to the County Court should have been upon pendent on and connected with the other
questions of law only.
Id. points, that a partial award will be sustained.

ld.
4 Where the notice of appeal from a justice's

ARREST.
judgment states that it is for a new trial in
the County Court, the Justice need not return 1 An order of arrest may be granted in an ac-
the testimony taken before him. McCann v. tion for limited divorce on account of cruel
Shecke.

423 and inhuman treatment. Jamieson y. Jamie-
son.

95
5 Where the return of the Justice does not
show that issue was joined before him, there 2 Where one sells goods for another, the
can be no trial of any issue of fact in the goods to be shipped directly to the purchaser,
County Court.

Id. and the proceeds to be collected by the agent
6 When the County Court dismisses the ap-

and paid over, he is a factor; and where he

has made the sales on terms different from
peal in such case, it is erroneous to award a
judgment against the appellant.

Id.

those authorized, and fails to pay over the mon-

eys collected, he is liable to arrest, and cannot
See COUNTY COURT; Costs, 12, 13; Evi- set up his own fraud to shield himself from
DENCE, 26.

such responsibility. The Standard Sugar Re-
finery Co. v. Dayton.

136
APPOINTMENT.

3 The principal may waive the variance in the
1 An appointment of excise commissioners un-

terms, and claim the proceeds.

Id.
der chap. 175, Laws of 1870, by parol is not
valid ; the appointment is not complete until 4 An order of arrest in such case can be sus-
a commission has been signed. The People ex

tained on the ground that the debt was fraud.
rei. Babcock v. Murray.
350 ulently contracted.

Id.
2 A resolution of the Common Council confirm- 5 Where possession of property has been
ing the appointment of a clerk of the Court by fraudulently acquired under circumstances
a justice must be affirmed by the Mayor, or justifying its reclamation by the vendor, and
returned to the Common Council and again the fraudulent purchaser has sold it with in-
passed by a two-thirds vote before the appoint-

tent to perfect the fraud, and put it beyond
ment is complete. The People ex rel. Ennis v.

the vendor's control, an order of arrest will
Schroeder,
414 lie. Barnett v. Selling.

190
See New YORK MARINE Court, 2; SUR-6 A prima facie case for an order of arrest is
ROGATES, 8, 9, 10,

made by affidavit of fraud in the original pur.

chase, and of the intent with which the goods
APPROPRIATION OF LAND BY STATE.

were sold.

Id.
See CANALS; CONSTITUTIONAL LAW, 1. 7 An order of arrest was granted but not ex-

ecuted, when the plaintiff, for a valuable con-
ARBITRATION AND AWARD.

sideration, extended the time for the pay.
1 Where a matter is submitted to arbitration ment of the debt for which the action was
by which damages are to be awarded or value brought: Held, That the defendant could not
of property is to be fixed or ascertained, the thereafter be arrested upon the order, even
arbitrators must use the usual means to ascer-

where he had failed to make the payments
tain such value, and the parties are entitled to stipulated for in the agreement extending the
be heard, and to produce witnesses, unless time. Foxell et al. v. Fletcher.
such privilege is waived ; and where the 8 An order of arrest will not lie where the
parties have such rights before arbitrators
chosen by themselves, who are in case of dis complaint in the action sets forth two causes

of action, under one of which defendant is not
agreement to choose an umpire, they are en-

liable to arrest. Madge v. Puig.

503
titled to notice of appointment of such umpire,
and an opportunity to be heard by him, and a

9 An indorsement of a copy of Rule 6 upon
waiver of such right in regard to those origi. the original papers is sufficient; it need not
nally chosen will not be construed a waiver in be upon the copies served. Kupełowich v.
regard to such third person. Brown v. Lyddy. Kersburg.

547
38

10 The affidavits made the basis of an order of
2 An award of arbitrators that all the causes arrest may be used to establish that the debt
of action referred to them were merged in was contracted by fraud, although the com-
and satisfied and discharged by a certain con- plaint declares upon contract merely. Frei.
tract between the parties, and ordering judg- berg et al. v. Popper.

