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notice was published she sent Car Judgment and order affirmed, penter a letter, directed to him at with costs and disbursements. his post-office, and duly deposited Opinion by Barker, J.; Smith, the same in the post-office ; that P. J., Haight and Bradley, JJ., afterwards she and Carpenter had concur. repeated conversations concerning payment of the claim, and that

NON-SUIT. the only reason he gave for non

N. Y. SUPREME COURT. GENERAL payment was that he claimed an offset, which she declined to allow.

TERM. FIFTH DEPT. Carpenter's opposing affidavit says John Grant, applt., v. James that the claim was not presented Keef, respt. within the prescribed time, but

Decided Oct., 1884. that after that time had elapsed he received a notice from plaintiff Where there is a question of fact for the of her claim. The letter is not

consideration of the court, a motion for

non-suit should be denied. produced. The referee allowed less than plaintiff's claim, he Appeal from County Court judg. allowing interest, not from testa- ment, affirming justice's judgtor's death, but from a date be- ment. ginning 18 months later.

Action for alleged warranty on

sale of hogs. At the close of D. B. Beach, for applts.

plaintiff's testimony defendant D. C. Feely, for respt.

moved for “non-suit, on the Held, We think it proper, with ground that the evidence showed out doubting the executor's truth- that plaintiff bought the hogs of ful intent, to rely upon plaintiff's Philip Keef, and not of defendpositive statements, that her claim ant." The motion was granted. was made in time, which was nec- The justice would have been justiessary to entitle her

to costs. fied by the evidence in finding that Code Civ. Proc., SS 1835, 1836; 3 the sale was made by defendant, Denio, 261 ; 3 Wait's Prac., 533. and that it was so treated by

There was no necessity of veri. Philip, who permitted plaintiff to fying the claim. 2 R. S., (3d. Ed.) understand that the hogs belonged 152, § 35; 3 Wait's Prac., 533. to defendant. The evidence tended

When costs are allowed against to prove that defendant affirmthe estate, disbursements follow as atively stated to plaintiff, toinduce matter of course. 3 Wait's Prac., him to buy the hogs, that they 500.

had been castrated when young, The burden of proof was on de- when in fact that was not done fendants to show that the note until a short time before the sale; had never become a complete con that this fact depreciated the value tract by the act of delivery. The of the hogs, which plaintiff bought claim was unreasonably resisted to butcher for the market. When under the rule.

plaintiff saw the hogs before com

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pleting the purchase they were in

Defendants, by written contract, agreed to

purchase of plaintiff certain iron to be a dark pen; he then made his said

shipped in December or January. No such inquiry and received defendant's

shipments were made, and in February statement; he paid for the hogs

plaintiff told defendants he could give them and took them away the same day the iron the following week, or give them and had them butchered; one of

the name of a vessel to sail that month. De

fendants expressed themselves better satisthem was not fully healed, and

fied with the latter arrangement, but before when they were butchered the the vessel arrived rescinded the contract. hams indicated that the castration Held, That the omission to furnish iron had been recently done.

shipped in December or January authorized W. T. Byam, for applt.

the rescission, and that the verbal arrange

ment subsequently made could not vary the T. P. Heddon, for respt.

substance of the contract and was not bindHeld, Error. Defendant must

ing on defendants. rely on the specific ground on

This action was brought against which his motion was made. 16 defendants for not accepting a Hun, 683. That ground not being quantity of iron which plaintiff tenable, judgment should be re sold to them under a written conversed, unless there was no evi-tract, executed in the City of New dence that could in any view York, by which defendant agreed justify a conclusion in plaintiff's to purchase at a price specified favor. 70 N. Y., 34, 37; 49 id.,

one hundred tons No. 1 Eglington 671;1 Abb. Dec., 432; 11 Abb. N. Scotch iron, for shipment by sail, C., 305.

