6 An action by an assignee in bankruptcy to
foreclose a mortgage given to the bankrupt is
not a case arising under the laws of the United
States, and is not therefore affected by or
within the operation of the U. S. Statutes giv-
ing exclusive jurisdiction to the Courts of the
United States. Burlingame, assignee, v. Parce
et al.
532

7 Causes of action accruing to an assignee in
bankruptcy by operation of law, as the result
of actions commenced by him in a State Court,
do not fall within the inhibition of the amend-
ment to the Bankrupt Act, giving jurisdiction
over the legal debts and assets of the bankrupt
not exceeding $500 to the State Courts. Tullis
v. Miller.
597

See BANKRUPTCY, 7, 8; COUNTY COURTS;
STATUTE OF LIMITATIONS, 4; SUPPLEMENT-
ARY PROCEEDINGS, 10.

6 Where the corporation subsequently appoints
a new agent, who takes possession of the prem-
ises, there is no surrender, but the corporation
is presumed to have entered as sub-tenants of
the original lessee.
Id.

7 While a parol lease is not of itself good for
more than a year, yet if the tenant continue
possession under it for more than a year it be-
comes a tenancy from year to year. Dorr v.
Barney.
263

8 A verbal notice that the tenant will leave the
premises by the end of the year is not suffi-
cient to terminate such tenancy, nor is a for-
mal notice sufficient where the tenant con-
tinues in possession of any portion of the
leased premises.
Id.

9 A clause in a lease which provides that the
lessor shall have a lien as security for the pay-

ment of rent upon all goods, wares, &c., put
upon the premises, and authorizes the lessor,
in case of non-payment of the rent, to take
and sell such property in same manner as in
case of chattel mortgages, is binding upon the
parties. Wisner v. Ocumpaugh.

315

10 One who was a special partner in the firm which leased the premises, and who, on the dissolution of the firm, purchases the property, takes it subject to the lease, and cannot maintain an action of trover against the lessor for subsequently taking the property under the chattel mortgage clause in the lease. ld.

11 Where a lease provides that in case the premises are destroyed by fire the lessor shall rebuild, and that in case he does not do so within a specified time, the lease shall cease, if the lessee so elects, the lessee's remedy for damages is complete upon the lessor's failure to rebuild. Ganson v. Tifft. 458

sheriff's deed on an execution sale on said judgment is subsequent to such mortgage. Frost v. The Yonkers Savings Bk. 162

See ATTORNEYS, 1, 3, 4; LEASE, 9; MORTGAGE, 18, 19, 20, 31; TRUSTS, 6; VESSELS, 4, 5; WILLS, 27.

LIFE INSURANCE.

15 A bill of sale of the stock, fixtures, and leases of a store operates as an assignment of

the leases described in it. Booth et al. v. Kehoe et al. 471

16 A presumption of fraud cannot arise upon the assignment of a lease the same as upon a transfer of personal property not followed by actual and continued change of possession. Id. 17 A recovery by a lessee of the full value of the use of premises included in the lease for the time he was deprived of possession is equivalent to possession, and he is thereby estopped from setting up want of possession as a defence to a subsequent action for rent. Knox v. Hexter.

524

1 A note given by the insured in payment of premium, although not paid at maturity, is an adequate consideration to issue a policy of insurance. Shaw v. The Republic Life Ins. Co. 2 2 When failure to pay the annual premiums upon a policy of life insurance is caused by the occurrence of war between the two sections in which the insurer and the insured and if the insured die during the war, though a revival of the contract is impossible, the assured is entitled to a paid-up policy for such amount as could be purchased by the excess of premiums paid upon the policy at the time when the payments were first omitted, above the amount necessary to compensate the insurer for the risk carried up to that time. 35 Crawford v. The Etna Life Ins. Co.

3 The intervention of the war made it unlawful for the assured to pay premiums thereafter; and this without reference to the proclamations of the President in relation to insurrectionary districts and commercial inter

course.

ld.

5 In order to constitute medical attendance it is not necessary the physician should attend the patient at his own home, an attendance at his own office is sufficient. Id

6 A statement in the proof of death, by the

LEGACIES. See WILLS.

LICENSE.

See CIVIL DAMAGE ACT, 5; EXCISE.

LIENS.

1 Where the holder of a prior judgment has made an agreement with a junior mortgagee that the lien of the judgment shall be postponed and considered subsequent to that of the mortgage, the lien of a purchaser under the

medical attendant for a longer period than the policy had run, will not prevent proof on the trial as to who was the usual medical attendant of the insured. Id.

7 Where an action on a policy of life insurance is defended on the ground that the statement in the application that the habits of applicant were temperate was false, evidence of intimate friends of insured that they remembered him drinking very seldom, never saw him intoxicated or under the influence of liquor, and had known him to refuse liquor, and never saw anything to induce the belief that he was not perfectly temperate, although negative, is pertinent and competent to be given on a question of the habits of sobriety of the insured. Van Valkenburgh et al. v. American Pop. Life Ins. Co.

