whether it had been afterwards paid up, and no particular shares were mentioned as the stock which defendant should transfer to plaintiff, and defendant was secretary and treasurer of the company. Held, That it was properly left to the jury to de- termine whether plaintiff knew, or must have known, that the stock purchased was not paid-up stock, and, therefore, did not understand defendant as representing otherwise, but simply that he would sub- sequently pay the balance so as to make it paid-up stock.-Gavin v. Duckwitz, 422. 19. The administrator of one Q. ascertained from the books of account of said Q. that a claim existed in his favor, the amount of which he computed from said books to be $273, and which he assigned to one D. for that sum. D. subsequently claimed by virtue of said assignment and collected from the debtor the sum of $3,785.80, with interest. Held, That there was no fraud, such as to avoid the assignment, on the part of D. in failing to reveal the true amount of the claim. That the mis- take of Q.'s administrator as to the value of the claim was not a ground for equi- table relief.-Deffendarfer v. Dicks et al.,
20. An agreement by which one party agrees, at the request of the other, to purchase personal property, hold it and upon being reimbursed and paid for his trouble transfer it to the other, is not a sale nor an agreement to sell the property between the parties and is not within the statute of frauds.-Blair et al. v. Lynch, 575.
21. Defendant paid to plaintiffs half the price agreed upon November 25, 1873, and took an assignment of half the se- curity. In an action brought November 21, 1879, to recover the balance, Held, That the statute of limitations was not a bar.-Id.
See ARREST; ATTACHMENT, 8; BILL OF SALE; CREDITOR'S ACTION.
FRAUDULENT CONVEYANCE.
See FRAUD, 2, 3, 6, 7, 10; JUDGMENT, 5. GUARANTY.
See NATIONAL BANKS; NEGOTIABLE PAPER, 3.
1. Where an order has been granted allowing an infant plaintiff to sue in forma pauperis, from which order no appeal is taken, the guardian will not be required to file security for costs.-Hays v. The Knicker- bocker Ice Co., 61.
2. A special guardian of an infant of the age of five years, appointed in proceedings
taken to authorize the sale of real estate be- longing to such infant, cannot convey said real estate to himself.-Buderus v. Immen, 88.
3. When such a special guardian, acting in good faith, has conveyed such real estate to himself and has subsequently conveyed the same to a third person the defect in the title of such third person may be cured by proceedings instituted upon the joint pe tition of the guardian and the infant-said infant having attained the age of seventeen years in the interval-whereby the original proceedings are opened and the guardian therein permitted and required to convey the interest of the infant to such third person.-Id.
4. Where a will, of which M. was executor,
contained a wish that M. should also act as guardian of a child and that the child, the sole devisee, should live with M., and the latter, omitting to be regularly appointed guardian, furnished the child with necessa- ries up to the time of his appointment and for some time thereafter, Held, That M., upon his accounting, must be allowed for the whole period during which he furnish- ed support; that it was error to allow him only for the period after his appointment. -In re accounting of Miller, 303.
5. Where money has been received by a guardian the statute of limitation does not begin to run in his favor until some open notorious act of conversion and express repudiation of his trust takes place.— Skidmore v. Post, 349.
1. Highway commissioners have power to summarily remove a building which ob- structs a highway, even though sufficient space is left for teams to pass and repass, and neither they nor those assisting them can be held liable in damages for such exercise of official power.-Van Wyck v. Lent et al., 86.
2. A municipality is liable for damages re- sulting from the frightening of a horse by a banner hung over the roadway, although the banner was fastened to supports outside of the roadway.-Champlin v. The Village of Pen Yan, 134.
3. In an action for such damages it is compe- tent to prove that on a former occasion a similar banner frightened other horses.— Id.
4. The liability of towns is not extended by Chap. 700, Laws of 1881, to cases in which the commissioners of highways were not liable prior to the passage of that act.- Eveleigh v. The Town of Hounsfield, 210.
5. In an action against a town to recover
damages for injuries alleged to have been caused by the negligence of its agents and servants in failing to repair a highway or bridge, the complaint must allege that de- fendant had funds or the means of acquir- ing the same, or that its highway commis- sioners had funds or means of acquiring them.-Id.
6. Dedication and acceptance of a highway may be inferred from its continuous public use for twenty years; and the question of such use is for the jury.-Porter v. The Village of Attica, 224.
7. Village authorities are not bound to pro- vide facilities for abutting owners to go into a street, nor are they bound to remove inconveniences occasioned to such owners by proper repair of the street.-Id.
8. A highway commissioner is bound to use reasonable care and diligence to keep high- way bridges in safe condition.-Amadon v. Ingersoll, 294.
9. Plaintiff was damaged by the falling of a bridge. Witnesses who helped repair the bridge before the accident were allowed, against plaintiff's general objection, to state their opinions as to the sufficiency of the stringers of the bridge. Held, No error. -Id.
