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or proceeding proved. The statute to the law then in force (Chap. 86, under which the proceedings were Laws 1844), but were not appointed had, did not declare that the deed in accordance with § 7, of Article 1 should be prima facie evidence of of the Constitution. This has been the regularity of the proceedings or held to render the statute unconstitusale. tional. 56 N. Y., 374. This defect appeared affirmatively on the trial.

M. T. Hun, for applt.
A. J. Parker, for respts.

Held, That this was not a case for presuming that public officers had done their duty; their acts must be shown, and the onus was upon the purchaser. The recitals in the deed must be proved to be true. 4 Hill, 86. It was necessary to the validity of the deed that there should have been a substantial compliance with the law in all the proceedings of which the sale was the culmination. Cooley on Tax'n., 324; 25 Me., 359.

The general rule that the lapse of sufficient time after the sale of land by an executor, administrator, guardian, or other officer authorized to make the sale, raises a conclusive presumption that all the legal formalities were observed (Greenl. on Ev., § 20) does not apply to records or public documents, which are supposed to remain in the custody of the officers charged with their preservation, and which must be proved or their loss accounted for and supplied by secondary evidence. The presumption is that the records and documents are in

existence, and in the absence of evidence, if they cannot be found or their loss accounted for or explained, the natural presumption is that they never existed. Courts will not aid in supplying fundamental defects in such a case by presumptions.

In the assessment of 1861, the commissioners to assess the damages and recompense were appointed according

Held, That it rendered the entire proceeding void.

The will of H., after devising and bequeathing his estate in trust to his executors to apply the income, rents and profits to the support of his son J. and his wife, and the survivor, provided, "I give, devise, and bequeath the residue **** to Robert Hilton, Jr., son of my deceased brother Robert, and Catherine his wife, and Richard, son of my brother Derrick, as tenants in common, and their heirs forever."

Held, That the devise was one-third to Robert, Richard, and Catherine each.

Judgment of General Term, affirming judgment dismissing complaint, reversed and new trial ordered. Opinion by Church, Ch. J.

concur.

MARINE

All

COLLISION. NEGLI-
GENCE.

N. Y. COURT OF APPEALS.
The Arctic Fire Ins. Co., respt., v.
Austin, Prest., &c., applt.

Decided May 22, 1877.

Where the failure of those on board of a canal

boat, which is part of a tow, to display a light has contributed to the accident, no recovery can be had, although it was in part caused by the negligence of those in charge of the tow-boat.

The fact that the proprietors of the tow-boat undertook to propel the canal-boat "at the risk of the master and owners," does not constitute them common carriers, or render

respondeat superior.

them liable for the acts of those in charge were not constituted common carriers of the canal-boat, within the doctrine of by this fact, or made liable for the wrongful or negligent acts of the persons in charge of the canal-boat, within the doctrine of respondeat superior. 1 M. & M., 169; 6 Whart., 311; 2 Pick., 621; 20 N. Y., 492; 38 Id., 260; 19 Id., 341.

The question whether the captain of the tugboat was also captain of the canal-boat, and as such omitted to take proper precautions for safe navigation, &c., is one of law, and should not be submitted to the jury.

Plaintiff was the insurer of a cargo of corn which was shipped on board a canal-boat, which defendant's company agreed to tow to New York. On the way down, it was run into by another boat belonging to defendant, and sunk. At the time of the collision the canal-boat was the outer boat upon the larboard side of the first of three tiers of four boats each, the boats of each tier being lashed to gether and towed by a hawser astern of the tug. There was no watch or light upon the canal-boat. The boat that ran into it was bound up the river.

Samuel Hand, for applt. Geo. W. Parsons, for respt. Held, That the failure of those on board the canal-boat to display a light was negligence; that as this negligence contributed to the accident, no recovery could be had, although it was in part caused by the negligence

The Court submitted to the jury the question whether the captain of the tug-boat was also captain of the canalboat, that is, whether the canal-boat was subject to his orders, and as such omitted to take the proper precautions for the safe navigation and delivery of the freights, "such for example as directing and insisting upon a light being put out," and charged that if they found in the affirmative, plaintiff would be entitled to a verdict.

Held, error; that the question was one of law.

Judgment of General Terin, affirming judgment for plaintiff, reversed and new trial ordered.