89

8 A question in an application for life insurance
as to the use of intoxicating liquors does not
refer to a single or incidental, but to a custom-
ary or habitual use.
Id.

9 Where, after judgment for plaintiff in an
action to have a policy, which is claimed to
have lapsed, declared valid and binding, which
judgment gives an election to pay the over-due
premiums within a certain period or to take a
paid-up policy, the plaintiff delivers up the
policy with an instrument cancelling it, both
of which are kept by the company after the
General Term has modified the judgment by
striking out the provision giving an election,
and the company neglects to deliver them up
on demand, without notice of their intentions,
this is equivalent to a declaration that no ten-
der of the premiums would be accepted, and
such tender need not be made. Hayner v.
The American Pop. Life Ins. Co.
92

10 Where one company, in pursuance of an
agreement to reinsure the risks assumed by
another, upon surrender of a policy in such
other company, issues a policy in consideration
of the representations made in the application
for the surrendered policy, such application
and representations to apply to and make a
part of the policy and warranted to be true.
Held, That such warranty related to the date
of the original policy and not to that of the
new one. Cohen v. The Continental Life Ins.
Co.
118

11 Where the reinsuring company was to as-
sume all the risks of the original insurer, it
cannot set up as a defence to an action by one
of its policy holders that the risk was not such
as a life insurance company could safely or
properly take.
Id.

12 In an action upon a policy, plaintiff has a
right in complaining to rely upon such aver-
ments as state a cause of action, and is not
bound to anticipate the defence.
Id.

13 Where the reinsuring company has notice to
produce its contract of reinsurance and de-
clines to do so, every intendment is to be taken
against it.

Id.

14 In an action upon a policy of insurance
which provides that it shall be void in case the
insured should die by his own hand, when the
insured has committed suicide, but it is
claimed that he was insane at the time, the
plaintiff must prove that he was in fact in-
sane. Sanity will always be presumed. Weed
v. The Mutual Benefit Life Ins. Co. 287

15 If, although there is evidence tending to
prove insanity, it is insufficient to sustain a
verdict in favor of the claim, and a verdict
finding the fact would be set aside as not war-
ranted by the evidence, a nonsuit is proper.

Id.

16 A clause in a policy which requires that no-
tice of the just claim of the assured" shall
be given, has reference to the claim or title to

the policy and not to the justness of a cause
of action thereon. The Charter Oak Life Ins.
Co. v. Rodel.
427

17 If there is any evidence tending to prove
that deceased was insane when he took the
poison which caused his death, the question
Id.
should be left to the jury.

18 To make the insuring company liable in
cases of suicide, the mind of the deceased
must have been so far deranged as to have
made him incapable of using a rational judg
ment in regard to the act he was committing.
If he was compelled to the act by an insane
impulse which the reason that was left him
did not enable him to resist, or if his reason-
ing powers were so far overthrown by his
mental condition that he could not exercise
his reasoning faculties on the act which he
was about to do, the company is liable. ld.
19 Where a married woman was induced by
the influence and coercion of her husband to

assign two policies on his life, which she
owned, to secure a debt of her husband, and
the creditor receiving it arranged with the
husband to have the policies lapse, and then
take out new policies payable to the creditor.
Held, That the new policies merely took the
place of the old ones, and the money payable
thereon must go to the party entitled under
437
the old policies. Barry v. Brune et al.
20 Where the insurance company is willing to
pay the amount due to the person entitled to
it, the Court may determine conflicting claims
to the fund, and provide for the protection of
the insurance company against double pay-
ment.

ld.

21 A life insurance company cannot maintain
an action for damages against the murderer of
a person insured in such company. The Mu-
tual Life Insurance Co. v. Brame.
511

22 A policy of insurance upon the life of a mar-
ried man, issued upon his application and pay-
able to his wife, is in the nature of a provision
for the support of the wife during widowhood,
and is not assignable. Wilson v. Lawrence. 552
See MORTGAGE, 4.

LIQUOR SELLING.
See EXCISE.

MALICIOUS PROSECUTION.

1 In an action for malicious prosecution the
burden of proof is on the plaintiff to establish
the want of probable cause for the prosecution,
and where the facts are conceded, the question
of probable cause is one of law for the Court.
Stewart v. Shellman.
122

2 But if the facts which are adduced as proof
of want of probable cause are controverted;
if conflicting evidence is to be weighed; or the
credibility of witnesses is to be considered; or
the facts are capable of different inferences by
fair-minded men of ordinary prudence, the
question of probable cause becomes a mixed

1 The writ of mandamus is not a writ of right,
and a Court may, and should, refuse to grant
it where a proper case for such refusal is pre-
sented, and where the relator has another rein-
edy equally as effective, and attended with
less hardship to those sought to be affected by
the writ. The People ex rel. Mc Kone v. Green
et al.
44

2 A writ of mandamus to a Board of Supervi-
sors will lie to require them to vacate an or-
der made by them by which they allow exces-
sive commissions. No personal interest in the
relator is necessary. The People ex rel. Law-
rence v. Board of Supervisors.