10. In an action for penalty, under the Re- vised Statutes, the summons was endorsed,
For a penalty imposed under and accord- ing to the provisions of § 19, Ch. 16, Tit. 1, Part 1 of the several statutes relating to overseers of highways and highway labor." Held, That the endorsement was fatally de- fective within Code of Civ. Pro., § 1897. -Hitchman v. Baxter, 304.
11. A commissioner of highways can lay out a highway only in the manner prescribed by statute, i. e., by order. His acts or words encouraging individuals to construct it and his promise to recognize it officially when completed are not sufficient to estop his town. In re bridge between Shawangunk and Crawford, 503.
12. Where there has been no official recogni- tion of a highway as such, a user of twenty years is necessary to constitute it a highway which the town is bound to maintain.-Id.
13. The duties and liabilities of highway commissioners fall far short of those of the authorities of a municipality in respect to its streets. No negligence can be imputed to them for not repairing a bridge unless they knew, or ought to have known, it needed repairs, and they have or might ob- tain the means to do so. Under Chap. 700, Laws of 1881, the test of a town's liability is the negligence of its highway commis- sioners. They are the sole judges of the proper width and plan of a bridge, and their determination cannot be reviewed
collaterally.-Lawson v. The Town of Wood. stock, 570.
HUSBAND AND WIFE.
1. The common law right of the husband to take the entire personal estate of the wife dying intestate and without descendants extends to the partial intestacy created by the lapse of a legacy bequeathed by her in her will although the husband has taken property by virtue of such will and has taken out letters testamentary thereunder and has never taken out letters of adminis- tration upon the wife's estate.-Robins v. McClure, 193.
2. The law will not imply a promise on the part of a wife to pay her husband the fair and reasonable value of his services per- formed in and about the carrying on of her separate business where there is no under- standing or agreement that he should be compensated therefor; and a receiver in supplementary proceedings instituted against the husband cannot maintain an action against the wife to recover the value of such services.-Lynn v. Smith, 459.
See ABANDONMENT; DEEDS, 21, 22; FIRE INSURANCE, 10; FORGERY, 1, 2; LIMITA- TION, 5; MORTGAGE, 12; NEGOTIABLE PAPER, 14; SLANDER, 4.
Defendant gave a bond to one S., commis- sioner of highways, to indemnify him in an action to be brought by him as such com- missioner against C. & D. After that action was begun and had been at issue several years S., who was no longer commissioner, died. An administrator was appointed who stipulated in the action then pending that it be dismissed, and judgment for costs were thereupon entered against S., in favor of C. & D. This claim for costs and the bond for indemnity were assigned to plain- tiff, who now seeks to recover here the costs against defendant. Held, That there could be no recovery; that the administrator could not enter into a stipulation of dismis- sal; and further that defendant was entitled to notice of the proposed abatement that he might prosecute the action if he chose to do so.-Pratt v. Seeley, 280.
2. In an action by a sheriff against the sureties on a bond indemnifying him from the conse- quences of levying upon and selling under an execution certain goods claimed by a third person to belong to him and not to the judgment debtor, the fact that the sheriff levied upon and sold more goods than was necessary to satisfy the judgment is no de- fense when the costs and expenses incurred by the sheriff in an action for conversion brought against him by such third person amount to the penalty of the bond.-Reilly v. Moffat et al., 390.
See CONVERSION, 1. 2; SHERIFFS, 5, 6.
1. In 1789 and 1795 the State made treaties with the Cayuga Nation of Indians, giving them and their posterity forever" an annuity in return for the cession of their lands in this State. Some of these Indians then lived in Canada, but at the request of the State authorities joined in the treaty. About 1810 a large part of the Indians, up to that time resident in this State, went to Canada and ever since remained there. They took part against this country in the war of 1812. Since that time no part of the annuity has been paid them. The whole has been apportioned among bands of the Cayuga Nation in the United States. By Chap. 234, of the Laws of 1841, the defendants have jurisdiction in questions relative to Indian nations and parts of nations and their rights under treaties. The relators, the Canada branch, now com- prise the head chief (who has in his pos- session the original treaty) and about three-fourths of all the Cayugas. Upon their application to be heard by defendants upon the question of sharing in the an- nuity, Held, That defendants had juris- diction in the matter and that it was their duty to hear the petitions. That defendants having denied their petition the relators could properly invoke the aid of this Court to compel defendants to perform the duty imposed upon them by statute. That no reason appeared why relators should not share in the annuity.- The People ex rel. the Cayuga Indians v. The Board of Com'rs of the Land Office, 505.
See BAWDY HOUSES; CRIMINAL LAW, 4; FORGERY, 4; PERJURY, 1.
