case he did not do so within six months, the lease should cease, if the lessee so elected. The latter sublet his interest in the premises to N. C. & H. for a portion of the term, and at an increased rent, the lease providing that they should yield up possession to him at the expiration of the term; that the destruction of the premises by fire should not terminate the lease, provided defendant should elect to rebuild, and did so with reasonable diligence. Defendant at the same time leased his interest in the premises for the same rental and term, and upon substantially the same conditions. The buildings were burnt April 21, 1867, and defendant on May 15, 1867, notified G. that he had concluded not to rebuild, and the same day conveyed the premises to the Niagara Elevator Co. E. C. Sprague, for applt. Sherman S. Rogers, for respt. Held, That plaintiff's remedy for damages was complete upon defendant's failure to rebuild; that no new relations were created by the lease from G. to N. C. & H. which relieved defendant from the effect of the covenant to rebuild in his lease to G.; that the provisions in the lease to N. C. & H., in regard to defendant's obligations in case the elevator burned, were not inconsistent with those existing under the lease to G.; that the lease to N. C. & H. from G. constituted a sublease, and not an assignment of the entire term, which transferred any right of action against defendant. 56 N. Y., 157. Woodhull v. Rosenthal, 61 N. Y., 383, distinguished and explained. The Court refused to charge that the sublease of G., and the rent re served, could not be considered by the jury in determining the amount of damages. The sublease had been received in evidence without objection, and no motion was made to strike it out. Held, No error. The Court refused to charge that in determining the amount of damages, or the difference between the nature of the lease for the unexpired term and the stipulated rent, the jury must not consider any future profits or enhanced value of the lease, which might arise from the association of the owners of the elevators. It was urged that these damages were too remote, speculative, and contingent, and that the associations referred to were illegal. There was proof that the business of elevating grain was done at times by each elevator separately, and at other times by an association formed mainly to regulate the price. Held, That the Court did not err in its ruling; that the addition value arising from the formation of the association bore directly upon the question of damages, and was clearly a proper subject for consideration by the jury in fixing the amount of the same; that as to the illegal character of the association, G., not having been connected with it, was not responsible for it. 14 N. Y., 162, 176. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Miller, J. All concur, except Church, Ch. J., and Allen, J., not voting. DIVORCE. REFERENCE. N. Y. SUPERIOR COURT. SPECIAL TERM. James A. Harper v. Julia C. Harper. Decided October 31, 1877. Where the answer in an action for absolute divorce denies the charge of adultery, a reference to take proof of the facts and report the same to the Court cannot be ordered seen that if there is a reference, after denying the charge of adultery, it must be to hear and determine all the issues. The referee tries the whole case and gives the judgment. The consent and order of reference in this case were appropriate to a case provided for in the 41st Section even upon consent. In such a case the of the Statute, but wholly inappropri Court can only order a reference to hear ate to a case where the defendant has and determine all the issues. Motion at Special Term to set aside order of reference in an action for absolute divorce wherein defendant had interposed an answer denying the charges of adultery. Her attorney, without her knowledge or consent, stipulated with plaintiff's attorney to refer the action to a referee to take proof of the facts and material matters alleged in the complaint and report the same to the Court with his opinion. Defendant having procured a substitution of attorneys made this motion. Bushnell & Albright for motion. Held, There is no doubt that the parties to an action for a divorce may waive a trial by jury and consent to a reference of all the issues. In such case the referee takes the place of both Court and jury, hears and determines all the issues, and pronounces the judgment. But without such waiver the parties cannot be deprived of the right to a jury trial. See § 2, Art. 1 of Cons. as to waiver, and § 40, 2 R. S., 145, as to