101

5 Where the charter of a city provides that
the Superintendent of the Fire Department
"may suspend, and for cause and after a
hearing, dismiss any fireman or employee of
the department," a mandamus will lie against
the Superintendent where he has discharged
the stoker of an engine without a hearing.
The People ex rel. Donohue v. French. 298

6 A peremptory mandamus to compel a Coun-
ty Treasurer to pay an account which has
been audited by the Board of Supervisors will
not be allowed, where it appears that a portion
of the claim is fraudulent, and that there is
no legal authority for the allowance of another
portion. The People ex rel. Slavin v. Wendell.
312

7 The granting of a peremptory mandamus is
a matter of discretion.
1d.

8 Although the Court is authorized to issue an
alternative mandamus in a case where the
facts are disputed, or upon the suggestion of
either party, yet if such suggestion is not
made, the party cannot complain that an al-
ternative writ was not granted.
Id.

14 Where a village charter provides that no
moneys shall be paid out of the treasury, ex-
cept on warrant of the trustees, and a subse-
quent statute authorizes the trustees to raise
money and pay claims upon the warrant of
the auditors, a mandamus will not lie to com-

pel the payment of a claim against the village

in the absence of a warrant of the auditor.
An authenticated copy of the minutes of a
meeting of the Board of Auditors, showing
the audit of the claim, is not equivalent to
such warrant. The People ex rel. Cooke v.

Wood.

579

See APPEAL, 18; CORPORATIONS, 1; NUI-
SANCE, 2.

MARINE COLLISIONS.

1 In actions for injuries resulting from marine
collisions, the question is one of negligence on
the part of those in charge of the respective
vessels, and that question is one for the jury.
Hoffman et al. v. The Union Ferry Co. 5

2 A mere omission to comply with a statutory
regulation will not bar an action by the injured
vessel, where it appears that such omission did
not contribute to the injury directly or indi-
rectly, but that it was caused solely by the neg-
ligence or want of proper care or caution in the
management of either of the vessels. Id.

3 Evidence that other vessels plying the same
waters carried the same lights as the injured
vessel, and different from those prescribed by
statute, is competent for the purpose of bring-
ing home to those in charge of the other ves-
sel actual notice of the true position of the
injured vessel, the direction of her course and
the service she was in.

Id.

4 It is for the jury to determine whether the
master of the injured vessel exercised due care
in proceeding through a dense fog.
Id.

5 It is no defence to such an action that the
injured vessel had no lights, although such
omission was in violation of law, where such
vessel could be seen without them.
Id.

6 In an action for injuries resulting from a
marine collision, the expenses incurred in re-
taining the crew after the collision and in at-
tempting to save the cargo are proper items
of damage.
Id.

7 Where the failure of those on board of a
canal-boat, which is part of a tow, to display a
light has contributed to the accident, no re-
covery can be had, although it was in part
caused by the negligence of those in charge of
the tow-boat. The Arctic Fire Ins. Co. v.
Austin.
184
8 The fact that the proprietors of the tow-boat
undertook to propel the canal-boat "at the
risk of the master and owners," does not con-
stitute them common carriers, or render them
liable for the acts of those in charge of the
canal-boat, within the doctrine of respondeat
superior.
Id.

9 The question whether the captain of the tug-
boat was also captain of the canal-boat, and as
such omitted to take proper precautions for
safe navigation, &c., is one of law, and should
not be submitted to the jury.

Id.

2 A marriage procured by fraud is voidable
only at the election of the party defrauded.
The party who commits the fraud is bound
and remains bound until the other party has
made his or her election. Tomppert's exrs. v.
Tomppert.
513

3 The right to take advantage of the discovery
of the fraud is personal and does not pass to
the executors of the defrauded party. Id.
4 Hearsay and traditional evidence of a mar-
riage is not conclusive, but is prima facie evi-
dence of a marriage or of an agreement per
verba de presenti, followed by cohabitation
sufficient for the administration and devolu-
tion of property. Chamberlain et al. v. Mc-
Kibben et al.

566
5 C lived with one E, a woman of previous
unchaste character, and had one child by her;
they afterward separated. E afterward joined
with him in a deed of his property. There was
hearsay evidence that he had stated that she
was his wife. He afterward formally married
one S, who lived with him until his death.
E outlived him, but made no claim upon him
marriage to S was lawful.
as his wife or upon his estate. Held, That the
Id.

2 While parol evidence is inadmissible to show
an agreement to charge the separate estate of
a married woman where the obligation sued
upon is in writing, the intention to charge it
may be presumed from the nature of the
transaction.
Id.

3 A married woman has no separate estate
where her only property is her interest in a
farm which was deeded to her and her hus-
band jointly. Baker v. Lamb.
144

4 A promissory note given by a married wo-
man under such circumstances is invalid. Id.
5 An agreement to charge the separate estate
of a married woman must be included in the

original contract in order to bind it. Eisen-
lord v. Snyder et al.

224