may be thrown from it upon adjoining lots
and made to flow upon them in a different
way and larger quantities than before,
without being liable in damages therefor.
He may not collect such water into a chan-
nel and cast it upon his neighbor's lot, but
he is not bound, for his neighbor's protec-
tion,' to collect the surface water which
falls upon his lot and lead it into a sewer.-
Saal et al. v. Abeles, 528.

See HIGHWAYS, 1.

OFFICE.

1. Defendant had been elected in 1881 excise
commissioner of a town for three years,
but failed to file his bond. He was after-
ward, in 1882, appointed such commis-
sioner, until the next election, by the
justices of the peace, in an instrument
which recited that a vacancy existed, and
defendant gave a bond thereupon, which
recited that his appointment was to fill a
vacancy. At the next election, in 1883,
defendant and relator were candidates for
the office and relator was elected. De-
fendant now claims to hold under his
election in 1881. Held, That if defend-
ant's failure to file a bond did not create a
vacancy it was still ground for this action
by the people in the nature of a quo war-
ranto and to oust defendant.-The People
ex rel. Cowles v. Ferguson, 276.

2. The fine fixed by § 1956 of the Code to
be imposed on one who usurps an office
can only be imposed by the court; a re-
feree has no power.-Id.

3. Where the term of an executive or ad-
ministrative office is declared by statute to
be for one or more years from a designated
day the language must be construed to
mean until the hour of the same day at

which the successor becomes duly qualified
to assume its powers.-The People ex rel.
Wood v. Lacombe, 353.

4. When the term of an officer is declared by
statute to be two years, commencing on
the first day of January next after his elec-
tion, and a subsequent statute is passed
declaring that the term of his successor
shall commence at noon on the first day of
January succeeding the latter's election,
this subsequent statute has the effect of de-
fining the hour of the expiration of the
term of the existing officer as well as the
commencement of that of his successor.-

Id.

5. The provisions of 1 R. S., Chap. V., Title
6, Art. 1, Sec. 9, familiarly known as the
"Holding Over Act," apply to the office of
Mayor of the city of New York, and con-
sequently no vacancy would accrue in that
office by the expiration of a term.-Id.

6. Section 2143 of Chap. 410, Laws of 1882,
declaring that said act should not create a

vacancy in any office, prevented the crea-
tion of a vacancy in the office of Mayor of
the city of New York, by reason of the fix-
ing by said act of the hour at which the
term of the mayor of said city elected
under such act should commence.-Id.

7. The only vacancy in the office of Mayor
of the city of New York which the presi-
dent of the board of aldermen is em-
powered to fill by § 32 of Chap. 410, Laws
of 1882, is one that occurs during an un-
expired term by death, resignation, or the
other causes which produce a vacancy
according to the statute defining vacancies.
-Id.

8. Section 32, of Chap. 410, Laws of 1882,
empowering the president of the board of
aldermen of New York City to fill a vacan-
cy in the office of mayor does not in any
event constitute him the mayor of the city.
but, at most only empowers him to act as
mayor; and the power given to the mayor
by Chap. 43, Laws of 1884, of appointment
to office without confirmation by the alder-
men cannot be exercised by a president of
the board of aldermen, elected before the
passage of said act, while acting as
mayor.-ld.

See EXCISE, 6, 7.

OLEOMARGARINE.

1. The prohibition contained in § 6 of Chap.
202, Laws of 1884, is not confined to cases
of deception in the manufacture and sale
of the article prohibited, but is absolute.-
The People v. McGann, 420.

2. Said section is not unconstitutional.-Id.

PARTIES.

