of the evidence, Held, That he was not disqualified by reason of such opinion.Balbo v. The People, 540.

18. The fact that a juror may have some prejudice against the race to which prisoner belongs is not a disqualifying circumstance.-Id.

19. When a confession is made voluntarily, the people are not precluded from availing themselves of it because the officer or person to whom it was made was exercising an illegal restraint over the prisoner at the time.-Id.

20. After the commencement of the trial of the accessory upon an indictment, it appeared, on the examination of the principal as a witness, that no conviction of the principal had been had. The principal thereupon was allowed to be arraigned upon the indictment, he being jointly indicted with the accessory, and plead guilty to the offense, and afterwards the record of the principal's conviction was allowed to be shown in evidence on the trial of the accessory, which was in progress, against objection and exception, Held, no error. -Jones v. The People, 551.

The loss of merely prospective profits hoped to be realized from an untried business venture cannot be allowed as damages.-Id.

See ASSAULT, 6; ATTORNEY, 4; CHATTELS MORTGAGE, 2; EMINENT DOMAIN, 6; HIGHWAYS, 2; LIS PENDENS; NEGLIGENCE, 7; NUISANCE, 1; RAILROAD COMPANIES, 3.

DEEDS.

1. To avoid a deed as champertous, an actual and not a constructive possession is required by the statute. It must appear that, at the time of the delivery of the deed, the lands were in the actual possession of one claiming under a title adverse to that of the grantee. It must be some specific title, and must be shown to the court.-Dawley v. Brown, 359.

2. In order to reform a deed on the ground of mistake, it must be made to appear that the clause objected to was inserted contrary to the intent of the parties, and under a mutual misapprehension.-The Albany City Savgs. Inst. v. Burdick et al., 435.

DAMAGES.

PERJURY;

1. The fact that plaintiff (administrator) would inherit the property of his intestate as next of kin, is not a circumstance to be considered by the jury in estimating the damages.-Terry v. Jewett, 137.

2. In an action brought to recover price of a machine sold under a contract and warranty, the defense interposed that the defendant had sustained damage by reason of defects in the machine constituting a breach of warranty, exceeding in amount the contract price of the machine. Among the items of damage claimed was one for material, &c., consumed in unsuccessful attempts to operate the machine. Held, That defendant cannot cast upon plaintiff the damage arising from waste of material consequent upon experiments with the machine continued longer than was reasonably necessary to ascertain whether it answered the warranty.-Stevenson v. Stewart, 352.

3. A party subjected to injury from a breach of contract by the other party must make reasonable exertions to render the injury as light as possible, and if, through negligence or willfulness, he allows the damage to be unnecessarily enhanced, the increased loss falls on him.-Id.

4. Although a party injured by breach of contract is entitled to recover damages, gains prevented as well as losses sustained, they must be certain and such as might naturally be expected to follow the breach.

premises by deed, which contained an assumption clause. In an action to foreclose, the grantee answered, alleging that the assumption clause was inserted fraudulently and without her consent or knowledge, and in violation of her express contract to the contrary, and that she did not know that that clause was inserted until after the action was commenced, and prayed a reformation of the deed. Held, That the facts set forth did not make a case of mutual mistake nor of fraud authorizing a reformation; that her omission to examine the deed was such negligence as to deprive her of the right to predicate fraud on the transaction. Id.

4. After the execution of a deed by defendant and his wife, defendant, without his wife's consent, struck out a covenant making the conveyance subject to taxes. Held, That the alteration rendered the conveyance ineffective to convey a perfect title, and plaintiff was not bound to accept it.Stone v. Lord, 536.

See CONTRACT, 1; HUSBAND AND WIFE, 4; MARRIED WOMEN, 7; MORTGAGE, 6, 8, 11-13; SPECIFIC PERFORMANCE; TRusts, 4.

DEFENSE.

See INFANTS, 1; Insanity, 1; MARRIED WoMEN. 2; NEGOTIABLE PAPER, 1; SURETYSHIP, 3.

DEPOSITIONS.

1. Where the plaintiff does not reside in the City and County of New York, and has no place therein for the transaction of busi

ness, but resides in the County of Kings, New York State, he cannot be examined at the instance of the defendant in an action pending in the Superior Court in New York City,-Hesse v. Briggs, 75.

2. The term non-resident, as used in § 876 of the Code, means non-resident of the State. -Id.

3. Where an order for the examination of a party defendant before trial is inoperative for any cause, and an appeal is pending from an order denying a motion to set it aside, a second order may be obtained as a new proceeding under § 872 of the Code.--Gawthrop v. Leary, 176.

4. Where the order for an examination of a party is served without tendering him his witness fees, the court will not proceed against him for contempt in not obeying the order.-Id.

5. A commission to take testimony issued without an order of the court, or not under the seal of the court, is void, and a deposition taken under it is no better than the unverified statement of the witness-The Mason and Hamlin Organ Co. v. Pugsley, 190.

