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of the purpose for which it was received, indebted to the bank, but only the banker
and asserts that the larger part of it is de or his assignee is entitled to recover it.—Id.
posited in bank in his name as trustee, but
shows no substantial reason entitling him 3. Where drafts are transmitted by one bank
to retain the same, and a reference has been

to another for the express purpose of col-
ordered to take proof of the matter alleged

lection, a custom of the latter contrary
in the petition of the applicant, the attorney

thereto is not admissible.-Id.
may be ordered to deposit the money in

4. Defendant collected certain drafts sent to
question in court to await the result of the
proceeding.-In re Suenarton v. Shupe, 378.

it by plaintiff for collection but applied the

proceeds, by direction of another party, to
15. There is no distinction between a forged the payment of other commercial paper in
notice of appearance and a notice really

its hands belonging to plaintiff. Held,
given by an attorney not authorized to give

Tbat plaintiff was entitled to recover for
it, and jurisdiction is not acquired in either

such proceeds, even though the violation
case.Burton v. Sherman, 419.

of duty by defendant was not caused by

fraud or collusion.The Bank of Attica v.
16. It is the duty of an attorney, as an officer The Metropolitan Natl Bk., 156.

of the court, to state fairly and candidly
his knowledge of his client's whereabouts 5. Plaintiff left an acceptance with the R.
when called upon to do so by the opposite

bank for collection and credit to its account;
party to an action to enable him to serve a

the R. bank sent it to the bank where it
copy of an injunction obtained in such ac was payable, with directions to remit the
tion, service of which is important for the proceeds to defendant to the credit of the
protection of his rights, and if such attor-

R. bank, which was done in due course of
ney fails to make such statement he may

business; and the R. bank having, without
be charged with the costs and expenses of

defendant's knowledge. failed, Heid, That
a reference to ascertain the whereabouts of defendant was not liable to plaintiff for the
his client.—Baur v. Betz, 551.

proceeds of the draft.-The Charlotte Iron

Works v. The American Ex. Natl Bk., 187.
See ATTACHMENT, 1 ; EVIDENCE, 8.

6. The short statute of limitations of three
BAILMENT.

years contained in $ 394 of the Code ap-

plies to all actions against directors of a
1. Plaintiff delivered wheat to defendants, who bank to enforce legal liabilities, and is not

were millers, and received the following limited to actions for liabilities created by
receipt : • Received of A. 390 bushels of

statute.- Brinkerhoff et al. v. Bostwick et al.,
wlieat in store, subject to him or option to 463.
take price on or before May 1st." Defend.
ants put the wheat in a bin from which 7. The causc of action against a director for
they drew every day for grinding. The negligence or misconduct accrues when the
contents of the mill were destroyed by fire violation of duty is brought to a consum.
before May 1st. Held, Under the terms of mation and not from the time an assessment
the receipt there was a bailment, and de created thereby is imposed.-Id.
fendants are liable for the value of the
wheat. If plaintiff consented to the mix-

8. In 1865 Margaret Ganley deposited two
ture and use of his wheat, there was a sale,

treasury notes with defendant for safe keep-
and defendants are liable as before. - An-

ing and took from its cashier a paper stating
drews v. Richmond et al., 139.

that they were to be delivered to her on sur-

render of the receipt. In 1866 her husband,
BANKRUPTCY.

without her knowledge or subsequent rati-

fication, induced defendant, without pro-
JEE FRAUD, 16; PARTNERSHIP, 11; Trus ducing the receipt, to sell the notes and pay
TEES, 2.

over the proceeds to him. She died in 1869
BANKS.

and no administrator was appointed until

plaintiff was in 1879. The husband died
1. A bank receiving a draft from a banker for

in 1874. Plaintiff produced the receipt
the express purpose of collection acts

and demanded of defendant the notes,
merely as an agent, and can claim no right

which were refused. He then began this
or title thereto by reason of their mutual

action. Held, That the action could be
dealings as against the owner and drawer

maintained.-Ganley v. The Troy City Nat l
thereof, who has the right to stop payment

Bk., 541.
of the draft upon the insolvency of the
bank without being subject to liability as

9. The court will take judicial notice of the
drawer at the suit of the receiver.–Atkin.

fact that treasury notes were first issued

after 1860.-Id.
son v. Stafford, 49.

