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 ADMIRALTY, 2; LEASE, 1, 5.

CHECKS.

See ATTORNEYS, 10; NEGOTIABLE PAPER, 10.

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 his
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 caused 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-

mont, drove over into the State of New
York, and there purchased of defendant
liquor, by which he became intoxicated,
and returning to Vermont he 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 no 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
had 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. Ludioig 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 that
he had to. Held, That the question was
immaterial and improper.- Id.

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
the 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.

CODE CRIMINAL PROCEDURE.

See CRIMINAL LAW, 1, 4.
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,
although 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.

4. Under a bill of lading which provides that

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
Îumber 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.

CONSTITUTIONAL LAW.

See JUSTICE OF THE PEACE, 5; OLEOMARGA-
RINE, 2.

CONTEMPT.

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 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-

works at Coney Island during the season,
and plaintiff agreed to erect for B. certain
sheds suitable to be used in manufacturing
and storing fireworks and to pay him about
$500 upon the execution of the contract
and $300 after each exhibition, and it was
also agreed that the cost incurred by plain-
tiff in erecting the sheds should be taken as
representing the last payment, and that at
the conclusion of the series of displays the
sheds should be disposed of for the benefit
of B. This contract was not carried out by
B., who gave only eight displays instead of
twelve. Held, That the title to the sheds
did not pass to B., and that the defendants,
who purchased the sheds from B. with
knowledge of plaintiff's claim, acquired no
title.-Foote v. Warden et al., 28.

2. When it is usual for the ice in a certain
harbor to break up and navigation to open
in the last of February or first of March,
the loading of a cargo on board a ship in
that harbor on the 3d of February is a ful-
fillment of a contract entered into on the 2d
of February, requiring "prompt ship-
ment," although on account of the very
unusual severity of the winter the ice does
not break up and the ship leave port until
the 3d of April.-Tobias et al. v. Lissberger,

4. A contract for the exchange of lands pro-
vided that "either party failing to comply
with this agreement shall forfeit to the
other the sum of $1,000." Held, That the
sum named was a penalty and not liqui-
dated damages, and that in case of a failure
to perform the measure of damage should
be the damage actually resulting therefrom.
-Lauren v. Bernauer, 76.

5. An agreement made by parties having liens
upon property about to be sold at public
sale to refrain from bidding at the sale is
not against public policy as preventing
competition at such sale, provided it was
fairly made to protect the lien of the par-
ties.-Meyers v. Doeman, 111.

6. Such an agreement is sufficient considera-
tion to support a contract.-Id.

7. A contract with the city for the regulating
and grading of a certain street contained a
provision authorizing the city to retain out
of the moneys which might be due or be-
come due to the contractor under the
agreement, as liquidated damages and not
as penalty for the non-completion of the

work within a time specified, a certain sum
for each day that the time taken to com-
plete such work exceeded the stipulated
time. Held, That the sum so forfeited was
stipulated damages and not a penalty.-
Reilley v. The Mayor, &c., of N. Y., 130.

8. Plaintiff entered into a contract to varnish
cases to be furnished by defendant, the
work to be done on defendant's premises
and to be examined and pronounced satis
factory by defendant before it was accepted
and paid for. A fire occurred which de-
stroyed the premises and contents, includ-
ing cases finished and partly finished by
plaintiff. Held, That he was entitled to
recover on quantum meruit for the work
done although it had not been inspected.—
Whelan v. The Ansonia Clock Co., 137.

9. Parol evidence is inadmissible to show that
the parties to a written agreement intended
something not embraced within the mean-
ing of the language of the writing.-Ely v.
Phelps, 147.

10. The law will not imply an unwritten con-
tract which the parties to it could not make
without writing.-Chase v. The Second Ave.
RR. Co., 150.

11. Plaintiff entered into a written contract
with defendant whereby he was to have
the exclusive right to place advertisements
in its cars for two years. It was claimed
that defendant having allowed plaintiff to
hold over after the expiration of the con-
tract, it was thereby renewed for two years.
Held, That a contract such as is sought to
be implied would be void under the statute
of frauds; the plaintiff by using the cars
after the first term acquired no new rights,
and that the case was not one where the doc-
trine of estoppel in pais could be invoked. —
Id.

