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2 If the person presented is accepted either

CHARTERPARTY. upon the original terms or upon modified terms then agreed upon, and a valid contract is en

1 A governing point in determining whether tered into, the commission is earned; but if the officers and crew manning a ship are the

servants of the owners or charterers is whether he is rejected the broker must show, in order to entitle him to his commission, not only that there has been an entire letting or parting the person presented was willing to accept the

with the possession of the ship, so that during precise terms of the offer, but also that be the voyage the absolute owner has surrendered

control over her. And it is also an important was an eligible purchaser.


circumstance whether the men are paid by the charterers or owners.

Hagar et al. v. Clark BURGLARY. et al.

541 1 A breaking into a bar-room, in the night See COMMON CARRIERS, 3. time, for the purpose of committing larceny, constitutes burglary in the first degree, where the occupier lives over an adjoining store in

CHARGING IN EXECUTION. the same building, and the dwelling part could

See EXECUTIONS, 7, 8. only be entered from the street. Quinn v. The People.



1 An agreement between a mortgagor and a 1 The authority for taking land or material mortgagee of chattels that the former may refor the use of the State under 1 R. S., 220, tain possession of the property, and sell it, and $ 26, is not impaired by the fact that the State intended to, or had let the work to be done by gage debt, will not render the mortgage fraud

pay over the proceeds to apply on the mort. contract, nor by the fact that the contractors

ulent per se.

Under such an agreement, the were to furnish the materials. Ten Broeck et

bona fides of the transaction becomes a ques. al. v. Sherrill et al.


tion of fact for the jury. Dolson v. Saxton. 126 2 Where the engineer, by direction of the 2 An agreement between a mortgagor and canal comunissioner, laid out certain land for mortgagee of chattels that the mortgagor may the use of the State, and made and filed a

sell a portion of the property mortgaged and map designating it, and the State afterwards

use the proceeds as his own, renders the entakes possession of and uses such land. Held, tire mortgage void. In re Burrows. 137 That such acts constituted an appropriation of the land.

Id. | 3 A chattel mortgage, given to secure the pres

ent and future indebtedness of the mortgagor CEMETERIES.

to the mortgagee, is valid as between the par1 The village of Saratoga Springs purchased ties thereto; and, when free from fraud, is lands for a cemetery without having complied valid as to creditors. Brown et al. v. Kiefer. with certain provisions of its charter (Chap.

485 220, Laws of 1866) requiring a tax to be first voted or levied to pay for the same. Hed,

CHECKS. unauthorized ; and that the charter restrictions were not removed by Chap. 760, Laws of 1 No liability is established against a drawee 1870, a general act giving cities and villages A check has been said to be a bill of exchange

of a check unless there is an acceptance of it. the right to acquire lands for cemetery purposes, in incitum. Latham et al. v. Richards payable on demand. Risley v. The Phænic et al.



2 A bank check, general in form, will not op

erate as an equitable assignment of the money 1 Delay of a year and four months after de- in the bank or other place of deposit. In termination of proceedings is not such laches order to have this effect it must specify a paras will positively deprive an injured party of ticular funni upon which it is drawn. his right to a writ of certiorari to review them. | Merrill. Atty. Gen. v. Continental Life Ins. The l'emple ex rel. Lake v. Board of Fire Co.

461 Com'rs.


3 The fact that a receipt in full of all deSee CORPORATIONS, 1 ; NEW YORK CITY, 7. mands upon a policy held by payee was in

dorsed upon the back of the check, which the CHAMPERTY AND MAINTENANCE.

payee was to sign in indorsing it, does not affect the question.

Id. 1 The statutes in relation to champerty and maintenance have not been abrogated by $ 303 4 While the mere giving of a check is not per of the ('ode. Coughlin v. The N. Y. C. & H.

8e a transfer to the payee of any of the draw. R. RR. Co.


er's funds, yet where the check is certified by

a bank, the bank becomes liable for the 2 A deed of land which is held at the time amount of the check and bound to retain so under claim of an adverse title by another per- much of the drawer's funds as are necessary son is void under the Champerty Act. Christo pay it. Freund et al. v. The Importers & tie et al. v. Gage et al. 397 | Traders' Bk.