See USAGE.
2. Nor is such drawer liable to the bank for

BAR.
the amount received by him from the bank-
er as an advance upon the draft, though the 1. In an action for the contract price for a
latter was then ulterly insolvent and largely suit of clothes, where the defense was that

they did not fit as it was agreed that they trict attorney and stating that J.was in dan-
should, the judge charged that if the suit ger of being indicted; that it was in his
was a good fair fit, or if it was accepted by power to stop any such movement; that he
defendant, or if he soiled it so that he could desired to make the District Attorney a
not return it in good condition, plaintiffs present, and that if J.'s father would send
were entitled to recover and the jury found him $75 it would be acceptable. In a prose-
for the plaintiffs. Held, That such judg. cution for blackmail, Held, That it was
ment was a bar to a subsequent action for proper to submit the letter to the jury to
damages for breach of the contract. — Clark determine its meaning and effect ; that it
v. Fox et al., 199.

was immaterial that J. had been previously

discharged on an examination before a
2. The dismissal of a complaint for non-ap magistrate for the same offence, and that it

pearance when the action is called for trial did not matter that 110 person in fact
and the denial of a motion to open such de threatened or was proceeding to indict J.-
fault made upon affidavits without any in. The People v. Thompson, 323.
vestigation into the merits, do not bar at
law or in equity a subsequent action brought 2. Evidence of prior conversations with the
by the defeated party for same relief. person to whom the letter was sent, in which
Miller v. McGuckin et al., 429.

defendant made similar statements and re-

quested money to stop proceedings, is ad-
BASTARDY.

missible as bearing on the intent with which

the letter was written.-Id.
1. A Court of Sessions has no power to allow

an amendment in a bond given on appeal 3. To make out the crime specified in $ 558,
to it by a defendant against whom an order Penal Code, it is not necessary to show that
of filiation has been made.- Ramsey v. the threat was against the person to whom
Childs, 264.

the letter was sent, or that the writer was
See POOR.

the one threatening to do the wrongful act.

-Id.
BAWDY HOUSES.

BONDS.
1. The common law remedy by indictment
against keepers of bawdy houses was not

See BASTARDY ; DISCOVERY, 4 ; FICTITIOUS
abolished or superseded by or inconsistent

NAMES, 3 ; SURETYSHIP, 3 ; UNDERTAKING.
with the provisions of the Code Crim. Pro.
as to disorderly persons. Both proceedings

BRIDGES.
may be taken against the keeper of such a

See HIGHWAYS.
house. The provisions of the statute as to
how the person shall be kept and employed

BROKERS.
at the penitentiary forms no part of the
sentence.— The People ex rel. Van Houten 1. A contract between a principal and his
v. Sadler, 5.

broker that stocks and shares should be

bought by the latter for the former and
BILL OF LADING.

held by him subject to orders which after-
See COMMON CARRIER, 3, 4.

wards might be given for their sale, and,

after they had been sold in that manner,
BILL OF PARTICULARS.

that the differences which might result

from the changes in the market prices of
See NEGLIGENCE, 21; SHERIFFS, 1.

the property should be settled, is a proper

and lawful one, and is not illegal as being
BILL OF SALE.

a gaming contract.-Cunningham y. Stedena
1. When a father-in-law took a bill of sale of

his son.in-law's property and promised in 2. When stocks held by a broker for his
return to pay his debts, some of which were principal under such a contract are sold by
in the form of notes confessedly forged by

the former without authority, it is not
the son-in-law, and where it appeared that necessary to prove a demand of the stocks
the father-in-law was induced to do this,

in order to maintain an action for conver-
not from motives of gain or to destroy evi sion; nor does it interfere with the right of
dence of the crime, but simply from kind the principal to maintain such an action
ness and compassion, Held, That the trans that ihe stocks were bought in the name of
action was legitimate and would be upheld an agent.-Id.
against the claims of bona fide creditors of
the son-in-law.-Hatch et al. v. Collins, 495.

3. To maintain the claim of a broker for his

commissions it is only necessary for him to
See FICTITIOUS NAMES, 1.

show that lie had procured a responsible

purchaser for the property at the price for
BLACKMAIL.

which he was empowered to sell, or that

the principal had deprived him of the
1. Defendant wrote a letter to the father of opportunity to do so while the privilege

one J., representing himself as a deputy dis lasted.-Duclos v, Cunningham, 102.

80n, 82.

