defense to an action for the consideration on the ground of failure thereof. Ib. CONTRACT: STATUTE OF FRAUDS. Action to recover a balance claimed to be due upon a contract by which defendant assumed to pay the debt of a third person. The defense is, the agreement was void under the statute of frauds. M was indebted to plaintiff in the sum of $1,580.07. A verbal agreement was made between said M and the defendant, that if defendant would settle said debt with plaintiff, so that M could be released, M would pay said defendant the amount thereof as follows, viz. : $1,000 in cash, and the balance in notes without indorsement. The following agreement was then made in writing between said plaintiff and defendant. "NEW YORK, January 31, 1861. "I agree to furnish to the Meriden Manufacturing Company an assortment of plated forks and spoons per L. H. Mattison's price list, at 70 per cent discount, to settle claim against L. H. Mattison, to be delivered in nonths of February and March. Oval tip'd and Olive not to be ordered. "The plain and tip'd goods not to exceed of the amount. The spoons and forks to be silver plated like sample shown. "(Signed.) G. N. ZINGSEN." 1. These instruments were made and delivered at the same date either then or soon after the plaintiff released M, and the $1,000 was paid and M's notes given to defendant, and the notes were subsequently paid. Held, that the parol promise made by defendant was not within the statute of frauds, and is valid. Meriden Britania Co. v. Zingsen. Opinion by Earl, C. 2. Two instruments, executed at the same time, and relating to the same subject-matter, must be construed together as if one instrument. Ib. 3. Where it appears, by the terms of an agreement or the nature of the case, that the performance of one party was to precede that of the other, an action can be maintained against him who was to do the first act, although nothing has been done or offered by the other. Ib. ESTOPPEL. Action against defendant as indorsee on three promissory notes, payable in one, two and three years respectively, with interest, semi-annually. Defense usury. Plaintiff proved a judgment recovered in the district court for the third judicial district, in the city of New York, in his favor, against defendant and the maker of the notes, in an action to recover interest due upon two of the notes. The complaint was personally served; defendant appeared by counsel; no answer was interposed, and judgment was taken by default. All the notes grew out of the same transaction. In this action defendant offered evidence to prove his defense of usury. It was objected to by plaintiff, on the ground that defendant was estopped by the judgment in the district court. The evidence was rejected. Held, no error; that the judgment of the district court was conclusive. Morton v. Hook. Opinions by Hunt, C., and Lott, Ch. C. EVIDENCE: RAILROAD. Action for damages for injuries received by plaintiff while traveling on defendant's road. The cars were thrown from the track by a broken rail. Plaintiff called no witness who could swear that the rail was imperfect, or that the track was out of repair at the place where the accident occurred. Plaintiff was permitted to prove that in the vicinity of the place of the accident persons had frequently seen spikes out, and spikes with heads off and partly drawn, and rails battered at the ends with flanges broken off, and rails with spaces between the ends two inches wide, filled in with wooden blocks, blocks under the rails to level them up; and they had seen the chairs, rails and ties spring down when the trains passed over them. None claimed to have seen the road or known its condition for a day or two before the accident. Defendant proved its men were constantly going over the road repairing the track; that just prior to the accident the track-walker had passed over the road and discovered no defects; that the rail was sound and in good repair. That at the time of the accident it was very cold and that sound rails are liable to break in cold weather, and that there is no way to prevent it. Held, that there was no evidence showing negligence or fault on the part of the defendant. Cole v. N. Y. Central R. R. Co. Opinion by Earl, C. PRACTICE-JURISDICTION. Action, by special proceedings under the Revised Statutes (2 R. S. 313, as amended), to compel the determination of claims to certain real property. Defendant appeared and answered and defended the cause in all its stages. She made no objection to the jurisdiction of the court, and took no exceptions to its rulings, and judgment in the ordinary form was rendered against her. She did not appeal from the judgment, but seeks to set it aside collaterally by motion, on the grounds that the action was not one in which proceedings to compel the determination of claims to real estate are authorized by the Revised Statutes, the provisions of which had been fatally disregarded in the action; that the court did not have power to make an additional allowance of five per cent or any allowance, except such as is provided for by section 308 of the Code; that said judgment should be amended by severing the same into several judgments