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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.,

507.

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.

GUARDIANS.

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.

See PARTITION, 4.

HIGHWAYS.

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.

INDEMNITY.

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.

INDIANS.

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.

INDICTMENT.

See BAWDY HOUSES; CRIMINAL LAW, 4;
FORGERY, 4; PERJURY, 1.

INFANTS.

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.

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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.

JUDGMENT.

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.

JUDICIAL SALES.

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.

JURISDICTION.

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.

JURY.

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.

JUSTICE OF THE PEACE.

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.

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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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