553
ments dismissing the complaints, and which
concludes by saying that the award is “not in-

ARSON.
tended to determine any of the rights of either 1 An indictment for arson in the third degree
of the said parties arising under” said con-

need not negative the exceptions made in the
tract, is not final or definite, and should be set

statute and allege that the store or ware-
aside. Jones, Assignee, v. Welicood et al. 522 house burned was not adjoining or within the
3 It is only when matters omitted in a sub-curtilage of an inhabited dwelling-house. The
mission to arbitrators are not nece
ecessarily de. | People v. Pierce.

338

Burst v.

ASSAULT AND BATTERY.

fraudulently made up and had appended to it

a large number of names of persons who did
1 In an action for an assault and battery com-

not sign it, but whose signatures were taken
mitted in ejecting plaintiff from premises be-

from another document, is sufficient to sustain
longing to defendant, the plaintiff has a right,

an action to vacate the assessment. Boyle v.
for the purpose of showing his good faith in

City of Brooklyn.

219
making the entry, to show that he had been
accustomed to pass over the premises in ques. 11 There is nothing in the Act of 1840 restrict-
tion for a great number of years under a claim ing the comparison of value to the year in
of right founded upon an exchange of lands. which the assessment is made. In re St.
Zeh.
345 | Joseph's Asylum.

223
ASSESSMENTS.

12 Interest can only be charged from the time
1 An assessment on real estate in the city of the assessment is fixed according to law. ld.
New York which exceeds one half the as-
sessed value of the property is invalid.

In re

13 Where proceedings to levy an assessment
Cram.

91

for a sewer in a village are regular and in ac-

cordance with the charter of the village, and
2 In an action to vacate an assessment, where the invalidity can only be shown by matters
there has been a valuation, the burden of dehors the record, an action in equity may be
proof is on the plaintiff to show that the as- maintained by persons whose property is as-
sessment exceds one half the valuation. In sessed, upon the ground that the assessment is
re Hebrew Benevolent 0. A. Soc.

110 a cloud upon the title. Clark et al v. Village
of Dunkirk.

354
3 On the question of reducing the assessment
the burden of proof is changed.

Id. 14 An assessment made at so much per foot,
4 Where an assessment has been vacated and and upon property of those who cannot use

without regard to the distance from the sewer
set aside, the amount of such assessment paid the sewer, is unjust and contrary to the pro-
under protest may be recovered back; but, in

visions of the charter requiring such assess-
order to recover, plaintiff must show that the
payment made was involuntary, either in fact fited in proportion to the advantages to be de-

ments to be made upon the property bene-
or by law. Peyser v. The Mayor.

127
rived by the owner.

Id.
5 Where the proceedings of assessors of taxes 15 The provisions of a charter in relation to as-
or assessments are regular on their face, they
have the force of a judgment, and amount to

sessments for regulating and grading streets
a coercion by law.

must be strictly followed. Merritt et al v. Vil.
Id.
lage of Portchester.

445
6 In order to succeed in a proceeding to vacate | 16 Where the charter requires the commission-
an assessment for a street pavement in the
city of New York, on the ground of payment and fairly to discharge the duties, &c.," and

ers of assessment to take an oath, “ faithfully
of a prior assessment for paving the same

the commissioners have taken an oath to per-
street, the plaintiff must prove actual pay form the duties, “ to the best of his ability,”
ment. Payment, in such a case, will not be their subsequent proceedings are illegal.

Id.
presumed from lapse of time. In re Willett.

164 | 17 Where the charter requires the commission-

ers, after making their estimate and assess-
7 Where the title to real estate is claimed un-
der an assessment sale, the onus is upon the

ment, to publish notice of a time and place

when and where the parties will be heard, the
claimant to show that there was a substantial
compliance with the law in all the proceedings written objections.

commissioners cannot restrict the parties to

1d.
which culminated in such sale. Hilton v. Ben-
der et al.

183 18 Where an assessment has been sent back to

the commissioners for revision, a party by ap-
8 Where the Commissioners to assess the dam- pearing and filing written objections to the
ages and recompense were appointed according first report does not waive the defective notice
to the law in force at the time, but not in ac-

of subsequent ones.

Id.
cordance with the provisions of the Constitu-
tion, the proceedings were thereby rendered 19 An assessment, which is entirely invalid, and
void.

Id. made in violation of a positive law applicable
9 Property owners, whose lands are assessed

to such proceedings, is not included in a pro-
for repaving done subsequent to the 7th of vision of a subsequent statute that "all as-
May, 1872, are not within the saving clause firmed,” &c. The People ex reb. Hays v. City of

sessments heretofore laid are hereby con-
contained in § 7 of ch. 580, Laws of 1872;

Brooklyn.

