orandum of the contract shall be made in writing, and be subscribed by the parties to be charged thereby. Appeal from order denying motion for the inspection and copy of papers in the possession of the plaintiff. Issue was joined in this action in December, 1874, when the cause was noticed and put upon the calender. In December, 1875, it was reached, and The defendants do not contend that there is not a sufficient subscription to the contract. White & Hazzard, who signed the instrument, are proved to have been the authorized agents of the reserved generally by plaintiff's attorplaintiff to sell, and of the defendants ney, defendant not appearing; at deto buy, and their signature, it is con- fendant's request the trial was delayed ceded, is the signature both of the de- until the middle of January, 1876; fendants and of the plaintiff. then plaintiff served notice of a motion to pnt the cause down for January 28. On the morning of that day notice of motion for inspection of certain letters in plaintiff's possession, was given by defendant, and plaintiff's proceedings stayed. The affidavit on which the motion was made, failed to show wherein. the evidence contained in the letters was material. The objection is to the sufficiency of the contract itself. There is a contract of sale, it is argued, but no contract of purchase. Held, Both have signed the paper, and if a contract is created it is a mutual one. Both are liable, or neither. It seems clear that there can be no sale unless there is a purchase, as there can be no purchase unless there be a sale. When, therefore, the parties mutually certify and declare in writing that Butler & Co. have sold a certain amount of iron to Thomson & Co. at a price named, there is included therein a certificate and declaration that Thomson & Co. have bought the iron at that price. Judgment reversed, and cause remanded to the circuit court for a new trial. Opinion by Hunt, J. INSPECTION OF PAPERS. Brooklyn Life Insurance Co., respt., v. Pierce, et al., applts. Decided March 31, 1876. The motion was denied because, 1. The proper degree of diligence had not been shown, but rather negligence and laches. 2. The evidence did not show the A. Ford, for respt. On appeal Held, That the notice was properly disposed of by the court below. The affidavit fails to show how the evidence alleged to be contained in the letters, of which copies are sought, is material to any issue in this case. Facts should be given which will enable the court to determine for itself whether the evidence is material. The evidence sought for can be prov In application for inspection, facts ed in the ordinary way. If the plaintiff fails to produce the letters on the trial, after proper notice, their contents may be proved by parol timony respecting the title to the Pult evidence. ney estate in this state," which provided Or er affimed. and Brady, J.J., concurring. should be prima facie evidence of the facts set forth in the examination of the witnesses, it the chancellor should TITLE TO REAL ESTATE. EVI-be of opinion that they furnished good DENCE. N. Y. COURT OF APPEALS. Howard et al., respts. v. Moot, applt. Decided February 22, 1876. The rules of evidence are entirely within the control of the legislature, which may make such rules and regulations in regard thereto as it deems best. A will having been admitted to probate, it can only be impeached by direct proof of incapacity, as competency will be presumed until the contrary is shown. The Indian title to lands in this state prima facie evidence of such facts. It Wm. Rumsey, f r respts. Held, That the legislature had pow extends only to the right of occupa- er to pass the law; that rules of evition, and when they abandon posses-dence are not an exception to the docsion, the right of possession attaches trine that the legislature has absolute itself to the fee without grant. The court will take judicial notice of the extinguishment of the Indian title. control over the remedies by which rights are to be enforced or defended, and all rules and regulations affecting This action was brought to recover a the same; and the changes from time hundred acres of land, in Livingston to time may be made applicable to excounty, which was a portion of the Pult-isting causes of action, as the law thus ney estate, and the only question in-changed would only prescribe the rule volved in the case was the title to that for future controversies; that the decestate. Plaintiffs claimed title through laration that any circumstance or eviseveral mesne conveyances from the state of Massachusetts, it being a part of the tract ceded to that state by the state of New York by the treaty and deed of cession of 1786. This title has been frequently passed upon and sustained by the courts. (9 Barb., 595; S. C., 3 Seld., 305; 51 Barb. 589; 41 N. Y. 397.) Some other exceptions were taken in this case. dence should be prima facie proof of a fact to be established would not be void, as indirectly working a confiscation of property, or a destruction of vested rights, as the adverse party was left at liberty to rebut and overcome it by contradicto y and better evidence, (2 Kern., 541; 38 Barb. 608; 6 Gray 1; Cooley's Const. Lim. 367.) Also Held, That if the testimony In 1821 an act was passed by the had been all hearsay, the legislature legislature (laws 1821, chap. 19), enti- having made the chancellor the final tled "An act to perpetuate certain tes-arbiter to determine what should be good prima facie evidence of the facts out grant. (3 J. R. 375.) Also that stated, it would be in the absence of the court would take judicial notice evidence to controvert it or suggestion of the extinguishment of that right that it was untrue, be conclusive. It (41 N. Y. 397); as to whether one withwas objected at the argument that the out title could set up this objection chancellor merely certified that the de- against the owner in fee, quære. positions were prima facie evidence that the witnesses had heard and believed as they stated. Held, That this objection was not tenable; that the certificate related to Judgment of General term affirmed. DEBTOR AND CREDITOR. facts which the statements tended to N. Y. SUPREME COURT, GENERAL TERM. FIRST DEPARTMENT. Charles S. Archer pl. and applt. v. James O'Brien, sheriff, deft. and respt. Decided If a creditor has a lawful and bona fide debt, it is lawful for the debtor to turn over to the creditor any of his personal property as security for said debt, if the creditor takes immediate possession and continues such posses sion. If the creditor make any arrangement to protect the debtor byholding the property for some purpose other than the payment of his demand, he loses all advantage by the unlawful combination. This action is brought by plaintiff to test the title to the personal property and machinery of a distillery