first mortgage recorded the priority, and that that inured to the successive assignees, who were without notice of the agreement. Greene v. Deal et al., applts. N. Y. Supreme Court, General T., 3d Queen v. Taylor. 2d Crown Cases Reserved, pp. 147149. Opinions by Cockburn, C. J., Bramwell and Mellor, JJ.; Brett and Hollock, JJ, concurring. April 24, 1875. MANSLAUGHTER. Abetting, what is not-must be an active participation.. MUNICIPAL CORPORATIONS. What property is private property of the Corporation. Ferries may be removed. Real estate about a ferry as part of the ferry itself. Two men quarrelled, and agreed to By the Laws of 1872, Chapter 269, the fight their differences out with their fists, Albany and Greenbush Bridge Co. was and for the purpose of binding each incorporated, with power to build a other to make the fight, each put £1 in bridge across the Hudson at Albany, at the hands of the prisoner, which sum was some point to be determined by the comto be paid over to the winner. All the missioners named in the act. The comprisoner did was to hold the stakes. He pany was authorized to take and hold the was not present at the fight, and there necessary real estate, was duly organized, was nothing on the laying of the wager its capital stock subscribed, and the site to indicate that the struggle would be of the bridge was located opposite certain fatal. The men met and fought with ferry property of the city. The city sold their fists. It was a fair fight. One of this ferry property to the company. By them was advised to yield after fighting the Dongan charter, the city of Albany some time, and had he yielded he would have saved his life; but the fight was continued, and from the injuries he received he died. The judge, Brett, J., directed the jury, for the purpose of raising the question in the Criminal Court of Appeal, that the holding of the stakes to be paid to the winner of the fight, that that alone made the prisoner an accessory before the fact to the breach of the peace, and as the manslaughter was consequent on the breach of the peace, he was accessory to the manslaughter. The indictment was for abetting the manslaughter. Held, The mere consent to hold the stakes was not such a participation as made the prisoner an abettor of the acts which caused the killing. There must have been some act or proceeding on his part to criminate him. was empowered to establish all ferries "necessary, needful and convenient for the inhabitants of said city and the parts adjacent, for travellers there." Afterward, the legislature of the State of New York gave the city the exclusive right to establish and control ferries; and thereby the city of Albany acquired a proprietary right. An injunction was granted, restraining the city from conveying to the Bridge Co. the ferry property, and the real estate connected therewith, and restraining the company from taking the ferry property, and erecting a bridge over the Hudson there. Held, 1. That the city has the right to sell the real estate about the ferry, as it was private property of the corporation, since it is not held as a trust for any specific purpose. 2. Real estate about a ferry is not any part of the ferry, for the ferry may be N. Y. Supreme Court, Gen'l T., 3d NEGLIGENCE. Title of county to a bridge relinquished to it, with legislative sanction, by a pri vate corporation. Evidence of ownership. Contractors or employees? Evidence of strength of bridge. Negligence in driving logs in a river, what is. logs, and to break up any jams that might occur, and to send the logs down. In the suit to recover damages for the destruction of the bridge by reason of defendant's negligence, the complaint alleged that plaintiff was owner of the bridge, and the answer contained a general denial. The defendants objected to the capacity of the plaintiff to maintain the action; they further insisted that the plaintiff was guilty of contributory negli gence; that the bridge was defectively constructed, and that the persons to run their logs were contractors, and, as such, were liable for any injury to the bridge. Held, 1. That defendants waived any objection to the right of the plaintiff to maintain the action, and are concluded thereby, having neither demurred nor set up such defect in their answer, as required by sections 144 and 148 of the Code. 3. The notice to an overseer of highways is not notice to a town, for he has no care over or duties in respect to bridges. 