ations as if it had been made directly to plaintiff or his authorized agent, as it was intended to be communicated to and influence him. This action was upon four promissory notes made by W., defendant's intestate, in 1871, 1872 and 1873, the last of which fell due in April, 1874. Defendants set up as a defence the statute of limitations. Plaintiff introduced in evidence a deed of a farm dated April 2, 1875, executed by W. to his three sons, which recited that the conveyance was made subject to the following amounts due by me to the parties hereinafter specified, which forms a part of the consideration above expressed, and which I charge the above estate above conveyed with the payment thereof and which said several amounts, together with the interest, the said parties of the second part assume and agree to pay; to Daniel De Freest about $600, to Mrs. De Freest about $400, together with the legal interest thereon." It was not questioned that the debts the grantees had assumed to pay were the notes in suit. A motion to non-suit was denied and a verdict directed for the amount of the notes. Amasa J. Parker, for applts. Held, No error; that although the ackowledgment of the indebtedness was made to a stranger, as it appeared it was intended that it should be communicated to and influence the holders of the notes, it is just as effectual to defeat the statute of limitations as if it had been made directly to them or TERM. THIRD DEPT. The proceeding by attachment, under the Revised Statutes, to enforce a Surrogate's decree, has been suspended by § 2555 of the Code. Under this section a Surrogate may by order punish for contempt a refusal or wilful neglect to obey his decree. This section applies to the case of an executor whose trust was created, and whose wrongful acts in the trust were done, before this statute went into operation, but who was called to account thereafter. Appellant was executor of one Olmstead; he received property belonging to the deceased. He was called to account, accounted, and in March, 1882, the Surrogate made a decree adjudging that there was a certain sum in his hands, and directing him to pay it to certain persons. The decree was served on him and payment demanded; he has not paid. A transcript of the decree was filed in Rensselaer County Clerk's office, execution issued, and returned unsatisfied. Upon the ground of wilful neglect to obey the decree proceedings for contempt were taken before the Surrogate. before the Surrogate. On the return day the executor presented an affidavit setting forth that he had, in 1876, lost the moneys of the estate, which he had put in his own business; that he had tried to get money to make good the loss, but had failed. Of these facts there was no evidence beyond this affidavit. In reply the parties interested in the estate presented affidavits though the trust was created before that time. The statute is only remedial. 91 N. Y., 235. Order affirmed. Opinion by Fish, J.; Landon, J., concurs; Learned, P.J., dissents. AGENCY. SET OFF. GENERAL tending to show that in 1878 the N. Y. SUPREME COURT. TERM. FIFTH DEPT. J. Lansing, for applt., exr. J. A. Cipperly, for respts. Held, That the matter rested with the Surrogate, and that his power has been wisely exercised. Under Code, § 2552, the decree was conclusive evidence that there were sufficient assets in the hands of the executor to satisfy the sum directed to be paid. The evidence of the inability to pay was very unsatisfactory. The executor admits a breach of trust in having used the money himself. Under the Revised Statutes the decree of a Surrogate was enforced by attachment, and there was some doubt as to his exact powers. But under the Code that practice is superseded and by $2555 the Surrogate can punish for contempt one who refuses or wilfully neglects to obey his decree (see subdivs. 3 and 4). These sections took effect Sept. 1, 1880, and apply here, al Decided Jan., 1885. A. had in his possession certain wheat which he treated as his own and sold to defendants, taking their note to himself for the price. Defendants supposed the wheat belonged to A., but his wife was the real owner. Defendant afterward purchased a note made by A., which they proposed to set off against their note, held by A. On suit upon defendant's note, Held, they could not set off more than the amount they actually paid for A.'s note. Appeal from judgment on verdict at Circuit, and from ordey denying new trial. A. sold defendants some wheat which he had in his possession, but which belonged to his wife. He did not disclose to defendants that he was not the owner, or that he was transacting the business otherwise than in his own right. In payment he took defendants' note payable to his order, and when it came due he called on them for payment, and they proposed to set off against his claim so much as necessary of a note of A.'s for $172, which they had purchased since the sale of the wheat. They paid but $5 for the note. A. transferred defendants' note to plaintiff, who brought this action on it. De- George Barrow, for applts. Held, Error. When a person has actual possession of personal property, with apparent control of it, and deals with it and makes sale of it apparently as principal, when he is in fact agent of another, the purchaser may treat the agent as the owner, and in an action by the principal for the price may set off a claim he has against the agent, provided the purchaser in good faith supposed the agent was owner, and there were no circumstances which could put him upon inquiry Defendants had the right to have the question of fact submitted to the jury if they desired it and so requested. But it seems by the record that they did not ask that any question go to the jury; they treated the questions presented as those of law only. They cannot now raise any questions other than of law upon their exceptions to refusal to direct a verdict for defendants and to the direction of verdict for plaintiff. 