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4. In an action by a broker to recover com ing his duties does not make his action or

missions on a sale of real estate where the powers judicial.-Id.
employment of plaintiff and the perform-
ance of services by him in regard to the

3. A conclusion of fact without competent
sale is put in issue by the answer, evidence proof to support it or opposed by a strong
as to conversations between plaintiff and the and decided preponderence of evidence may
purchaser in relation to property is admis-

be assailed by the relator on return to a
sible.Esmond et al. v. Tuttle, 156.

writ of certiorari and reviewed by the

court. - The People ex rel. Brisbane et al. v.
5. An agreement by which a party to whom Zoll et al., 174.

goods are consigned for sale from time to
time is to give acceptances to the amount

4 Defendants reported favorably on a claim
of goods in his hands necessarily implies

of A. against the county. The report was
that the assignee is to have a lien upon the

adopted. They afterwards signed the tax
goods to protect him against such accept-

books and warrants for collection of taxes,
ances.— Nagle v. McFeeters et al., 176.

and adjourned sine die. Thereafter the

money to pay said claim was raised and
6. In an action against brokers for moneys paid to the county treasurer. Held, That

received by thein in a fiduciary capacity it was too late for a taxpayer to intervene
the answer set up that the moneys were the and attempt to prevent payment of the
proceeds of a sale of goods for plaintiff's claim upon the ground of its illegality ;
assignor ; that said assignor, in an action that the jurisdiction of defendants in the
against the vendee, claimed to rescind the matter was at an end.— The People ex rel.
sale and recover the goods ; that such ac Gale The Board of Supervisors of
tion was pending, although judgment was Rensselaer Co., 300.
had therein against such assigpor, and that
such action was a bar. Held, That the de-

See ABANDONMENT, 1, 2; ASSESSMENTS,
fence could not prevail.- Avila v. Lockwood

POLICE.
et al., 485.

CHATTEL MORTGAGE.
BURGLARY.

1. The purchaser at execution sale of property
1. On the trial of an indictment for burglary

subject to a mortgage, the amount of which
the officer who made the arrest testified that

was announced as a condition of the sale,
he met defendant's mother in the hall and

cannot dispute either the validity of the
that she told him defendant was in ; that

mortgage or its amount. The Lake Keuka

Nao. Co. v. Holmes, 32.
she left and returned saying that defendant
had gone out of the back door and attempted 2. A finding of the referee that the facts did
to prevent witness from entering the room

not justify defendant as mortgagee of a
where he found defendant concealed. Held,

chattel in deeming himself unsafe, and in
That the evidence was admissible. The

taking possession of the chattel before
People v. Burns, 197.

default, was held unsupported by the
2. On the trial of an indictment for burglary

evidence ; that defendant had, under the
no testimony can be received respecting the

circumstances, reasonable grounds for be-
commission of another crime. - The People

lieving himself insecure.-Allen v. Vose, 74.
v. White, 383.

3. Such a clause in a mortgage vests in the
CANALS.

mortgagee an absolute discretion to take

possession of the property when he may
1. One whose property is injured by water

deem himself insecure; and the exercise of
percolating from an adjoining canal, the this right does not depend upon the fact
maintenance of which is authorized by

that he has reasonable grounds for believing
legislative enactment, cannot recover there-

himself insecure.-Id.
for against the canal company without

4. G. and W., who owned certain premises
proof of negligence or want of care in its

in which were planing and other machinery
construction or maintenance - Cuddeback v.
The D. & H. C. Co., 454.

for making barrels, executed a mortgage to

one M., who foreclosed the same, bid in the
CERTIORARI.

premises and went into possession, the ma-

chinery remaining on the premises, and
1. An order denying a motion to quash a cer-

subsequently gave a chattel mortgage on
tiorari irregularly or improperly issued in the machinery to plaintiff. Thereafter G.
case not reviewable on certiorariis

and W. gave a chattel mortgage on a por-
appealable.The People ex rel. The 2d Ave.

tion of said machinery to defendant, who
RR. Co. v. The Board of Commissioners of

foreclosed and bid in the property. In an
Public Parks, 93.

action for conversion, Held, Thai plaintiff

could not recover, as his mortgagor had
2. A common law certiorari lies only to in possession of the machinery but never any

ferior tribunals or officers exercising judicial iitle thereto.-Kelsey v. Lyon, 169.
powers. The fact that a public agent ex-
ercises judgment and discretion in perform.

5. A chattel mortgage on a stock of goods
Vol. 20.-No. 25c.

а

which provides that the mortgagor may re-
tain and sell the goods, provided he does
not reduce the stock below a certain amount,
given under an arrangement that he is to
sell the goods and pay the indebtedness as
fast as possible, is fraudulent as to creditors

and void. --Ball v. Slafter, 490.
See ADMIRAJ.TY, 2 ; LEASE, 1, 5.

CHECKS.