481 Vol. 5.—No, 26*.

In re ld

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5 A valid title to an unindorsed check as a sponsible for the enhanced value over the cost chose in action may be created by delivery of reproducing the securities, Quære. thereof by the payees without indorsement. 3 The owner of a vessel which has been char


tered for a voyage by another party, but 6 Although its consideration may have been which is manned, equipped and sailed by him, illegal, a check is valid in the hands of a bona is liable to a shipper for the safe carriage of fide holder for value before it is dishonored, freight for the voyage; but where the freight and without notice. Cowing v. Altman. 516 is delivered by the shipper to the charterer, 7 The date of a check is only presumptive evi.

wbo turns it over to the master, and is by the dence of the time it was issued; it has no in

master delivered to the consignees of the char. ception until its delivery, and this may be terers, such delivery is sufficient to excuse the proved,


general owners from liability for loss. Robin. 801 y. Chittenden et al.


4 Where a common carrier gives a receipt lim. 1 Where a husband became intoxicated. and iting its liability to a specific sum, if the value by reason thereof upset a wagon seat on which of the goods is not stated, the disclosure of his wife was seated, thereby throwing her to the value is a condition precedent to the atthe ground and injuring her. Held, That the taching of any liability.to the carrier for mereintoxication was the proximate cause of the ly ordinary neglect unaccompanied by any injury. Relyea v. Norris.

343 misfeasance or wilful act. Magnin et al. v. Dinsmore.

104 2 An action under the Civil Damage Act may be maintained, although the liquor was sold 5 To deprive a common carrier of the benefit under a valid license.

Id. of a contract for limited liability there must

be an affirmative act of wrong-doing. Id. 3 Compensation for the pain endured may be included in the assessment of damage. Id. 6 A mere non-delivery is not a conversion, nor 4 Where it appeared that plaintiff's husband, have been lost through negligence, or stolen.

is a refusal to deliver on demand if the goods who was the sole support of a family, became injured while in a state of intoxication, so that he was unable to labor for some time, 7 Payment of freight money for goods cannot be during which plaintiff was destitute, and suf- demanded of a consignee, or he be sued there. fered for want of food and fuel. Held, Suffi- for, until they are discharged, ready to be com. cient to establish the fact that plaintiff had pletely delivered to him. Notice of the readi. been injured in person, property and means of ness of the master to deliver, and not knowl. support within the meaning of the Civil Dam- edge of the vessel's arrival and that she is disage Act. Quain v. Russell.

546 charging, is the operative fact for maintaining 5 A license from the Board of Excise to sell

an action against the goods or consignee for intoxicating liquors is no bar to an action

non-payment of freight. Delivery and receipt

Dunia under the Civil Damage Act, but is admissible ham, exrr., et al. v. 1255 Vitrified Pipes

of the freight are simultaneous acts. in mitigation of damages. Id.


8 The liability of a common carrier commences

when the goods are delivered to it, and terSee AssESSMENTS, 13; EXECUTIONS, 4.

minates upon delivery to the consignee or to COMMISSIONERS OF DEEDS.

a succeeding carrier for further transportation.

Prutt v. The Grand Trunk RR. CO. 205 See AFFIDAVITS.

9 Where one company of a connecting line has CODE OF CIVIL PROCEDURE.

an apartment in the depot of another, and a

particular place is set apart for deposit, by the See APPEAL, 13, 19; ATTACHMENT, 6, 7; former, of goods to be transported by the latCosts, 11 ; DEEDS, 12, 19, 20; DEPOSITIONS, ter without further notice, a deposit of the 3; JUDGMENT, 5, 7; PLEADINGS, 7, 12; goods at such designated place is a sufficient PRACTICE, 12, 27, 51 ; REFERENCE, 11; Un- delivery to discharge the liability of the former DERTAKING, 1 ; VENUE, 1.



10 When the bill of a lading of goods shipped

by canal-boat provides that the goods shall be 1 A carrier cannot, when he neglects to make held on the boat for ninety days after arrival, inquiries at the time of receiving goods, and at a stipulated compensation, if the consignee where no fraud is used, upon the discovery, so elects, the liability of the owner of the boat after contract, of facts which would have en- as a carrier ceases on the arrival of the boat titled him to have charged more,

at its destination with its cargo in good orier payment of the additional rate.

Baldwin v.

ready for delivery, and notice to the con. The Licerpool & Gt. W. Steam. Co. 39 signees and their election not to remove the

314 2 Whether, if unnegotiated securities should cargo. Putnam v. Furman et al. be stolen from a carrier, and fraudulently put | 11 The bill of lading is competent evidence into circulation, the carrier could be held re- / against the consignces.



insist upon

12 A stock release does not release a railroad 8 Chapter 606, Laws of 1875, is not violative company from liability for a loss resulting of the provisions of the constitutional amendfrom its own negligence or that of its em- ment which took effect January 1, 1875. The ployees. Mynard et al. v. The S., B. & N. Y. Gilbert Elevated RR. v. Kobbe et al. 340 RR. Co.