against the several defendants according to their respective claims. The caption to the findings of the justice before whom the case was tried, which was as follows: "At a special term of the supreme court for motions and chambers business, held at chambers, at the city hall, in the city of New York," was objected to because the cause was not tried at any term of court, but before a judge out of court. This objection was not taken below. Held, 1st. That such an objection would not be permitted to be raised in this court for the first time. 2d. That it sufficiently appeared that the cause was tried at a special term, held at the place for holding courts in the city of New York, and it would not be assumed that it was not a regular court for the hearing of all special term business, in the face of the fact that the parties, without objection, went to trial. An action to compel the determination of claims to real property is within the jurisdiction of the supreme court, and, in such action, it is its duty to determine the questions as to whether the plaintiff is entitled to the relief sought, and whether the relief should be sought in an action, or in proceedings under the Revised Statutes. An error in deciding these questions does not affect the question of jurisdiction, and the decision of the court thereon cannot be reviewed collaterally. A party to such an action has the choice of remedies, by action under section 449 of the Code, or by special proceedings under the Revised Statutes. 2 R. S. 313, as amended by subsequent acts. Under either of these remedies the court has jurisdiction over the question of extra allowance of costs, and the decision cannot be set aside upon motion. Defendant waived all objections to the regularity of the proceedings by appearing and taking part in the proceedings to judgment without objection. If he raised the objection, it would be the duty of the court to decide, and, if the court erred, the only mode of review known to the law is by appeal from the judgment or a motion for a new trial, upon a case or bill of exceptions. Where there are different claimants, each claiming distinct parcels of the real property in question, but all denying plaintiff's rights upon the same ground, and claiming title from the same source, it is proper to join them as defendants in the same action or proceedings. Fisher v. Hepburn, impleaded, etc. Opinion by Earl, C. SALE OF LAND TRUST. Action of ejectment.-W. E. purchased a lot of land and, at his request, the same was deeded to another. by this court, that one publication, two days before the passage of the ordinance, was sufficient. That case was reversed on the ground that there was no sufficient publication before the passage of the resolution in each board of the common council. I am still of the opinion that the statute only requires the notice to be published once, and that the resolution shall not be passed or adopted until after such notice has been published at least two days. Andrews, J., in the case of Douglass says, "the design was to apprise the tax payer in the manner pointed out in the statute of any contemplated improvement, that by remonstrance or suggestion the same might be modified or prevented." It is reasonable to suppose that such notice would be more available by waiting two days after its publication, than by requiring two publications within twenty-four hours previous to the time of acting. There was nothing in the case cited that decided this question. Orders reversed. In re Bassford; in re McArthur; in re Volkining. Opinion by Ingraham, P. J. 2. Notice. All laws requiring a party to have a given number of days' notice have been construed to mean one notice served so many days before the act can be done. Thus, the notice of time to plead used to W. E. received and retained the deed, without dis-be a notice of twenty days; notice of trial is fourteen closing its existence to the grantee, and took and retained possession of the land. Held, that the title to the land passed by the deed and became vested in the grantee, and under the provisions of the statute of uses and trusts (1 R. S. 728, § 57) no trust resulted in favor of the purchaser. Everett v. Everett. Opinion by Leonard, C. SHERIFF EXECUTION. Action to recover damages for not returning certain executions and not paying over moneys collected thereon. The deputy sheriff, in whose hands the execution was, returned the same nulla bona. With consent of the plaintiff's attorney and the county clerk he afterward procured the same from the clerk's office, erased the return, and by virtue thereof levied upon and sold property. Held, that the execution was irregular but not void, and the deputy having treated it as a valid process, neither he nor his principal can refuse to answer for the money realized by the sale. (Gray, C., dissenting.) James v. Gurley. Opinions by Earl and Gray, CC. GENERAL TERM ABSTRACT. FIRST DEPARTMENT. SUPREME COURT. - OPINIONS DELIVERED SEPT., 1872. NEGLIGENCE. See Damages. NEW YORK CITY. 1. Taxes and assessments: publication of ordinances. -This is an appeal from an order made at special term, vacating a certain assessment on the premises of the days, and so in regard to all other notices served on the opposite party. Ib. Also see Lands taken for Public Use. PARKS. See Lands taken for Public Use. 1. Trial of issues as to separate defendants.