4. The bridge, under the evidence, was well constructed, of proper dimensions, and of suitable materials, height and strength. It had proved sufficient for many years. In 1810, the St. Lawrence Turnpike Road Co. was incoporated by the legislature of the State of New York. The road 2. The town acquired the right from crossed the Racket river, in the township the Turnpike Co., with the legislative now known as Pierrepont. The town of sanction, to maintain the bridge. The Pierrepont was organized in 1818, and by right thus acquired becomes an easement, the laws of 1822 it is recited that the and is the property of the town, so that Turnpike Co., under its corporate seal, the town can maintain the action. consents and agrees to relinquish all that part of the turnpike road passing through the county of St. Lawrence; and all that part is given to the inhabitants of the several towns of the county for a public highway. And the act provides that the roads and bridges apportioned out of the turnpike road shall be maintained in like manner as though the turnpike road had been legally laid out by the commissioners of highways. The bridge over the Racket River had been rebuilt by the town four or five times on the same location, and in 1867 it was carried away by defendant's logs being carried against it. Defendants employed certain persons to run the logs down when the spring freshet came, and contracted to pay five cents a log for the service. These men were to run such logs as defendant had, or should, put into the river, and their duty was to remain behind and keep in the channel stranded 5. The persons who were to run the logs down the river were not contractors, they were employees. Opinion by Boardman, J., James, J., concurring. Learned, P. J., also concurs and adds: The destruction of the bridge was caused by the negligence of the defendants, who did not make provision by sending men. ahead to prevent jams. i Town of Pierrepont, respdt., V. Lovelass et al., applt. New York Supreme Ct., Gen'l T., 3d brought in 2,5007. NEGOTIABLE PAPER. Plaintiff took onehalf of profits, and his son and defendant, each, took a quarter. Undrawn profits were carried to the capital account of each partner, and interest was allowed on the capital accounts. During the partnership the mill was enlarged and im Ordinary coupons negotiable as bank proved, and other lands were acquired notes, etc. and more buildings erected at a very considerable expense, all of which was Defendant purchased, in the ordinary borne out of the partnership, and paid course of its business, from its customers, out of the proceeds of the business. The coupons from railroad bonds due April | partnership was ended on the 31st of De1, 1871. They were bought on April 3, cember, 1867, and, thereupon, a second 1871. Plaintiff stopped payment of them, partnership, being a partnership at will, as they had been stolen from him, of was made between the same parties, and which, however, defendant had no notice, the capital which was to the credit of and the railroad company paid the money into court. Held, That it is well settled that ordinary coupons detached from their bonds are in law treated and regarded as bankbills, currency, or the original bonds. Evertsen v. The National Bank of N. Y. Supreme Ct., Gen'l T., 3d Dept. PARTNERSHIP. each party at the termination of the first partnership became his capital in the new partnership, and, along with the undrawn profits, bore interest as before. The profits were to be divided equally. In 1871, the plaintiff's son died, leaving plaintiff his sole executor, devisee, and legatee. It was agreed between plaintiff and defendant that the business should be carried on till the 1st of January, 1872, the plaintiff taking his son's share in the capital and profits, and that on the 1st of January, 1872, a new partnership should be formed, in which the profits were to be shared equally. The agreement was carried into effect. The plaintiff's capital in all the partnerships was much larger than defendant's. In 1873, the mill, plant, and machinery, and the good will of the business were sold by the firm to a limited company, and in the terms of the agreement for sale, in The parties to the suit, with William which plaintiff and defendant were both H. Robinson, son of plaintiff, formed a described as vendors, separate prices partnership in 1861, for seven years, as were fixed for the mill and fixed plant, cotton-spinners. Plaintiff was the owner and for the movable plant and maof a cotton-mill, with fixed plant and chinery; the price of the former being machinery, valued, less the mortgage 57,0521., and of the latter 48,7447. The debt, at 24,000l. That was the mill question in the suit was, whether the deagreed to be used, and plaintiff was cred- fendant was entitled to one-half of the ited with the sum, as his capital, on the profit which had arisen from the sale of books of the partnership. Plaintiff's son the mill and fixed plant. Throughout brought in no capital, and defendant all the partnerships, the mill and fixed Capital. Real property, when partnership property. Interest of partners in the rise of real property, when part of cap ital. plant were entered at the original value Held, The history of the legislation on of 24,000l., increased from time to time this subject demonstrates the intention of by the expenditures, repairs, and im- the law-makers to have been, to make provements, but less a certain sum yearly service within the State on the proper for depreciation. The property was not officer of a foreign corporation equivalent valued between 1861 and the sale, and on to personal service on a non-resident natthe 1st of January, 1872, the mill and ural person. There is not the slightest fixed plant were entered in the books of distinction made between a natural person the third partnership at the value arrived and a corporation. at as above stated, which was much less than the selling price. Held, 1. In the absence of any special agreement, the rise and fall in value of the fixed plant and real estate belonging to the partnership, was as much a matter of profit and loss of the partnership as anything else. 2. The credit on the books of 24,000l., based on the value of the mill and machinery, to the capital account of plaintiff, made the mill and machinery partnership property. 