is to be paid for in thirty days after delivery on board of the vessel, and payment to be received by approved paper, the title to the cement passes on delivery to the vessel, and the Plaintiff becomes liable to make good every term and condition of his contract. If the cement, or any part of it, is not of a quality to pass inspection at the designated port, and is condemned by the inspecting officer, it becomes the duty of the Defendant to either return such condemned article to the Plaintiff, or to notify him where the same is stored, subject to his order; and, failing to do so, he cannot recover by way of counterclaim for such damaged or condemned cement.

DELAFIELD V. DE GRAW.

2. CONTRACT-Discovery of Fraud-Time of Disaffirmance.] It is the duty of a party who proposes to disaffirm as fraudulent a contract entered into by himself, partner, or agent, to do it at once, upon discovery of the fraud.

3.

If, after discovering the fraud by which he was induced to enter into the contract, he remain silent or inactive, and give no intimation of a purpose to disaffirm until he finds the contract likely to prove unprofitable, he will then be estopped from dis

affirmance.

One of the partners of a firm, in the absence of his partner, was, by false representations, induced to endorse a note in the name of the firm. On the return of the partner, the fraudulent representations were discovered, and the partners were dissatisfied with the party procuring the endorsement, but they gave no notice of disaffirmance for the period of three months, and further availed themselves of the benefits of such endorsement: Held, the firm was bound thereby.

-Performance of, Void-Statute of Frauds-Obliga

tion-Evidence

See STATUTE OF FRAUDS. 2.

Written, cannot be varied by Parol Evidence.] A written agreement between parties must be regarded as containing the whole of their agreement upon the subject-matter thereof, and as merging therein all prior and contemporaneous understandings. Therefore, evidence offering to establish other facts and conditions as part of the contract, which are not contained in the agreement, is inadmissible.

PAGE

49

82

250

THOMAS V. HUNT

Written-Parol Evidence

See EVIDENCE. 4.

COSTS IN DISCRETION OF COURT awarding them-Equity Appeal-Conflict of Evidence.

See EQUITY.

EQUITY CASES in Discretion of Court awarding them.] In equity cases, the giving or withholding of costs rests on the discretion of the Court, and that discretion this Court cannot control. STAIGER V. SCHULTZ

CONVICT IN STATE PRISON, Service of Process on-Practice
See PRACTICE. 3.

CORPORATION ORDINANCE-False Imprisonment-Powers of
Metropolitan Police Board

See FALSE IMPRISONMENT.

191

317

86

4

54

266

CORPORATION OF THE CITY OF NEW YORK may employ
additional Counsel-Charter-Corporation Counsel

See CHARTER.

CORPORATIONS, RELIGIOUS― Trustees --Cestui que Trust-
Change of Doctrine

See RELIGIOUS CORPORATIONS.

COURTS, COSTS IN DISCRETION OF, awarding them-Equity—
Appeal-Conflict of Evidence

See EQUITY.

PAGE

206

339

86

COUNSEL, CORPORATION OF THE CITY OF NEW YORK may
employ additional-Charter-Corporation Counsel.

See CHARTER.

CREDIBILITY-Evidence-Slander-Words must impute Indictable

CREDITOR'S, ASSIGNOR'S, Right to assert Assignee's Claim against
Debtor

See ASSIGNOR's.

CRIME, WORDS MUST IMPUTE INDICTABLE-Slander-Evi-
dence Credibility

206

278

305

134

182

215

134

See SLANDER.

D

DAMAGE MUST ENSUE FROM NEGLIGENCE-Carrier's Insur-
able Interest .

112

See INSURANCE. 2.

DAMAGES, REAL ESTATE-Possession of Husband under Wife,
not adverse-Interest

57

See REAL ESTATE. 3.

DEBTOR, ASSIGNOR'S CREDITOR'S right to assert Assignee's
Claim against

215

See ASSIGNOR'S.

See TRUSTEE.

DECEASE OF TRUSTEE--Substitution-What proper

DEED, GOOD AND SUFFICIENT-Words-Construction-Real

100

Estate

211

See WORDS. 1.

-REAL ESTATE NOT RECORDED-Consideration not Paid
-Subsequent Grantee

46

See REAL ESTATE. 1.

DE FACTO JUDGE, JUDGMENT OF, cannot be collaterally Im-

peached

79

See JUDGMENT. 2.

See CONTRACT.

DESCENTS, STATUTE OF-WILL-R. S., Part II., Ch. 2

DISAFFIRMANCE OF CONTRACT on Discovery of Fraud, Time of

2.

DISCRETION-Amendment-Bill of Particulars

See PRACTICE. 1.

PAGE

320

67

258

148

82

297

-OF SUPREME COURT-Compensation of Receiver
See RECEIVER.

EJECTMENT, Church organized under General Law can maintain
See CHURCH.

39

ENCROACHMENTS ON HIGHWAYS, Penalties for-Construction

of Statute

326

See CONSTRUCTION OF STATUTE.

ENDORSER OR MAKER of Accommodation Note, Authority of Part-
ner to become-Notice. Code, § 274

See NOTE.

