendant severally with any wrongful conversion of the checks; 4. That the evidence failed to establish that the plaintiffs were ever the owners of, or were entitled to the possession of, the said checks. Motion denied, and exceptions taken. The court ordered a verdict for the plaintiffs, and ordered the above exceptions to be heard at general term. Held, the title of plaintiffs to the checks was evidenced by their being made payable to their order, as well as by proof of the transactions in which they were given as payment. The proof showed the alleged indorsement by the plaintiffs through which title to and authority to collect these checks was a forgery, but it is claimed by the defendants that neither a joint or several action for the conversion can be maintained. This position is not tenable. Each defendant has dealt with these checks in derogation of plaintiffs' title, claiming through the forgery, and they have, by their concurred action, made a conversion of the checks and realized therefrom their full value. Although the bank does not appear to have acted except as collecting agent for the railroad, they are equally liable for their acts on behalf of a principal who could give no such authority. Both defendants have contributed to the same injury, and are to render but a single satisfaction. The plaintiff had his election either to sue in trover or for money had and received. Judgment ordered. White v. The Mechanics' National Bank et al. Opinion by Robinson, J.

Conversion of United States securities.-This action is brought for the alleged conversion of a (seven-thirty) note of the United States, issued under the act of congress of March 3, 1865 (13 U. S. Stats. at Large, 468), which, when held by the First National Bank of New Albany, Indiana, under whom plaintiffs assert title, was substantially in this form: "$1,000. Three years after date the United States promise to pay to the order of $1,000, with interest at 73-10 per cent, payable semi-annually in lawful money." Signed by the proper officer of the Treasury. It was on May 22, 1868, intrusted by that bank to plaintiffs (common carriers) for remittance to Washington for conversion into five-twenty bonds, as allowed by that act, being indorsed by their cashier "Pay to the bearer (printed), Secretary of the Treasury for redemption, W. Mann, Cash." The package containing this note was, in course of transportation, stolen from the plaintiffs and taken to Liverpool, England, where the indorsement, having been obliterated or extracted by some chemical process, so that it could not be observed, it was, in good faith and for full value, purchased by the firm of Bemas & Co., bankers, who thereafter remitted it to the defendants, bankers, and their correspondents in New York, for conversion. Defendants sent the full value of the note to Bemas & Co., without notice affecting the validity of their title, and they subsequently converted it by accepting substituted security, in conformity with the provisions of the act of 1865. Held, that the note, although issued by the United States government, was subject to the common-law rule applicable to commercial paper. As issued, no payee being named, it was payable to any bona fide holder before maturity. The payee's name being in blank, he could insert his own name or that of any other person. But until such restriction was placed upon the negotiability of the instrument, it continued an obligation through the law merchant payable to any one who, in good faith and before maturity, became its holder. Indorsements or other minutes on its back or otherwise, so long as they continued apparent, operated at most by way of notice or of guaranty, but otherwise in no way interfered with the negotiability of the instrument, which, until its restriction by the insertion of the name of a payee, continued payable to bearer. Defendants' title to the note was in no way acquired through any indorsement of the bank, and was in no way affected by any obliteration or forgery of the indorsement made by the bank's cashier. Judgment should be in favor of defendants. Dinsmore, President, etc., of Adams Express Company v. Duncan et al. Opinion by Robinson, J.

Also, see Joinder of Parties.

CORPORATIONS. See Common Carriers and Negligence.

DAMAGES. See Contracts and Negligence.
DISMISSAL OF COMPLAINT. See Brokers.
EXPRESS COMPANIES. See Common Carriers.

2. Action for conversion of several checks payable to the order of the plaintiffs, and upon which the indorsement of plaintiffs was forged. Upon such forged indorsement the defendant Frink, in good faith, cashed the checks and passed them to the defendant Sweeny, for full value and in good faith. Sweeny deposited them in the National Park Bank and received credit for them. The bank admits the possession of the checks at the time of the alleged conversion, and by its answer claims them as its property. Held, the right of the plaintiffs to maintain an action for the conversion of their property in these checks is well established (1 Hill, 295), as is the right to form successive transferees in one action. 23 N. Y. 264. No. demand was necessary as to either defendant. Frink and Sweeny had transferred the checks, and the Park Bank had collected them; besides, they had severally put the plaintiffs' title in issue. In bringing this action the plaintiffs do not, until satisfaction of their claim, conform or assent to the acts or title of any wrongdoer, except that they probably affirm the payments made by the banks on which the checks were drawn, and their absolute conversion by means of payments made by the drawer. In recognizing the agency

may be restored to his reason, the curator simply had the custody of the estate, under the obligation of applying the profits to his support, and retaining the excess that it might, together with the estate, be restored to him if he recover his reason, and if not, that it might be secured to his heirs. Bracton, lib. 1, cap. 10, lib. 5, c. 20; Fleta, lib. 1, cap. 11, § 10, p. 6; Mirror of Justices, pp. 46, 74, 98, 123, 130; Year Books, 32 Edw. I, p. 272; Beverly's Case, 4 Cos. 127; 1 Bl. Com. 302; Fitz. N. B. 232; Shep. Ct. Keeper, c. 22, 172; Bacon's Discourse on the Laws of England, from Selden's Notes, pp. 175, 176; Reeve's History of the English Laws, by Finlason, introduction, xc to ci, vol. 2, c. xii, p. 193 and note a.

