that date, provided that no rights of other
parties intervene.-Camp v. Buxton, 479.
See ATTACHMENT, 4; COSTS, 1; LEASE, 1, 2;
SHERIFFS, 1.
1. Plaintiff's goods were seized and sold under
an attachment issued by a court of general
jurisdiction against him as non-resident.
After the sale an attorney appeared for
plaintiff, who it appeared had not author-
ized such appearance. In an action for con-
version, Held, That the jurisdiction of the
court did not depend upon the appearance
of an attorney, but upon the attachment and
due publication of a summons, and that its
action must be presumed to be valid.-
Remond v. Easton et al., 41.
2. A claim that the defendants were only lia-
ble severally, although sued jointly, should
be pleaded as a defence in that action, and
cannot be raised for the first time in a sub-
sequent action.-Id.
3. An affidavit made by the agent of plaintiff
for the purpose of procuring an attachment,
stating that a certain sum is due the plain-
tiff over and above all counterclaims known
to deponent, does not comply with the re-
quirement of the Code, that such sum
should be stated to be over and above all
counterclaims, etc., known to plaintiff, and
will not sustain attachment. Smith et al.
v. Arnold et al., 42.
4. A statement in an affidavit upon which an
attachment is granted, that deponent "begs
leave to refer to a general assignment for
the benefit of creditors, executed by the de-
fendant and the inventories filed in connec-
tion therewith, and to make the same a
part of the moving papers herein," is not
sufficient to entitle plaintiff to read said as-
signment and inventories in evidence upon
a motion to vacate the attachment made
upon the papers upon which it was granted.
-Id.
5. The sheriff is not entitled to additional
compensation for his trouble and expenses
in taking possession of and preserving prop-
erty seized under an attachment when the
property attached consists of a debt owing
to defendant and the attachment is made
by serving a copy of the attachment with
notice stating the seizure to the debtors.-
Marfield et al. v. Taylor et al., 121.
6. The sheriff is not entitled to charge a gross
sum for making an inventory of property
seized under an attachment. He must
charge by the number of folios contained
therein.-Id.
7. The sheriff has the right to bring an action
for the recovery of a debt seized by him
under an attachment and as incidental to
that right he is entitled to be allowed the
expenses incurred by him in the proceed-
ings taken in that manner. --Id.
8. A debt which has been fraudulently con-
tracted, the debtor having obtained credit
upon false representations of solvency, be-
comes due immediately upon the discovery
of such fraud, and an action may be com-
menced to recover it and an attachment
issued, notwithstanding the fact that the
credit given has not expired at the time of
the commencement of such action and
issuance of the attachment.-Muser v Liss-
ner, 319.
9. Where an affidavit for an attachment is
properly made by an agent who personally
transacted the particular business with de-
fendant and is acquainted with all the
facts, a statement that the amount alleged
is due "
over and above all set offs, etc.,
which defendant has against him," is suf-
ficient. Frankel v. Hays et al., 417.
10. The presumption is that the date of a note
was the day of its delivery.-Id.
11. An affidavit stated that defendants had a
stock of goods two and a half years ago
worth $40,000, and borrowed during that
time $45,000; that they admitted to de-
ponent that they have been doing a not
unprosperous business; that their branch
stores have been making money instead of
losing; that their stock has greatly diminish
ed in quantity and value, and they say they
cannot account for it, and have nothing to
show for it; that they are insolvent; and
that one of defendants proposed a scheme
for the purpose of defrauding certain
creditors of the firm. Held, Sufficient, in
the absence of denial or explanation. The
affidavit need not state that an action has
been commenced.-Id.
12 The court cannot order an affidavit made
subsequently to the granting of an attach-
ment to be filed nunc pro tunc of the date
when the attachment was granted, and with
the same force and effect as if the same had
been read on the motion for said attach-
ment, and consider the same in support of
the attachment upon a motion to vacate it
made upon the affidavits upon which it was
granted.-Sutherland et al. v. Bradner,
impld., 523.
See APPEAL, 6, 7; ARREST ; ASSIGNMENT
FOR CREDITORS, 2; COSTS, 9; EXECUTION,
3; SHERIFFS, 2-4.
1. Where an attorney's name continued for-
mally on the record of a case as the attor-
ney of one of the defendants, when he had
really withdrawn from the case, Held, That
he was not entitled to costs for the subse-
quent services performed by another attor-
ney for both defendants.-The Town of
Wheatland et al. v. Taylor et al., 33.
