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except to the keeper of an inn, tavern, or hotel. 8 The charging in execution of one of several
The People v. Smith,

200 judgment debtors will not impair the creditor's

remedies against the others.

ACT, 5.



1 To constitute a valid levy there must be ac-
tual control or dominion of the property. The EXECUTORS AND ADMINISTRATORS.
legal test of a valid levy is whether anything 1 An executor cannot be committed to prison
has been done which will subject the officer to

as for a contempt for not paying over moneys
an action of trespass if the execution does not
afford him protection. Caruana v. Colin. 78 in his hands decreed to be paid to the persons

interested in the estate ; the proper remedy is
2 Where a sheriff has made a levy prior to the an execution against the body. Watson v.
actual filing of the judgment on which the exe- Nelson.

cution was issued, his subsequent presence at
the place where the goods are, the taking of 2 An executor may sue in his own name with-

Beers v.
an inventory, and advertisement of sale by out describing himself as executor.


virtue of the execution do not constitute a new
levy made at such subsequent time. Hath- See APPEAL, 13; ESTOPPEL, 3; EVIDENCE,
away v. Howell.

1337, 10, 20, 32, 36 ; Wills, 13.
3 When notices of sale of land under an execu-
tion were not posted for six weeks as required

by law, and the attorneys for the judgment

See EVIDENCE, 21, 22, 23.
creditor drew the notices and knew of the de-
fective posting, their knowledge is the knowl-

edge of the creditor and a sale to him is inef-
fectual to pass the title. Earle et al v. Wil.

See HABEAS CORPUS, 2, 3, 4.
lard et al.


4 In an action of ejectment brought by the
purchaser under such a sale, it appearing that | 1 Where factors, in good faith and without
the land had been originally bought with notice of the vendor's title, make an advance
money or property belonging to defendant, upon goods consigned to them by a vendee
while defendant was an infant and without under a conditional sale and delivery, they are
her knowledge or consent, that a deed had protected by the provisions of the Factors' Act
been taken in trust for defendant's mother from all claims on the part of such vendor.
during her lifetime with remainder in fee to Bates et al. v. Cunningham,

defendant's brother, and that the judgments See ARREST, 2, 3, 4.
under which the sale was made were judg-
ments against said brother; also that defend-
ant was in possession of the land at the time

of the sale under a claim of ownership. Held, 1 A prisoner charged with assault and battery,
that defendant was the equitable owner in having been ordered to give bail, and omitting
fee and was entitled to affirmative relief re- so to do, was committed by the justice, who
moving the cloud upon the title.

Id. had jurisdiction of the party and subject-mat-
5 Notice of application to discharge levy must ter, to be kept until discharged according to
be given to sureties on appeal from the judg. law. Held, That the justice had a right to
ment affirmed, as well as sureties on new ap-

commit for twenty-four hours, during which
peal. Foote v. Schmeder.


the right to give bail continued, and that he

could not be considered a trespasser ab initio
6 An execution against the person without an for a failure to bring the prisoner to trial be-
order of arrest may be issued when the cause fore a court of special sessions at the expira-
of action and cause of arrest are identical, tion of that time. Kenna v. Morrison. 370
where it becomes necessary for plaintiff to
establish the facts constituting the fiduciary

relation as necessary proof in his case. Gibbs
V. Hichborn.

496 1 To constitute the crime of obtaining prop-

erty by false pretences, it is a necessary ele-
in Where a defendant who has been arrested

ment to establish a false representation as to
in a civil action has been imprisoned for more

a past or existing fact. Lesser v. T'he People.
than three months after judgment was ren-

dered, and the property execution has not

been returned on account of prior attachments
against the property of the other defendants

in suit, which are undetermined, the Court is
authorized to order his discharge unless the 1 Where one person obtains property from
creditor issue an execution against his body another in exchange for worthless checks by
within a specified time. The N. Y. Guaranty falsely representing that the maker is solvent,
& Indemnity Co. v. Roberts.