572
nor can they claim to be within the amenda-
tory act of 1874, where the work was com- See BRIDGES, 1, 2; TAXATION, 2, 3.
pleted prior to the passage of said act.
Peugnet.

199

ASSIGNMENT.
10 An allegation that the petition of property 1 An assignment of a chose in action by parol
owners for the repaving of a street was not in

is valid. Risley v. The Phenix Bank.
fact made by a majority of the owners of See ATTORNEYS, 6; LIFE INSURANCE, 22;
property fronting on such street, but was MORTGAGE, 10.

In re

33

ASSIGNMENT FOR BENEFIT OF CRED- ment of the person and not of property. The ITORS.

Court will not grant an absolute order impris. 1 An assignment made in insolvency proceed oning a party for non-payment of costs, under ings which are void conveys no title to the this section. The Revised Statutes seem to assignee. Rockwell et al. v. McGovern et al. intend that upon the return of an attachment,

158

the party shall have an opportunity to excuse

his niisconduct. Morrison v. Lester. 211 2 The mention of a nominal consideration in such an assignment is not material where the 5 Where, on motion to vacate an attachment, other parts of the instrument show the inten- the moving affidavits completely controvert all tion to be to create a statutory trust, and to

the material allegations contained in the affi. convey no other estate or interest than is re- davit upou which the attachment was granted, quired for that purpose.

Id. the appellate Court cannot say there was error

in vacating the attachment. Van Allen v. 3 A general assignment for the benefit of Sampson.

238 creditors, without preferences, which confers authority upon the assignee to sell the prop

6 An affidavit to obtain an attachment under erty“ to the best possible advantage,”

is $ 635 of the Code of Civil Procedure must valid on its face, Judson et al. v. Abeel et al. allege that plaintiff is entitled to the amount

221 claimed,

“ over and above all counter-claims

known to him ; " an omission of such an alle4 The only intent which will affect a general gation is fatal.' Taylor v. Reed.

306 assignment is the intent of the assignor at the time of making it; the subsequent mis

7 An order for the discharge of an attachconduct of the assignee is no ground for set

ment, granted upon an application under ting aside the assignment itself.

Id. S 687 of the Code of Civil Procedure, should

state whether the discharge appiies to the 5 A failure to give the statutory security whole of the property attached, or to part within the time limited does not invalidate an only; and if so, to what part. It need not assignment for the benefit of creditors, and contain directions as to the manner of rederestore the title of the assigned property to livery unless called for by special circumthe assignor. Brennan et al. v. Willson et al. stances. Ellsworth v, Scott.

361 576

8 No action on attachment can lie till after 6 An assignee who has accepted the trust judgment in reaching equitable assets. Connd cannot afterwards, by renunciation or dis. v. Weber ; Craig v. Weber. claimer, throw off the responsibilities of the office or divest himself of the title once vested

See APPEAL, 28; DIVORCE, 12, 14; NEW in him.

ld.

YORK MARINE COURT, 1. 7 He cannot act, however, until the statutory security has been filed.

ld.

ATTORNEYS. See CONVERSION, 1; DEEDS, 23.

1 An attorney has no lien upon a cause of ac

tion and cannot intervene and insist that the ATTACHMENT.

action shall proceed for his benefit. Wright

v. Wright. 1 Where property has been attached by a sheriff and delivered to a third person on his 2 An attorney seeking to avail bimself of a receipting therefor, and after final judgment contract with his client must show affirinahas been obtained and execution issued, a de tively that it is in every respect free from fraud, mand for the return of the property or pay. fair and reasonable. Whitehead v. Kennaiy. ment of the value thereof has been made by the sheriff and refused by the receiptor; the 3 Where a client has agreed with his attorney true measure of damages, in an action by the that the latter shall receive a percentage on sheriff on the receipt, is the value of the prop- the recovery, the attorney has a lien upon the erty at the time of the demand.

Olcott v.

judgment recovered by him for his costs and Lov.

108

counsel fee, and to that extent he is to be re2 A sheriff cannot attach property in the garded as an equitable assignee; but to nullify hands of a carrier for which bills of lading a settlement the proof of notice of such lien have been issued, without giving the bond of must be satisfactory. Wright v. Wright. 97 indemnity required by the statute and the 4 A notice of such lien contained in a stipnlacommon law ; where he does so his act is a

tion to extend time to answer, which is not trespass and he is liable to the carrier for the

acted on, is not sufficient.

