letters testamentary, administration, or want of jurisdiction on the part of such guardianship. Surrogate, except in the manner and for the causes that the same could be impeached or invalidated, if made pursuant to the order of a court of original general jurisdiction. The second section provides that It is claimed by counsel for the petitioner, that it is the duty of the Surrogate under Sec. 30, 2d Revised Statutes, page 109, to confirm the report of sale in this matter, because it appears to have been legally and fairly con- such sale shall not be invalidated or ducted, &c., but in order to determine impeached for any omission in any peunder that section whether the sale tition for such sale, provided it shall has been legally made, it becomes substantially show that an inventory necessary primarily to enquire whether has been filed, and that there are debts jurisdiction was obtained of the sub- which the personal estate is insufficient ject matter and of the parties inter- to discharge, and that recourse is neces ested by the petition and order to show sary to the real estate. cause and the service thereof. It is clear that the petition does not conform to the 4th subdivision of Section 2, 2d Revised Statutes, 104. That section prescribes, as it seems to me, the facts that are necessary to be inserted in order to obtain jurisdiction: the language of the section is "Petition shall set forth," and the omission of any of its requirements fails to secure jurisdiction. It cannot be denied that the petition in this matter was defective in the particulars above referred to, and if the requirements of the Statute, prescribing what the petition shall contain, may be disregarded in one particular, it may be in all, but it is urged by the petitioner's counsel that under the act of 1850, Chapter 82, Sections 1, 2 and 3 and the amendments of Section 3 by Chapter 260 of the Laws of 1869, and 92 of the Laws of 1872, the objections referred to are cured. The third section provides that such sale shall not be invalidated by reason. of an irregularity in any matter or proceeding after the presentation of any petition, and the giving notice of the order to show cause, &c., and this vision is substantially preserved in the several acts amending the 3d Section. pro It is also claimed by said counsel that Section 1 of Chapter 359 of the Laws of 1870, precludes the purchaser from objecting to the completion of his purchase because he has not appealed, or taken proceedings to set aside, open, vacate, or modify the proceedings in this matter, and several authorities are cited to sustain this view. The case of Forbes v. Halsey is cited as authority for the doctrine that no sale shall be invalidated by reason of any irregularity occurring after the presentation of the petition, but that was a case of ejectment, and clearly within the provision of the act of 1850. The learned counsel has evidently failed to appreciate the object of that act, when he seeks to make sections 1, By section 1 of the act of 1850, it is provided that the title of any purchaser at any such sale, made in good faith, shall not be impeached or invalidated 2 and 3 of that act applicable to proby reason of any omission, error, defect or irregularity of the proceeding before the Surrogate, or by any allegation of ceedings before the Surrogate, and gives no force to section 4, which seems to be the only section affecting the Surrogate, and one which specifically provides that he shall not confirm any such sale, unless, upon due examination, he shall be satisfied that the provisions of said title have been complied with, as if this act had not been passed, showing conclusively that the act in question was not intended to relieve the Surrogate from strict conformity to the Revised Statutes, but only to throw such guard around the purchaser, by presumptions of regularity, after the Surrogate has acted. I think the act of 1870, in its 1st section, does not contemplate any limitation of the strict requirement of the Revised Statutes in conducting such proceedings, and are not applicable to such proceedings pending before that officer; otherwise it would nullify the 4th section of the act of 1850. I am therefore of the opinion that the several acts referred to do not relieve the make the order of sale, it is not perhaps necessary that I should consider the other questions involved in this matter, but it may be proper to state that after the Surrogate acquires jurisdiction, any other proceedings required by the statute, that may have been omitted in the progress of the proceedings, might be supplied by being taken nunc protunc, such as the proof and adjudication of claims, the entry of the order for sale, the execution and approval of the bond, as this court possesses the same authority as other tribunals to remedy and correct errors or mistakes in the course of proceedings, in cases where jurisdiction has been regularly acquired. See Farrington v. King, above cited, at page 191. For the defective character of the petition in this matter, the motion to confirm the sale must be denied. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPARTMENT. Surrogate from strict conformity to the CHARGING SEPARATE ESTATE. Revised Statutes in respects to all the proceedings required by their provisions, and that it is my duty to recognize and act upon any objection of irregularity as well as of jurisdiction, on this hearing. And as I am not satisfied that the provisions of the Revised Statutes in respect to the sale and disposition of the real estate of the intestate have been complied with, I should refuse to confirm the report of sale. Ackley v. Dygert, 33 Barb. 176; Farrington v. King, 1 Brad. 182; Wood v. McChesney, 40 Barb. 417. It is well settled upon authority that any recitals of jurisdiction in any of the orders of the former Surrogate cannot affect the question of jurisdic tion. See Sidley v. Waffle, 16 N. Y. 189. Having reached the conclusion that there is a defect of jurisdiction to John G. C. Todicker, respt. v. Mary A. Cantrell, applt. Decided May 1, 1876. Insertion in note of married woman, after its execution, of words making it binding on her separate estate, if authorized by her, is valid. Appeal from judgment entered on verdict of a jury. Defendant, who is a married woman, applied to one of her tenants, one Harms, for a loan, and he being unable to furnish it, she asked him if he knew any one who would, agreeing to pay him a bonus if he would get the loan for her. He called upon plaintiff, who loaned the amount desired, $700, taking defendant's notes therefor. These notes Harms endorsed at the time of making, and was paid by defendant $45 as a bo nus. When the notes were given, as alleged by plaintiff, he said that he would see his counsel, and if there was any change in their form necessary he would make it, to which defendant assented, and thereafter was added: "I hereby charge my separate estate with the payment of the above." Defendant denied that she had authorized the change, and alleged that the bonus of $45 had been given plaintiff, and that the notes were therefore usurious. Both the question of authority to inake the change and of usury were put to the jury, which rendered a verdict for plaintiff. Dan'l T. Robertson, for respt. ACCIDENTAL INSURANCE. N. Y. COURT OF APPEALS. Shader, adm'r, &c., applt., v. The Railway Passenger Assurance Co. of Hartford, respt. Decided June 20, 1876. Where a policy of accidental insurance contains a provision that "no claim shall be made * * where the death or injury may have happened while the insured was, or in consequence of his having been under the influence of intoxicating drinks," and the insured, while in that state, was shot, Held, that the limitation related to his condition, not to the cause which might produce his death. It was not essential to work a forfeit ure that the injury or death should occur in consequence of the use of intoxicating liquors. This action was brought upon ar accidental insurance policy, which pro vided that "no claim shall be made under this policy where the death or injury may have happened while the insured was, or in consequence of his Held, That the question of defendant's having authorized the change was fairly put to the jury, and having been under the influence of inthey found for plaintiff. The authority conferred by defendant and in the manner described, was abundant. The design was to make the notes valid instruments against her as feme covert, and this was plaintiff's right for the consideration given. But if the notes had not been thus altered plaintiff could still have recovered as he proved that the loan was made for the benefit of her separate estate. The question of usury was given on conflicting evidence to the jury, and they found against defendant, and the proof showed that plaintiff received none of the bonus, and that it was not intended he should. Judgment affirmed. toxicating drinks." It appeared that after receiving his insurance ticket, the assured spent the day with one W., and during the day he and W. drank from a bottle of champagne and a bottle of Irish whiskey, but neither appeared under the influence of liquor when they sat down to dinner at five o'clock. Champagne and whiskey were put upon the table, and Loth drank. Several witnesses swore that the assured showed by his manner and speech that he was under the influence of liquor. Others who saw him either shortly before or at the beginning of dinner thought him not under the influence of liquor, if he had drank any. While at dinner, W. shot the insured, inflicting a wound of Opinion by Brady J.; Davis, P. J., which he died. The judge stated to and Daniels, J. concurring. the jury, that the question was not sim ply whether the deceased was under the influence of intoxicating liquors at the time he was shot, but whether the injury occurred in consequence thereof, and was the natural and reasonable result of his being in that condition, and he charged, in substance, that if the injury happened in consequence of his being under the influence of intoxicating liquors, the plaintiff could not recover. Defendant's counsel requested the court to charge that if, at the time the assured was shot, he was under the influence of intoxicating drinks, plaintiff could not recover, and this was so whether the influence of the liquor occasioned the discharge of the pistol