The justice was author- in December, 1879, or January, ized to find a warranty by defend - 1880, seller's option. The iron was ant. 53 Barb., 601; 19 Johos., not shipped as agreed. In Febru290; 10 Wend., 411; 51 N. Y., 198. ary, 1880, plaintiff informed deIt was a fair question of fact fendants that he could give them whether plaintiff was careless and the iron in the week following or within the rule of caveat emptor, he could give them a vessel's name 2 Cai., 202; 34 Barb., 367; and that

to sail from Great Britain that question does not seem to arise on month. They expressed themselves this appeal. 44 Barb., 536; 2 Cai.,

as better satisfied with the later 48, 53; 1 Wend., 188-9; 5 N. Y., shipinent. On February 26th the 98; 34 id., 120; 41 id., 488.

plaintiffs wrote defendants. "I am Judgment reversed.

advised that the 100 tons Eglington Opinion by Bradley, J.; Smith, pig iron sold last month is shipped P. J., Barker and Haight, JJ., per 'Enos Soule' from Liverpool concur.

(or London), reported as leaving

21st inst.” He received no reply CONTRACT.

or other communication from de

fendants until April 8, 1880, when N. Y. COURT OF APPEALS.

they gave him notice in writing Hill, applt., v. Blake et al., that they had cancelled the conrespts.

tract for non-delivery according Decided Nov. 25, 1884.

to its terms. The “Enos Soule'

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arrived with iron on board, and on

BASTARDY. AMENDMENT. the 23d of April it was tendered to defendants, but they refused N. Y. SUPREME COURT. GENERAL to receive it, and plaintiff, after

TERM. THIRD DEPT. notice, sold the iron for $1,444.37

William W. Ramsey, overseer, less than the price named in the respt., v. David Childs, applt. contract, and now claims to recover that sum.

Decided Sept., 1884. Thos. H. Rodman, for applt.

A Court of Sessions has no power to allow

an amendment in a bond given on appeal Thos. Darlington, for respts.

to it by a defendant against whom an order

of filiation has been made. Held, That plaintiff was not entitled to recover ; that the omission From an order of filiation made to furnish iron shipped in De- against him, defendant appealed cember or January authorized to the Court of Sessions. He gave defendants to rescind the contract. an undertaking for his appearance 89 N. Y., 540. The verbal arrange at that court, which was condi. ment subsequently made related tioned that defendant should not to the thing sold or contracted for depart the county without leave and is not binding upon de- of said court. The proper confendants.

dition is fixed by Code Crim. Pro.. The substance of a contract valid $ 851, sub. 2: That defendant will only because in writing cannot be appear at the next Court of Sesvaried by parol.

sions of the county, to answer the No estoppel has arisen against charge and obey its order therein. defendants, there being nothing to Upon the ground of this defect show that plaintiff, in consequence respondent, at the Court of Sesof what was said, omitted to pro. sions, got the appeal dismissed, vide iron according to the contract, and the Court denied the appellant or that he could have provided leave to amend the undertaking. it had no words passed with de- He appeals. fendant.

J. H. Bain, for applt. It is not necessary to inquire H. P. Gwinup, for respt. whether the mere time of perform Held, That the undertaking was ance might be waived by parol, the defective, and that the Court of only question being as to the Sessions had no power to allow an identity of the thing sold.

amendment. The undertaking is Judgment of General Term, to be approved by the magistrate, affirming judgment of non-suit, and we see no authority for the affirmed.

court to accept a new undertaking, Opinion by Danforth, J. All We doubt whether SS 729 and 730 concur, except Ruger, Ch. J., and of the Code of Civil Procedure Earl, J., dissenting, and Rapallo, apply. Another objection is that J., absent.

the offer to amend is by the de-
fendant only. It does not appear

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that the surety consents to this, I additional sum. In order to close and without that consent no the matter defendants, who were amendment could be made. Code the other members of the firm of Civ. Pro., $ 730.

Sibley & Co., orally promised Order affirmed.

Briggs that if he would accede to Opinion by Learned, P. J.; Mr. Sibley's demands they would Bockes and Landon, JJ., concur. themselves pay him the additional

price. Briggs agreed to this, and

this action is brought on that CONTRACT.

promise. The property was delivN. Y. SUPREME COURT. GENERAL ered to Sibley & Co. TERM. FIFTH DEPT.

H. H. Woodward, for applt,

Stark weather. Nathan Pond, assignee, respt.,

Smith & Briggs, for applt, Avv. Chauncy J. Starkweather et al., erill. applts.