Id. value of the goods. Campbell v. Conner. 203 3 Where the attachment is levied upon an ex

5 Where, in an action by an attorney and

counsellor for legal services rendered, the ecution in the hands of the sheriff, the notice showing the property levied upon, required by contained about sixty-eight items, nearly half

account covered a period of seven years and § 325 of the Code, is unnecessary.

Wehle v. Conner.

206

of which were disbursements, and all but three

56

562 | Young.

unskilfulness to defendant's damage by way of 6 Creditors whose debts were contracted prior counter-claim, both the account and the issues to Jan. 1, 1869, cannot join in a consent to the should properly be brought before a jury. discharge of a voluntary bankrupt in the abBradley v. Eager.

330 sence of assets. In re Wheeler & Riggs. 202 6 A plaintiff in' an action for a mere personal 7 Actions by assignees to collect the assets of tort cannot give to his attorney or any one else the bankrupt are not proceedings in bankan interest in the cause of action until judg. ruptcy, within the meaning of 711 of the ment has been recovered. Coughlin v. The N.

amendatory act of June 22, 1874. Wente v. Y. C. & H. R. RR. Co.

295 7 Where an agreement to do so has been made 8 State Courts have concurrent jurisdiction between the plaintiff and his attorney, the with the Federal Courts over such actions. Id. Courts will not intervene to protect the attorney against a settlement made by his client.

9 When the condition of a debtor's affairs is id. known to be such that prudent business men

would conclude that he could not meet his 8 Where an attorney agrees to collect certain obligations as they matured in the ordinary claims, for the amount of taxable costs in the

course of business, there is reasonable cause action brought for that purpose, such costs to to believe him to be insolvent. Merchants' be deducted from the amount collected, and Nat. Bk. v. Cook et al.

316 he dies while some of the actions are pending and undetermined, his estate is entitled to 10 When a private banker obtains from a bank deduct the amount of taxable costs in such an advance on his check on New York, and pending actions accruing up to the date of his upon the same or the following day delivers death, unless it is shown that he was guilty of securities to the bank, stating at the time that such negligence or want of skill as would de- he has reason to fear his check will not be feat or reduce his claim for services rendered. met, the transfer of the securities is a frauduSeymour et al. v. Cagger.

595 lent preference under the Bankrupt Law. ld. See PRACTICE, 34; REFERENCE, 6, 9.

11 Holders of orders drawn by an insolvent

prior to the commencement of proceedings in AUCTIONEERS.

bankruptcy, payable out of a particular fund See BAR, 2.

are entitled to be paid in preference to the assignee. In re E. M. Smith.

322 BAILMENT. 1 An action to recover a balance claimed to be lant, pending the appeal, will not release the

12 The discharge in bankruptcy of an appeldue plaintiff on the sale of a watch pledged by sureties on the undertaking. Knapp et al. v. him to defendant as security for a debt, can.

Anderson et al.

503 not be maintained where it appears that de. fendant did not sell the watch, but traded it 13 If a sufficient number of creditors join in a for a wagon, the value of which was barely petition against a firm, it is not necessary that sufficient to pay defendant's claim, and there they should all be firm creditors. In re E. L. is no other evidence as to the value of the Miltot et al.

529 watch. Hedges v. Collamer et al.

435

14 The taking of partnership property when BANKRUPTCY.

the firm is insolvent, to pay a debt not the

debt of the firm, although each of the part1 A composition creditor need not sue at law,

ners may be liable for it, is an act of bank. but has a summary remedy in the Bankruptcy ruptcy.

Id. Court. In re A. P. Reynolds.

51

15 There can be no legal fraud in a debtor pro2 A joint creditor may prove his debt and vote curing an adjudication in involuntary proceedfor assignee in the separate bankruptcy of one ings, unless it should be followed by a disof the members of the debtor firm. In re charge that could not be had in voluntary Webb. 174 proceedings.