1. In a suit by the trustees to foreclose a
mortgage given to secure railway bonds
issued for the construction of the road,
petitioner made application to be made a
party. Petition stated that the construc-
tion contract was made with T. on behalf
of himself and petitioner; that petitioner
sold $50,000 worth of the bonds, personally
guaranteed their payment, and expended
the proceeds in the enterprise. That T. &
B. conspired to defraud to him. T. trans-
ferred the contract to B., who completed a
portion of the road, got possession of all
the bonds, including the bonds guaranteed
by petitioner, and also 3,000 shares of the
stock. That petitioner is now being pur-
sued at law by sub-contractors with whom
he and T. had made contracts. That T.
& B. have been and now are operating the
railway, and have made sufficient money
to pay the interest on said bonds; that there
is no necessity for the foreclosure, but that
T. & B. are causing the foreclosure with a
view of defrauding petitioner of his interest
in the contract and bonds, and in effect to
make him liable upon his guaranty of said

bonds. Held, That petitioner should be
made a party for the protection of his in-
terests.-The Mercantile Trust Co. v. The
Rochester & Ont. Belt R. Co., 508.

See CONTRACT, 22; DISCOVERY, 3; EASE-
MENT, 5; EXCISE, 8; MORTGAGE, 6, 14;
SLANDER, 4.

PARTITION.

1. A widow to whom the premises had been
devised for her life or while she remained
single brought action for partition against
the remainder-men and partition was de-
creed. Held, That if she was not author-
ized to maintain the action because not a
joint tenant or tenant in common the de-
fect was not jurisdictional, and that the
error in awarding a decree, if any, should
have been corrected on appeal and could
not be questioned or the decree impeached
collaterally.-Cromwell v. Hull et al., 53.

2. When one of several tenants in common is
in actual possession his possession will, in
the absence of any act of ouster on his part,
inure to the benefit of all, and any one of
them can maintain an action for partition.
Consequently, it is not necessary to allege
that the plaintiff was or had ever been in
possession.-Wainman v. Hampton et al.,

68.

for debts of the company in the absence of
proof that plaintiffs or other dealers with
the company saw or knew of this sign, or
that any reliance was placed on it when
the debt was incurred.-Id.

3. Entries in the books of a firm made years
after the retirement of a former partner
have no more force or weight against such
partner than the verbal declarations of the
members of the new firm.-Pringle v. Let-
erich, 90.

4. Mere naked declarations of the remaining
members of a firm, not connected with any
dealings upon which a dealer with the firm
takes action, and in which he reposes no
confidence, cannot be used against a part-
ner who has retired from the firm.-Id.
5. Defendant, to prove the proceedings in
bankruptcy of the remaining members of
the firm, put in evidence their petition,
with schedule attached. Held, That this
did not make the schedule evidence against
him of the facts contained therein.-Id.

6. A partnership debt, although evidenced by
the individual note of a member of the
firm, is equitably payable out of the part-
nership property.-McCarthy et al. v. Filts
et al., 225.

7. Where one partner sells his interest to the
other, who continues the business in the
firm name, debts contracted for goods sold
to the house afterwards are, as against
other creditors, individual debts of the
remaining partner.-Id.

8. A mortgage given by a special partner to
raise money with which to pay his indi-
vidual debts when either he or the firm is
insolvent is not void as preferential, under
1 R. S., 767, § 21.-George et al. v. Grant
et al., 265.

9. As to whether an assignment, transfer or
mortgage by a general or special partner of
his individual property to secure his in-
dividual debts made at a time when either
he or the firm is insolvent is prohibited
under that section, quære.—ld.

10. On the formation of a limited partner
ship the usual certificate was filed, but the
special partner paid in his share of the
capital by check, which was afterwards
paid. Held, That the misstatement ren-
dered the special partner liable as a general
one for the firm debts, but that the part-
nership was in form a limited one and
liable for the firm debts.-Durant v. Abend-
roth, 356.

