pleading raising the question of | 4. 3. The release by a wife of her in- GUARDIAN AND WARD, 3. EVIDENCE. Id. 6. The acts and declarations of one 63 7. Where a witness, in answer to a 8. A recital in a bond given by one 9. The requirement of section 110 of 155 15. Plaintiffs contracted in writing to furnish the materials to do certain plastering for defendant upon his building in Buffalo, at so much per square yard. They included in their bills and charged for the full surface of the walls, without deduction for cornices, base boards or openings for doors and windows. To support these charges they proved under objection that it was the uniform, well settled custom of plasterers in Buffalo so to measure and charge. Held, the evidence was proper, the usage not unlawful or unreasonable, and raised a presumption that defendant contracted with reference to the usage. Walls v. Bailey. 464 SICKELS-VOL. IV. 89 16. To meet this presumption defendant as a witness in his own behalf was asked if at the time of contracting he had any knowledge of the custom claimed. The evidence was excluded. Held, error. (PECKHAM, J., dissenting.) Id. 17. Where a judgment is obtained against a city in an action brought to recover damages for injuries sustained, in consequence of a failure of a railroad corporation to comply with its contract to keep that portion of the street occupied by its track in good repair and safe for travel, and where the latter has notice of the action and an opportunity to defend, the record of the judgment is competent evidence in an action against it brought by the city, and is conclusive as to its liability and as to the amount the city is entitled to recover. Mayor, etc., of Troy v. T. and L. R. Ř. 657 18. After it is shown to the satisfaction of the court or referee that an assignment was entered into by the assignor and assignee, with a common purpose of defrauding the creditors of the former, his acts and declarations after the assignment are competent evidence against the parties thereto, not to show the formation of the common purpose, but to prove its execution, extent and effect. Newlin v. Lyon. 661 19. When the assignor continues in possession of the assigned property, his acts and declarations while in actual possession may be given in evidence as part of the res gesta. Id. See MASTER AND SERVANT, 5. NEGLIGENCE, 12. EXCEPTIONS. A party excepting to the conclusions of law of a court or a referee is not held to the same strict rule as in excepting to a charge. Where a charge is good in part and ill in part, the exception must TRATORS. See GUARDIAN AND WARD, 5. point out the very part which is | EXECUTORS AND ADMINIS- 661 EXPERTS. See EVIDENCE, 5, 10. 2. The act of 1850 is not in conflict See SHERIFF, 1 Id. FORECLOSURE. See MORTGAGE, 1, 2. FOREIGN CORPORATIONS. See CORPORATIONS, 1. FOREIGN JUDGMENT See FORMER ADJUDICATION, 2 8. Where a judgment is obtained against a city in an action brought to recover damages for injuries sustained, in consequence of a failure of a railroad corporation to comply with its contract to keep that portion of the street occupied by its track in good repair and safe for travel, and where the latter has notice of the action and an opportunity to defend, the record of the judgment is competent evidence in an action against it brought by the city, and is conclusive as to its liability and as to the amount the city is entitled to recover. Mayor, etc., of Troy v. T. and L. R. R. FRAUD. 657 One L. made a parol contract with defendants, F., S. and R., to sell FRAUDS, STATUTE OF. See STATUTE OF FRAUDS. FRAUDULENT CONVEY ANCE. The rule that a fraudulent conveyance is valid as between the parties thereto, does not operate to work a merger of a prior lesser estate owned by the grantee when the conveyance has been set aside because of the fraud. To the penalty of the loss of the estate conveyed will not be added the further one of the loss of another interest on the ground of merger. Malloney v. Horan. FREIGHTS. GENERAL TERM. See APPEAL, 1, 4. GIFT. 111 them certain real estate of which See BEATSON v. ELWELL (Mem.), 678. he owned seven-eighths; notes were to be given for a portion of the purchase-money; these were executed and placed in the hands of B. to be delivered to L., when he procured and delivered a deed of the other one eighth, and when he procured a release of a judg ment against F., and also delivered a deed of the seven-eighths. Thereafter defendants, S. and R., induced by fraudulent representa- 1. tions of L., that he had procured and delivered to F. the deed for the one-eighth and the release, received the deed of the seven-eighths and directed B. to deliver the notes, which was done. One of these was transferred to plaintiff with knowledge of the facts, and is the note in suit. The defendants entered into possession of the land upon delivery of the deed, and retained and cut timber thereon after discovery of the fraud. Held, that defendants by retaining the land after the discovery of the fraud affirmed the contract and made the notes valid obligations. Lindsley v. Ferguson. See EVIDENCE, 18. HUSBAND AND WIFE, 3. 623 VENDOR AND VENDEE, 5, 6, 7, 8. 677. 2. To constitute a valid gift mortis causa, three things are necessary: 1st. It must be made with a view to the donor's death. 2d. The donor must die of that ailment or peril. 3d. There must be a delivery. It is not necessary that there should be an express qualification in the transfer or the delivery; it may be found to be such a gift from the attending circumstances, although the transfer or the delivery be absolute. Grymes 17 v. Hone. Defendant's testator being the owner of 120 shares of bank stock, included in one certificate, made an absolute assignment in writing of twenty shares to the plaintiff. This he handed to his wife, to be kept by her and delivered to the plaintiff upon his death. At the time of executing the assignment the donor was about eighty years of age, in failing health, and so continued until his death, which GOLD COIN. See PHILLIPS v. SPEYERE (Mem.), 653. GUARDIAN AND WARD. 1. The specific performance of a 2. In an action for specific perform- 8. The fraudulent or mistaken rep- 4. 5. A guardian will not be allowed 667 Where annual rests in the ac- |