right to jury trial. It is only where the adultery charged is admitted by the answer, or when no answer is put in, that the Court can, without consent, order a reference, § 41, Id.; and such reference is to take proofs and report the same to this Court. Thus it will be answered and denied the charge of Motion granted. DIVORCE. COUNSEL FEE. Decided January 7, 1878. are awarded to the plaintiff's attorney in the A refusal to pay the same is a contempt of The payment of alimony cannot be enforced Motion made by counsel for plain form of an ordinary bank check, October 14, 1876, in settlement of a policy on the life of the petitioner's tiff for an attachment against the defendant for refusal to pay counsel fee, costs, and disbursements awarded to him in the final decree, entered in an | husband, upon the U. S. Trust Comaction for an absolute divorce. The defense to the motion being that under the decisions the only remedy plaintiff had after the entry of final decree was by execution. C. E. Whitehead, for motion. pany, where it had at the time a deposit largely in excess of the amount of the check. The check was sent to the petitioner in California, indorsed by her, returned and presented for payment November 9, 1876, and payment refused, a receiver of defendant having been appointed October 25, and he having withdrawn all the company funds de was claimed that the check operated as an equitable assignment of the fund deposited pro tanto. Upon motion an order was granted directing the receiver to pay over the money to the petitioner. Held, That the payment of alimony in the final decree to plaintiff could not be enforced by attachment, Lansing v. Lansing, 4 Lansing, 377; Mil-posited with the Trust Company. It ler v. Miller, 7 Hun, 208; but that as to the counsel fee, costs and disbursements ordered by the judgment to be paid to the plaintiff's attorney, the defendant, if he fail to pay, may be punished as for a contempt, on the ground that as to such counsel fee, so payable, the judgment "requires the payment of money. to an officer of the Court." Code of Civil Procedure, § 1241, section 4. Opinion by J. F. Daly, J. Ashbel Green, for applt. Elliot F. Shepard, for respt. Held, Error; that the check being general in form it would not operate as an equitable assignment of the money in the Trust Company; that in order to have such effect it should BANK CHECKS. EQUITABLE have specified a particular fund upon ASSIGNMENT. The N. Y. COURT OF APPEALS. Decided November 27, 1877. A bank check, general in form, will not ope rate as an equitable assignment of the mon ey in the bank or other place of deposit. In order to have this effect it must specify a particular fund upon which it is drawn. The fact that a receipt in full of all demands which it was drawn. 3 N. Y., 119; 49 Barb., 221; 60 N. Y. 153; 48 Id., 682; 57 Id., 270, 459; 46 Id., 83. It appeared that upon the back of the check defendant had written a receipt in full for all demands under the policy, that the petitioner was to sign in indorsing the check. Held, That this did not affect its negotiability, and would not create a lien or appropriation of the fund in the Trust Company without some expression to that effect, or an acceptance by the drawee; that the rights of all the creditors upon the appointDefendant gave a check in the ment of a receiver became fixed by upon a policy held by payee was indorsed upon the back of the check, which the payee was to sign in indorsing it, does not affect the question. statute, and the petitioner, not having acquired any lien upon any of the assets, occupies the position of a general creditor. Order of General Term, affirming order of Special Term, reversed and motion denied. Opinion by Church, Ch. J. concur. affidavit had no venue, and it did not appear therein where it was sworn to, nor where the Justice of the Peace, who appears to have taken it, resides. Hatch & Van Allen, for applt. W. T. B. Milliken, for respts. Held, That this is a fatal defect. All Cook v. Stoats, 18 Barb., 407; Lane v. Long, 6 How., 394.. Jurisdiction depended on the affidavit, and if it lacked an essential requisite, all subsequent proceedings were void unless the defect was waived. There being no appearance before the Justice, there could be no waiver. SUMMARY PROCEEDINGS. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. The People ex rel. Crawford et al., respts., v. Olivia De Camp, applt. Decided December, 1877. The omission of the venue in the landlord's affidavit in summary proceedings is a fatal defect. Where there are two or more defendants who are absent from the premises, the leaving of one copy of the summons with the person in charge is not a sufficient service. Appeal from order reversing summary proceedings and awarding restitution, and also from the judgment entered thereon. Appellant let certain premises to relators to be used as a summer hotel, at a rent of $7,000-$2,000 to be paid July 1, $2,500 on September 1, and $2,500 on November 1. The last payment not having been made, Mrs. De Camp instituted summary proceedings to recover possession. No appearance was made by the tenants, and judgment was entered in her favor, and the marshal put her in possession. On certiorari, Gilbert, J., reversed the judgment, on the ground that the landlord's affidavit was defective in stating that the $2,500 was due for rent from September 1 to November 1. It appeared that the landlord's The tenants were absent from the premises in question upon which they resided, and the service was made on both tenants by leaving one copy with a person of mature age and discretion. Held, That the summons was not properly served. The service must be made upon each. It has been made upon neither. This is also a jurisdictional defect; without proof of the service of, the summons upon the tenants, the Court could not proceed to dispossess them. Order affirmed with costs. MORTGAGE. NATIONAL BANKS. N. Y. COURT OF APPEALS. Crocker v. Whitney et al. In re National Bank of Genesee, applt., v. Bostwick et al., respts. Decided November 13, 1877. A mortgage given to a national bank as security for future loans and discounts is void. This was an appeal from an order of General Term, affirming an order of Special Term, disposing of sur plus moneys on a mortgage foreclosure. The appellant, a National Bank, on loans and discounts, was void, 3 Wend., 482; 7 Id., 31; 2 Cow., 678 ; 31 N. Y., 472; that a national bank by taking a mortgage upon real estate would become a holder of real estate within the true meaning and intendment of said § 28. Order of General Term, affirming order of Special Term, affirmed. Opinion by Andrews, J. All concur except Rapallo, J., not voting, and Folger, J., absent. NOTICE TO SURETIES ON AP January 12, 1871, took from defend- mortgage, so far as it was for future ant W. a mortgage for $5,000 to secure $3,200 of paper which it had previously discounted, and any debts W. might in future owe it. The respondents, who are subsequent mortgagees, contest the validity of appellant's mortgage as a security for future liabilities, and claim that the debt due when appellant's mortgage was executed having been paid, they are entitled to the surplus moneys. It appeared that W. was a manufacturer of flour, that appellant discounted his notes and credited W. with the proceeds; that W. drew drafts on his customers which appellant received and credited to him, and he deposited in the bank money received in his business. The items of debit and credit were entered in a single account, and it was the custom to charge the notes as they matured in W.'s account. The notes held by appellant January 12, 1871, the date of the mortgage, were, as they matured, so charged, and afterwards surrendered. No notes discounted subsequent to that date were indorsed. From January, 1871, to Angust, 1874, the debits exceeded the credits $2,938.31. Wm. C. Watson, for applt. Held, That the notes held by appellant at the date of its mortgage have been paid, 1 Mer., 608; 6 N. Y., 147; that national banks, under the provisions of the National Banking Act of June 3, 1864, §§ 8, 28 (U. | S. R. S., §§ 5136, 5137), are prohibited from taking a mortgage on real estate as security for future loans or discounts, 72 Pa., 456; 2 Dil. C. C., 371; 3 Bis. C. C., 190; and that the PLICATION TO DISCHARGE N. Y. COMMON PLEAS. SPECIAL TERM. Foote v. Schmeder. Decided January 11, 1878. Notice of application to discharge levy must be given to sureties on appeal from the judgment affirmed, as well as sureties on new appeal. Motion made to discharge a levy on giving security under § 1311. Judgment in favor of plaintiff had been rendered at Special Term, and an appeal taken to General Term, and an undertaking given on such appeal to stay execution. The judgment was affirmed, execution issued, and levy made. Defendant appeals to Court of Appeals, and applies for a stay of proceedings, making a deposit of money in lieu of giving an undertaking, as provided for in § 1306, and moves to discharge levy under § 1311. Respondent objects, on the ground that no notice of this application has been given "to the sureties on the undertaking," as prescribed by § 1311. Appellant contends that the sureties |