1. A mother, in contemplation of death, con- signed her child to Mrs. D., with the assent of the latter's husband, to be brought up by her. There was no adoption of the child by Mrs D., or her husband, and no relin- quishment by the father of his right to the custody and care of the child. Held, D. has no right to the custody of the child as against the father; but, prima facie, he is entitled to compensation for the care of the child, bestowed by his wife at his home; and declarations by the wife that she, with her husband's permission, agreed to render the services gratuitously, are mere hearsay as against him.-Derr v. Cooley et al. 109. 2. In proceedings to have the Court deter- mine to whom the custody of a minor child shall be awarded the rights and interests of the child are paramount, and it is error to exclude evidence of the home and surround- ings of the respective parties seeking the custody of such child.-The People ex rel. Brush et al. v. Brown, 516.
1. When a person commences an action to re- cover a sum of money claimed to be due from the defendant, and two other persons also claim the same sum adversely to the plaintiff and to each other, and one of them claims only a portion of such sum, the remedy of the defendant, who makes no claim to the money, is by an action in the nature of an interpleader, and not by a motion under § 820, Code Civ. Pro., to sub- stitute the two other claimants as defend- ants in the action brought against him.- The New England Mut. Life Ins. Co. v. Kel- ler, impld., 482.
INTERVENTION. See CERTIORARI, 4. JOINT DEBTORS.
1. Defendants and other stockholders of a factory executed a note, which was paid a year after maturity by S., one of the makers, who delivered it to plaintiff, to whom he was indebted, made payments thereon and afterwards became bankrupt. About the time of delivery of the note to plaintiff, S. and another person purchased the rights of all the other stockholders in the factory, assuming payment of this and
all other debts of the company. In an ac- tion for contribution, Held, That although the note was extinguished as such by its payment by S., it remained in his hands as evidence of a right to contribution against his co-sureties, and that the delivery of the note to plaintiff passed this right to him.— Dillenbeck v. Dygert et al., 229.
See CORPORATIONS, 8.
1. A judgment of a court of a foreign country is not conclusive upon and will not be en- forced in the courts of this State unless upon a proper examination it is established that the cause of action upon which it was recovered is one recognized by the common law and the proceeding in which it was obtained was one in which a trial was had in accordance with the rules of the common law; and if such is not the case, even the appearance of the party in the foreign court will not be regarded as conclusive of his rights or as affecting them at all injuriously. -Anderson et al. v. Haddon, 6.
2. A statement upon which to enter a judg- ment without action under the Code is not sufficient, where it merely states and sets out a promissory note, executed by the de- fendant to the plaintiff, as the consideration of the indebtedness. The facts out of which the indebtedness arose should be concisely stated.-Combs v. Bowen et al., 57.
3. The court may, in a proper case, allow such statement to be amended nunc pro tunc so as to sustain the priority of the judgment entered thereon as against sub- sequent valid judgments; but where a note was executed the day before the confession, in settlement of a debt claimed to be due and owing from parent to child for services and for money loaned, and was antedated, and an action by the administrator of a third person was then pending against the parent, upon which judgment was subse- quently entered; and such administrator also recovered a judgment for costs against him upon the reference of a disputed claim made by said parent against the estate, Held, That the court properly refused, under the circumstances, to allow such amendment to be made nunc pro tunc, so as to prejudice the rights of the administrator, and that the latter's judgments were enti- tled to priority.-Id.
4. If a judgment creditor who has assigned his judgment covenanting that he will not receive or collect nor release nor discharge the same, satisfies it of record, and if the judgment debtor is responsible, and the judgment could have been collected, he is liable to his assignee for the amount due upon the judgment. In an action to recover such amount the judgment debtor will be allowed to testify that he owned real estate out of which the judgment could have been Vol. 20-No. 26a.
collected. It is not necessary that such ownership should be proved by the produc- tion of the deeds.-Potter v. Weidman, 110. 5. An order for judgment setting aside con- veyances as fraudulent as to plaintiff and declaring his judgment the prior and supe- rior lien does not authorize the insertion of a clause in the judgment declaring that plaintiff is entitled to execution.-Bush v. Preston et al., 190.
6. The signature of the judge forms no part of the judgment entered and need not be contained in the copy of judgment served to limit the time within which an appeal may be taken.-Clapp et al. v. Hawley et al., 387.
See APPEAL, 19; ATTORNEYS, 9; EVIDENCE, 15, 20; SET-OFF, 4; SURETYSHIP, 1, 2.
1. The court will relieve a purchaser of real estate upon a judicial sale from his bid if there is some practical and serious question affecting the title upon which persons not parties to the suit, and who cannot be es- topped by the judgment, have a right to be heard in some future litigation which may arise. The People v. The Globe Mut. Ins. Co., 14.