11. One of the general partners instituted
proceedings for voluntary bankruptcy of the
firm, to which the special partner was not a
party, and the firm was duly adjudged
bankrupt. Held, That the decree was not
conclusive as to any fact in a subsequent
proceeding between the creditors and the

special partner, and that the fact that the
creditors proved their claims and accepted
a dividend in the bankruptcy proceedings
did not estop them from litigating as
against the special partner any fact liti
gated or involved in such proceedings.-Id.
12. There is nothing in the limited partner-
ship act which prevents the change of an
existing partnership into a limited one, or
which prohibits a limited partnership from
purchasing in good faith the stock of a for-
mer firm, or from paying for it out of cap-
ital contributed by the special partner,
although the latter is thereby placed in
substantially the same position as if he
originally had put in the stock as capital
instead of money.-The Metropolitan Nat'l
Bk. v. Sirret, 362.

13. The word "annually" in § 15 of the act
has the same meaning as per annum,"
and the annual interest may be paid
quarterly or at any other stated period.—
Id.

14. The act does not prohibit the special part-
ner from assuming his proportion of the
losses.-ld.

15. The publication of a copy of the certifi-
cate filed, which states all the facts required
by 4, is sufficient to satisfy the require-
ments of 9, and a change of the name
of a newspaper in which the publication is
directed to be made, after such publication
is commenced, will not affect its validity.
-Id.

See CONTRACT, 22.

PARTY WALL.

See DEEDS, 7.
PATENTS.

See FIRE INSURANCE, 19-21.

PENAL CODE.

See BLACKMAIL, 3; SUNDAY.

PERJURY.

1. An indictment charging the defendant with
having committed the crime of perjury by
giving material evidence in an action be-
tween certain parties for a limited divorce
contains a sufficient statement of the nature
of the action in which it is claimed that the
perjury was committed.-The People v.
Grimshaw, 116.

2. A person is guilty of perjury who swears
falsely as to a fact material to a defence set
up in an action, although such defence
would fail without proof of other facts.-
Id.

3. In a prosecution for perjury the law does
not exact positive proof in addition to that

given by the prosecuting witness of the fai-
sity of the evidence, but all that it requires
is that there should be additional evidence
strongly corroborative of that given by the
prosecuting witness.-Id.

4. Chap. 251 of the Laws of 1875 applies to
the city of New York, and the Board of
Aldermen are empowered thereby to make
the contract provided for therein.-The
People v. Bowe, 515.

5. A jailor who falsely verifies a list or state-
ment of the persons confined in his jail on
civil process who have made oath of their
inability to support themselves during their
imprisonment, which list or statement is
required by law to be made and verified in
order to entitle the sheriff to recover com-
pensation from the county for their support
and maintenance in accordance with a con-
tract made by him, is guilty of perjury,
and he cannot protect himself against
criminal liability by alleging his incom-
petency to make such verification. -Id.

5. In an action on a promissory note in the
usual form made by defendant to plaintiff
the defendant, among other allegations,
answered that he had made and delivered
the note as trustee for a married woman
under the laws of Virginia, all of which
plaintiff knew, and under an arrangement
that the note should be paid out of a sum
set apart from the married woman's prop-
erty, as plaintiff also well knew, and that
said note had been paid to that extent. On
motion the court refused to strike out such
allegations from the answer. Held, No
error.-Thierry v. Crawford, 319.

6. The Code of Civ. Pro. does not authorize
a denial in the form "He denied each and
every allegation not herein before admitted
or denied."-Id.

7. The complaint alleged that the defendant
H. requested the plaintiff's assignor to fill
an order of the defendant V. for certain
merchandise, "he, said H., guaranteeing
or promising payment therefor." Held,
On a motion for that purpose, that the
complaint should be made more definite
and certain by requiring plaintiff to elect to
sue the defendant H. either as a promissor
or as a guarantor.-Partridge v. Haley, 320.