But this practice being attended with great abuses, the king, as parens patria or common curator of the realm, assumed, as early as the reign of Henry I, exclusive jurisdiction over this class of persons and their estates; and in the statute De Prerogitiva Regis, passed in the reign of Edward II (17 Edw. II, c. 9, 10), it was placed among the king's prerogatives. That statute declaring that the king should have the custody of the lands of "natural fools," and the profits, with the obligation of maintaining them, and that, with respect to those who had had "their wit and memory,' but had lost it, the king should provide that their lands should be safely kept; that they and their households should be maintained out of the profits of their estates, and that the residue should be kept to their use, to be delivered to them when they came to "their right mind;" a jurisdiction or power which was not, as has been supposed, derived from the statute, but rests on the broader ground of the duty of a sovereign, as parens patriæ, to take care of those who, by reason of their imbecility or want of understanding, are incapable of taking care of themselves, a principle introduced into the common law at a very early period from the Roman law of the Twelve Tables. Inst. B., tit. 1, 23, §§ 3, 4; Dig. 27, 10, 1, 67; Maynz Elements du Droit Romaine, tom. 1, § 106; Ortolan's generalization du Droit Romaine, 94, 95, 96, 97; Shep. Abm. part 3, p. 71. And which, upon the authority of Selden, was one of the liberties and privileges secured by Magna Charta. Bacon's Discourse on Selden's Notes, p. 176, 5 m.

This duty was first discharged by the king's committing the custody of such persons and of their estates to proper committees in each particular case; but it was afterward transferred to the lord chancellor, not in his capacity as chancellor, or as a part of his equitable jurisdiction, but as the king's delegate in the exercise of this special jurisdiction. Fleta, p. 6; Reeves' History of English Law, by Finlason, vol. 2, ch. 12, p. 193, and note a; Staunf'd Pr. Reg. 33; 1 Bl. Com. 303; 3 id. 427; In the matter of Heli, 3 Atk. 635; Ex parte Phillips, 19 Ves. 122. And the exercise of it in England, through many centuries, has resulted in the formation of a body of precedents and rules constituting a distinct branch of jurisprudence.

So much of the law as formed a part of the king's prerogative, and was applicable under our republican form of government, was, upon our separation from Great Britain at the revolution, vested in the people, and this especial jurisdiction was, in this State, by legislative enactments, transferred to certain judicial tribunals that have administered it in accordance with the rules and principles which the course of experience in England has pointed out as the most just, practicable and judicious.

This court has been one of those designated tribunals

care

since 1854, having committed to it by statute the " and custody of the person and estate of a lunatic or person of unsound mind," when he resides in the city and county of New York. Code of Procedure, § 30; Laws of New York of 1854, p. 464, § 6.

An authority that carried with it all the power that was exercised in such cases by the lord chancellor in Great Britain, or by the court of chancery in this State, when this jurisdiction was intrusted exclusively to that tribunal. Justice Harris has said, in John Mason's Case, 1 Barb. S. C. 441, that, as our statute has conferred this jurisdiction "without restriction or limitation, the manner in which the control thus given is to be exercised by the court is entirely a matter of discretion; " which, however, must be understood with this qualification, that it is a discretion regulated and restricted by certain rules and principles that have always been acted upon, both in this country and in England.

It may be said, in general terms, in relation to the nature and extent of this jurisdiction, that the care and custody of a lunatic, and of his estate, necessarily imply both the right and the duty on the part of the court to do, in respect to either, whatever is most conducive to his interest; to see, in respect to his person, that he is maintained as comfortably as his unfortunate situation will admit of and his pecuniary resources will allow; that every thing is done that can be done by care, skill and medical treatment, to promote his general health, or which will or may contribute to the restoration of his reason. His interest is the chief consideration, and, therefore, great care has always been taken not to intrust the custody of his person or his estate to those who may be pecuniarily benefited by his death, or whose interest it is to keep his property from diminishing, unless the officer exercising the power is satisfied that it would be to the advantage of his bodily and mental condition, that those who stand in the relation to him of blood and natural affection should have the custody and care of him. Nor will the interest of heirs or next of kin be at all considered in any outlay that may be made for his comfort or benefit, or in determining what is most conducive to his interest, either in the care of his person or in the management of his estate.

"The king" said Lord Hardwicke, in Roberts' Case, 3 Atk. 309, "is quasi, a trustee for the lunatic's benefit only." Lord Macclesfield declared that, in the eye of the law, a lunatic is never looked upon as beyond the possibility of recovery, and added, "it is his benefit and comfort I am to take care of, and not to heap up wealth for the benefit of his administrator or next of kin." Dormer's Case, 2 P. Wms. 265.

And Lord Northington afterward declared that, “in the management of the lunatic's estate, the ruling principle is to do what is for the benefit of the lunatic." Ex parte Grimstone, Amb. 707.

'Lord Loughborough, in adverting to the precedents and orders of previous chancellors in the exercise of this delicate jurisdiction, said, "that there was one pervading principle, which was that the trust was administered solely in the interest of the lunatic himself, that nothing could be more mischievous than to consider how his successor might be affected by what was done, and that the chancellors had always shut out of their view all consideration of eventual interests, and considered only the interest of the person under their care." Oxenden v. Lord Compton, 2 Ves. Jr. 72. "A lunatic," says Lord Eldon, in Chamley's Case.