2. Evidence that plaintiff was requested by
defendants' attorney to assist him in pro-
ceedings before the surrogate to prove a
will; that when they appeared before the
surrogate defendants were present, and it
was announced in their presence and hear-
ing that plaintiff appeared as counsel for
the executors, who were the defendants;
that the hearing occupied several days, and
that some of the defendants were present
each day; that he drew objections to a
codicil, drafted the petition of appeal, and
prepared a brief thereof, is sufficient,
though contradicted, to warrant the jury in
finding an employment by defendants.-
Tucker v. Staunton et al., 43.
3. An attorney and counsel has the authority,
arising out of his relation to the party em-
ploying him, to do all legal acts in the pros-
ecution of the legal proceedings in which
he is employed, or required to secure an
intelligent and just disposition thereof.-
Foland v. Dayton, 59.
4. In an action brought by the plaintiff to re-
cover for services rendered defendant in
preparing documents used in a legal pro-
ceeding which was prosecuted by the de-
fendant, it was proposed to be shown that
the attorney for the defendant in that pro-
ceeding had requested plaintiff to prepare
the documents. This evidence was
cluded. Held, Error.-Id.
5. A promise by an attorney to repay a sum
of money which his client had been com-
pelled to pay by reason of his mistake or
negligence is founded upon a good consid-
eration, and is a proper subject of counter-
claim in a suit for services.-Tucker v. Ely,
66.
6. An attorney-at-law who is employed to
prevent or avoid apprehended proceedings
for the foreclosure of a mortgage, and who
for that purpose receives money to apply
in paying the interest due upon the mort-
gage, receives such money while acting in
a professional capacity, and by converting
such money to his own use subjects himself
to the summary control and power of the
court. In re application of Larner, 73.
7. Although as a general principle an attor-
ney has a lien for compensation for his
services upon the fund of his client which
may be received by him, such lien does not
attach to money delivered to him by his
client for a specific purpose to which he
agrees to apply it.-Id.
8. Section 68, 2 R. S., 287, refers to deceit
and collusion practiced by an attorney in
a suit actually pending in court, with in-
tent to deceive the court or the party, and
not to what passes between an attorney and
his client before any action has been com-
menced.-Looff et al. v. Lawton, 309.
9. Where a judgment has been recovered in
an action the attorney has no authority to
compromise, satisfy or vacate it without
actual satisfaction -Zapp v. Miller, 321.
10. When, after a judgment has been ren-
dered setting aside a conveyance of land by
a ward shortly after coming of age to her
late guardian, the consideration of which
was a check given by the latter, the attorney
for the plaintiff, without authority from
her, procures the certification of the check,
such act on the part of the attorney will
not bind the plaintiff, and she cannot be
held thereby to have made the check her
own and have affirmed the transactions
which the action was brought to vacate and
rescind, and the endorsement of the certi-
fied check by the plaintiff for the purpose
of returning it to the drawer is not a ratifi-
cation of the act of her attorney in causing
it to be certified.—Id.
11. Under § 3278, Code Civ. Proc., making
the attorney liable for costs to the extent of
$100 where security has not been given on
behalf of a non-resident plaintiff, if the
plaintiff and his family are domiciled in
another State he is deemed a non-resident,
though at the time the action was begun,
and for many years previous, he was en
gaged in business in New York City.-
Krom v. Kursheedt, 339.
12. That the attorney brought the action in
good faith, supposing plaintiff resided here,
is no defense to his liability, nor is the
omission of the defendant to demand secu-
rity during the pendency of the action a
defense.--Id.
13. When a dispute arises between an attor-
ney and client concerning the amount of
the former's charges for services performed
in an action, the court, upon motion there-
in, may refer it to a referee to hear and de-
termine the subject in controversy and
report to the court, but such order cannot
provide that the attorney shall bear the ex-
penses of the reference and the costs of the
motion unless he establishes a lien to a
certain amount upon the judgment recov-
ered in the action. Although the attorney
may not appear upon such a reference he
still has the right to insist from the evidence
taken and filed that the report was not au-
thorized by it, and the regalar mode for
doing that is by filing exceptions within
eight days after the service of notice of
filing the report and the evidence, and if no
opportunity to file such exceptions is given
before an application for the confirmation
of the report, an order confirming it is ir
regular and will be reversed.-Amsdell et al.
v. Martin, 370.