12. Where the offeree either in words or in
effect departs from the proposition, or varies
the terms of the offer, or substitutes for
the contract tendered one more satisfactory
to himself, there is no assent and no con-
tract, unless the offerer actually signifies
his assent to the proposition as modified or
varied. An actual forbearance of the debt
for the time specified in the modified ac-
ceptance of the offeree, but without any
communication of assent to give such time,
is not sufficient to constitute a contract and
render the offeree liable.-Nundy v. Mat-
thews, 161.

13. A subsequent recognition by the parties
that a valid contract existed between them
is not, of itself alone, material, unless in
fact such a contract had actually been
made.-ld.

payees of the order shall be entitled to
demand and receive certain installments to
become due from the drawee, is a good
consideration for a promise by the latter to
pay such installments in satisfaction of the
payees' claims, and renders him liable for
a wrongful payment to the drawer. The
promise is to pay his own debt.-Rowley et
al. v. The First M. E. Ch., 205.

15. The making of the agreement having
been assumed on the trial, the insufficiency
of the proof establishing it cannot be raised
for the first time on appeal.-Id.

16. Where an agent, in violation of his in-
structions, contracts debts in the name of
his principal, he himself is liable therefor,
and where the principal furnishes him with
money to pay them the advance so made is
a good consideration for his promise to
perform any lawful act.-Humaston et al.
v. Beekman, 238.

17. The measure of damage in an action for
breach of an agreement to perform a posi-
tive act is not the consideration paid, but
the actual loss sustained, after reasonable
care on the part of the injured party to
prevent its being unduly magnified.-Id.

18. A writing in the form of a promissory note
was indorsed, "The within to be paid when
M. pays a note of $70 to L. or bearer,
dated December 19, 1878." Held, That the
instrument was not a promissory note, but
a mere agreement to pay the sum named on
its face at the time and in the event men-
tioned in the indorsement.-Stout v. Liddell,
247.

19. Defendants, by written contract, agreed
to purchase of plaintiff certain iron to be
shipped in December or January. No such
shipments were made, and in February
plaintiff told defendants he could give them
the iron in the following week, or give
them the name of a vessel to sail that
month. Defendants expressed themselves
better satisfied with the latter arrangement,
but before the vessel arrived rescinded the
contract. Held, That the omission to fur-
nish iron shipped in December or January
authorized the rescission, and that the verbal
arrangement subsequently made could not
vary the substance of the contract and was
not binding on defendants.-Hill v. Blake
et al., 263.

20. B. was negotiating for a sale of chattels
to a partnership, one of the members of
which objected to certain terms of B.'s
offer; thereupon the other two members of
the firm agreed orally with B. that if he
would accede to their partner's wishes they
would themselves pay B. according to the
objectionable terms. Held, That the oral
promise was a distinct contract and binding
upon the promisors.-Pond v. Starkweather
et al., 265.

21. Where one seeks the reformation of a

written contract the evidence of a mistake
or fraud, through which the instrument is
different from what the parties intended it
should be, must be clear and unquestion-
able. If there is any serious conflict of
evidence upon this point equity will not
relieve. Bartholomew V. The Mercantile
Marine Ins. Co., 289.

22. In an action to reform a contract by can-
celling a portion by which the plaintiffs
were made members of a partnership and
agreed to pay the partnership debts, cred-
itors of the firm who are not parties to the
contract are not proper parties to the ac-
tion, and an appeal by them from judgment
therein will not lie.-Wheat et al. v. Rice
et al., 292.

23. The defendants by letter fixed a price for
coal "" for cash on order and for immediate
delivery only." Plaintiffs accepted the
offer and stated they would send their boat
to the shipping point. They did so and
also paid the purchase price; they notified
defendants that they were ready to load
and would hold them for delay. Owing to
a custom at the coal port that boats should
take their turn in loading at the chutes,
plaintiffs' boat was delayed ten days. They
accepted the coal on its arrival, but recov-
ered of defendants for the difference in
price of the same grade of coal which they
were compelled to buy through the delay
in shipping. Held, proper.-Sherman et al.
v. Caldwell et al., 305.

24. Under an agreement to work for a certain
period if the parties should so long agree,
what evidence is sufficient to sustain a ver-
dict for plaintiff, finding in effect a bona
fide disagreement, excusing his leaving the
service before the expiration of the term
limited.-Tormon v. Holton, 443.

25. Defendant agreed, in writing, to give
plaintiff a certain cow, she to have com-
plete delivery at the end of the year or
another cow as good. Before the year ex-
pired he sold said cow. In an action for
its value, Held, That no demand previous

to the commencement of the action was
necessary; that at most the agreement
gave defendant the option to furnish
another cow as good as the one transferred,
which he failed to exercise.-Doner v. Wil-
liams, 456.