— This action was tried where the action was not at issue as to one of the defendants, the Manhattan Savings Institution, and against the objections of the plaintiff, while the issues so tried were pending on an appeal from a judgment in favor of the other defendants, the present issue was formed by the service of the answer of the savings institution, and was noticed for trial by said defendant. The plaintiff thereafter moved to strike this issue from the calendar or postpone the trial until the determination of the issues as to the other defendants. This motion was denied, and subsequently the plaintiff's default taken, its complaint dismissed and judgment entered up in favor of the defendant, the Manhattan Savings Institution. On appeal from the order granting an extra allowance to defendant, dismissing plaintiff's complaint and the judgment entered thereon, and also from order denying plaintiff's motion to vacate said order and judgment, Held, There can be no doubt that it was irregular to try this action separately as to different defendants; and also when the issue was not joined as to the Manhattan Savings Institution. The action was an unit as to all the defendants, and a several or separate judgment could not be taken. It was not in a condition to be tried until it was at issue as to all the defendants by an answer, or by default for the want of an answer. If the plaintiffs neglected to prosecute the action by an unreasonable omission to bring in some of the defendants, by service of process, or getting it to an issue as to all, those defendants who have served answers can move to dismiss for the want of prosecution. No such point was raised in this case however. The action was tried as to certain of the defendants where it was not at issue as to the savings bank. This was irregular: but the plaintiffs were equally in error by proceeding with the trial as to Stokes and others. He should have refused to proceed; but by actually trying the issue he is, I think, bound by the result; and this, although he protested that it was irregular. The issue as to the savings institution when joined remained, although the trial as to the issues joined by the other defendants had been disposed of. I think the discretion of the court, under these circumstances, was to be exercised as to bringing the remaining issue to trial, as if there had been no other trial. The plaintiffs were required to be ready to try, unless they could get the issues which had been tried set aside or reversed. But, as I said before, I think that the plaintiffs were concluded by the result of the trial of those issues. The plaintiffs should have withdrawn and allowed Stokes and others to proceed at their own hazard. The plaintiffs could then have availed of the alleged irregularity. The issue as to the savings institution was then disposed of in the discretion of the court. This application is not for favor, as I understand it, if so it was not appealable. The disposition of the issue is claimed to be irregular, the plaintiffs being barred by the trial of the issues, as to the other defendant, can no longer claim that the other issues cannot be separately tried. In regard to the allowances, we must follow the precedent of the court of appeals, on the issues as to Stokes and others. The order is reversed as to the allowance, and in other respects affirmed, but without costs. Oneida National Bank of Utica v. The Manhattan Savings Institution, impleaded with Stokes et al. Opinion by Leonard, J. RAILROADS. See Lands taken for public use. TAXES AND ASSESSMENTS. See New York City, also Lands taken for public use. TRIAL. See Parties, joinder of. UNITED STATES. See Wills. WILLS. 1. Devises of real estate: equitable conversion: devises to the United States.- Application was made to the surrogate to admit the will of Charles Fox to probate as a will of real estate. The will contains a devise of the residue of the testator's "estate, real and personal, to the government of the United States at Washington, District of Columbia, for the purpose of assisting to discharge the debt contracted by the war for the subjugation of the rebellious confederate States." The heirs at law contested the validity of this disposition of his property. The surrogate admitted the will to probate as a will of personal estate, but refused to admit it as a will of real estate, for the reason that the will was void as a devise of real estate, and that the United States could not lawfully take, receive or hold as devisee in trust or otherwise under the said will the real estate devised thereby. From this decision the United States take this appeal. Only two questions were argued on the appeal. 