2. In the chain of title to certain real estate sold upon foreclosure of a mortgage there appeared a conveyance by one Martin, as special guardian of certain infants, to one Mather for $8,000, and a simultaneous re- conveyance by the latter to the former for $100. Held, That such conveyances were, upon their face, presumptively fraudulent and invalid, and, unexplained, entitled the purchaser to be relieved from his bid.-Id. See MORTGAGE, 1, 7–11; SURROGATES, 2.
1. Where an objection to the jurisdiction of a county court is put upon the ground that, by statute, the Court has no power to hear the action, and where the defect complained of does not appear upon the face of the complaint, the objection may properly be taken by answer; and such answer, though setting up other defences, is not a waiver of the defect.-Heenan v. The N. Y., W. S. & B. RR. Co., 415.
See ADMIRALTY, 1; ATTACHMENT, 1; ATTOR- NEYS, 15; INDIANS; SURROGATES, 1; TOWN BONDS 2.
1. A juror, being questioned as to his fitness to try the case, said that he had formed an opinion, but that he thought his opinion would not influence his verdict. The court then said: 'You reflected, I suppose, that you do not find a verdict in a criminal case
upon the balance of the evidence, but that the evidence must be such as to remove every reasonable doubt of guilt?" Held, That there was nothing improper in the judge's remark, and the juror not having finally sat on the trial the question whether there was error in his examination is not brought up by appeal.-The People v. Pet- mecky, 107.
2. Where a juror stated that he had formed an opinion, but thought that he could render an impartial verdict on the evidence, Held, That the court was authorized to determine that the juror was competent.-The People v. Dewey, 555.
1. When a case has been adjourned to a fixed hour to await the return of a venire issued at the request of the plaintiff, it is error for the plaintiff, in the absence of the defend- ant, to waive his venire and without wait- ing an hour take judgment. The justice loses jurisdiction by calling the case before the time.-Horton v. Hawkins, 17.
2. A justice's decision upon an issue regarding which the evidence is conflicting is conclu- sive.-Boone v. Kalb, 26.
3. When a person other than a constable serves a justice's summons he need not show his authority to the person served.-Hayes v. Maytham, 337.
4. Error will not be presumed, but all fairly permissible intendments will be allowed in support of a proceeding under review.- Id.
1. A lease giving the lessor a lien, as security for any rent due and unpaid, upon all the goods and chattels which may be upon the demised premises belonging to the lessee, or to any one holding or claiming the prem- ises under him as assignee or otherwise, and authorizing the lessor to take and sell the goods in the same manner as upon de- fault in a chattel mortgage, is equivalent to a chattel mortgage, although no title passes to the lessor, but only an equitable lien or mortgage is created; and such lease must be filed according to the provisions of the statute, otherwise it will be void as to cred- itors, etc. So Held, as against an assignee for benefit of creditors who took possession
of the goods before the filing of the lease. Reynolds v. Ellis et al., 64.
2. The lessor not having acquired an ac- tual lien by taking possession prior to the assignee, his equities are not superior to the other creditors represented by the latter.- Id.
3. A receiver of the estate of a deceased per- son, who is invested with all the real and personal property of said estate and who enters into the possession of certain real property under a lease executed to decedent, becomes liable as receiver for the rent of said property and must pay the same out of any funds of the estate which may be in his hands whether derived from the real or per- sonal property -Moore v. Higgins, 123.
4. The fact that such receiver has been dis- charged by an order obtained without no- tice to the plaintiff in a suit against him pending at the time of such discharge is no defence to such suit.-Id.
5. Plaintiff made a lease to W., by its terms making the parties to it tenants in common of the crops then growing and thereafter to be sowed on plaintiff's farm, and giving plaintiff a lien on W.'s share. Held, That the lease not having been recorded, it is not good as against a subsequent mortgagee in good faith of W.'s share.-Thomas v. Ba- con, 219.
6. The possesion of one tenant in common is not notice to subsequent purchasers of any interest the co-tenant may have in the share of the actual possessor.-Id.
7. When one person has taken a lease to which another is known to him to be equitably entitled he may be decreed, in an action brought for that purpose, to be a trustee for the benefit of the party rightfully entitled, as against him, to the use and occupancy of the property under the lease, but subject to the performance of its terms by him.- Mc Roberts v. Harrison et al., 228.
8. When summary proceedings to evict a ten- ant who is equitably entiled to a new lease are brought in a court having no equitable jurisdiction for the purpose of putting into possession a new tenant who has taken a lease with knowledge of the equitable rights of the other, their prosecution may be en- joined in an action brought to obtain a de- cree declaring the second lessee to be a trustee for the first.-Id.
9. If leased premises are by fire rendered unfit for occupancy the tenant may surrender possession and refuse to pay rent.—Smith v. Kerr, 246.
10. A parol agreement is ineffectual to change the amount of rent under a sealed lease for more than one year.-Id.
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