See ATTORNEYS, 10; NEGOTIABLE PAPER, 10.

mont, drove over into the State of New
York, and there purchased of defendant
liquor, by which he became intoxicated,
and returning to Vermont be left plaintiff's
horse exposed to the weather ; it sickened
and died. In an action under the Civil
Damage Act to recover the value of the
horse, Held, That plaintiff had ng cause of
action. The statute has no extra-territorial
effect, and the injury for which a recovery
can be had under it must be suffered in this

State. — Goodwin v. Young, 299.
6. In an action under the Civil Damage Act

for a father's death, it appeared that a guard.
ian had been appointed for his children
by the Surrogate, and that this guardian
bad assigned the claims of the infants for
being deprived of their means of support
to plaintiff, their mother. Held, That a
recovery by the mother in this action, both
in her own right and as such assignee, was

proper.Ludicig v. Glaessel, 302.
7. Defendant, after having testified that he

owned the premises where the liquor was
sold, was,

on cross-examination, asked
whether he had not shortly after the com-
mencement of this action put all his pro-
perty in his wife's hands; he answered ihat
he had to. Held, That the question was
immaterial and improper.— Id.

CHEESE MANUFACTURERS.

See Costs, 6.

CIVIL DAMAGE ACT.
1. In an action under the Civil Damage Act

it appeared that defendant's husband was
engaged in carrying on the business of a
hotel-keeper under a lease to him, but that
the defendant was the owner of the goods,
furniture, liquors, etc., contained therein,
by virtue of a bill of sale given for money
loaned to her husband, and had petitioned
the Board of Excise for a license and pre-
sented therewith a bond signed by her, but
there was no proof of any license issued
thereon or that she took possession of and
controlled the goods, etc. The Court
charged the jury that if the goods, etc., in
the hotel were hers, and not his, then, under
the acknowledged facts of the case, the
business of selling intoxicating liquors was
hers and she was liable ; otherwise not ;
and refused to charge that if defendant
owned the goods, etc., and permitted her
husband to have the use of them in bis
business as a hotel-keeper, plaintiff could
not recover. Held, That the charge and the
refusal to charge were error. - Elliott v.

Barry, 75.
2. If a wife contributes to the intoxication of

her husband, by consenting to the use by
him of intoxicating liquor, or aiding him
in procuring it or furnishing it to him, she
is not entitled to recover damages sustained
to her means of support cansed by such in.
toxication, and a refusal so to charge is

error.-Id.
3. In a case brought under the Civil Damage

Act against the owner of the premises the
plaintiff cannot recover exemplary dam-
ages without proof of aggravating circum-
stances with which such owner is con-

nected. — Rawlins v. Vidvard, 158.
4. Plaintiff brought an action, under the Civil

Damage Act, against defendant's testator,
a hotel-keeper, to recover for the death of
her husband while under the influence of
liquor sold by said hotel-keeper. After
answer the testator died. Held, That the
cause of action survived against his estate.

- Moriarty v. Bartlett, 277.
5. The servant of plaintiff, a resident of Ver-

CLOUD ON TITLE.
1. An assessment on lands in Buffalo creates

an apparent lien on the land presumptively
valid, although imposed without authority
of law, and the owner may maintain an ac.
tion as soon as it is laid to have it declared
void as a cloud on his title.-Rumsey et al. v.

The City of Buffalo, 48.
2. The lapse of more than five years from the

time the roll was delivered to the treasurer
does not prove that there is no cloud where
there has been an intermediate sale of the

property.-Id.
3. In an action to remove a tax deed as a

cloud upon the title, which is made pre
sumptive evidence of the regularity of the
tax proceedings, the complaint must allege
facts showing in what particular the pro-
ceedings were irregular or invalid, so that
tbe Court may determine whether the deed
is in fact void. A general allegation that
the proceedings were not taken according
to law, but were illegal and void ; or that
the acts required to be done or performed
had not been done or performed, states no
facts, but merely the conclusions of the
pleader, and is insufficient to rebut the
legal presumption.-Swart v. Boughton et al.,

427.
4. When the complaint is framed for equit-

able relief only, the complaint cannot, upon
demurrer, be sustained as one for the re-
covery of possession of the land, when no
such relief is asked for.-Id.

5. But if the action could be upheld as in

ejectment, the allegations of the complaint
show that defendant is in possession under
a superior title.-Id.

CODE CIVIL PROCEDURE.