1st. Whether the United States can take under this will the real estate so devised, and, 2d. Whether, if they cannot take real estate as devisee, the doctrine of equitable conversion should not be applied so as to require 289 the executors to convert the real estate into person- Held, although there are other questions which, we If this devise is to be considered as a trust in the United States, to apply the property devised for the specified purpose of assisting to pay the debts contracted by the war, it is clear, under the decisions of our courts, that no such trust is valid. The land being in this State, the validity of the trust is to be decided according to the laws of this State. Levy v. Levy, 33 N. Y. 136. And as was decided in that case the trust was not only invalid, but there was no competent trustee to take. In this case the court below held that the devise to the United States was valid. This was reversed in the court of appeals and the trust in them was held to be void. Can the United States take as devisee of real estate to their own use? We are of the opinion that neither by the common law, nor under our statute regulating devises, can a devise to the United States be held valid? The government is neither a person capable of taking by devise nor can the statute regulating devises be construed as extending this right to bodies politic or corporate, except when authorized by the laws of this State, to take by devise. This question arose incidentally in Burrill, Ex'r, v. Boardman and others, in this court, and the right to take by devise was denied; and in that case on appeal (43 N. Y. 254), the chief justice expressed his doubts as to the power to take, but the same not being necessary to the decision of that case, no definite opinion was expressed thereon. By the common law, a devise of real estate was not permitted, except for a particular use. The right to devise real estate rests in the statute. The statute of this State only allows devises to persons capable of holding and corporations authorized by their charter to take by devise. As the appellants are not within either of these descriptions, they cannot take under our statute. The remaining question is, whether the doctrine of equitable conversion can be applied to this case, so as to make it the duty of the executors to sell the real estate and convert it into personalty, for the purpose of carrying out the intent of the testator. In the case of White v. Howard, 46 N. Y. 144, referred to in 4 "constitute an Lans. 442, Judge Grover says, to equitable conversion of real into personal, it must be made the duty of and obligatory upon the trustA mere discretionary power ees to sell in any event. of selling produces no such result." Here there is not even a power of sale, and there is no case where this doctrine has ever been extended so as to give to executors power to sell, when such power is not conferred by the will. Where the purpose for which a sale is asked for has failed and the necessity ceased, there can be no authority for such conversion. The doctrine of equitable conversion is based upon the principle that equity will require a thing to be done that ought to be done, but, where it is apparent that the thing sought to be obtained was contrary to law, there is no ground upon which that doctrine can be made applicable. In the matter of the probate of the will of Charles Fox, deceased. Opinion by Ingraham, P. J. DIGEST OF RECENT ENGLISH DECISIONS. CHARTER-PARTY. Condition precedent: refusal to continue performance. The plaintiffs by charter-party, dated the 26th of May, 1871, agreed with the defendant that the defendant's ship should sail to B., and there load from the plaintiff's factors a cargo of coals and proceed therewith to H. or D. and deliver same on being paid freight at the rate of 2s. 9d. per ton in cash on unloading and right delivery. The ship was to be loaded and discharged with all possible dispatch, and to load with G. or H. till end of September, at captain's option, but after September with H.; and was to continue at the above rate until March, 1872. In September the captain exercised his option in favor of loading with G., but the plaintiffs refused to load him from G.; whereupon the defendant declined further to perform the charter-party : Held, that the breach of the charter-party which the plaintiff had committed went to the root of the contract between the parties, and justified the defendant in his refusal. Bradford v. Williams, L. R., 7 Ex. 259. COMMON CARRIER. Fixed termini: definite route: conveyance of a single customer's goods. - The defendant was a barge owner, and let out his vessels for the conveyance of goods to any customers who applied to him. Each voyage was made under a separate agreement, and a barge was not let to more than one person for the same voyage. The defendant did not ply between any fixed termini, but the customer fixed in each particular case the points of arrival and departure. In an action against him by the plaintiffs for not safely and securely carrying certain goods: Held, that he was a common carrier and liable, although the goods were lost without negligence on his part. Liver Alkali Company v. Johnson, L. R., 7 Ex. 267. EVIDENCE. Competence: joint indictment and trial: wife of one prisoner called as witness for another. - Where two prisoners are indicted and tried together, the wife of one is not a competent witness for the other. The Queen v. James Thompson, William Danzey, and Abraham Hide, L. R., 1 Cr. Cas. R. 377. 