8. In an action to recover for injuries to plain-
tiff's wife, caused by her falling into an
excavation in a public street made by de-
fendants and left unguarded, the answer
alleged that the injuries alleged were
caused or contributed to by the injured
party; that defendants had settled said
claim with plaintiff, and then denied "each
and every other allegation in said com-
plaint contained not hereinbefore specifi-
cally admitted, qualified or denied." Held,
That the material allegations of the com-
plaint were excepted from the general
denial.-Clark v. Dillon et al., 329.

12. The answer to a complaint on promis-
sory notes alleged to have been made in
Boston, Mass., set forth that defendant, at
the time of giving them, was engaged in an
illegitimate business in Boston, known as
the 'bucket shop" business, consisting of
the purchase and sale of stocks in fractional
quantities, on margins, without an actual
delivery at any time; that plaintiff was a
customer of defendant therein, and the
transactions resulting in the giving of the
notes were, to plaintiff's knowledge, gam-
bling transactions therein, and illegal and
void; that the notes were without other
consideration, and therefore illegal and
void and plaintiff knew it, &c. Held, On
demurrer, that though the defense be in-

artistically drawn, and the statements im
properly made, yet they must be taken as
admitted allegations of fact, and as such
are sufficient; that defendant must show
on the trial that the transactions were void
in Massachusetts; that though under the
statutes in regard to betting and gaming
plaintiff may recover his money, this he can
do only under the statutes, and by disaffirm-
ing the contracts.-Id.

13. In an action to recover possession of real
estate where the title relied upon by the
plaintiff is derived from a deceased owner
as heir at law, and the defense set up is
that such owner made a will devising and
disposing of the property in question, a fur-
ther allegation that the said will had been
presented to the Surrogate for probate and
admitted to probate by him with a detailed
statement of the proceedings before him for
that purpose, with copies of the will and
papers used in the probate proceedings an-
nexed as exhibits, will not be stricken out
on motion as irrelevant and redundant.-
Watson v. Phyfe et al., 372.

14. When an answer sets up new matter by
way of affirmative defense of such a char-
acter that the intelligent trial of the action
requires that the defendant should be in-
formed whether the plaintiff intends to
deny such new matter or expected to avoid
its effect in some other way, and that with-
out a reply the defendant might very well
De subjected to surprise entitling him to
avoid a determination of the action which
the facts of the case would require to be
otherwise disposed of, the plaintiff will
be ordered to reply to such new matter.-
Id.

15. Where a complaint states a reason for
equitable relief upon the ground of mutual
mistake, and also upon the ground of
fraud, and upon the trial no fraud is shown,
the action may be maintained, provided the
count for mistake is not dependent upon
the allegation of fraud, is sufficient in itself
and is supported by proof.-Russell v.
Brownell, 504.

See ASSESSMENTS, 7; CLOUD ON TITLE, 3-5;
CREDITORS' ACTION; DEEDS, 8; FIRE IN-
SURANCE, 4; HIGHWAYS, 5; MUNICIPAL
CORPORATIONS, 3; NEGLIGENCE, 26; PAR-
TITION, 2; RAILROADS, 1.

POLICE.

1. Sec. 5, of Chap. 100, Laws of 1879, con-
fers authority upon the Commissioners to
determine when the state of the funds or
the public interest require or permit the
suspension of a police officer, and their de
termination involves the exercise of discre-
tion and cannot be interfered with or re-
viewed by this Court.-The People ex rel.
Woods v. Police Com'rs., 552.

POOR.
1. An attorney's claim for services rendered
in prosecuting a bastardy case is not one
"relating to the relief, support or transpor-
tation of the poor" within the meaning
of the statute giving to superintendents of
the poor power to audit accounts. Such
claim is a county charge and subject to the
audit of the Board of Supervisors.-Neary
v. Robinson et al., 388.

POWERS.

See DEEDS, 13; EXECUTORS, 1; MORTGAGE,
13; WILLS, 7-10, 12.

PRACTICE.

1. Relief cannot be granted when it is incon-
sistent with the case made by the com-
plaint. The Third Nat'l. Bk. of Buffalo. v.
Cornes et al. 30.