578 | knowing or having cause to know that his


INGS, 5.

statement is untrue, and with intent to de pressed, or the policy be void, a vendor's lien
fraud, an action for such fraudulent repre- for unpaid purchase-money will bring the case
sentations will lie. Morehouse et al. v. Yeager. within that clause.


6 Although statements in an application are
2 An action for false representations will not declared by statute to be representations and
lie where the party making such representa- not warranties, still the parties may make a
tions believed them at the time to be true.

valid agreement that they shall be considered
Dilroorth v. Bradner et al.
429 warranties.


7 One of several cestuis que trust may insure

his interest in the trust property in the name

of the trustee, but loss, if any, payable to him.'

self, and in case of loss receive the entire pro-
1 An action for a false return to a writ of cer- ceeds, provided no unfair advantage is taken
tiorari can be maintained only where the fal- of the others in effecting the insurance. Ilar.
sity was upon material points and the plaintiff vey v. Cheny et al.

has been injured thereby. Rector v. Clark et

355 / 8 Where the owners of whiskey in a distiller's

bonded warehouse are sureties on the, distil-

ler's bond, their liability for the government

tax in case of the destruction of the property

and failure of the distiller to pay is an insur-
able interest. The Germania Fire Ins. Co. et


al. v. Thompson et al.
1 To sustain a conviction for an assault under 9 A sale by one of the partners of all his in-
Chap. 74, Laws of 1854, the jury must find terest in the partnership will not deprive him
that the assault was committed with a sharp of this insurable interest.

as well as with a dangerous weapon. The
People v. Hickey et al.


10 The appointment of a receiver in an action

to dissolve a partnership does not change the
2 A person cannot be convicted of an assault legal title to or possession of the partnership
with intent to do bodily harm, under the property so as to avoid a policy of insurance.
statute of this State, unless the jury find that Keeney, rec'r., v. The Home Ins. Co. 527
the same was committed without justifiable or
excusable cause. Leishman v. The People. 413 | 11 Where a policy of insurance provides that if
See CRIMINAL PRACTICE AND PLEADING, sion of the property insured, whether by legal

any change takes place in the title or posses-

process or judicial decree, &c., then it should

be void, only a change in the legal title will
avoid it.

1 The insurer is estopped from setting up a
breach of condition as to title, wiere its agent 12 The mere description of the premises in the
had information as to the title at the time of policy as a dwelling house,” unaccompanied
accepting the risk. Van Schaaick v. The Ni- by further representations, is not a warranty
agara Fire Ins. Co.


that it is occupied as such. Browning v. The
Home Iros, Co.

: 2 Where the risk is accepted with a condition

which is never brought to the knowledge of 13 An executory contract of sale of the prem-
the insured, a breach of such condition will ises does not transfer the title so as to work a
not avoid the policy.
ld. forfeiture of the policy.

3 An insurance in the name of the owner of 14 A provision in a policy that it should be void
the property, but loss, if &?, payable to the in case the premises become “ vacant and un-
mortgagee to the extent of his interest, is not occupied” must be construed and applied in
an insurance of the interest of the mortgagee, view of the subject-matter of the contract,
but of the property of the mortgagor for his and of the ordinary incidents attending the
benefit, and as collateral security for the use of the property. Whitney v. The Black
mortgage. The Ulster Co. Suvgs. Inst. v. River Ins. Co.

Decker et al.


15 The continuing of the use of a planer in a
4 Where a policy stipulates that any false rep- sawmill is not a violation of a provision of the
resentations as to the condition, situation or policy that it should be void if the premises
occupancy of the premises shall render it void, were used so as to increase the risk, even
the contract is violated at its inception if the though the company were ignorant of its use

premises are not occupied as represented. The at the time the policy was issued.
Fariners & Drovers' Ins. Co. v. Curry et al.


16 Whether temporary absence is such a cessa-

tion of occupation as to avoid a policy of in-
5 Where the policy provides that if the inter- surance under a condition contained in it, is a
est of insured is other than that of sole and question of fact for the jury. Wait v. The
unconditional ownership, it must be so ex- | Agricultural Ins. Co.