26. In an action upon a land contract it is
competent for defendant to show that such
contract was abandoned and rescinded and
that a new contract, as to other subject
matter, was accepted by plaintiff in full
satisfaction, and this may be done by parol.
-Smith et al. v. Brady, 468.

27. Plaintiff and one H. by written contract
granted the exclusive right to use their
patent to the Clock Co., the latter agreeing
to pay royalties on each instrument manu-
factured under the patent. The contract

CONVERSION.

1. In an action against a sheriff and his in-
demnitors for damages for a wrongful levy
and sale of a lathe claimed by plaintiffs as
mortgagees, it was admitted that the sheriff
had an alleged execution in favor of the in-
demnitors against one C., but the indemni-
tors did not prove that they were creditors
of C. or that they had a judgment against
him. Held, That they were not in a posi-
tion to attack plaintiffs' title for fraud.-
McKinley et al. v. Bowe et al., 13.

2. Plaintiffs proved that they gave notice of
their claim and forbid the sale; that one of
the indemnitors nodded to the auctioneer,
who announced that the purchaser would
get a good title, and knocked down the
lathe to the indemnitors. Held, Sufficient
to charge all the defendants with a taking.
-Id.

3. Plaintiff proved that he entered peaceably
upon certain land, felled timber, cut it into
logs and prepared to draw them away upon
roads made by him for the purpose. Held,
That plaintiff showed such a possession of
the logs as enables him to recover from de-
fendant, a mere intruder, who converted
the logs and timber to his own use.-Lyon
V. Sellew, 35.

See BROKERS, 2: CHATTEL MORTGAGE, 4;
FRAUD, 16.

CORPORATIONS.

1. A mortgage given by a corporation without
the assent of its stockholders is made valid
by a subsequent assent where no interven-
ing rights exist.-The Rochester Savgs. Bk.
V. Averill et al., 9.

2. It is not indispensable to the validity of
the mortgage that the assent should be filed
in the county where the mortgaged prop-
erty is situated. A subsequent mortgagee

3.

or purchaser with notice cannot set up the
failure to file the assent as a defense to the
prior mortgage.—Id.

A mortgage given to secure a loan with
which to pay debts is one executed to se-
cure the payment of debts of the corpora-
tion within the meaning of Ch. 517, Laws
of 1864, although not executed to the cred-
itors of the corporation.—Id.

4. Plaintiff, a private corporation, entered
into a contract with the village authorities
to supply the village with water for extin-
guishing fires, in consideration whereof
plaintiff was to receive a yearly rental and
to be exempted from all corporation taxes.
Held, That it was not exempt from taxation
for town, county and State purposes.—
The People ex rel. The Mills Waterworks Co.
v. Forrest et al., 20.

5. The validity of a consent given by a de-
fendant corporation to a third person or a
body cannot be adjudicated upon in a pro-
ceeding to which such person or a body is
not a party. The People ex rel. The 2d Ave.
RR. Co. v. The Board of Comrs. of Public
Parks, 93.

6. The Park Board is not a corporation and
there is no statute authorizing actions
against it by its official name.-Id.

7. The plea of ultra vires should not prevail,
whether interposed for or against a corpo-
ration, when it would not advance justice,
but on the contrary would accomplish a
legal wrong.-The Rider Life Raft Co. v.
Roach, 297.

8. R. & S. entered into a contract with plain
tiff by which they were to receive a part of
its capital stock, be elected trustees, furnish
means and carry on its business, &c. Held,
That the agreement was not ultra vires, and
that the contract of R. & S. being a joint
obligation there was a joint liability on
their part for moneys received by either.-
Id.

9. The right of action against trustees of a
manufacturing corporation for violations of
§ 12 of Chap. 40, Laws of 1848, prior to the
passage of Ch. 510, Laws of 1875, was taken
away by the latter act.-The Victory Webb
Printing Co. v. Ford et al., 310.

10. Funds drawn out of bank by the treas-
urer of a corporation, on express authority
of the board of directors, and thereafter
held by him apart from his own funds,
cannot be considered as held by him per-
sonally, but they are to be considered as in
the possession of the corporation or of him-
self as treasurer of the corporation.-Butler
v. Duprat, 350.

11. In an action by the receiver of an insolv-
ent corporation, where the complaint al-
leges the receipt by the defendants of
certain moneys as commissioners to receive