2. Relief will be granted, although not asked
for in terms by the complaint, when it is
clearly equitable and within the power of
the Court-Simson et al. v. Chadwick, 35.
3. A general objection to a question which is
proper in part cannot be sustained.-Id.

4. If a party fails to ask to go to the jury upon
certain questions, he cannot object upon
appeal that there are questions that should
have been submitted to the jury.-Atkinson
v. Stafford, 49.

5. If the Court inadvertently mistakes the
facts in charging the jury, counsel must
call its attention thereto at the time.—Id.

6. When a plaintiff is taken by surprise by the
production of evidence proving a defence
pleaded, the truth or falsity of which he
might have ascertained by communicating
with a third person in a foreign state, he
should withdraw a juror and thus arrest
the trial, and not proceed and take the
chances of success, and then move for a
new trial on the ground of surprise and
newly discovered evidence.-Soule et al. v.
Oosterhoudt et al., 67.

7. To justify the reversal of the determination
of a trial court upon questions of fact it
must appear that the findings of fact were
against the weight of evidence or that the
proofs so clearly preponderated in favor of
a contrary conclusion that it is reasonably
certain that the trial court erred.-Baird v.
The Mayor, &c., of N. Y., 100.

8. When a plaintiff's complaint is dismissed
at the close of his evidence upon the ground
that such evidence is insufficient to consti-
tute a cause of action, the judgment cannot
be sustained upon appeal if any evidence
material to sustain the issues on the part of
the plaintiff was improperly excluded dur
ing the trial.--Selover v. Chaffee, 115.

Vol. 20-No. 26c.

9. A justice out of court has no power to make
an order striking exceptions to the findings
and refusals to find of the court in an
equity case from the judgment-roll and
case on appeal as filed.-Pettit v. Pettit, 154.
10. When the judgment-roll and case on ap-
peal has been filed, a motion to correct it
should be made to the Special or General
Term.-Id.

11. It is proper for the clerk, to whom written
exceptions to the findings and refusals to
find of the court in an equity case are pre-
sented, after the filing of the judgment-roll
within the time specified for that purpose
by 994 of the Code of Civil Procedure,
to file the same and annex them to the
judgment roll as part of his return on ap-
peal; and it is not necessary that such
written exceptions should be made part of
the case to be passed upon on settlement by
the trial judge.-Id.

12. The fact that a complaint alleges facts not
essential for plaintiff to aver or prove, and
that the same are denied by the answer,
does not deprive the defendant of the
affirmative if he is otherwise entitled to it.--
Phillips v. Brown, 155.

13. When a party moves for nonsuit, or rests
his defence on certain propositions of law,
and his motion is denied or the law is de-
cided against him, and he does not ask to go
to the jury, he waives his right to go to the
jury and cannot on appeal urge that there
were questions for the jury.-King v. The
U. S. Life Ins. Co., 203.

14. Where there is a question of fact for the
consideration of the court, a motion for
nonsuit should be denied.-Grant v. Keef,
262.

15. The General Term has power to amend its
order or judgment so as to make it declare
the truth, notwithstanding an appeal has
been taken therefrom.-The Nat'l City Bk.
v. The N. Y. Gold Exchange Bk., 311.

16. The Code has not provided for a motion
for a new trial upon a case and exceptions
when the case has been tried by the court.--
Scrymser v. Phelps, 314.

17. County courts are authorized to grant new
trials on their minutes in cases originating
in justices' courts and retried in county
courts.-Hinman v. Stilwell, 401.

18. Except in a plain case a motion for a new
trial should be made on a case.-Id.

19. The Supreme Court has no power to set
aside a judgment entered on a remittitur of
the Court of Appeals.-Clark v. Mackin et
al., 461.

20. Where a stipulation provided that defend-
ant might appeal and interpose a general
denial and the answer as served contained