3.

3. In such an action, the only security a
defendant has is the undertaking re-
quired by the 222d section of the Code.
ib.

4. Upon final judgment dissolving an in-
junction, the sureties become liable to
the defendant for the damages he has
sustained by reason of the injunction. ib.
5. Such damages may be ascertained by a
reference, or otherwise, as the court may
direct, and when ascertained are conclu-
sive upon the sureties; and an action at
law upon the undertaking may be main-
tained for their recovery.

ib.

5.

This is the point ruled in Purvis . Cole-
man (21 N. Y., p. 111). But the mere
giving to, and acceptance by, the guest
of the key of his chamber does not im-
pose on him any duty or obligation to
keep the door thereof locked. 18.

If, under such circumstances, the guest,
on retiring for the night, omits to lock
the door of his room and permits it to
remain unlocked during the night, such
omission and permission does not consti-
tute such negligence as to relieve the in-
keeper from liability for a theft of the
guest's goods from his room during the
night.

In an action er delicto brought by a guest
against an innkeeper to recover damages
for the loss of his goods while such guest,
the innkeeper cannot set off a claim for
board due him by the guest: he may,
however, recoup such claim against any
damages the guest may recover against
him, but he cannot have a balance certi
fied in his favor.
ib.
6. If the guest recovers no damages, the
innkeeper can have judgment for the
costs of the action only.

INSURANCE--FIRE.

Although the operation of a fire insur
ance policy may be suspended by the
sale or transfer, without the consent of
the company, required by a clause in the
policy, of the property insured, yet, if a
union of the ownership of the property
and the interest in the policy in the as-
signee subsequently occur, and the com-
pany assent thereto, the policy again
becomes effectual and reattaches to the
property. Shearman v. The Niagara
Fire Insurance Company.
470

Such assent amounts to a new agreement
on the part of the company to become
directly answerable upon the policy to
the assignee.

ib.

Where a policy contained a clause which,
literally construed, required the written
consent of the company not only to the
assignment of the policy, but also to the
transfer of the property, and but one
printed form to be filled up and signed

by the assignor, in case of an assignment,
and but one printed form to be filled up
and signed by an officer of the company
for the purpose of demonstrating the
company's assent to the assignment, it
was held that an assignment of the policy,
and the indorsement of the company's
consent thereto, to the assignee of the
property, accordance with such printed
forms, which the company led the as-
signee to believe was sufficient, must,
after the occurrence of a loss, be held
sufficient to bind the company.

INSURANCE-MARINE.

ib.

1. When an open policy on such risk as
may be approved and indorsed thereon,
provides that the consideration of the
insurance shall be at and after the nom-
inal rate of two per cent., the premium
on each risk to be fixed at the time of
indorsement, with additions and deduc-
tions to conform to the rates of the com-
pany when the character of the vessel and
time of sailing are known; and the un-
derwriter, on being applied to, refuses to
approve or indorse a risk or fix the pre-
mium therefor; he cannot, on being sued
for a loss on the risk, introduce evidence
in support of an answer seeking to coun-
terclaim a demand for a premium on the
risk designed to show either--First, that
neither he nor any prudent underwriter
would have taken the risk under the cir-
cumstances; or second, what under the
circumstances would be a fair and proper

rate, or usual and market rate of pre-
mium; or third, what rate was in use by
him applicable to an insurance on the
risk in question. (a) This because the
answer does not set forth that there was
any such rate, and does not seek to coun-
terclaim a rate fixed by it; or fourth,
that there was no rate in use applicable
to the risk in question, with a view of
showing what would be a fair and reason-
able rate. (b) This because the insured
was only bound to pay a premium fixed
by the rates of the company, and not one
ascertained in any other manner. Rolker
v. The Great Western Insurance Co. 275
2. A witness who has no knowledge or re-
collection that a paper ever existed, and
has never had any connection with its
custody, is incompetent to testify as to
what has become of it.

ib.

6.

1.

The Code has changed the rule in res-
pect to actions upon a joint and several
contract. Quigley v. Walter.

175

Where defendants are jointly liable, the
plaintiff may proceed against such as are
served, and obtain a joint judgment
against all, which may be enforced against
their joint property, and against the
separate property of the defendant

served.

ib.

Upon a several liability the plaintiff may
proceed against the defendants served in
the same manner as if they were the
only defendants.

ib.

Upon a contract both joint and several,
one or more, and less than the whole, of
the contractors may be sued.

ib.

Previous to the Code, upon a joint and
several liability, each must have been
sued separately, or all jointly. Two, or
any greater number less than the whole,
could not be sued in the same action. ib.

In action against two of four trustees of
a corporation, upon a liability joint and
several-held, not a misjoinder under the
Code.
ib.

JUDGE'S CHARGE.

Where a contract for certain engines,
pumps, and boilers provided that plain-
tiffs' engineer should be at liberty at all

6. The landlord being a trespasser ab ini-
tio, he is responsible for all the conse-
quences which resulted; and it is imma-
terial whether they resulted from his
direct and immediate act, or remotely by
the act of God (per MONELL, J.). ib.
7. A parol promise by a lessee to pay an
additional rent for a fourth or additional
story to be erected by the lessor upon
the demised premises is wholly indepen-
dent of the lease, and forms no part of
it. Coit v. Braunsdorf.

74

8. Such promise does not pass by an as-
signment of the lease; nor do the assig-
nees, by acceptance of the assignment,
become liable upon the promise.
ib.

9. The agreement to erect the additional
story is not a demise of such story.
Upon its erection it became parcel of the
original demise, was covered by the ori-
ginal lease, and passed to the assignees.
But the additional rent can be recovered
only upon the new promise. It cannot
be recovered upon any of the covenants
in the lease.

ib.

10. A tenant may recoup damages for a
breach of the landlord's covenant to re-
pair. Davis v. Banks.
184

11. There being no covenant by the land-
lord to repair, a parol promise to repair,
being without consideration, is void. ib.

5. The Christie case, and the opinion of
Chief Justice Robertson (5 Robertson,
169), reviewed and considered as not be-
ing antagonistic to the current of au-
thorities that support the above rule,
and as being in accordance with many
cases cited, that hold substantially,
"that rent may be paid and received
under circumstances that clearly show
that it was paid and received without
the knowledge or supposition of either
party that thereby the forfeiture was
waived; or that it was paid and received
as a compensation for the use and profits
of the land, and the intention of waiving
the lease expressly negatived by both
parties."
ib.

6. Where the forfeiture claimed was the
breach of a condition not to underlet the
premises without consent, etc., and
there was but one underletting-held,
that the act of forfeiture was single and
indivisible. The continuance of the
same underletting, after rent had been
paid, and thereby the forfeiture waived,
cannot be considered as the breach of a
continuing covenant.
ib.

LIABILITY OF STOCKHOLDERS.

1. The nature and character of the liabil-
ity incurred by stockholders, in a joint
stock corporation, organized under a
statute declaring stockholders individu-
ally liable for the debts of the company,
examined and considered. The decisions
of the courts of this State on the sub-
ject reviewed. Lowry v. Inman. 117