Vol. 5.-No. 27



17 Where four policies of insurance, similar in cause of action against defendant for the every respect, except dates and amounts, and amount so paid. Stephens y. Board of Educacovering the same property, were issued by tion. the same insurance company, and proofs of the loss was made under one policy with notice 3 Semble, That the same principle is applica. that they applied to all. * Held, That such ble in such case to either money or chattels. proofs were sufficient, especially as they had

Id. been held by the company without objection for nearly thirty days, and the company had 4 Where a person has by fraud induced anoffered to pay a much larger amount than

other to execute an instrument, equity may that of any one policy. Důkin v. The Liver- sustain an action to compel the surrender of pool, L. and G. İns. Co.


it although no actual money-damage bas been sustained. Rannoy v. Warren.

543 18 Where a policy insures two or more persons, as interest may appear," one of them being

See ARREST, 5, 6; BANKRUPTCY, 15, 17; & mortgagee and the others owners, but it is CONSPIRACY; CONTRACT, 27; DEEDS, 1, 2; not so stated, the policy is not therefore ren

PARTNERSHIP, 8; SALES, 3. dered void,

ld. 19 Where the total loss was made payable to

GAMING CONTRACTS. plaintiff as mortgagee, but one of the insured

See CONTRACT, 5. was equitably entitled to a part thereof; and the plaintiff's complaint was not for the full

GIFT. amount, but only for the actual amount of his claim. Held, That plaintiff might amend so as

1 Whether there is an acceptance of a gift or to claim the full amount of the loss, notwith- not depends upon all the circumstances antestanding the other party had also brought suit rior and subsequent, and when these circumto recover the amount claimed by him. Id. stances have been considered by the auditor,

to whom the matter has been referred, and by See SUBROGATION, 2, 3.

the surrogate, and have led them to the con

clusion that there was an acceptance, their FORECLOSURE.

conclusions will not be disturbed where there See MORTGAGE, 2, 7, 11, 12, 15, 16, 24, 32. is evidence on which they might arrive at such

decision. Child et al., exrs., v. Child. 16 FORFEITURE.

2 A delivery by a father to his sons of checks See CORPORATIONS, 14.

payable after his death, accompanied by pass. books on the savings banks where his money

was deposited, is not a valid gift of the moneys FORGERY.

in such banks. Curry et al. v. Pouers. 93 1 Where evidence, otherwise unimportant, 3 By direction of the father, one of the sons was clearly inadmissible, and the Court was

took the pass-books and deposited them in a satisfied that it was introduced for a purpose place of safety, subject to his father's call. other than the one stated, and for which its hdd, That there is no such delivery or agreeadmission would be improper, the verdict was ment as would sustain the transaction in set aside for error. Cole v. Cole, exr. 452 equity as a declaration of trust or as gifts by 2 This principle applied to a case in which the appropriation or appointment for use of doissue was whether a note was forged. Other

ld. notes of the maker were introduced, as al. 4 Under the law applicable to gifts causa mor. leged, solely on the question of the feeling tis, the title to non-negotiable choses in action existing between the parties at a certain time. By their introduction and submission to the

will pass by delivery only. Cornell et al., tars., v. Cornell.

388 jury the latter were enabled to make a comparison of hands. Held, Error,

ld. 5 In an action involving the validity of a gift, See EVIDENCE, 31.

to which the executor of the donor is a party, evidence of conversations between the donor

and witnesses, one of whom is the donee and FRAUD.

another the residuary legatee, is inadmissible. 1 Where the grantees in a fraudulent convey.

Id. ance accept the same with the fraudulent in

See ADVANCEMENTS, 1; EVIDENCE, 17. tent and design to defraud creditors, they are particeps criminis, and can claim nothing

GUARANTY. under it; nor will payment of full value proteot such fraudulent grantee. The Union

See NEGOTIABLE PAPER, 11. Nat. Bk. v. Warner et al.