12 N. Y., 18; 43 id., 85; 78 id., 287. The evidence is sufficient to authorize and support a verdict for plaintiff. Judgment and order affirmed. Opinion by Bradley, J.; Haight and Childs, JJ., concur. RAILROAD PASS. NEGLI- or charge him with negligence in N. Y. SUPREME COURT. not suspecting or ascertaining that the seller was agent only. 7 Tenn., 359; id., 360; 1 Q. B., 197; 4 Barn. & C., 547; 24 Wend., 458; 26 How., 513; 20 Hun, 126; 97 Penn. St., 309; 7 Cush., 371. See 4 Maule & S., 566; 2 Barn. & Ald., 137; 7 Bosw., 339; 9 id., 415; 51 Barb., 244; 2 Cai. Cas., 341; 89 N. Y., 570. Defendants were not chargeable with suspicion as to ownership. They purchased the note without knowledge that A. was not the owner of the wheat. But they were entitled to set off only what they paid for A.'s note. 7 Johns. Ch., 65; 1 Barb. Ch., 105; 1 Cow., 622; 24 Wend., 464. This they did not do, but asked to set off enough of the note held by them to satisfy plaintiff's demand. GENERAL TERM. FIFTH DEPT. Benjamin McElwain, plff., v. The Erie R. Co., deft. Decided Jan., 1885. Where a railroad corporation relies upon a An agent of a railroad company, when tes- Motion by plaintiff to set aside non-suit granted at Circuit. Ex ceptions ordered heard here in first for the jury whether the pass coninstance. tained the release as contended by defendant. Action for damages occasioned by personal injuries to plaintiff while a passenger on defendant's road, caused by negligence of defendant's employees. Plaintiff was riding on a stock pass. The evidence tended to show negligence on defendant's part. The pass was lost, and the only witness who testified as to its contents was B., defendant's station agent, who issued the pass eighteen years before the trial, and the effect of his evidence is, at most, that his recollection was that at the time the pass was issued passes in a certain form were issued to drovers who shipped cattle under a special contract like the one made with plaintiff. The form of pass described by the witness contained the clause: "The acceptance of this pass is to be considered a waiver of all claims against the Erie Railway Company for personal damages and injuries received when on the above train." Cook&Lockwood, for plff. Defendant not appearing on argument. Held, It was incumbent on defendant to establish clearly and beyond doubt that the pass contained a release exempting it from damages arising from personal injuries to one of its passengers by reason of the negligence of its own servants. The agent's evidence should be scanned with the closest scrutiny | to see if it establishes such release. No presumption can be made in defendant's favor as to the conditions of the pass. There was a question Moreover, the question of the agent's credibility should have been submitted to the jury, he being an agent of the company, making the contract, and in its employ when he testified in its behalf. 45 N. Y., 549; 92 N. Y., 621. Conceding the pass to have been in the form claimed by defendant, it does not constitute a defence. It does not in specific terms contain a release from damages arising from defendant's own negligence or the negligence of its agents and servants. See 25 N. Y., 442; 7 Hill, 533; 8 N. Y., 375; 66 id., 313; 71 id., 180; 86 id., 275; 90 id., 270. Non-suit set aside and new trial granted, costs to abide event. Opinion by Barker, J.; Bradley, J., concurs ; Haight, J., not voting. ASSIGNMENT. CREDITORS. FRAUD. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. M. Amanda Swift et al., admrs., respts., v. Edward C. Hart et al., applts. Decided Jan., 1885. Assignment to H. by an insolvent debtor of securities for payment for legal services to be performed by H. for the insolvent in the event of an assignment by the latter for the benefit of creditors, Held, To be a fraud on creditors of the insolvent. Where the securities so assigned were judgments which had been recovered by H. as attorney for the insolvent, Held, That H. still had his lien upon such judgments for his compensation and disbursements therein. Upon refusal by the assignee to bring an action to reclaim property fraudulently assigned by the insolvent, creditors may sue in equity for that purpose, joining the assignee as defendant, and the proceeds of their recovery will be assets for distribution under the assignment. Appeal from judgment on referee's report. On Jan. 5, 1883, Schad made written transfer to defendant Hart of judgments worth $800, reciting that Schad was indebted to Hart $200 for legal services, and desired to retain him in proceedings and litigation that might arise in matters relating to a general assignment of Schad for the benefit of creditors, and, Hart desiring payment therefor, and consenting to take those judgments as payment in full for such services and retainer, such transfer was made. And it was provided that if any surplus remained after such payment, Hart should hold it as collateral to notes held by him, indorsed by Schad. Next day Schad conveyed property to other parties, and on Jan. 8, made a general assignment for benefit of creditors to defendant Stebbins. Plaintiffs are judgment creditors of Schad, and brought this action to set aside the transfer to Hart as a fraud on creditors, and recovered judgment to that effect. W. L. Marcy, for applt. Hart. Ellsworth & Potter, for applt. Stebbins. David Miller, for respts. Held, That Hart had a perfect right to obtain preference for the debt due him. 61 N. Y., 626; 76 id., 213; 48 Barb., 344; 7 Hun, 591; 14 id., 172; 30 id., 192; 31 id., 65; 115 Mass., Fraud Con., § 390. 505; Wait on But the reser vation of property to pay for professional services which might be thereafter required was, to that extent, a fraud on the creditors. 2 Abb. Dec., 11; 3 Keyes, 398; 1 Sandf. Ch., 83; 3 Barb. Ch., 644; 4 N. Y., 211; 15 id., 132; 17 id., 22. It is not within the rule giving effect and validity to security for future advances. 6 N. Y., 147. The instrument cannot be supported as security for the existing debt if Hart was chargeable with actual intent to defraud Schad's creditors, but is wholly void in that event. 87 N. Y., 620. The referee found such intent, and the evidence seems to support the finding. Hart, as attorney for Schad, recovered the judgments so assigned, and had liens upon them respectively for his compensation and disbursements therein, Code Civ. Proc., § 66, with the right to retain sufficient of the money collected on them to satisfy the liens. 51 N. Y., 140; 52 id., 489; 85 id., 284; 89 id., 509. The lien is not extinguished by the transfer of the judgments, such transfer having been void. 64 N. Y., 294; 49 id., 111; 3 Metc., 40. By force of the statute of 1858, the assignee is a trustee for the creditors to the extent of the power conferred as effectually as if his appointment had been made by or pursuant to law vesting him with title for the purposes of the trust. 72 N. Y., 424; 98 U. S., 20. The remedy of individual creditors in respect to property fraudulently |