14. On an application to compel an attorney
to pay over money received as trustee from
his client to pay out in a specified way and
for a certain purpose which was not ac-
complished, when the attorney does not
deny the receipt of the money or the failure
of the purpose for which it was received,
and asserts that the larger part of it is de-
posited in bank in his name as trustee, but
shows no substantial reason entitling him
to retain the same, and a reference has been
ordered to take proof of the matter alleged
in the petition of the applicant, the attorney
may be ordered to deposit the money in
question in court to await the result of the
proceeding. In re Swenarton v. Shupe, 378.
15. There is no distinction between a forged
notice of appearance and a notice really
given by an attorney not authorized to give
it, and jurisdiction is not acquired in either
case.-Burton v. Sherman, 419.
16. It is the duty of an attorney, as an officer
of the court, to state fairly and candidly
his knowledge of his client's whereabouts
when called upon to do so by the opposite
party to an action to enable him to serve a
copy of an injunction obtained in such ac-
tion, service of which is important for the
protection of his rights, and if such attor
ney fails to make such statement he may
be charged with the costs and expenses of
a reference to ascertain the whereabouts of
his client.-Baur v. Betz, 551.
See ATTACHMENT, 1; EVIDENCE, 8.
1. Plaintiff delivered wheat to defendants, who
were millers, and received the following
receipt: Received of A. 390 bushels of
wheat in store, subject to him or option to
take price on or before May 1st.' Defend-
ants put the wheat in a bin from which
they drew every day for grinding. The
contents of the mill were destroyed by fire
before May 1st. Held, Under the terms of
the receipt there was a bailment, and de-
fendants are liable for the value of the
wheat. If plaintiff consented to the mix-
ture and use of his wheat, there was a sale,
and defendants are liable as before.-An-
drews v. Richmond et al., 139.
SEE FRAUD, 16; PARTNERSHIP, 11; TRUS-
TEES, 2.
1. A bank receiving a draft from a banker for
the express purpose of collection acts
merely as an agent, and can claim no right
or title thereto by reason of their mutual
dealings as against the owner and drawer
thereof, who has the right to stop payment
of the draft upon the insolvency of the
bank without being subject to liability as
drawer at the suit of the receiver.-Atkin
son v. Stafford, 49.
2. Nor is such drawer liable to the bank for
the amount received by him from the bank-
er as an advance upon the draft, though the
latter was then utterly insolvent and largely
indebted to the bank, but only the banker
or his assignee is entitled to recover it.-Id.
3. Where drafts are transmitted by one bank
to another for the express purpose of col-
lection, a custom of the latter contrary
thereto is not admissible.-Id.
4. Defendant collected certain drafts sent to
it by plaintiff for collection but applied the
proceeds, by direction of another party, to
the payment of other commercial paper in
its hands belonging to plaintiff. Held,
That plaintiff was entitled to recover for
such proceeds, even though the violation
of duty by defendant was not caused by
fraud or collusion.-The Bank of Attica v.
The Metropolitan Nat'l Bk., 156.
5. Plaintiff left an acceptance with the R.
bank for collection and credit to its account;
the R. bank sent it to the bank where it
was payable, with directions to remit the
proceeds to defendant to the credit of the
R. bank, which was done in due course of
business; and the R. bank having, without
defendant's knowledge, failed, Heid, That
defendant was not liable to plaintiff for the
proceeds of the draft.-The Charlotte Iron
Works v. The American Ex. Nat'l Bk., 187.
6. The short statute of limitations of three
years contained in § 394 of the Code ap-
plies to all actions against directors of a
bank to enforce legal liabilities, and is not
limited to actions for liabilities created by
statute.-Brinkerhoff et al. v. Bostwick et al.,
7. The cause of action against a director for
negligence or misconduct accrues when the
violation of duty is brought to a consum-
mation and not from the time an assessment
created thereby is imposed.-Id.
8. In 1865 Margaret Ganley deposited two
treasury notes with defendant for safe keep-
ing and took from its cashier a paper stating
that they were to be delivered to her on sur-
render of the receipt. In 1866 her husband,
without her knowledge or subsequent rati-
fication, induced defendant, without pro-
ducing the receipt, to sell the notes and pay
over the proceeds to him. She died in 1869
and no administrator was appointed until
plaintiff was in 1879. The husband died
in 1874. Plaintiff produced the receipt
and demanded of defendant the notes,
which were refused. He then began this
action. Held, That the action could be
maintained.-Ganley v. The Troy City Nat'l
Bk., 541.