J. & Q. Van Voorhis, for respt. Decided Oct., 1884.

Held, That legally defendants B. was negotiating for a sale of chattels to a

were not individual parties to the partnership, one of the members of which written contract. The partnership objected to certain terms of B.'s offer ; was the party, and was separate thereupon the other two members of the and distinct from the individuals firm agreed orally with B. that if he would

who composed it. 11 Wall., 484; accede to iheir partner's wishes they would themselves pay B. according to the objec. 52 N. Y., 158; 93 id., 233. tionable terms. Held, That the oral prom

The oral promise was binding. ise was a distinct contract and binding upon 13 Hun, 301; 44 Barb., 547; 36 id., the promisors.

584. That it was not in writing Appeal from judgment un ver does not inake it void. The sale dict at Circuit, and from order was to the firm, not to defendants. denying new trial.

Judgment and order affirmed. The assignor was party to a con Opinion by Barker, J.; Smith, tract the caption of which recited P. J., Bradley and Corlett, JJ., that it was an agreement be concur. tween Charles W. Briggs, as party of the first part, and Hiram Sibley

PARTNERSHIP. & Co., as party of the second part.

N. Y. COURT OF APPEALS. The agreement was a contract of sale of personal property, and was George et al., applts., v. Grant executed on the part of Sibley & et al., respts. Co. by each member signing his name and attaching his seal.

Decided Nov. 25, 1884. During the negotiations Mr. Sibley A mortgage given by a special partner to insisted that there should be in raise money with which to pay his individ.

ual debts when either he or the firm is included in the stated purchase price

solvent is not void as preferential, under 1 certain articles for which Briggs

R. S., 767, $ 21. insisted that he should be paid an As to whether an assignment, transfer or

Vol. 20.–No. 12.

mortgage by a general or special partner of obtained the loan, was aware of his his individual property to secure his indi

own insolvency and of the insolvvidual debts made at a time when either he

There was or the firm is insolvent is prohibited under ency of V. D. & Co. that section, quære.

no proof that G., when he took Affirming S. C., 15 W. Dig., 402.

the mortgage, had no such knowlThis was a creditor's suit to set edge or notice.

The mortgage aside certain mortgages, amount

was foreclosed before this action ing in the aggregate to $70,000, was commenced and the premises made by defendant P., a special sold and bid in by the defendant partner in the firm of V. D. & F. for the benefit of the mortgagee. Co., alleged to have been made in B. F. Blair, for applts. violation of $ 21 of the Act of

Samuel Hand and G. Foster, Limited Partnerships, 1 R. S., 767. for respts. The mortgages were dated Novem Held, That this action cannot be ber 11, 1876, upon the individual maintained, for the reason that the property of P., and were executed mortgages in suit were not upon by him to the defendant G. as se the facts proved preferential secucurity for advances made to him rities within the 21st section of at and soon after that date and for the statute as to Limited Partnera debt then owing by P. to G. ships. That section avoids secu . The plaintiffs are judgment credit. rities created by the special part. ors of the firm of V. D. & Co. upon ner with "intent of giving to any an indebtedness which accrued creditor of his own or of the prior to the execution of the mort partnership a preference over credgage. The evidence tended to itors of the partnership.” So far as show that P. was insolvent when the mortgages were given to secure the mortgage was executed, and the individual debt of $2,500 they on December 18, 1876, made a were void. This did not invalidate general assignment of his property the entire security. The mort . for the benefit of creditors. The gages did not create or secure any firm of V. D. & Co. was also in- preference. The preference, if solvent when the mortgages were any existed, resulted from the executed, but its insolvency was application of the money after it not openly declared until Decem- had been advanced by the mortber 26, 1876, when it also executed gagee and received by the morta general assignment for the bene- gagor. As to whether under secfit of its creditors. P. obtained tion 21 of the Limited Partnership the loan from G. for the purpose Act, 1 R. S., 767, which declares of paying his individual debts, void as to creditors of the firm, among others one of $21,500, due Every such sale, assignment or the firm of G. & Co., of which the transfer of any of the property or mortgagee was a member, and the effects of a general or special money was advanced for this pur- partner made by such general or pose and so applied. The evidence special partner when insolvent, tended to show that P., when ne or in contemplation of insolvency

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