2. Confession: admissibility. The prisoners, two children, one aged eight and the other a little older, were tried for attempting to obstruct a railway train. It was proved that, the mothers of the prisoners and a policeman being present, after they had been apprehended, the mother of one of the prisoners said: "You had better, as good boys, tell the truth;" whereupon both the prisoners confessed. Held, that this confession was admissible in evidence against the prisoners. The Queen v. Reeve and Hancock, L. R., 1 Cr. Cas. R. 352. MASTER AND SERVANT. Relation of cab proprietor and driver: bailor and bailee. The plaintiff, a cab driver, obtained from the defendant, a cab proprietor, a horse and cab on the usual terms, which are that the driver shall at the end of the day hand over to the proprietor 18s., retaining for him. self all the day's earnings over that sum, -the day's food for the horse being supplied by the owner, and the latter having no control over the driver after leaving the yard. The horse with which the driver was fur nished, which was fresh from the country and had never before been harnessed to a cab, bolted and overturned the cab and injured the driver. The jury found that the horse was not reasonably fit to be driven in a cab: Held, by Byles and Grove, JJ., that the relation between the parties was that of bailor and bailee, and consequently that, upon this finding of the jury, the proprietor was responsible for the injury sustained by the driver. Held, by Wiles, J., that the relation was that of master and servant (or at most co-adventurers), and therefore that, in the absence of evidence of personal negligence or misconduct on his part, the owner was not responsible. Powes v. Hider, 6 E. & B. 207; 25 L. J. (Q. B.) 331, observed upon. Fowler v. Lock, L. R., 7 C. P. 272. NEGLIGENCE. Proximate cause: natural forces. The defendants' vessel, owing to the negligence of their servants, struck on a sand bank, and becoming from that cause unmanageable, was driven by wind and tide upon a sea wall of the plaintiff's, which it damaged. Having regard to the state of the weather and tide it was impossible to prevent this, the ship having once struck: Held, affirming the judgment of the court below, that the defendants were liable for the damage caused to the wall. The Lords Bailiff-Jurats of Romney Marsh v. The Corporation of the Trinity House, L. R., 7 Ex. (Ex. Ch. ) 247. SALE OF GOODS Construction of contract of sale: "goods at risk of seller for two months": insurance by seller of goods. The plaintiffs, sugar refiners, were in the habit of selling to brokers the whole of each filling of sugar, consisting of from 200 to 300 loaves or "titlers" each, the terms always being "Prompt at one month; goods at seller's risk for two months," the "prompt" day being the Saturday next after the expiration of one month from the sale. The titlers in each filling were stored on the plaintiffs' premises, and were from time to time fetched away by the purchasers or their sub-vendees, being weighed on their removal, each titler weighing from thirty-eight to forty-two pounds. If the whole of the lots contained in one sale-note had not (which was frequently the case) been taken away on the "prompt " day, payment was made by the purchaser (by bill or cash) at an approximate sum calculated on the probable weight, the actual price being afterward adjusted on the whole filling being cleared. The defendant, who was an old customer of the plaintiffs, had bought four fillings, consisting of specific titlers, each marked, on the above terms, and had paid the approximate price of the four lots, and had fetched some of each lot away. A fire occurred on the plaintiffs' premises after the expiration of two months from the dates of sale to the defendant, destroying the whole contents of the warehouses. At the time of the fire the plaintiffs had floating policies of insurance which covered goods on the premises "sold and paid for, but not removed;" but they had no agreement or understanding with their customers as to any insurance; and the amount insured, which the plaintiffs received from the underwriters, was not sufficient to cover the loss of their own goods, exclusive of the titlers undelivered which they had sold to the defend ant: Held, by Cockburn, C. J., on the ground that the property in the titlers undelivered had passed to the defendant, by Blackburn, Lusk, and Quain, JJ., whether it had passed or not, that, by the terms of the contract of sale, the risk, after the lapse of the two months, was in the buyer, and the loss was, therefore, his. Secondly, that, as there was no contract between the plaintiffs and their customers as to insurance, the plaintiffs were under no obligation in the matter, and were entitled to appropriate to their own losses the whole sum received from the insurance offices. Semble, by Blackburn and Lusk, JJ., that the property in the titlers undelivered had passed to the defendant. Martineau v. Kitching, L. R., 7 Q. B. 436. INSURANCE LAW. EVIDENCE: ASSIGNEE. 