8. A notice of appeal from a judg
ment of a justice's court, which
necessarily shows the respondent
how the judgment should be more 1.
favorable to the appellant, and en-
ables the former to make the offer
permitted by section 371 of the
Code, is sufficient, upon the ques-
tion of costs, although it does not
state, in hæc verba, that the judg-
ment should have been "more fa-
vorable." Fults v. Wynn.
153
4. By taking his appeal from the
judgment of a justice of the peace
in form as for a new trial, the ap-
pellant does not waive the right to
insist that an attachment, through
which the justice took cognizance
of the case, was void. Per FOSTER,
J. Stevens v. Benton.
5. Or to raise in the appellate court
as fully as he might if he had ap-
pealed on questions of law only,
all questions properly raised in the
court below, excepting those to
proceedings which took place on
the trial of the action.
Id.
GENERAL TERM.
SURROGATE, 2.
PRACTICE, 6, 11, 12, 14, 18.
On the trial of an indictment un-
der § 4, 2 R. S., 667, for setting fire
in the night to a certain building,
the property of an incorporated
company, "erected for the manu-
facturing of woolen goods," it is
proper to prove by the president
of the company that the building
fired was intended as a manufac-
tory for such goods, though it was
not at the time completed and used
as such. McGarry v. The People.
227
And if the building was erected
for such a manufactory, though
not yet in fact appropriated to that
purpose, there may be a convic-
tion.
3. Whether the erection has pro-
gressed sufficiently to constitute a
building within the statute, is, it
seems, & proper question for the
jury.
Id.
6. On a trial upon appeal in the
County Court, the jury gave a ver-
dict for the plaintiff for $284.37, up-
on which he entered judgment with
costs in the aggregate for $519.72.
The complaint below demanded 5.
$200, and it did not appear wheth-
er it had been amended, and no
question was raised upon rendition
of the verdict or otherwise in res-
pect to the amount thereof. On
appeal to this court the judgment
was sustained. Channon v. Lusk.
211
7. The decision of a referee will not
be reversed on appeal, upon the
ground that it is given against a
preponderance of testimony as res-
pects the number of witnesses,
1. A horse railway, constructed along
and upon the grade of a highway,
by laying rails of the ordinary di-
mensions upon pine stringers, fas-
2. A complaint for foreclosure, set
forth such a mortgage, expressed
as security for payment of a sum
of money in installments, and aver-
red that it had been given to secure
a part of the price of the mort-
gaged premises, and assigned to
Held, on demurrer, to
plaintiff.
show plaintiff to be owner of the
mortgage debt.
Id.
3. An assignment of a bond and
mortgage, and "the moneys due
and to grow due thereon," carries
by its terms a note for which they
are held as collateral. Belden v.
Meeker.
1. The attorney-general has the
power belonging to that officer at
common law, and such additional
powers as the legislature has con-
ferred upon him. Per MULLIN, J.
396
The People v. Miner.
But the only cases in which at
common law he was authorized to
interfere to restrain corporate ac-
tion, or was a necessary party to
an action for that purpose, were
those in which the act complained
of, would produce a public nui-
sance or tend to the breach of a
trust for charitable uses.
Id
3. The case of Davis v. The Mayor,
&c., of New York (2 Duer, 663),
commented on and explained, and
certain dicta in that and in other
cases disapproved, and the cases
therein cited, examined.
Id.
See BANKER AND BANK DEPOSI-
TORS, 2.
BANKER AND BANK DEPOSI-
TORS.
1. A banker in business on his own
account, but insolvent, and intend-
ing an immediate general assign-
ment, unless assisted during the
day, receives a sum of money for
deposit from one of his depositors
who is ignorant of the insolvency,
and he makes an entry thereof
in the depositor's bank book, but
keeps the money in a separate
parcel labeled with the depositor's
name, intending to redeliver it if
he shall assign; he makes no entry
in his own books except a mem-
orandum in his cash book, beneath
which he writes the depositor's
name; and afterward, on the same
day, he assigns his property gene-1.
rally for the benefit of his credi-
tors, and delivers the parcel to the
assignee with a request that he
will, if he may legally, give it to
the depositor.-Held, that the as-
signee took no title to the deposit.
Chaffee v. Fort.
2. The delivery of the parcel to the
assignee, addressed to the deposi-
tor for delivery to him, was in
effect a delivery to the latter, and
after a demand of the amount the
assignee was merely his bailee. Id.
See ACT OF BANKRUPTCY.
INSOLVENT DEBTORS.