9. The court will take judicial notice of the
fact that treasury notes were first issued
after 1860.-Id.
1. In an action for the contract price for a
suit of clothes, where the defense was that
they did not fit as it was agreed that they
should, the judge charged that if the suit
was a good fair fit, or if it was accepted by
defendant, or if he soiled it so that he could
not return it in good condition, plaintiffs
were entitled to recover and the jury found
for the plaintiffs. Held, That such judg-
ment was a bar to a subsequent action for
damages for breach of the contract.-Clark
v. Fox et al., 199.
2. The dismissal of a complaint for non-ap-
pearance when the action is called for trial
and the denial of a motion to open such de-
fault made upon affidavits without any in-
vestigation into the merits, do not bar at
law or in equity a subsequent action brought
by the defeated party for same relief.-
Miller v. McGuckin et al., 429.
1. A Court of Sessions has no power to allow
an amendment in a bond given on appeal
to it by a defendant against whom an order
of filiation has been made.-Ramsey v.
Childs, 264.
1. The common law remedy by indictment
against keepers of bawdy houses was not
abolished or superseded by or inconsistent
with the provisions of the Code Crim. Pro.
as to disorderly persons. Both proceedings
may be taken against the keeper of such a
house. The provisions of the statute as to
how the person shall be kept and employed
at the penitentiary forms no part of the
sentence.-The People ex rel. Van Houten
v. Sadler, 5.
BILL OF LADING.
See COMMON CARRIER, 3, 4.
BILL OF PARTICULARS.
See NEGLIGENCE, 21; SHERiffs, 1.
BILL OF SALE.
1. When a father-in-law took a bill of sale of
his son-in-law's property and promised in
return to pay his debts, some of which were
in the form of notes confessedly forged by
the son-in-law, and where it appeared that
the father-in-law was induced to do this,
not from motives of gain or to destroy evi-
dence of the crime, but simply from kind-
ness and compassion, Held, That the trans-
action was legitimate and would be upheld
against the claims of bona fide creditors of
the son-in-law. -Hatch et al. v. Collins, 495.
See FICTITIOUS NAMES, 1.
1. Defendant wrote a letter to the father of
one J., representing himself as a deputy dis-
trict attorney and stating that J. was in dan-
ger of being indicted; that it was in his
power to stop any such movement; that he
desired to make the District Attorney a
present, and that if J.'s father would send
him $75 it would be acceptable. In a prose-
cution for blackmail, Held, That it was
proper to submit the letter to the jury to
determine its meaning and effect; that it
was immaterial that J. had been previously
discharged on an examination before a
magistrate for the same offence, and that it
did not matter that no person in fact
threatened or was proceeding to indict J.-
The People v. Thompson, 323.
2. Evidence of prior conversations with the
person to whom the letter was sent, in which
defendant made similar statements and re-
quested money to stop proceedings, is ad-
missible as bearing on the intent with which
the letter was written.-Id.
3. To make out the crime specified in § 558,
Penal Code, it is not necessary to show that
the threat was against the person to whom
the letter was sent, or that the writer was
the one threatening to do the wrongful act.
-Id.
See BASTARDY; DISCOVERY, 4; FICTITIOUS
NAMES, 3; SURETYSHIP, 3; UNDERTAKING.
1. A contract between a principal and his
broker that stocks and shares should be
bought by the latter for the former and
held by him subject to orders which after-
wards might be given for their sale, and,
after they had been sold in that manner,
that the differences which might result
from the changes in the market prices of
the property should be settled, is a proper
and lawful one, and is not illegal as being
a gaming contract.-Cunningham v. Steven-
son, 82.
2. When stocks held by a broker for his
principal under such a contract are sold by
the former without authority, it is not
necessary to prove a demand of the stocks
in order to maintain an action for conver
sion; nor does it interfere with the right of
the principal to maintain such an action
that the stocks were bought in the name of
an agent.-Id.
3. To maintain the claim of a broker for his
commissions it is only necessary for him to
show that he had procured a responsible
purchaser for the property at the price for
which he was empowered to sell, or that
the principal had deprived him of the
opportunity to do so while the privilege
lasted.-Duclos v. Cunningham, 102.