ENFORCEMENT OF BOND to pay Mortgage on Testator's Real Es-
tate-Power of Executor

ENGINE, STEAM-Loss by Fire occasioned by Explosion-Insurance

See INSURANCE 4.

EQUITABLE LIEN-Evidence-Admissions of Agent

See MARRIED WOMAN.

RELIEF TRIAL-Pleading-Lease-Assignment
See PLEADING. 2.

EQUITY CASES, Costs in, in discretion of Court giving. Code,
$$ 304, 305, 306
See COSTS.

Costs in Discretion of Court awarding them-Appeal-Con-
flict of Evidence.] In suits in equity, the giving or withholding of
costs is in the discretion of the Court, which discretion, except in
cases of abuse, the Appellate Court will not attempt to control.
Where there is conflicting evidence upon a material fact before
the court, referee, or jury, the finding thereon is conclusive, and
cannot be questioned by this Court.

BARKER V. WHITE

4

86

2.

Power to Sell-Will-Executor-Trustee

ESTATE, REAL, Executor can enforce Bond to pay Mortgage on
Testator's

See EXECUTOR.

Location of Boundary-Evidence

See REAL ESTATE.

See WILL. 1.

PAGE

171

117

184

-

EVIDENCE, CONFLICTING — Nonsuit refused -- Delivery without
Authority of Owner.] Where the case presented only questions of
fact, in respect to which there was conflicting evidence, the Court
properly refused to nonsuit the Plaintiff. The case was properly
submitted to the jury.

2.

3.

Where a person, in possession of goods which belong to another,
and which, in law, he is bound to deliver on demand, delivers
them to a third party, without authority from the owner, he is
responsible for a refusal of such holder to deliver them to the
owner thereof.

DUNHAM V. TROY UNION RAILROAD CO. .

tion of Court awarding them
See Equity.

Crime

-Appeal-Equity-Costs in Discre-

-Credibility-Slander-Words must impute Indictable

See SLANDER.

-Equitable Lien-Admissions of Agent.
See MARRIED WOMAN.

-IMPEACHMENT-ADMISSIONS-That a married
woman should hang out signals to a man for clandestine meetings,
is an impeachment of her general character.

Upon a trial where the question is whether a certain note was
given in compromise of a charge of rape, and the person upon
whom the offence was alleged to have been committed gives tes-
timony tending to show that it was given in settlement of civil
damages only, it is competent to ask her if she did not admit, on
the trial of the indictment against Austin for the alleged rape, that
she wrote him a letter, in which she admitted that she hung out
signals on a cherry-tree to induce him to come to her house. Such
acts are proper for the consideration of a jury in estimating the
character of the witness.

SHEPARD V. PARKER

OF PROVOCATION to Murder, admissible when.]
Where the intent of the prisoner, who is charged with the crime
of murder, remains to be proved, it is competent for the prisoner
to prove that he acted upon immediate provocation, and to show
what that provocation was,

PEOPLE V. LEWIS.

PAGE

EVIDENCE-Parol, Written Contract cannot be varied by
See CONTRACT. 3.

191

4.

Written Contract-Parol.] When the case shows that the
findings of the referee are based upon testimony which was clearly
illegal, the party in whose favor such illegal findings were made
cannot avail himself of them to sustain his judgment.

HATCH V. PRYOR.

EXECUTORS CAN enforce Bond to pay Mortgage on Testator's Real
Estate.] Where a party has, for a good and sufficient consideration,
given his bond to executors, that certain parties who are legally
bound to do so shall pay and discharge a mortgage upon the real
estate of their testator, he cannot, on breach of the condition of
his bond and suit commenced thereon, object to the capacity of
such executors to sue on such bond.

The form of the judgment against such obligee should be, that
he pay and cause to be cancelled of record, the mortgage, within
a time specified, and in default, that he pay the amount due, etc.
FARNHAM V. MALLERY

.

Trustee--Will--Power to sell Real Estate

See WILL. 1.

EXPECTANCY-Heir-at-Law--Transfer

See PARTITION.

EXPLOSION--Loss by Fire occasioned by--Steam-engine-Insurance

317

171

184

290

180

FALSE IMPRISONMENT-Corporation Ordinance-Powers of Metro-
politan Police Board.] When the Defendant justifies the keeping
in custody the Plaintiff from evening until the morning, under that
rule of the Metropolitan Police Board which authorizes the detain-
ing of persons charged with the commission of felonies and mis-
demeanors, he must show that the alleged accusation was such as
is denominated a felony or misdemeanor by law. The accusation
that he had violated an ordinance of the Common Council of the
city of Brooklyn is not sufficient.

SCHNEIDER V. LANE,

FIRE OCCASIONED BY EXPLOSION, Loss by-Steam-engine

Insurance

See INSURANCE. 4.

266

180

One who

FORECLOSURE ― Judgment — Purchaser-Jurisdiction.]
purchases under a judgment of foreclosure, thereby submits him-
self to the jurisdiction of the Court; and he may be compelled, on
motion, to comply with the conditions of sale.

When the purchaser is in possession, under a decree which has
not been fully executed, mere lapse of time is no answer to a mo-
tion to compel the payment of the amount of his bid.

When a motion is made, by those having an interest in the fund,
that the money be paid into Court, it constitutes no valid objec-