6. The duty of moving to suppress a deposition arises only where the party has knowledge of the irregularity in the issuing or execution of the commission a sufficient time before the trial to enable him to make the motion before the trial.-Id. 7. Directors of a corporation defendant, but who are not parties to the action, cannot be required to testify before trial or to produce books of the corporation for inspection.-Boorman v. The A. & P. RR. Co.

264.

8. Where a release is set up as a defense to an action for negligence, and plaintiff claims that such release is a forgery, and that the forgery was committed by a third person for whose examination defendant has obtained an order for a commission, it is proper to put to such person on his cross-examination questions tending to discredit or disgrace him, and to question him as to his conduct and acts about the time of the alleged forgery, with a view to showing his guilt.-Uline v. The N. Y. C. & H. R. RR. Co., 344.

9. A judge in settling interrogatories must insert all pertinent questions, although a judge sitting at the trial might, in his discretion, exclude them.-Id.

See APPEAL, 29; PRACTICE, 21, 39.

DESCENT.

See ALIENS.

DISCONTINUANCE.

1. When a defendant, pending the action, obtains an insolvent's discharge, or a dis

1. In an action brought by a wife for absolute divorce, where the moving papers show a propability that the plaintiff will succeed in the action, the court may properly make an order allowing alimony and and counsel fees to the plaintiff pendente lite.--Collins v. Collins, 131.

2. A record of judgment for divorce granted in the State of Illinois in favor of a husband against his wife, is not admissible against the wife in this state where it appears that it was obtained without notice to the wife, and that the husband was not at the time a resident of Illinois.-Toler v. Adee et al., 211.

3.

In an action by the wife for separation from her husband on the ground of cruel and inhuman treatment, the court has no authority to grant or authorize an amended or supplemental complaint to be served changing the cause of action so as to obtain an absolute divorce on the ground of . adultery, even for acts committed by defendant after the commencement of the original action.--Robertson v. Robertson, 348 4. The attorney who appeared for the defendant in the original action has no authority to appear in the action after

amendment without additional authority from his client, and his acts are not binding upon his client without such authority. - Id.

5. On an application for alimony in an action for divorce the onus is upon the plaintiff to establish with a reasonable degree of certainty that the relation of husband and wife exists between the parties.-Collins v. Collins, 573.

6. Articles of separation entered into between the parties, containing a provision for alimony, are not a bar to an action for divorce, nor to an application for alimony therein.-Id.

7. An action for divorce was pending over ten years, and no attempt was made to bring it to trial. Held, That defendant having taken no measures to bring it to trial, an allowance to plaintiff for counsel fees was correct. Id.

See CONTEMPT, 5, 6; DowER, 1.

DOWER.

1. A judgment of absolute divorce in favor of a wife, containing a provision for her maintenance, does not deprive her of her dower right in the lands of her late husband.-Savage v. Crill, 41.

2. A release of such right of dower by the divorced woman directly to the man who was her husband is valid and effectual. -Id.

3. Such release, although unrecorded, removes the dower lien upon land, as against a subsequent mortgage.-Id.

DRAINAGE.

1. The effect of Sec. 4, Ch. 303, Laws of 1871, amending the Act of 1869, in reference to draining lands, is to substitute the county court for the county judge in all respects in proceedings under the act. Hence an appeal lies from decisions of the county court in such proceedings to the Supreme Court. In an appeal from a decision of the county court, rendered upon an appeal from the determination of commissioners, notice of appeal is to be served upon the commissioners, and need not be served upon the owners of the lands affected, and the notice of appeal need not contain a specification of errors. Appeal may be brought by the owner or possessor of land in any way affected by the proceedings; it is not necessary that his land should be actually taken and condemned. A decision may be final as far as the court is concerned, and therefore appealable, although it gives parties the election of two prescribed courses of action. In proceedings under the drainage acts it is essential to the jurisdiction of the county court that it appear that the proposed drainage is necessary for the public health, and the decision of the commission

ers is void if it does not determine that the construction of the drain is necessary in order to drain the lands of the petitioner, or either of them, or the lands described in the petition.-Buck v. Ayers et al., 124.

2. Objection to jurisdiction can be raised for the first time in the appellate court.Id.

3. The acts in question do not authorize the construction of ditches to drain highways. -Id.

See ASSESSMENTS, 6.

DURESS.

1. The defendant, Ann Lindsay, and her husband gave to plaintiff a mortgage on her separate property to secure a precedent debt of the husband. This action was brought to foreclose the mortgage, and defendant pleaded that the mortgage was obtained from her "by the agent of the plaintiff (and others in collusion with him), by duress of the defendant," &c. On the trial defendant was allowed to prove duress by her husband without any knowledge thereof on the part of the plaintiff. Held (1), That the evidence was inadmissible, no such defense having been pleaded; (2), that in a case like the present, the duress and coercion by the husband must go the extent of depriving the wife of her free volition by reason of apprehension of personal injury or great wrong, and that no such duress had been proven.-Lord v. Lindsay, 70.