GUARDIAN AND WARD. 2 Where an agent and member of defendant fraudulently and by crime obtained money of 1 The mother, who was also general guardian plaintiff and paid it to defendant on a prece- of a minor, paid over to her husband, his dent debt. Held, That plaintiff had a good stepfather, a pension to which the minor was



entitled, for his support. Held, That such 3 Such conveyances will be supported in payment was valid under the circumstances. equity only during the joint lives of husband Hill v. Hanford. 273 and wife.


10. 1 In case of the writ of habeas corpus, which is

INDICTMENT. a special proceeding, costs may be allowed in 1 A description in an indictment of a bank, the discretion of the Court, but embrace only not a corporation, as the “Geo. Washington the items for proceedings after petition and Bank," when it was properly the “George before trial, and for trial and disbursements. Washington Bank,” is not fatal. Patterson v. Matter of Barnett.

The People.

300 2 A Court of Oyer and Terminer has no power 2 A statute extending the time for the finding to issue a writ of habeas corpus in the case of and filing of indictments for bribery, &c., from a person held in custody by virtue of a war

three to five years, passed after the commis. rant of extradition. The People ex rel. Con

sion of the offence, is an ex post facto law, and nors v. Reilley.


an indictment found under it cannot be suis

tained. 3 Such a person is not a "prisoner detained

The People v. Lord.

302 in the common jail of any such county, upon 3 It is no objection to an indictment that two any criminal charge,” within the meaning of

or more offences of the same nature, upon sec. 27, ch. 460, Laws of 1847.


which the same or a similar judgment may be 4 Where a writ of habeas corpus has been is given, are charged in different counts. Taylor sued in such a case by an officer having au

v. The People.

359 thority so to do, the warrant of the Governor

See ARSON, 1; NUISANCE, 1; RAILROAD is not conclusive, but such officer may go behind such warrant and determine whether any

crime was sufficiently charged against the
relator in the affidavits presented to the Gov.


See NEGOTIABLE PAPER, 10, 11, 12, 13, 15,


INJUNCTION. 1 Individuals cannot by obstructing a public 1 An irregularity in obtaining an injunction highway work an abandonment of it. can be done by the public only. Hood v. Smith against a corporation is not waived by an apet al.

117 plication to dissolve the injunction. Wilkie v. The Roch. & St. L. RR.

352 2 A person whose rights are injured by such obstructions is entitled to equitable relief with: / 2 The provisions of an injunction to restrain a out first bringing an action of trespass and RR. Co. from operating its road over land establishing his legal right by judgment.

Id. adjudged to belong to the party obtaining it

was suspended for ninety days to enable the 3 A highway cannot be said to be opened and RR. Co. to perfect its title. Held, To be satisworked unless it is passable for its entire fied if within that time the necessary proceedlength. Beckwith et al. v. Whalen. 286 ings are commenced.

The Washinyton Ceme

tery v. The P. P. & C. 1. RR. Co. 395 4 Referees appointed by a county judge to hear an appeal from an order of the commissioner 3 The plaintiffs were second mortgagees and of highways have only the power to consider their mortgage became due presently. The and determine whether the highway, as pro mortgaged premises were an insufficient seposed by the commissioner to be laid out or curity, and the defendant, the mortgagor, was altered, is Lecessary and proper. Rector v.

insolvent. The first mortgage was unpaid. Clark et al.

355 | A portion of the mortgaged premises was

valuable wood land, from which the defendant See BRIDGES, 4; NUISANCE, 1, 2; RAIL- was cutting and had cut large quantities of ROAD COMPANIES, 14, 15.

wood. The Court sustained an injunction restraining the defendant from further cutting

and also from removing timber already cut by HUSBAND AND WIFE.

him. Herman et al., exrs., v. Stewart et al. 408 1 A tract of land was conveyed to a husband 4 Parties to an action and their servants and and wife. He deeded his interest to her, she agents may be enjoined. If a person enjoined giving back to him a mortgage. Held, That is in fact å mere servant or agent, it does not the deed and mortgage were void. Daly's vitiate the injunction to name him in it. Faradmrs. v. Wright et al. 229 rington v. Birdsall et al.