1. In a suit against an insurance company on a policy of insurance, it is not competent for the plaintiff to prove that the company had, in certain instances, departed from its own rules and regulations with regard to transfers, but a custom to do so must be shown. Sup. Ct., Penn., Burgher v. Farmers' Mutual Insurance Company of Lancaster County. 2. A member of a mutual insurance company is bound to know the provisions of the charter and policy, and his assignee of the policy is affected by such notice. Ib. ASSIGNMENT OF POLICY. Where the plaintiff had taken from the defendants a policy of insurance against fire, containing a stipulation that it should be void if assigned without the company's consent, and said plaintiff did so assign it, he cannot recover on it, although the company had accepted premiums from him since the assignment, but without knowledge of the facts. Sup. Ct., Penn., Ferree v. Oxford, etc., Trust Co. INSURANCE BY CONSIGNEE. 1. The plaintiffs consigned five barges of ice, of which they were owners, to consignees to be sold on commission, and ordered them to have the ice insured. The consignees took the insurance in their own names and, after the loss, assigned the policy to the plaintiffs. Held, that a consignee bas an insurable interest in goods consigned to him for sale on commission, only to the extent of the commissions or profits he expects to receive from the sale; and this he may insure regardless of instructions from the consignor. Sup. Ct. of Mo., Shaw & Loyd, appellants, v. Etna Ins Co., respondent. 2. If a consignee accept a consignment, with instructions from his principals to insure for their benefit, it becomes his duty to insure, and if he neglects to do so, and a loss occurs, he is liable to them for that amount. Ib. 3. The consignees, instead of taking out a new policy in the names of their principals, had the risk entered on their own policy, in their own names, as a convenient mode of indemnifying themselves against such damages as they might suffer in not insuring in the names of their principals. They had a right thus to protect themselves, and to this end they ought to be considered as interested to the full value of the ice. Ib. 4. After being ordered to insure, the consignees might have considered themselves trustees for the consignors, and have insured in their own names, for them. Ib. 5. In such case, in a suit upon the policy in the name of the consignee, the consignee might show that he had an insurable interest as trustee for his consignor. Ib. LIMITATION OF TIME TO SUE. Where, by the policy, right to sue on it ceased within twelve months after loss, and the plaintiff was prevented from suing by reason of the war, and did not actually sue until more than twelve months after loss, exclusive of the time of the war. Held, that, although the statute of limitations is capable of enlargement to accommodate a precise number of days of disability, yet the contract in a policy of insurance is not; that this clause of the contract is rebutted by the state of war, and is not presumed to revive when the war ceases U. S. Sup. Ct., Semmes v. City Fire Ins. Co. BANKRUPTCY LAW. JURISDICTION. S. was adjudged a bankrupt by the district court of the United States for the district of Maine, of which he was a citizen, and P. was appointed his assignee, also residing in same district. The assignee filed his bill in equity in the same court to recover certain preferences of the respondent, who resided in and was a citizen of Massachusetts, and had no property in this district, and was not found here. The subpoena was served on respondent in Massachusetts, who appeared to object to the jurisdiction of this court. Held, that the court did not have jurisdiction to proceed against the respondent. U. S. Dist. Ct., Me., Paine, assignee, v. Caldwell. ACTION BY ASSIGNEE. An assignee in bankruptcy can proceed against an adverse claimant of property only by action at law or plenary bill in equity; but, whether an adverse claimant may not proceed against an assignee by mere petition, quære? U. S. Dist. Ct., R. I., Ferguson et ux. v. Peckham, assignee, et al. 1. Powers of circuit and district courts. The general superintendence conferred on the United States circuit courts by the first clause of section 2 of the bankruptcy act is restricted to cases involving some principle of equity. U. S. Cir. Ct., E. D., Mo., Woods et al. v. Buckewell et al. 2. The district courts have large discretionary powers in matters of bankruptcy, and the circuit courts will not interfere with the exercise of such powers, and set aside the appointment by the district court of an assignee, in a case where it is only claimed that the district court erred in holding that no election had been made by the creditors, there being no allegation against the fitness of the person appointed. Ib. CRIMINAL LAW. Evidence. On a trial for the murder of A-, evidence to show that another party had died at the prisoner's house of the same kind of poison as A and had been attended by the prisoner, is not competent. Sup. Ct., Penn., Shaffner v. Commonwealth. EVIDENCE OF GOOD CHARACTER: REASONABLE DOUBT. 1. A reasonable doubt defined as "that state of the case which, after comparison and consideration of all |