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to the County Court should have been upon pendent on and connected with the other
423 and inhuman treatment. Jamieson y. Jamie-
Id. and the proceeds to be collected by the agent
and paid over, he is a factor; and where he
has made the sales on terms different from
those authorized, and fails to pay over the mon-
eys collected, he is liable to arrest, and cannot
such responsibility. The Standard Sugar Re-
3 The principal may waive the variance in the
terms, and claim the proceeds.
tained on the ground that the debt was fraud.
tent to perfect the fraud, and put it beyond
the vendor's control, an order of arrest will
made by affidavit of fraud in the original pur.
chase, and of the intent with which the goods
ecuted, when the plaintiff, for a valuable con-
sideration, extended the time for the pay.
where he had failed to make the payments
of action, under one of which defendant is not
liable to arrest. Madge v. Puig.
9 An indorsement of a copy of Rule 6 upon
10 The affidavits made the basis of an order of
need not negative the exceptions made in the
statute and allege that the store or ware-
ASSAULT AND BATTERY.
fraudulently made up and had appended to it
a large number of names of persons who did
not sign it, but whose signatures were taken
from another document, is sufficient to sustain
an action to vacate the assessment. Boyle v.
City of Brooklyn.
12 Interest can only be charged from the time
13 Where proceedings to levy an assessment
for a sewer in a village are regular and in ac-
cordance with the charter of the village, and
110 a cloud upon the title. Clark et al v. Village
Id. 14 An assessment made at so much per foot,
without regard to the distance from the sewer
visions of the charter requiring such assess-
ments to be made upon the property bene-
sessments for regulating and grading streets
must be strictly followed. Merritt et al v. Vil.
ers of assessment to take an oath, “ faithfully
the commissioners have taken an oath to per-
164 | 17 Where the charter requires the commission-
ers, after making their estimate and assess-
ment, to publish notice of a time and place
when and where the parties will be heard, the
commissioners cannot restrict the parties to
183 18 Where an assessment has been sent back to
the commissioners for revision, a party by ap-
of subsequent ones.
Id. made in violation of a positive law applicable
to such proceedings, is not included in a pro-
sessments heretofore laid are hereby con-
is valid. Risley v. The Phenix Bank.
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,
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
“ 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.
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.
YORK MARINE COURT, 1. 7 He cannot act, however, until the statutory security has been filed.
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.
judgment recovered by him for his costs and Lov.
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.
of which were disbursements, and all but three
of the remainder were statutory costs, and 4 The phrase "attachment," as used in S 321 where the answer alleged full payment for all of the Code of Procedure, designates attach- / services rendered, and set up negligence and
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.
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.
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.
ld. the composition as to any creditor. Beebe v. Pyle.
198 | 17 A discharge in bankruptcy does not affect
or discharge a debt contracted by fraud on 4 It makes no difference to what time interest the part of the bankrupt. Freiberg et al. v, on the debts is computed, provided the inter- Popper.
553 est on all the debts is computed to the same time.
Id. 18 Subdivision 9, of $ 5132 of the Revised Stat
utes U. S., which provides for the punishment 5 The provision of the Bankrupt Law in relation to the correction of inadvertent mistakes false pretences, is invalid.
of a bankrupt who has obtained goods under
United States v. in the bankrupt's schedule of debts has refer
583 ence to some material mistake, or the entire omission of some debt, or of the name of some
19 An act which is not an offence against the creditor.
Id. | United States at the time it is committed,
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.
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;
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.
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.
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.