4. In an action by a broker to recover com-
missions on a sale of real estate where the
employment of plaintiff and the perform-
ance of services by him in regard to the
sale is put in issue by the answer, evidence
as to conversations between plaintiff and the
purchaser in relation to property is admis-
sible.-Esmond et al. v. Tuttle, 156.
5. An agreement by which a party to whom
goods are consigned for sale from time to
time is to give acceptances to the amount
of goods in his hands necessarily implies
that the assignee is to have a lien upon the
goods to protect him against such accept-
ances.-Nagle v. McFeeters et al., 176.
6. In an action against brokers for moneys
received by them in a fiduciary capacity
the answer set up that the moneys were the
proceeds of a sale of goods for plaintiff's
assignor; that said assignor, in an action
against the vendee, claimed to rescind the
sale and recover the goods; that such ac-
tion was pending, although judgment was
had therein against such assignor, and that
such action was a bar. Held, That the de-
fence could not prevail.-Avila v. Lockwood
et al., 485.
1. On the trial of an indictment for burglary
the officer who made the arrest testified that
he met defendant's mother in the hall and
that she told him defendant was in; that
she left and returned saying that defendant
had gone out of the back door and attempted
to prevent witness from entering the room
where he found defendant concealed. Held,
That the evidence was admissible.-The
People v. Burns, 197.
2. On the trial of an indictment for burglary
no testimony can be received respecting the
commission of another crime.-The People
v. White, 383.
1. One whose property is injured by water
percolating from an adjoining canal, the
maintenance of which is authorized by
legislative enactment, cannot recover there-
for against the canal company without
proof of negligence or want of care in its
construction or maintenance -Cuddeback v.
The D. & H. C. Co., 454.
1. An order denying a motion to quash a cer-
tiorari irregularly or improperly issued in
a case not reviewable on certiorari is
appealable.-The People ex rel. The 2d Ave.
RR. Co. v. The Board of Commissioners of
Public Parks, 93.
2. A common law certiorari lies only to in-
ferior tribunals or officers exercising judicial
powers. The fact that a public agent ex-
ercises judgment and discretion in perform.
Vol. 20.-No. 25c.
ing his duties does not make his action or
powers judicial.—Id.
3. A conclusion of fact without competent
proof to support it or opposed by a strong
and decided preponderence of evidence may
be assailed by the relator on return to a
writ of certiorari and reviewed by the
court. The People ex rel. Brisbane et al. v.
Zoll et al., 174.
4 Defendants reported favorably on a claim
of A. against the county. The report was
adopted. They afterwards signed the tax
books and warrants for collection of taxes,
and adjourned sine die. Thereafter the
money to pay said claim was raised and
paid to the county treasurer. Held, That
it was too late for a taxpayer to intervene
and attempt to prevent payment of the
claim upon the ground of its illegality;
that the jurisdiction of defendants in the
matter was at an end.-The People ex rel.
Gale V. The Board of Supervisors of
Rensselaer Co., 300.
See ABANDONMENT, 1, 2; ASSESSMENTS, 2;
POLICE.
CHATTEL MORTGAGE.
1. The purchaser at execution sale of property
subject to a mortgage, the amount of which
was announced as a condition of the sale,
cannot dispute either the validity of the
mortgage or its amount.-The Lake Keuka
Nav. Co. v. Holmes, 32.
2. A finding of the referee that the facts did
not justify defendant as mortgagee of a
chattel in deeming himself unsafe, and in
taking possession of the chattel before
default, was held unsupported by the
evidence; that defendant had, under the
circumstances, reasonable grounds for be-
lieving himself insecure.-Allen v. Vose, 74.
3. Such a clause in a mortgage vests in the
mortgagee an absolute discretion to take
possession of the property when he may
deem himself insecure; and the exercise of
this right does not depend upon the fact
that he has reasonable grounds for believing
himself insecure.-Id.
4. G. and W., who owned certain premises
in which were planing and other machinery
for making barrels, executed a mortgage to
one M., who foreclosed the same, bid in the
premises and went into possession, the ma-
chinery remaining on the premises, and
subsequently gave a chattel mortgage on
the machinery to plaintiff. Thereafter G.
and W. gave a chattel mortgage on a por-
tion of said machinery to defendant, who
foreclosed and bid in the property. In an
action for conversion, Held, That plaintiff
could not recover, as his mortgagor had
possession of the machinery but never any
title thereto.-Kelsey v. Lyon, 169.
5. A chattel mortgage on a stock of goods
|