7. One B. was elected an excise commissioner
but failed to procure approval of his bond.
One K. was thereupon elected to fill the sup-
posed vacancy, qualified and acted with the
rest of the board in granting license to de-
fendant. B. afterwards procured the ap-
proval and acted with the board. Held,
That there was no vacancy, and that de-
fendant's license was no protection.-Id.

8. The Board of Commissioners of Excise of
the city of Auburn may sue for penalties
for violation of the excise laws.-The Board
of Comrs. of Excise v. Burtis et al., 272.
See OFFICE, 2.

EXECUTION.

1. Plaintiff in the first action replevied cer-
tain malt and defendants failed to give a
bond for its return. Before the sheriff de-
livered it to the plaintiff, an execution in
the second action was issued to him under
which he levied on the malt. Held, That
the levy could not be sustained.-The First
Natl. Bk. of Oswego v. Dunn et al., 17.

2. An officer is protected in the execution of
process regular on its face and coming from
a court of competent jurisdiction.-Bodine
v. Walters et al., 132.

3. An attachment was granted against de-
fendant as a resident who had departed
from the State with intent to defraud cred-
itors. The execution directed its collection
out of the attached personal property, and
if that was insufficient, then out of the
attached real estate. Held, That the exe-
cution was not in conformity with subd. 2
of § 1370, and was void; that no title could
be acquired thereunder even by a bona fide
purchaser, and that the fact that the debtor
had no other personal property out of which
the execution could be collected was imma-
terial.-Place v. Riley, 374.

See CHATTEL MORTGAGE, 1; FALSE IMPRIS-
ONMENT, 1.

EXECUTORS.

1. A testatrix by her will bequeathed one thou-
sand dollars apiece to two of her grand-
children to be paid out of the proceeds
of her real estate when her executor might
deem it advisable to sell." She then di-
vided the "residue of her real estate'
into two equal parts, one of which she
devised to her daugher, directing her
executor to pay such daughter the income
arising from it "until he might think it
advisable to sell the property," and the
other she gave to her son, together with
all her personal property. Held, That
her executor had power to sell such real
estate. In re opening of Riverside Park,

117.

Vol. 20. No. 26.

a will. In 1869 his final accounting was
made, in which appeared the credit
"amount invested under trusts contained
in the will, $55,000," and a decree was
thereupon entered adjudging that the ac-
counts were finally settled and allowed.
The petitioner herein, a legatee, prayed for
an annulment of the decree, and for the
revocation of the letters, and upon being
compelled to elect stood for the revocation
of the letters. It did not appear that the
executor had ever receipted to himself as
an executor, or had done any act to show
that a change was made in his relation to
the fund. The investments made prior to
the decree were not challenged, but those
made long afterward from subsequent col-
lections formed the gravamen of the pe-
titioner's complaint. The surrogate re-
voked the letters testamentary on the
ground that defendant had wasted and mis-
applied the trust fund. Held, Error; that
after the decree on final accounting the
liability of defendant on the grounds alleged
was that of a testamentary trustee solely,
and that the petition cannot be allowed to
stand against him as such inasmuch as such
relief was not sought, and if it had been
petitioner's election limited it to the revo-
cation of the letters testamentary; nor is
the case changed because the executor re-
ceived property after the decree on the
final accounting, as there is no pretence
that any thing had been received which by
error or fraud had been omitted from the
account which was adjudicated.—In re es-
tate of Hood, 316.

3. Letters duly granted to the plaintiff are
conclusive evidence of his title to a mort-
gage belonging to the intestate, and of his
authority to sue.-Abbott v. Curran, 344.

4. Executors who are directed by the will of
their testator to sell all his real and personal
estate as soon as convenient after his death,

and when in their judgment they shall
consider it most advantageous," are not in-
dependent of a Court of Equity.-Mehl v.
Hilliker et al., 416.

5. Where one who is appointed administrator
with the will annexed, and successor to
the testamentary trustee, is removed by the
surrogate for failure to furnish new sure-
ties in place of those released on their own
application, he is not entitled, as trustee, to
commissions on the value of the real estate
held in trust, unless the trusts have been
performed or fulfilled prior to his removal
and accounting.--In re accounting of Baker,
447.

6. Executors are not excused from the per-
formance of the contracts of their testator
by reason of his death, where such contracts
relate to ordinary hired labor and where
skilled personal services are not contem-
plated. They may break the contract and
discharge the laborer by paying him such

damages as he may suffer, but where the
contract is performed without objection by
the executors, they must perform on their
part.-Lacy v. Getman, 473.