Opinion by Allen, J.; Church, Ch. J., Folger and Earl, JJ., concur; Miller, J., dissents; Andrews, J., does not vote; Rapallo, J., absent.

of those in charge of the tow-boat. APPEAL.
24 How. U. S., 110; 14 Pick., 1;
2 Lush., 231; 30 N. Y., 208; 47 Id.,
176.

That the fact that the tug-boat furnished the motive power and undertook to propel the canal-boat "at the risk of the master and owners," did not relieve the master and crew from an obligation to use every necessary precaution, and to do whatever was necessary to guard against the perils of navigation and insure a safe transit. The proprietors of the tow-boat

NOTICE OF JUDG-
MENT.

N. Y. COURT OF APPEALS. Chase, respt., v. Bibbens, impl'd., &c., applt.

Decided October 9, 1877. Service of notice of entry of judgment upon the attorneys who have had nearly the exclusive management of the case, and who are shown to have been authorized by the attorney of record to receive it and admit service, is sufficient to limit the time to appeal.

An appeal in this case to the General Term was dismissed on the

ground that it was brought too late. der Chapter 40, Laws of 1848. § 2 Whether it was or not 'depended of said act, as modified by Chapter upon whether sufficient notice of 517, Laws of 1864, provides that such entry of judgment was served. It corporations "may secure any debt appeared that such notice was not heretofore contracted, or which may served upon the person who had be contracted by it in the business for formerly appeared as defendant's at- which it was incorporated, by morttorney on the record, but upon B. gaging all or any part of the real es& T., attorneys, who gave admission tate of such corporation, and every in the name of the attorney. They mortgage so made shall be as valid to had had nearly the exclusive man- all intents and purposes as if executed agement of the case, and there was by an individual owning such real esevidence that they were authorized tate, provided that the assent of the to receive the notice and admit ser- stockholders owning at least two-thirds vice. of the capital stock of such corporation shall first be filed in the office of the Clerk of the County where the mortHeld, That the notice was prop-gaged premises is situated:" Plainterly served to limit the right of ap. iff conveyed to the corporation cerpeal.

Chester M. Elliott, for applt.

D. C. Hyde, for respt.

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N. Y. COURT OF APPEALS. The Greenpoint Sugar Co., respt., v. Whiten, impl'd., &c., applt.

Decided April 17, 1877.

In ascertaining whether the requisite number

of stockholders in a corporation organized under the Act of 1848 have joined in a con

sent to the execution of a bond and mort

gage by the corporation, the amount of stock actually issued and owned at the time is to be regarded as the amount of the capital stock.

Where the consent filed is defective in not set

ting forth the amount which the bond and

mortgage are to be given to secure, such defect may be remedied by proof of the debt owing to the mortgagee.

tain premises in Kings County, and on the same day the corporation grantee executed the mortgage in suit. When the mortgage was recorded the following paper, signed by certain stockholders prior to the day on which it was executed, was filed in the clerk's office of Kings County:

"Know all men by these presents, that we the undersigned stockholders of the Kings County Manufacturing Company, and owning more than twothirds of the capital stock of the said company, do hereby severally consent that the said Kings County Manufacturing Company execute to the Green-. point Sugar Company a bond conditioned for the payment of—and lands and premises by them owned, mortgage to secure the same upon the situate in the City of Brooklyn, County of Kings, in the State of New York, or any part thereof."

a

This was an action to foreclose a It appeared that the mortgagor ocmortgage given to plaintiff by a man-cupied the mortgaged premises for ufacturing corporation organized un- some time under a contract of sale

CONTRACT.

ACCOUNTING.

N. Y. COURT OF APPEALS. Marston, respt., v. Gould, applt. Decided April 10, 1877.

Where A. and B. enter into a joint adventure for the purchase and sale of stocks, B. to furnish the funds, and bear the loss, if any, and if there are profits, B. to receive fourfifths and A. one-fifth; A. to manipulate the sales and purchases, and no time for which such adventure is to continue is specified, the connection may be dissolved at the will of the parties, and either may demand an accounting.

Each party is liable to the other for losses, sustained by his misconduct, or the misapplication of the partnership funds.