9 Where a corporation had a right to lay its 13 Common carriers of animals are excused tracks .n the streets of a city prior to January from liability for loss caused by inherent qual. 1, 1875, such right was not affected by the conties of the animals, but beyond this their stitutional amendment which then took efcommon law liabilities exist the same as against fect.

Id. carriers of other property.


10 A statute will not be declared invalid unless See ATTACIMENT, 2; MARINE COLLISIONS, there has been a clear and substantial depar. 8.

ture from the provisions of the fundamental law.

Id. CONSIDERATION, See CONTRACT, 16, 22, 26, 34, 36; LIFE 11 Chapter 119, Laws of 1873, is constitutional INSURANCE, 1; NEGOTIABLE PAPER, 6, 13.

and applies to ca es existing at the time of its passage. The People ex rel. Witherbee v. Supervisors of Essex Co.

346 CONSPIRACY. 1 Where one person conspires with others to 12 Where a statute was passed by the Legisladefraud a party and induces him to part with

ture of a State relieving particular persons or his property on the credit of one who is insol- particular articles from taxation. Held, That vent, he is liable for the damages sustained

there was not a violation of the Act of Conby the party defrauded. Morehouse et al. v.

gress in relation to the taxation of the shares Yeager.


of stock in national banks. Adumis et al. v. The Mayor, &c.


13 Chapter 482, Laws of 1862, and Chapter 422, 1 The Legislature may legalize the irregular or

Laws of 1863, are not in violation of the Con. even void acts of commissioners appointed to stitution of the U. S. King et al. v. Greenacondemn lands for public use. The People ex way et al.

5:35 reb. Kilmer v. Cheritree.

65 14 Where the charter of a bank provides for the 2 Under $ 12, Art. 14 of the Constitution, the payment of an annual tax at a specified rate Legislature has power to abolish courts held upon each of the shares of the capital stock by justices of the peace in cities. The People subscribed, the same to be “in lieu of all Ex rel. White v. Common Council, &c. 70 other taxes," such provision is a contract be

tween the State and the corporation, and a 3 Chapter 196, Laws of 1876, establishing the law authorizing the imposition of another and Municipal Court of the City of Rochester, and greater taxation upon the shares of stock is thereby in effect abolishing the office of justice unconstitutional as impairing the validity of of the peace in said city, is constitutional. ld.

the contract. Farrington v. Stute of Tennes4 The General Rapid Transit Act is constitu

590 tional. The validity of a law which is required See BANKRUPTCY, 18. to be general, and which is general in its terms, does not depend upon the number of subjects upon which it can operate, or upon

CONSTRUCTION OF STATUTES. the size of a class to which it applies. In re 1 If there is a plain contrariety between two Petition of the N. Y. Elevated RR. Co. 243

acts of the Legislature, so as clearly to indicate 5 The phrase “ due process of law,” in the an intention to repeal the earlier act, it is 14th Amendment to the U. S. Constitution, sufficient to repeal it, although the latter act does not mean by a judicial proceeding. Mc- contained no express words of repeal. The Millen v. Anderson.

245 People ex rel. Ross v. City of Brooklyn. 64 6 A statute which recognizes the right of the 2 A later statute repeals an earlier one only so tax payer to enjoin its collection, is due pro- far as it is clearly and indisputably contradiccess of law, although it requires that the ap- tory and contrary to the former one in the plicant for injunction shall give security. Id. very matter, and is so repugnant that the two

acts cannot be reconciled.In re Cram. 91 The Statute of Michigan, requiring every negotiable instrument given for the right to 3 The Act of 1832 (4 R. S., 454) has been sumake, use or vend any patent invention, to perseded by $ 120 and 397 of the Code of have legibly written or printed on its face the Procedure. Alexander v. Dutcher et al. 114 words, given for patent rights,” and providing that such instruments shall be subject to 4 A clanse in a charter providing that all perthe same defenses in the hands of every holder

sons appointed thereunder shall, unless other

wise provided, hold during the pleasure of the as exist against the original holder, and making it a misdemeanor to knowingly sell a note

person or body by whom they were appointed, given for such purpose and not so inscribed, is applies only to officers appointed under the act.