7. When a will directs that the executors
named therein shall invest the personal es-
tate and shall manage and take care of the
real estate and keep the same in proper re-
pair and pay all lawful taxes and assess-
ments on said personal and real estate, and
out of the net income of said real and per-
sonal estate shall make certain quarterly
payments to specified legatees, an assess-
ment for constructing a road charged upon
real estate is properly paid by the execu-
tors out of the income of the estate.-Van
Vleck et al. v. Lounsberry et al., 573.

8. When the executors, under such a will, have
paid over to the persons entitled to the in-
come of the estate the interest upon a mort-
gage owned by the testator up to the time
of the foreclosure of such mortgage by
them, and buy in the property at the sale
under such foreclosure, and pay over the
income derived therefrom to the persons
entitled to the same until the sale of such
property by them at an advance over the
purchase price, the amount of such ad-
vance is a part of the principal and not
of the income of said estate --ld.

See COSTS, 2: DISCOVERY, 1-3; EVIDENCE,
41, 52, 53; INDEMNITY, 1; LIMITATION, 3;
NEGOTIABLE PAPER, 11, 12.

EXTRA ALLOWANCE.

See CoSTS, 1, 7; SUMMARY PROCEEDINGS,
2, 3.

FALSE IMPRISONMENT.

1. A justice of the peace who unlawfully is-
sues a body execution against a party is lia-
ble in damages for his unlawful arrest by
the constable.--Campbell v. Kelly, 160.

2. No force or manual touching of the body is
necessary to constitute an arrest and im-
prisonment, but it is sufficient if the party
is within the power of the officer and sub-
mits to it.-Id.

See ESTOPPEL, 1.

FICTITIOUS NAMES.

1. Although one who violates the statute for-
bidding the transaction of business under
fictitious names is liable to punishment
therefor, the property thus acquired is still
his and may be sold or transferred by him
in any of the modes known to the usages
of business. A bill of sale given to close
out and terminate such business is not
within the evil which that statute was de-
signed to prevent.-Ross v. Wigg, 215.

2. To violate the statute of 1883, forbidding

ness.

the transaction of business under fictitious
names, the designation "and company
must be used in the transaction of some busi-
Where the business is consciously
done with the partners under their real
names, and not under any false designation,
the statute is not violated.-Gay et al. v.
Siebold, 270.

3. Defendants executed a hond conditioned
for the faithful performance of duty by one
S., as salesman, to plaintiffs by their indi-
vidual names, doing business under the
name of Gay Bros. & Co. They did busi-
ness under that name, and the words "&
Co." represented no actual person. Held,
That the bond was outside of the statute
and was valid.--Id.

FIRE INSURANCE.

1. Where the agent of an insurance company
is informed, before issuing the policy, of
the nature and extent of the interest of the
insured-e. g., a contract for purchase-
his knowledge is imputable to the company,
and the latter is estopped from relying upon
a condition in the policy, that if the insured
is not the sole, absolute, and unconditional
owner of the property insured, or, if the
property be a building, of the land on which
such building stands by a title in fee simple,
and the interest of the insured be not truly
stated in the policy, it shall be void.-Fole
v. The Springfield Fire Ins. Co., 55.

2. And a condition that no officer shall have
power to waive any of the provisions of the
policy, unless such waiver be endorsed on
the policy, will be deemed waived by de-
livering the policy with knowledge by the
agent of the true nature of the insured's
title.-ld.

3. Where the insured and the special adjuster
of the company entered into a written
agreement for the appointment of apprais-
ers to estimate the amount of damage, their
award to be binding on both parties, and
such award was made, Held, That this
amounted to a waiver by the company of
its right to rebuild or repair, and the in-
sured was justified in refusing to permit the
company to proceed with the building, and
that defendant was bound by the award.-
Id.

4. A complaint alleged that plaintiffs were
lessees of a certain building which they
sublet at a profit; that defendant insured
their proprietary interest; that a fire occur-
red which rendered the premises untenant-
able from May to October, whereby the rent
ceased under both leases for that period.
and plaintiffs were injured by the loss of
the profits on their lease for that time. Held,
That the complaint stated a cause of ac-
tion.-Carey et al., v. The Northern Assur-
ance Co., 60.