or not. This was declined and exceptions taken. J. B. Adams, for applt. Where detached coupons and interest warrants have been stolen, a bona fide transferee for value acquires a valid title to the coupons, but not to the interest warrants. Coupons payable to bearer are promissory notes and negotiable, and their validity is not destroyed by being separated from the bonds. They are entitled to the benefit of the days of grace allowable on bills and notes payable at a given time. Interest warrants of a railroad company are not within the provisions of 1 R. S, 768 negotiable instru ments as between third persons. This action was brought against the I. B. & W. R. Co. to enforce the payment of ten coupons of the said company, and forty-seven interest warrants of the D. U. B. & P. R. R. Co., each of which represented the semi-annual interest due April 1, 1871, on a $1,000 bond. The present defendant, having claimed the interest, was substituted as defendant in place of the Railway Co., the latter having paid the amount due into court. The coupons promised to pay the bearer $35 at a day and place semi annual interest on Held, That the proposition laid down by the judge was erroneous, and he also erred in refusing to charge as requested; that the limitation in the policy related to the condition of the assured, not to the cause which might named, for produce his death; that it was not es- bond No. The others were as sential to work a forfeiture that the follows: "$35. Interest warrant for injury or death should occur in conse-thirty-five dollars, $35, upon bond No. quence of the use of intoxicating of D. U. B. & P. R. R. Co., pay liquors. Bradley v. Mut. B. L. Ins. able in gold coin at the office of the Co., 45 N. Y., 222, and Weltz v. Conn. Farmers' L. & T. Co. in the City of M. L. Ins. Co., 48 Id., 34, distinguished. New York, April 1, 1871,” the numJudgment of General Term, revers-ber of the bond to which they were ing judgment for plaintiff on verdict and granting a new trial, affirmed. Opinion by Miller, J. attached being inserted in each. It appeared that the coupons and i. terest warrants were stolen from defendant and were purchased by plaintiff, who was a broker, in good faith, without PONS. INTEREST WARRANTS. knowledge or notice that they had BONA FIDE HOLDER. COU N. Y. COURT OF APPEALS. Evertsen, respt., v. The National Bank of Newport, applt. Decided April 18, 1876. been stolen, and that he paid full Samuel Hand, for applt. Held, That as to the coupons of the I. B. & W. R. Co., they were promissory notes and negotiable, and the rule of caveat emptor did not apply and plaintiff's title to them was valid. 102 Mass. 503; 29 N. Y., 220. That their validity was not destroyed by their being separated from the bonds, nor was the title of one purchasing them without the production of the bonds to which they referred, impaired. 21 How., [U. S.,] 575; 1 Wall, 175; 20 Id., 583; 25 N. Y., 496; 57 Id., 573; 109 Mass., 88. Myers v. Y. & C. R. R. Co., 43 Me., 232; Jackson v. same, 48 Id., 147, disapproved. Also held, That the interest warrants of the D. U. B. & P. R. R. Co. were not within the provisions of 1 R. S., 768, negotiable instruments as between th rd persons. They were neither promissory notes nor checks nor bills of ex change. 1 Pars. on Bills, 33; 13 Mass., 158; 1 H. Bl., 569; 6 Wend., 637; 4 Id., 575; Smith v. Clark & Co., 54 Mo., 58, and McCoy v. Wash. Co., 3 Wall. Jr., 381, distinguished; and that therefore plaintiff, although a bona fide transferee, acquired no title thereto. Also held, That the coupons of the I. B. & W. R. Co., being promissory notes they had all the characteristics of such instruments and were entitled to Appeal from order denying application for certiorari. The relator is the owner of certain property on 5th avenue, New York, on which an assessment for repaving has been laid. Desiring to vacate this for certain alleged irregularities, he applies as a preliminary step, for a writ of certiorari directed to the Mayor, Aldermen and Commonalty, requesting them to certify and return all papers, &c., relating to this assessment. A. G. Vanderpoel, for applt. Held, That the irregularities complained of by the relator are apparently dehors the record, and the production of the records of the proceedings concerning the assessment is not necessary therefore to his case for aught that appears. He complains only of irregularities the ber.cfit of the days of grace allow-which the proceedings referred to would which are the subject of proof, and able on bills and notes payable at a not necessarily disclose. The allowgiven day or time. Judgment of General Term, affirmance of the writ of certiorari is not ing judgment for plaintiff on report of always a matter of right, and in the referee, reversed and new trial granted. Opinion by Allen, J. CERTIORARI. N. Y. SUPREME COURT. GENERAL TERM, FIRST DEPARTMENT. exercise of a sound discretion should be granted only ex debito justitiæ, when apparently necessary for the accomplishment of the relief scught (5 Wait's Pr. and cases cllated). Besides, Ch. 338 of act of 1858, and 312 of act of 1874, seem to confine The People, ex rel. Jacob Vander-owners of property who seek to vacate |