situated in New York city. Plaintiff was a large creditor of one Hanlon and in payment of the debt, December 8, 1865, took a bill of sale from one England of the aforesaid property, he holding the legal title, Hanlon being the real owner of the property aforesaid. The sheriff claimed title thereto under and by virtue of an attachment levied on the property of Hanlon at the suit of one Chas. Doherty. The property was contaiued in the distillery aforesaid. On receiving the bill of sale the plaintiff sent word to one Wilson to come down to his store, and on the 9th of December, 1868, he put him in possession of the property in creditors of the same class. The prinquestion to hold it as his agent. Wil-ciples which govern the relations of the son remained on the premises until the purchaser from a fraudulent vendee are sheriff took possession. When the cause was submitted to the jury the plaintiff's counsel requested the court to charge the jury: not applicable. In such case an assignment is subordinate and inferior to the superior and prior equity of the defrauded owner, and cannot be sustained 1. If Archer had a lawful and bona fide without proof of a consideration other debt against Hanlon, it was lawful for than the discharge of a precedent debt. the latter to turn over to said Archer The burden of carrying the effect of any of his personal property as security circumstances likely to cause a prudent for said debt, if the latter took im- man to make inquiry when a debtor is mediate possession thereof and contin-willing to secure a debt due by the transued such possession. If the plaintiff took possession of said property, involved in this suit, under a transfer made to him as security for a lawful debt, and such transfer was made and possession taken before the sheriff levied, then the plaintiff is entitled to recover, even though the owner of the property was Hanlon's at the time it was so turned over. That the title of the plaintiff, under the circumstances stated, must prevail over the seizure by the sheriff under the attachment. The judge charged the above requests with considerable modification. fer of his property cannot be imposed upon the creditor. He has the right to accept the security, and it matters not what the debtor's intentions are. If the creditors wish to obtain the property thus transferred, they can pay the debt and be subrogated. The creditor, when he discovers circumstances that would put a prudent man on inquiry, will be protected in the preservation of his own rights in seeking the payment of his own debt. Such creditor is not surrounded with the exigencies of a stranger who purchases from a failing debtor under suspicious circumstances. If the creditor make any arrangement The judge also charged the jury that to protect the debtor by holding the it was for them to inquire whether this property for some purpose other than transaction was surrounded with such the payment of his demand, he loses all circumstances as would put an ordinary advantage by the unlawful combination. and prudent man upon inquiry. "If If he have no notice of a fraudulent you find that it was, and Archer failed to make these inquiries, and that Hanlon had this fraudulent intention, then, although Archer did pay the money, he was not a purchaser in good faith.” D & T. McMahon for applt. Held, Plaintiff was entitled to have the aforesaid requests to charge charged without modification. There are no superior equities in favor of either of the intent his rights should not be impaired. If he accept the subject assigned as a security for the payment of his debt, he does no wrong. Judgment reversed. Opinion by Brady, J.; Davis, P. J. and Daniels, J., concurring. Patrick Mutual Alliance Association, impleaded, &c., applts. Decided March 6, 1876. A member of a corporation may no bring an action individually for the distribution of funds belonging to the corporation but in the possession of a third party, without first showing the corporation's refusal to do so, or collusion. Appeal from order of special term appointing a receiver and continuing an injunction. One other, only, joined with him. No reason was given by plaintiff why this action was not brought by the St. Patrick Mutual Alliance and Benevolent Association, nor was any fraud or collusion on its part charged. On appeal. Held, That if, as alleged by plaintiff, the association was duly incorporated under the name of the St. Patrick Mutual Alliance and Benevolent Association, and it may be taken to be true as against the plaintiff, then the funds and property of the association must have become vested in the corporation and an action for their protection should have been brought by it and not by plaintiff, In 1869 plaintiff become a member of The St. Patrick Mutual Alliance Association, which was then a voluntary unincorporated association. The association was maintained by payment on the part of its members of initiation or its refusal so to do, or its collusion with defendants should have been fees and monthly dues. The membershown. ship being large, it had accumulated Dissensions having nearly $5,000. arisen, the association was divided into two factions. Plaintiff alleged that the majority, and of which he was one, filed articles of incorporation as the St. Patrick Mutual Alliance and Benevolent Association, and that it was the rightful owner and custodian of all the funds of the original association; that the others, in which were the former officers of the original association, thereafter incorporated themselves under their former Plaintiff, upon his own showing, had no direct interest in the fund and property claimed, and for that reason his application for an injunction and receiver should be denied. Opinion by Daniels, J.; Davis, P.J. and TRUSTEE. CONTRACT. N. Y. COURT OF APPEALS. Belmont, respt. v. Pouvert, applt. Decided January 18, 1876. name, retained all the funds and prop- Under an agreement by which several erty of the original association. Plaintiff brings this action in his own behalf and in behalf of all other members who shall desire to assist him in prosecuting the same, and to share in the benefit, to have the defendants enjoined from using or interfering with the funds of said original association, and to have such association dissolved, a receiver appointed, an accounting and distribution of the funds among the members in good standing. leinors of land combined to perfect title in one who was to pay all the liens out of the future proceeds of said property, under which agreement title was perfected and rents collected, the one in whom the title became vested is bound to account, as trustee, for the rents so collected; the words "fu ture proceeds" are sufficiently comprehensive to include rents and prof its. This action was brought to compel the sale of certain real estate, the legal |