5. A condition in a policy of insurance, that
"if the interest of the assured in the prop-
erty be any other than the entire, uncondi-
tional and sole ownership of the property
for the use and benefit of the asssured, it
must be so represented to the company and
so expressed in the policy," otherwise it
shall be void, is not broken by reason of
the existence of mortgages upon the prop-
erty, no questions having been asked in
reference thereto and there being no fraud-
ulent concealment.-Aldrich v. The Home
Ins. Co., 70.

6. Where the assured, immediately after the
fire, gave personal notice to the local agent,
who informed the company, and afterwards
the agent and the adjuster of the company
called and examined the ruins, and plaintiff
made a statement of his loss to them; the
agent said it was not necessary to make out
proofs of loss, Held, A waiver of the con-
dition requiring written notice and proofs
of loss, and the company was estopped from
setting up the breach.-Id.

7. An informality in the proofs of loss may
be waived by retaining it without objection,
e. g., where the venue stated in the affidavit
was in one county and the officer who took
the affidavit resided in another.-Id.

8. When the application stated the premises
to be insured were incumbered $300, and
the proof of loss stated that at the date of
the fire the premises were covered by a
mortgage for $600, the insured is not estop-
ped from showing that the mortgage was
originally for $600, and that before his ap-
plication he had paid $300.-Kelly v. The
Agricultural Ins. Co., 125.

10. Personal property owned by the wife at
her marriage, which has been used in com-
mon in the household, like the husband's,
is not covered by a policy upon the hus-
band's property.--Id.

11. In determining the meaning of a policy
regard must be had to the course of the
trade to which it relates, and the underwri-
ters will be presumed to have contracted
with reference to it.-Barnum et al., v. The
Merchants' Fire Ins. Co., 172.

12. Defendant issued a policy to plaintiffs on
their store, "to be occupied as a fancy
goods and Yankee notion store." The
policy classed Yankee notions as extra haz-
ardous, and fireworks as specially hazard-
ous, and provided that if the premises were
used for the carrying on of any trade, or for
storing, etc., of any goods, etc., or for more
hazardous purposes than called for by the
original contract without consent of the
company, it should be void. Held, That
evidence was admissible to show that fire-
crackers and fireworks constitute an ordi-
nary, usual and recognized portion of a
stock of fancy goods and Yankee notions.
-Id.

13. The insurer may, by objecting to the
proofs of loss, impose on the assured the
duty of making them complete, and if it
chooses to do so the time limited by the
policy within which action may be com-
menced is thereby extended.--Iă.

14. Where the falsity of a statement in an
application filled in by one employed by the
insurer to collect and report facts and infor-
mation as to conditions of risks is set up as
a defence, the insured may show that he
stated the facts correctly and recover with-
out demanding a reformation.-Bennett
v. The Agricultural Ins. Co., 208.

15. Where a building is insured as unoccu-
pied it is not necessary for the insured to
obtain the consent of the company that it
may remain so, even though it may have
been occupied for a time after the policy
issued.-Id.

16. Where the company retains the proofs of
loss without objection that timely notice
was not given, and bases its refusal on other
grounds, it waives the objection that the
Insured failed to give immediate notice of
loss.-Id.

17. Plaintiff applied for insurance to H., an
insurance agent, who employed E., a solici-
tor of insurance, to obtain the same. E.
applied to defendant's agents, who issued
the policy, but stated to E. that it should
be subject to approval by the company,
and that if the company disapproved it the
policy was to cease; the company did dis-
approve, and H. and E. were so notified,
but no notice thereof was given plaintiff,
and the property insured was burned. Held,
That the company was bound by the policy.
--Hodge v. The Security Ins. Co., 234.

18. When one written instrument contains a
reference to another as the basis or founda-
tion on which the latter has been made, the
first is to be regarded as so far included as
to entitle it to be examined and considered
in order to discover the intention and rights
of the parties.-The National Filtering Oil
Co., v. The Citizens' Ins. Co., 380.

19. When, by an agreement between two par-
ties, the second party is to pay the first a
certain royalty on every gallon of oil in fil-
tering which a patent process is used, and
such royalties are not to be less than $3,000
per year, and a policy of insurance on such
royalties recited that, whereas the insured
is to receive certain royalties which are
guaranteed to amount to $250 per month
the company will make good any diminu-
tion in such royalties caused by the injury
of the factory by fire, such insurance will
be held to apply to a diminution in the
amount of royalties over and above the
guaranteed sum of $250.-Id.