421 2 The wife's interest ander such a conveyance 5 The parties in interest may, in a Court of is in no sense her separate estato. Id. | Equity, test the right of a petitioner to prose

cute proceedings in a Surrogate's Court, and the expiration of the two years, and an allow-
in proper case may enjoin proceedings in the ance of interest on the penalty of the bond
Surrogate's Court during the pendency of such was proper.

Beers v. Shannon.

suit. Pettigrew et al. v. Foshay.


6. Where an action in which an injunction has
been granted is discontinued, the party en-

joined has no right of action upon the under-
taking. Palmer v. Foley.


See DEEDS, 22.
7 A Court of Equity will not interfere on the

ground that a judgment is erroneous. Wright
v. Fleming et al.

507 1 In the absence of actual fraud, a judgment

obtained by offer of compromise, under 385
8 But only where enforcing it would be con-

of the Code of Procedure, will not be held
trary to equity and good conscience. Id. fraudulent as against subsequent judgment
9 An injunction to restrain a mere trespass creditors on the ground that it was obtained,
will be granted, where such trespass is in the in effect, by consent of the defendant. Beards

nature of a nnisance and threats have been

V. Wheeler.
made to continue it. Johnson et al. v. City of 2 Certainty to a common intent, in the state-


ment of indebtedness, is sufficient to sustain
10 A stay of proceedings pending appeal from

a judgment by confession entered thereon.
Harrison v. Gibbons.

a final judgment awarding an injunction, does
not annul the judgment or affect its validity 3 A personal judgment obtained in another
or effect so far as it restrains the action of the State is valid if proporly authenticated. Bur.
appellant, his servants or agents. The 6th | nell y. Weld.

Ave, RR. Co. v. The Gilbert Elevated RR. Co.


4 A judgment obtained before the judgment

debtor has been granted a discharge of bank-
See CORPORATIONS, 27; SUPPLEMENTARY | ruptcy, may be cancelled of record aftur such

discharge. American Exchange Bk. v. Bran-


5 Section 1268 of the Code of Civil Procedure
See LIFE INSURANCE, 14, 15, 18. makes it imperative upon the Court to make
such order.


6 A judgment concludes the parties only as

to the grounds covered by it, and the facts
necessary to uphold it. Willett, aılmr., v. Kipp
et al.


7 Section 1271 of the Code, providing for the
1 The owner of a paid-up policy cannot main-
tain an action to remove a trustee of the docketing of judgments rendered in United
company for an abuse of trust. The word

States Courts by County Clerks, refers only to
"creditor in the statute means a judgment the form or manner of the docketing. Tomp-

kins v. Purcell.

creditor. Belknap v. The North American Life
Ins. Co. et al.

235 | 8 An execution cannot be issued on such
2 The right of action given to creditors by $


35, of 2 R. S., 463, is not taken away by S 17 See APPEAL, 21 ; CORPORATIONS, 3; CRED-
of Chap. 463, Laws of 1853.

3 It rests in the discretion of the Supreme Vin, 4, 6; Torts, 1.
Court to order payment of individual claims
against an insolvent insurance company from

time to time, or to order the assets to be dis-
tributed as they accumulate in the receiver's 1 In the case of a judgment of a Court of gen.
hands, or upon making the final order in the

eral jurisdiction of a sister State, the want of
proceeding. In re Miller v. Wickham, recr. 311 jurisdiction may be shown by extrinsic evi-

dence, and the recital of a jurisdictional fact
4 The submission of a brief signed by counsel in the record is not conclusive, but may be
for “ Foote and others, policy-holders," does contradicted by extrinsic evidence. Ferguson
not make them parties to the application, or v. Crawford et al.

bind them by the result.


2 The Supreme Court has concurrent jurisdic-
See APPEAL, 15.

tion with the Surrogate to enforce the pay.

ment of legacies. Lewis et al. v. Maloney. 358

3 The amendment of 1874 to the Bankrupt
1 A bond was given conditioned for the re- Act has not deprived the State Courts of juris-
moval of certain liens on land within two diction over actions by assignees in bankruptcy
years. Held, That interest was to run after / for the collection of assets of the bankrupt

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