A sale of the stock by one of the parties in the usual way, and fairly and honestly made, will bind the other, although such sale was not avowedly made on joint ac

count.

before the deed was given, and it did not appear that it owned any other real estate at that time in Kings County. The appellant was assignee of a subsequent mortgage, and claimed that plaintiff's mortgage was not valid for want of a sufficient assent in writing by the stockholders owning two-thirds of the amount of stock of the corporation; that the consent filed was too indefinite in not specifying the amount of the mortgage; that the lands were not specified, and the mortgaged property not, at the time of signing the consent, owned by the corporation, and that the consent was not filed before the mortgage was made or recorded. Samuel Hand, for applt. Lucien Birdseye, for respt. Held, That the mortgage was valid; that the objections raised were not tenable; that for the purposes of the act the amount of stock actually issued and owned should be regarded as the amount of the capital stock, and the consent of two-thirds of the holders thereof was all that was required; that if the papers themselves were defective it was competent by parol evi-"manipulated" by plaintiff, but did dence to connect them with the sub- not define that term or find in what ject matter; it was competent to sense it was used by the parties, or prove the debt owing to plaintiff and what was the limit of the powers and the amount of it. 21 Wend., 651; duties of each of them. Most of the 1 Ad. and El., 57; Greenl. on Ev., directions as to purchases were made S$ 297-299; 2 Hilt., 184. by plaintiff to the firm of brokers through whom all the operations were effected, and of which firm defendant was a special partner. Defendant frequently gave directions, and when he objected to a purchase his objection prevailed. There was no limit of time fixed for the continuance of the operations the number of shares purchased at one

Judgment of General Term, affirming judgment of foreclosure and sale, affirmed.

Opinion by Church, Ch. J. All concur, Allen, J., in result. Miller, J., taking no part.

This action was for an accounting, and grew out of a joint adventure of the parties in 1871, in the purchase and sale of the stock of the Erie R. Co. Defendant was to furnish the funds and bear the loss, if there was any. If there were any net profits, defendant was to have four-fifths and plaintiff one-fifth. The referee found that the purchases and sales were to be

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time was restricted to fifty thousand. Upon the subject of settling the account, the referee found that there was no agreement that the transactions in said buying and selling should be had without the sanction, or direction, or approval, of the defendant, nor that the defendant should have the entire control of the operations, or close the same up when he should deem it desirable." The account was transferred to defendant's individual account by his direction. A sudden rise having taken place, plaintiff made a formal call on defendant to sell, and on his refusal brought this action.

Thomas G. Shearman, for applt. W. W. McFarland, for respt. Held, That the parties to the arrangement stood in such relation, and had that joint interest in the result of the adventures, that either could demand an accounting to ascertain the profit or loss and their respective rights; that the connection could be dissolved at the will of the parties, 3 Kent, 53; Story on Part., $ 269, 34, 56; 3 M. & W., 357; 1 Id., 504; 20 J. R., 611; that each was liable to the other for all losses sus

on the ground that there was no proof or offer of proof that such sale was avowedly made on joint account.

Held, error; that if defendant had power to sell, it was not necessary for him to avow at time of sale, if made, that it was on joint account, and if properly and fairly made and in the usual manner, it bound plaintiff.

Judgment of General Term, affirming judgment for plaintiff on report of referee, reversed for error in excluding evidence.

Opinion by Allen, J. All concur.

DEEDS. REDEMPTION. PRAC-
TICE.

U. S. SUPREME COURT.
Amos Gould, plff. in error, v. Henry
Day. (Oct., 1876.)

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The delivery of a deed of land will be presumed, in the absence of evidence, from the concurrent acts of the parties recognizing a transfer of the title.

Where the owner of the legal title to property which has been bid in by the State at a tax sale purchases the State bids before the time for redemption has expired, he acquires no new title by such purchase; the lien of the State is merged in the title and the tax deeds are only evidence that the taxes have been paid and the estate restored.

tained by the misconduct or a misap- An objection to a question put to a witness

plication of the partnership funds, Story on Part., § 233; that defendant could sell the stock in the usual way, and if the sale was properly, fairly, and honestly made, and in the usual manner, plaintiff was bound by it. 30 N. Y., 549; 51 Id., 231; 1 Paige, 393.

does not extend to the answer where the answer goes beyond what the question calls for.

Error to the Circuit Court of the United States for the Eastern District of Michigan.

This is an action on the case against Gould, the defendant in the Court beEvidence was offered on the part low, for selling lands, situated in the of defendant, to show that the stock State of Michigan, under a power of which was the subject of the contro- attorney from the person appearing to versy had been sold and delivered by be the owner on the public record of his direction. This was excluded up-deeds, knowing at the time that the

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