20. The right to receive royalties on goods
manufactured by certain patented ma-

chinery, which royalties may be diminished
by the destruction or injury of the manu-
factory by fire, is insurable, even though
the person entitled to receive such royalties
has no interest in the manufactory or ma-
chinery so destroyed or injured.—Ïd.

21. In an action on such a policy of insurance
to recover for a diminution of royalties
caused by a fire in the factory it is no de-
fense that, if there had been no fire, the
same diminution would have occurred from
some other cause.-Id.

FIXTURES.

1. Plaintiff recovered judgment for the value
of certain machinery in a sawing-mill which
was claimed to be personal property. It
appeared that many of the articles, from
the method of attachment, adaptation to
the use of the premises and intent of the
party affixing them, as shown by his insur-
ing them for the mortgagee, were shown to
be part of the realty. Held, That a new
trial was proper to cure the error in allow-
ing plaintiff to recover for them.-Bigler v.
The National B'k of Newburg, 77.

2. The question whether a boiler and an engine
in a factory, resting upon trucks so they
could be drawn out of the building without
injury thereto, is a fixture depends upon
the intention of the proprietor who placed
them there; and the question of intent is
for the jury.-Hart v. Sheldon, 286.

FORECLOSURE.

See MORTGAGE, 1-3, 6-8, 12, 14, 15.

FORGERY.

1. If it appears that a wife was not urged or
drawn to the commission of a crime by her
husband, but was inciter of it, she is liable
as well as he.-The People v. Ryland, 63.

2. On the trial of an indictment for forgery,
in the alteration and raising of a check, it
appeared that defendant, a married woman,
suggested the idea, procured the check by
false representations, and delivered it to
her husband; that it was altered in her
presence, and that she received part of the
proceeds of the crime. Held, That she was
liable as a principal. Id.

3. Certain evidence held sufficient to support
a charge and conviction of forgery in the
third degree.-The People v. Dewey, 555.

4. It is sufficient, as a charge of forgery in
the third degree, that the instrument set out
in the indictment and alleged to be forged
contains a personal covenant to pay upon a
stated consideration.-Id.

5. The indictment charged the forgery of an
instrument signed and sealed, and the in-
strument produced on the trial was without
signature or seal, they having been torn off.

Held, Not such a variance as to make the
instrument inadmissible in evidence; nor
were any explanatory allegations required
to permit parol evidence of mutilation.-
Id.

FORMER ADJUDICATION.
See BAR, 1.

FRAUD.

1. Complainant purchased certain bonds of
defendant, who agreed that, if plaintiff at
any time became dissatisfied with them, he
would take them back on 30 days' notice,
and repay the price paid with interest.
Two years afterward, default in the pay-
ment of interest on the bonds being made,
plaintiff gave notice as agreed, but defend-
ant refused to perform his agreement.
Held, That the agreement was not within the
statute of frauds; that the question whether
the notice was given within a reasonable
time was one of law, and that plaintiff was
entitled to recover.-Fitzpatrick v. Wood-
ruff, 2.

2. It was claimed that the interest of the
debtor in the premises in question arose from
an agreement by defendant in the convey-
ance that he should have the use of the
premises for three years. Held, That this
created a parol lease for more than one year
and was void.-Crouse et al. v. Frothingham
et al., 22.

3. Certain evidence held sufficient to sustain
referee's finding that a certain conveyance
of real estate was not made with intent to
defraud creditors.-The Third Nat'l B'k of
Buffalo v. Cornes et al., 30.

4. A purchaser of personal property delivered
in pursuance of an executory contract al-
leged to have been procured by fraud
waives the objection he might otherwise
have to the contract by the acceptance of
the property sold after knowledge of the
fraud, and such acceptance precludes him
from repudiating the contract in an action
to recover the price of the article sold.—
Baird v. The Mayor, &c., of N. Y., 100.

5. Since fraud without damage is not action-
able, and as no damage can accrue to an ac-
commodation endorser except upon default
of the maker or acceptor and due notice
thereof given, it follows that no cause of
action arising from the fraudulent procure-
ment of the endorsement can arise until the
endorser has become legally chargeable as
such, and, therefore, the time within which
an action to recover damages for inducing
the party to endorse by fraudulent repre-
sentations may be brought will commence
to run, not from the making of the en-
dursement, but from the time the endorser
has become chargeable.-Barnard v. Far-
nam et al., 164.