298 unconstitutional and void. Cranson v. Smith,

T'he People ex rēt. Donohue v. French. 253 | 5 The title of a local or private act is a part of


the act, and bears upon its meaning and pur. paid for within the specified time. Kellam v. pose. The People ex rel. Cooke v. Wood. 579 McKinstry et al.

15 See CEMETERIES; COUNTY TREASURERS, 2. 4 Persous undertaking to perform services re

qniring a high degree of skill are required to CONTEMPT.

possess such skill as is commensurate with the

undertaking, and are responsible for any dam1 In order to support a conviction for con

ages resulting from a want of such skill. kel. tempt of an injunction in proceedings supple- | lam, exrx., v. The Mayor.

17 mentary to execution, the legal title to the property, the transfer of which forms the con- 5 Agreement by one party to buy and the tempt, must be proven to be in the accused.

other to sell, or one party to sell and the other Dean v. Ilyatt.

67 to buy stocks at a specified price at a future

day, where neither party intends to deliver or 2 A party cannot be punished for contempt in accept the shares, but merely to pay differnot delivering property to a receiver where

ences, according to the rise or fall of the the judgment appointing such receiver does market, are contracts for gaming, and void. require such delivery. ĂscKelcy v. Lewis. 202 Yerkes et al. v. Salomon.

29 3 In such cases an order will not be granted | 6 Defendant sold a cow to one Carey, the purrequiring delivery; the proper practice is to chase price to be paid in manure at a stipumove to amend the judgment.

Id. | lated price, and delivered it to plaintiff as 4 On an attachment for contempt, where the agent; subsequently, defendant took said cow act or omission constituting the contempt is from plaintiff's possession. Held, That the admitted, interrogatories need not be filed.

contract of sale was thereby rescinded, and The People ex rel. Childs v. Cartwright.

259 plaintiff, as assignor of the claim, is entitled to recover for the manure delivered.

Cook v. 5 Where a party has been personally served | Reynolds.

79 with an attachment for a contempt, and an attorney appears for him in the proceeding, ser

7 An executory contract for the sale of stocks vice of papers thereafter upon his attorney is

or goods at a fixed price is valid, although the good. Watrous v. Keurney et al.


vendor neither owns them nor has them in

possession when the contract is made. Bige6 On application for an attachment to punish low v. Benedict.

82 an alleged contempt of an order to pay over money, the Court may inquire into all the cir- 8 But an optional contract for the sale of propcumstances and refuse the application when it erty, when there is no intention on the one appears that the party proceeded against was

side to sell and deliver, or on the other to buy unable to comply with the order. Cochran v.

and take, but merely that the difference shall Ingersoll.


be paid according to the fluctuation in market values, is a wager, and void.

Id. See DIVORCE, 13.

9 In an action to recover the contract price of CONTRACT.

goods manufactured to order, where the de

fence is that they were not delivered in time 1 Where one party to a contract declares to and were defective in quality, the onus is the other that he will not perform on the fu- upon the plaintiffs to establish the contract ture day fixed therefor, and does not withdraw and show a performance on their part, or an such declaration before such time, the other acceptance by defendants, and also to estabparty is excused from performance or offer to lish the fact that the goods were of the quality perform on his part. Shaw v. The Republic called for by the contract. Bullou et al. v. Life Ins. Co. 2 | Parsons et ai.

171 2 A party injured by a breach of contract must 10 Evidence that the workmen employed in its make reasonable exertions to render the injury manufacture exercised due care and diligence, as light as possible; but he is not required, in is inadmissible.

Id. a case of breach of contract of employment, | 11 Contractors engaged in a lawful public work to change his residence or leave his family, or

are not free from restrictions. They can use accept employment in another locality at an inconvenient and unreasonable distance from

the street or road, when necessary to accomhis residence, nor to accept employment for plish the object to be attained, but only so far which he is unfitted or to which he is not ac

as necessary, and then with proper recogni. customed, in order to lessen the injury. Macy tion and observance of the rights of the citi

179 v. The Rochester Laminated Pipe Co.

zen. Higham v. Dillon et al. 4

12 A contract for the personal services of a 3 Where a contract for the sale of hemlock bark on certain growing trees, which provides obligation ; where such third party becomes

third party is not in the nature of an absolute that the vendees shall peel said bark, and have disabled without fault on the part of the it all peeled, piled, measured, and settled for within a specified time, is not completed within for non-performance. Spalding et al. v. Rosa

covenantor, such disability is a valid excuse the time limited, the right to peel and carry et al.