EASEMENT.

1. The Common Council of the City of Buffalo granted permission to defendant to lay its tracks through a public square or thoroughfare in said city, known as "Cazenovia Terrace." The plaintiff is owner of land fronting on the "Terrace," title to which was derived, by intermediate conveyance, from Holland Land Company, which, in 1814, made and filed a map in which lots, streets, and open squares and grounds were designated. Among the latter was the said Terrace, which has ever since been used as a public highway. In an action to restrain defendant from constructing its railway through said "Terrace," Held, That plaintiff is entitled as a purchaser to have the "Terrace" left open forever as a street. Also, That the use to which he is thus entitled is independent of the public right, and cannot be taken away or impaired against his consent, except upon making him compensation, and by the constitutional exercise of the right of eminent domain.-Pratt v. The Buffalo City R. Co. et al., 122.

3. As between him and a grantee who has purchased on the faith of such map, there is a dedication of the strip by the former for use as a street as an appurtenance to the lot sold, and the grantee has a right, as against the grantor and those claiming under him, that the street shall remain unobstructed.-Id.

4. One H., the owner of a farm, caused the same to be mapped and laid out in village lots and streets, and sold one of said lots to plaintiff's grantor, the deed describing it by express reference to the projected street, and containing a diagram, a transcript from the map, showing the adjacent streets. Held, That the map being referred to in the deed, and being identified, the grantee acquired the right to the use of the street laid down on the map as an easement appurtenant to the lot conveyed, by virtue of the grant itself, and that the grantor and those claiming under him were estopped from denying such right.-Boyd v. Sinclair, 557.

SEE CONSTRUCTION OF STATUTES, 2.

EJECTMENT.

1. A plaintiff in ejectment can only recover on the strength of his own title; if he has none the question of defendant's title is unimportant.-Sweet v. The Buff., N. Y. & Phila. RR. Co., 383.

2. Plaintiff, in an action of ejectment, claimed title under a conveyance from a sheriff. executed in pursuance of a sale made in 1856 on a judgment against one T. C., recovered in 1853. In 1851 T. C. made a contract to sell the premises in question to defendant, and conveyed them to him in 1855 by deed, which was recorded in 1857, and prior to plaintiff's deed. In summary proceedings instituted in 1858, plaintiff procured a warrant of removal against defendant and T. C. On presentation of the warrant T. C. took a lease of the premises, and defendant executed a contract by which he agreed not to take any advantage of the possession of T. C. under the lease, and not to interfere with the premises until the summary proceedings were reversed. Held, That the defendant was estopped from denying plaintiff's title in those proceedings.-Terrett v. Cowenhoven, 392.

See ADVERSE POSSESSION, 2, 5; TAXATION, 4.

ELECTIONS.

1. Chapter 575, Laws of 1872, relating to elections in Brooklyn, as amended in 1873 and 1874, is valid and constitutional; the provisions for preserving the ballot to be used as evidence are germane to regulation

2.

3.

4.

5.

6.

The inspectors sealed up the apertures through which the ballots were put. The canvassers did not remove the seals, but delivered the boxes without other sealing. Held, It was their duty to do the affirmative act of sealing, but that the object of the statute being to keep the boxes inviolate, if that was accomplished an omission to observe all the formalities to secure this object is not fatal. In such case it should be left to the jury to determine whether the ballots were more reliable evidence than the inspectors' certificate.-Id.

Evidence admitted before opening the boxes, showing some error or incorrectness in making the returns, although not establishing the precise difference shown by the recount, is pertinent and appropriate for the consideration of the jury in determining the credit to be given them when brought in conflict with the ballots.-Id. Evidence was given by police officers tending to show the inviolability of the boxes, but their security was not shown to be such as to preclude the possibility or probability that access might have been had to them for improper purposes. Held. That this was a question of fact for the jury.—Id.

The burden of showing that the boxes have not been tampered with, is upon the party offering them.-Id.

See CORPORATIONS, 4, 5.

EMBEZZLEMENT.

1. Plaintiff in error was treasurer of the F. Savings Institute, and also cashier of the F. National Bank. While on his way to New York to deposit moneys of his bank, he received $1,500 belonging to the Institute, which he deposited in New York, with the other moneys, to the credit of his bank. It did not appear whether the package containing the $1,500 was addressed to plaintiff in error officially or not. This money was never entered upon the books of the Institute or credited to it on the books of the bank. It was subsequently drawn out of the New York bank by the F. National Bank. Held, that there was not sufficient evidence that the plaintiff in error received said money by virtue of his office as treasurer of the Institute, and that nothing short of this would warrant a conviction for embezzlement.-Bartow v. The People, 155.