See AFFIDAVIT, 1, 3; APPEAL, 11, 14; AT-

TACHMENT, 3; ATTORNEYS, 11 ; BANKS, 6 ;
CONTEMPT, 2, 3; Costs, 5, 8; CREDITORS'
ACTION ; DEPOSITIONS, 1 ; EVIDENCE, 44,
49, 53 ; EXCISE, 2 ; EXECUTION, 3 ; High-
WAYS, 10 ; INTERPLEADER, 1 ; LIMITATION,
4, 6 ; MORTGAGE, 6 ; OFFICE, 2; PLEAD-
ING, 6, 9; PRACTICE, 11 ; REFERENCE, 3 ;
REPLEVIN, 2 ; SALE, 11 ; SHERIFFS, 5, 6 ;
SUMMARY PROCEEDINGS, 5 ; SUPPLEMENT-
ARY PROCEEDINGS; SURROGATES, 4, 5;
Town Bonds, 1 ; VENUE.

it shall be conclusive as to the quantity of
cargo received and to be delivered ; that any
deficiency in the cargo from the quantity
specified shall be paid for by the carrier,
and any excess in the cargo to be paid for to
the carrier by the consignee, the carrier
does not acquire any title to an excess of
the cargo and is not entitled to recover its
value, but is entitled to freight thereon.-

Ford v. Head et al., 364.
5. Where the owner of a canal boat agreed to

carry barrels of beans on deck, but told the
shipper that he did not want to be respon.
sible for their proper covering, as he could
not be personally present at the time and
place of loading, but would furnish the
lumber for that purpose, and the shippers
promised that they would attend to the
covering, but they failed to do so after a
reasonable opportunity afforded, Held,
That the owner having furnished the
lumber, was not responsible for damage to
the beans resulting from an imperfect or
defective covering, made by the captain,
whereby they became wet, etc. -Schwinger
v. Raymond et al., 500.

CODE CRIMINAL PROCEDURE.

See CRIMINAL LAW, 1, 4.

CONSTITUTIONAL LAW.
See JUSTICE OF THE PEACE, 5; OLEOMARGA-

RINE, 2.

CONTEMPT.

COMMON CARRIER.
1. A verbal agreement for carrying freight be-

yond the line of the contracting company
is not merged in a shipping bill which re.
lates only to the transportation to the end
of the contracting company's line. A rail-
road company is bound by its agreement to
carry freight even when part of the route is
over a connecting line.Riley v. The N.

Y., L. E. & W. RR. Co., 27.
2. A railroad company is responsible in dam-

ages for delay in the transportation and de-
livery of stock caused by a “strike,” and
the forcible interference of its employees,
althoughi assisted by outsiders who sympa-
thised with them, and the company had at
all times a sufficient force of faithful em.
ployees to have operated and run the road,
had it not been for such forcible interfer-
ence and the overwhelming power of the
mob. If the “strike” originated with and
was maintained by such employees or
“strikers," and terminated when they saw
fit, the company is responsible for their
acts in preventing the transportation of
freight, and whether it did so originate is a
question of fact for the jury to determine
upon the whole evidence adduced.-Geis-

mer v. The L. S. & M. S. RR. Co., 51.
3. Defendant's agent gave W. a bill of lading

for articles which were never delivered to
defendant, and plaintiff, relying upon the
bill of lading, discounted W 's draft on the
consignee named therein. The draft was
not paid, and W. was not responsible.
Held, That plaintiff's loss is chargeable to
defendant, and the articles are presumed to
have been as stated in the bill of lading,
notwithstanding the presence therein of the
phrase "contents unknown.”The Bank of
Batavia v. The N. Y., L. E. & W. RR. Co.,
151.

1. The fact that a judgment entered in an ac-

tion for a separation directing the payment
of alimony reserves liberty to the plaintiff
to apply for leave to issue execution for the
collection of alimony unpaid, does not pre-
vent the punishment of the defendant as
for a contempt of court for the non-pay-
ment of the alimony so directed to be paid.

-Ryckman v. Ryckman, 129.
2. Section 1773 of the Code of Civil Proced-

ure, authorizing the punishment of the de-
fendant for a contempt for the non-payment
of alimony directed to be paid in a judg-
ment for separation, is applicable to a case
in which the judgment was recovered
under the provisions of the R. S. before the

enactment of said section of the Code.-Id.
3. A motion for the punishment of a defend-

ant in an action for separation as for a con-
tempt of court for the non-payment of
alimony directed to be paid by the judg-
ment in the action cannot be opposed upon
the affidavit of such defendant that he is
unable to make such payment. That is
made the subject-matter of a motion on his
part by S 2286 of the Code of Civil Pro.
cedure.-Id.

See APPEAL, 9.

CONTRACT.

1. By a contract entered into by plaintiff and

one B. the latter agreed to conduct for
plaintiff a series of twelve displays of fire-

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