182 away the bark is terminated. In the absence of an extension of time, the contract is to be 13 Where A and B enter into a joint adventure limited to such bark as had been peeled and for the purchase and sale of stocks, B to

furnish the funds, and bear the loss, if any, other, for which there is no consideration, is
and if there are profits, B to receive four-fifths void upon general principles. McCafferty v.
and A one-fifth; A to manipulate the sales | Decker.

and purchases, and no time for which such
adventure is to continue is specified, the con•

25 Where one, acting on the faith of a promise,
nection may be dissolved at the will of the performs the conditions upon which it was
parties, and either may demand an account. made, the promise attaches to the conditions so
ing. Marston v. Gould.

187 performed and renders the promisee liable.
White v. Baxter.

14 Each party is liable to the other for losses
sustained by his misconduct or the misappli- 26 Injury to a promisee is a good consideration,
cation of the partnership funds.
Id. even in the absence of benefit to the promisor.

15 A sale of the stock by one of the parties in
the usual way, and fairly and honestly made, 27 Although a contract for the sale of personal
will bind the other, although such sale was property is void under the Statute of Frauds,
not avowedly made on joint account. Id. | if the goods are delivered and accepted, the
16 An agreement between two parties to refer vendor is bound to pay for them at the con-
to other persons a question as to the terms of tract price. Barkley v. The R. & S. RR. Co.

a trade, which provides that if either refuses
to abide by the decision, he shall forfeit a 29 Where a railroad company has leased its
specified sum to the other, is valid ; the prom- road to another company, a receipt for a part
ise of each is a valid consideration for the payment by the lessee, for goods delivered
promise of the other; so also is the delivery after the lease, will not discharge the lessor
by each of his property to the umpires to be from its liability for the balance.

valued. Parsons v. Taylor.


29 In order to sustain an action in equity for
17 In such case the sum fixed is not a penalty, the reformation of a contract, the plaintiff
but liquidated damages.

Id. must show either that a mistake has been
18 Testimony of officers of a corporation that that the intentions of neither are expressed in

made by both parties to the agreement, so
they understood that plaintiff was to have a
commission for his services, although indefi- it, or the mistake must be that of one party,
nite, is evidence that a contract had been by which his intentions have failed of correct
made by some one authorized by the corpora: the other party, in taking advantage of that

expression, and there must have been fraud in
tion. Krisson v. The Kellogg Bridge Co.


mistake. Miaghan v. The Hartford Fire Ins.
19 Evidence that plaintiff has travelled to pro-


cure work for defendant is material as tending 30 In such cases the proof of mistake should
to show that plaintiff was acting for and serv-

leave no
ing defendant, and the presumption is that he reformation of contracts will not be extended.

room for doubt. The right of
did it for compensation and not gratuitously.

20 Where a mutual mistake is made by the 31 Where the time of performance of a written
parties to a real estate contract, and deed contract has been extended by an instruinent
given thereunder, the contract and deed may such extension to extend further, if requested,

in writing, the verbal promise at the time of
be cancelled, and the payments made thereon
recovered less the rent for the time of occu-

is not a legal extension, but mere evidence of
pancy. Dancer v. Rearick.


a disposition to oblige. Harway v. Lott. 440
21 A contract between owners of adjoining lots 32 An agreement between A and B, by which
that they shall be reserved for first-class dwell- A advances the amount due on a contract for
ings, to the exclusion of trade and all business the purchase of land which he holds for the
and structures which would depreciate their benefit of B, and takes a deed in his own
value as private residences, is valid and creates

name as security for the sum advanced, and
a negative easement which will pass as appur-

agrees to convey to B, upon repayment there.

of, is in no sense invalid, illegal or against
tenant to the premises, although there was no
privity of estate between the parties. Trus.


public policy. Bugbee v. Bugbee.
tees of Columbia College v. Lynch et al. 341 33 If there is no evidence of insolvency of B
22 The mutual and reciprocal covenants in

at the time A takes the deed, it is error to

hold that the arrangement is a fraud upon B's
such a contract constitute a good considera-
tiou for both.

creditors, of which A can afterwards take

advantage and refuse to convey, simply be-
23 Where, after the execution of a contract, cause there is evidence that years before,
and the entrance upon its performance by the when the original contract for the purchase of
parties thereto, alterations are made in the the property was made, B was so involved in
contract by the holder thereof, it is admissible debt that he did not want to hold property in
to prove such alterations, although not set his own name.

out in the complaint and reply. Wriges v.


34 An agreement to pay for honest services,

performed in furtherance of fair and just legis-
24 A parol agreement to pay the debt of an- | iation, is founded upon a good and sufficient


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