3. The defendant is entitled to onehalf of the proceeds of the sale, after paying the debts and the capital due to each partner as shown by the books. Robinson v. Ashton. Law Reports, 20 Equity, pp. 25–28. Opinion by Sir G. Jessell, M. R. April 20, 1875. PRACTICE. Barnett, respdt., v. The Chicago and Opinion by Gilbert, J. SHERIFF. What is not an official act. Sheriff ob taining money by fraud. The limitation of one year as a bar, not intended, when. The defendant, a former Sheriff of Kings County, in a suit brought by plaintiffs to recover $24,122. 25, alleged to have been obtained from the county by him. through fraudulent accounts and vouchers for the board and confinement of fictitious persons in the county jail, answered that the cause of action did not accrue within one year, and that under Sec. 2, Chap. 733 of the Laws of 1871, the plaintiffs' recovery was barred by limitation, to which the plaintiffs demurred. Service of foreign corporation, how The demurrer was sustained and the de done. The president of the defendant was served in the city of New York with the summons in this action. The cause of action was alleged to have arisen in this State. A motion was made to set aside the service on the ground that the defendant was a foreign corporation, and had neither property, nor officers, nor agency in this State. The motion was denied. fendant appealed. Held, The demurrer must be sustained. The act does not apply; for the defendant is not sued as Sheriff in his official capacity, or for any act done by virtue of his office. It is a fraud of the gravest description, and the short statute of limitation for acts honestly done by Sheriffs by virtue of their office, could not have been intended to cover up such a case. Opinion by Barnard, P. J., Gilbert, J., concurring. Tappen, J., dissenting, says: I am of the Justice had exercised his judicial funcopinion that the defendant, in presenting tions, and had issued a mandate as the rehis accounts and vouchers to the plain-sult of such act; and that the officer was tiffs, and in having them audited, did so protected by it in performing the duty as Sheriff, and not as a private individual, devolved upon him as such officer, by its or under color of office, and hence that command. the statutory limitation applies to this action. Board of Supervisors of the County of Smith, pltff., v. Warden, defdt. WARRANT. Need not recite legal offence. Protects officer commanded to execute it, in an action for false imprisonment. A Justice of the Peace in Cortland County issued a warrant to a constable of a town in that county, to arrest the plaintiff. He made the arrest and left the prisoner in the hands of the defendant, who, also, was a constable of the same town, and a tavern-keeper. For a detention over night an action for false imprisonment was brought. The defendant put the warrant in evidence when the plaintiff rested, and moved for a nonsuit, which was denied, and an exception taken. WILL. Ambiguity as to who is legatee. Name and description of legatee inconsistent. Evidence to remove the doubt. Costs. I. Forster Charter, who lived at Woodburn Hill, in the County of Northumberland, made a will, and the contest upon it arose out of the following part: "I hereby nominate and appoint my son, Forster Charter, as my executor of this my will; and to him I give, etc., all my messuages, etc., for his own use and benefit, and for the use and benefit of the persons hereinafter to be named. My will is, that my executor, Forster Charter, shall annually pay to Elizabeth Charter, iny wife, the sum of ten pounds sterling, and at the same (time) allow my wife her ordinary maintenance, as long as they reside together in the same house; but, should On the close of the case the defendant they think proper to live separately, then asked the court to charge that the war- my will is that, besides paying my wife. rant was a protection to him as consta- the above annuity of ten pounds, the said ble, and that he was entitled to a verdict. Forster Charter shall allow my said wife, The request was refused, and an excep- rent free, the use of the cottage at Woodtion taken. The court instructed the burn Hill, now occupied by Daniel Wood, jury that the warrant was illegal, since it and shall also supply her, gratis, with a did not recite a legal offence in compli- reasonable quantity of bread, corn, potaance with the statute. To which the de- toes, coals, butter, cheese, and garden fendant excepted. produce. Should any difference of opinHeld, 1. That the warrant need not ion arise between my executor and my contain a recital of the offence. said wife" with regard to the quantity or 2. That the warrant showed that the quality of this allowance, the matter is |