Id. 3 An inadvertent mistake in the amount of a

16 An adjudication by default can only be debt made by the bankrupt in the schedule opened at the instance of a party to the defiled in composition proceedings will not avoid fault.

cannot become such by any subsequent act

BILLS OF LADING. of the party with which it has no connection. 1 A clause in a bill of lading, providing that

Id. the ship-owner shall not be liable for "leakage,” See EVIDENCE, 34; JUDGMENT, 4, 5; Ju

covers only a waste from leakage and does not RISDICTION, 3, 4, 6, 7; MORTGAGE, 22; extend to damages to other articles caused PLEADING, 5.

thereby. Thrift v. Youle & Co.

327 2 A pledgee of a bill of lading is the special BANKS.

owner of the goods named therein and in pos. 1 The statute in relation to insolvent banks session thereof; any possession obtained by only undertakes to secure debts due from a

the pledgor or any dominion exercised over bank to a savings bank for money deposited the goods by him without the pledgee's assent in the usual course of business and subject to

is tortious and he can transfer no title to

another. drafts of the depositors to an amount not ex

The Marine Bank of Buffalo v.

433 ceeding that authorized to be deposited by Fiske et al. such statute. Rosenbach v. The M. & B. 3 Possession of the carrier is possession of the Bank. 164 | holder of the bill lading.

Id. 2 Loans, whether on time, or on call, are not

BONA FIDE HOLDER. deposits within the statute. It cannot be changed into a deposit by reason of any want See CHECKS, 6; NEGOTIABLE PAPER, 8. of authority in the managers to make the loans, or that it was made in violation of law.

BRANDS.
Id.

1 Marking firkins, tubs, &c., containing butSee CHECKS, 4; CONSTITUTIONAL LAW, ter, with a stencil-plate and with a chisel, is a 14; RELEASE, 1; SAVINGS BANKS.

“branding" thereof, within the meaning of

the Act of 1865 (Chap. 559). Dibble v. HathBAR. away. .

123 1 A former adjudication is a bar to a subse- 2 And for altering or defacing a brand placed quent action upon the same transaction, al- in that manner upon a firkin or tub containing though it be claimed that full relief in the butter, an action will lie to recover the penal. former action was prevented by fraud or false ties imposed by that act for altering or purevidence. Verplanck v. Van Buren et al. 74 posely defacing the “brand” therein directed

to be placed upon firkins, tubs, &c., manufac2 A recovery by a purchaser of land at auc- tured for the package of butter.

Id. tion against the owner of such land for a breach of the contract of sale, a satisfaction

BREACH OF CONTRACT. of the judgment and surrender to such owner of the receipt for the deposit made on the sale,

See CONTRACT. will operate as a bar to an action by the purchaser to recover such deposit from the auc

BRIDGES. tioneer. Cockroft v. Muller et al. 502 1 The real estate of a toll bridge should be as.

sessed and taxed in the town in which it is See CIVIL DAMAGE Act, 5; DEEDS, 15; situated. Hudson River Bridge Co. v. Patter. RAILROAD COMPANIES, 23;

STATUTE OF
son et al.

106 LIMITATIONS, 3.

2 The bridge of the Hudson River Bridge BASTARDY.

Company, at Albany, is not a toll bridge with.

in the meaning of the statute. 1 R. S., 389, 1 The statement of the prosecutrix as to the

Id. paternity of the child in a bastardy proceeding may be sufficiently corroborated by evi- | 3 A bridge includes its approaches. Carpendence of acts of familiarity between her and ter v. City of Coloes.

227 defendant, although such acts took place at a 4 One of two adjoining towns is under no liatime before the child could have been begot-bility to contribute towards the expense of a ten. Cole v. Manning.

329

bridge built by the other over a stream divid2 Proceedings under the statute relating to ing the two towns, unless there is a highway bastards are civil proceedings. The People ex suitable for travel in the former town with re. Reynolds v. Oneida Co. Sessions. 495 which such bridge connects. A highway laid

out over a marsh, but not opened or worked, 3 A party may waive a statutory or even con

is not sufficient to create a liability of contristitutional provision made in his favor in civil

bution. Beckwith et al. v. Whalen. 286 proceedings.

Id.

BROKERS.
BEQUESTS.

1 Where a broker undertakes to furnish a pur. See WILLS.

chaser, the principal is not bound to accept a BILLS OF EXCHANGE.

person presented as such unless he is ready

and able to perform on his part. Coleman's See NEGOTIABLE PAPER. er'rs v. Meade.

403

$6.