On receipt of goods at New York
destined to Chicago, but consigned
to an intermediate consignee at
Buffalo, the carrier signed two bills
of lading; one of them he retain-
ed, and it required delivery at
Buffalo, named the charge for
freight to that place, and directed
the consignee to pay the shipper
or his order, specified advances
made by him to the carrier; the
other was identical with it, except
in containing an additional memo-
randum of the charge for freight
from New York to Chicago, and
further consigning the goods to a
Chicago consignee, and was sent
by the shipper to the Buffalo con-
signee. The carrier delivered the
goods to the consignee at Buffalo.
-Held, that the latter became lia-
ble for the freight money earned
on acceptance of the goods, and
that the carrier could recover the
same of him. Dart v. Ensign. 383
BILLS OF EXCHANGE AND
PROMISSORY NOTES.
In an action upon a promissory
note, brought by one who has taken
it for value, but after maturity,
the maker may defend, upon the
ground that the note was given,
solely as protection against a mort-
gage executed and delivered to
him by the payee to prevent a col-
lection out of the mortgaged pro-
perty of penalties incurred by the
violation of law. Merrick v. But-
ler.
103
It is also a suflicient defence to
the suit if while the note was in
the hands of the payee, the maker,
without consideration, acknow-
ledged satisfaction of the mort-
Id.
gage.
3. The payee and holder of an over
due promissory note, given for
money loaned by him to the maker,
purchased personal property from
the latter and surrendered the note
as the consideration for the sale.
-Held, that he was a bona fide pur-
chaser, as against a prior mort-
gagee of the vendee, of whose mort-
gage he had no actual or con-
structive notice. Powers v. Frec-
127
The decision in Day v. Saunders (3
Keyes, 347), commented upon and
The defendant's testator, while
living, delivered to the plaintiff,
his sister, a sealed envelope, in-
dorsed with directions not to open
it until after his death, and to re-
turn it to him on request; this was
upon his recovery from a danger-
ous illness,happening upon a visit at
the plaintiff's house during which
he had received from her extreme
care and attention, and frequently
told her that he would pay her
well;
the envelope was once re-
turned to the testator at his request
upon a subsequent visit, and rede-
and which the maker intended to
make.
JOINT AND SEVERAL DEBTORS
PREMIUM NOTE.
BILLS OF EXCHANGE AND PROM-
ISSORY NOTES, 1, 3, 6, 8, 9.
livered to the plaintiff some two See POWER AND AUTHORITY, 1 TO 6.
hours afterward. After the testa-
tor's decease, the plaintiff being
previously ignorant of its contents,
the envelope was found to contain
his note to her, for $10,000, ex-
pressing the consideration to be
for services rendered to him.-
Held, that the plaintiff was entitled
to recover the whole amount of
the note. North v. Case. 264
Van Santvoord v. St. John (6 Hill,
157), distinguished.
Smith v. N. Y. Cent. R. R. Co. (43
Barb., 225), explained.
Burr v. Stenton (52 Barb., 377), dis-
tinguished.
238
Grosvenor v. N. Y. C. R. R. Co. (39
N. Y., 34).
269
State v. Philbrick (31 Maine, 401),
disapproved.
329
Beach v. Furman (9 J. R., 229), dis-
tinguished.
354
Forest v. Kissam (7 Hill, 463), distin-
guished.
370
Vanderkemp v. Shelton (11 Pai., 38),
followed.
Hoyt v. Hoyt (8 Bosw., 511), distin-
guished.
Davis v. The Mayor, &c., of N.
Duer, 663), explained.
Storey v. Furman (25 N. Y., 214),
See OWNERSHIP IN COMMON OF
CHATTELS.
1. The defendant, who owned and
kept for the convenience of his
business as a manufacturer of
staves, a canal boat, suitably man-
ned and equipped, received from
the plaintiffs, who were common
carriers, a cargo of the merchan-
dise of their shippers indifferently,
and undertook its transportation
on such boat to a point on their
route of business, for the usual
rates of charge, to be collected and
paid over by the plaintiffs, less a
commission retained.-Held, that
he was not liable to the plaintiffs
as a common carrier, although he
had applied for the cargo, knowing
the general ownership it must have,
and a year previously had made
with them and performed a simi-
lar contract. Fish v. Clark 176
2. The New York Central Railroad
Company received goods from the
plaintiff, directed to a certain place
on the Michigan Southern railroad,
and, under a special agreement
limiting its liability to its own
route, carried them to Suspension
Bridge, upon such route, and then
delivered them to the defendant.
The defendant's road, extending
from Suspension Bridge, N. Y., to
Windsor, Canada, connected with
that of the Michigan Southern Rail-
road Compay, by ferry from Wind-
sor, at Detroit, where under a con-
tract between the two companies,
for the purpose, the defendant was
accustomed to deliver freight ar-
riving by its line, to the Michigan
Southern Company, for transporta
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