M. owned a wagon and thereafter borrowed another of plaintiffs. The latter wagon he took apart and had removed, without plaintiff's knowledge, to the barn of B. The latter wagon being levied upon as the property of M., defendant, hearing that it belonged to plaintiffs, made inquiry as to this of one of them, who replied that they did not own it. In an action by plaintiffs for a conversion, Held, That plaintiffs were not estopped, unless the jury found that the plaintiff inquired of knew or ought to have known from his conversation with defendant that the wagon inquired about belonged to plain tiffs. Action for the conversion of a wagon which belonged to plaintiffs. Defendant bought it upon a sale, which sale was upon an execution in an action by defendant and one Fleming against one Millett. The sale was at the barn of one Beman. Millett also owned a wagon. He borrowed the one in question of plaintiffs. After using it he took it apart and stored it in his own barn; afterward he had it removed to the Beman barn. Plaintiffs did not know of the removal. When the levy was made Millett told the constable that the wagon belonged to plaintiffs. Defendant directed that inquiry should be made of plaintiffs, and himself saw one of them. One of the plaintiffs, Edwin Webster (being in ignorance of the removal), said they did not own any wagon at Beman's barn. Plaintiffs had a verdict. The court charged that plaintiffs were not estopped, unless Edwin Webster knew or ought to have known from the conversation with defendant that it was plaintiff's wagon which was levied on; and that plaintiffs were not estopped by Edwin Webster's state ments made in ignorance of the fact that the levy was on plaintiffs' property. Walter J. Mears, for applt. Burke & Kilburn, for respts. Held, That the charge was correct. Plaintiffs were not called upon to go to the Beman barn and examine the wagon to see if it was theirs. They answered the questions truthfully as they understood the matter. The case is different from one where a forged note is presented to the supposed maker and he admits the signature to be genuine. There the party estopped has at hand all the means to determine accurately what the truth is. Here it was properly left with the jury to say whether Edwin Webster knew or ought to have known that it was the wagon of the Websters about which defendant was inquiring. There was clearly a misunderstanding. Judgment affirmed, with costs. Opinion by Learned, P.J.; Landon, J., concurs; Bockes, J., not acting. CHATTEL MORTGAGE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Elizabeth M. Filkins, respt., v. Thomas Cruice, applt. Decided April, 1885. A chattel mortgage given to idemnify a surety upon an undertaking in an action against loss or damage, and conditioned that it should be void when the mortgagor should pay the damages, etc., that should be adjudged against him, and providing that the mortgagee, "if he should deem himself in danger of losing the said debt, by delaying the collection thereof until the expiration of the time limited for the payment thereof,” might take possession, etc., authorizes the mortagee in taking possession before any liability upon the undertaking has accrued. In the absence of any finding of fact tending to show that the mortagee did not act in good faith in making the seizure, or that he did not in fact deem himself in danger of loss, a finding of the court that the seizure and detention was wrongful is unwarranted, and especially so when inconsistent with the facts found. ant seized eight mules and harness, and continued to hold the same at the time this suit was brought. That the causes of the seizure as stated by defendant were, substantially, first, that he felt himself in danger of loss or damage by reason of becoming surety; second, that he had been requested to make the seizure by plaintiff's Appeal from judgment entered husband and agent, who told him upon report of referee. Action was brought for the recovery of the possession of eight mules and harness, alleged to have been wrongfully seized and detained by defendant. The referee found as facts, that in May, 1875, defendant became surety for plaintiff in an action of replevin brought against her, and as indemnity to the plaintiff in that case against loss or damage, plaintiff in this case delivered to defendant her chattel mortgage upon fifty-two mules and harness, conditioned that it should be void in case the mortgagor should pay the damages, etc., in an action brought by H. Walcott against her, and indemnify and save harmless defendant in this action from all damages, etc., by reason of signing the undertaking; that the mortgagee was authorized, "if he should deem himself in danger of losing the said debt, or any part thereof, by delaying the collection thereof until the expiration of the time above limited for the payment thereof, to take possession of the chattels before or after the expiration of the time aforesaid, and sell the same," etc. That in September, 1875, defend that the mules were scattered along the line of the canal and were in danger of being seized for their keeping; that the action of replevin in which the undertaking signed by defendant was given was ultimately settled by the parties thereto, and this defendant was thereby discharged from his liability without having incurred any loss or damage as such surety. As a conclusion of law the referee found that the seizure and detention of the mules by defendant was wrongful, and that plaintiff was entitled to judgment. Defendant testified that plaintiff's husband told him that the mules were being held along the canal for their board, and urged him to seize the mules. Filkins testified that he was the husband and agent of plaintiff in the matter, and did not contradict defendant as to this conversation. David F. Day, for applt. George M. Osgoodby, for respt. Held, That as there is no finding of any fact tending to show that defendant did not act in good faith in making the seizure, or that he did not deem himself in danger of loss, the legal conclusion is erro neous. See Allen v. Vose, 20 W. Dig., 74; S. C. in full, 31 Alb. Law J. 46; Jones on Chattel Mortg., § 431; Thomas on Mortg., 443. If the grounds upon which defendant made his seizure as stated by the referee were true in fact, then it appears affirmatively that he acted in good faith and had good reason to believe himself in danger of loss; and this is also shown by the testimony. If defendant in good faith seized the property, at the time believing himself to be in danger of loss, then his detention would be lawful until the action in which he had become surety was settled. The referee fails to find that the demand for the mules was made after the settlement of the case, or that the settlement took place before the commencement of this action. There is, therefore, no finding of fact that justifies the conclusion that the detention of the property was wrongful. Judgment reversed, and new trial ordered before another refbefore another ref eree. Opinion by Haight, J.; Barker and Bradley, JJ., concur. PARTNERSHIP. SLANDER. ABATEMENT. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Frederick A. Shale et al., v. Henry Schantz. Decided April, 1885. The death of one partner does not abate an action of slander originally brought in the name of all the partners. on exceptions taken at Circuit, ordered heard at General Term in first instance. The action was begun by A., B. and C., who were partners. The cause of action alleged is slander relating to and affecting the financial condition and credit of plaintiffs as a firm. After issue joined C. died, which fact appearing at the trial the complaint was dismissed, on the ground that the cause of action abated on and by reason of the death of one of the plaintiffs. Thomas Raines, for plff. James Breck Perkins, for defts. Held, Error. The complaint charges a cause of action which properly joined the partners as plaintiffs. 3 Bos. & Pul., 150; 3 . & P., 196; S N. Y., 452. If the action had been brought by a sole plaintiff who had died during pendency and before verdict the action would have then abated. Whether C.'s death produced the same practical effect as the death of a sole plaintiff would, is a novel question, but we answer it in the negative, on principles deemed applicable to the nature of a partnership and the relation of the surviving members of it. Practically, the dissolution of a partnership by the death of a partner has relation only to subsequent business transactions to a qualified extent. The relation of the survivors to the situation in which the death of the member left the property and business enables them respectively to manage and control the partnership affairs as fully as before, until all Motion by plaintiff for new trial things necessary to winding them up are accomplished. Collyer on Part., 118, 546; 3 W. & S., 345; 38 Am. Dec., 768; 6 Cow., 441; 24 N. Y., 570; 4 De G., M. & G., 542; 24 N. Y., 574. The joint relation of the survivors is not broken into a tenancy in common by such death, nor are their relation and equities impaired by it. 27 N. H., 289; 59 Am. Dec., 376; 88 N. Y., 600. See Collyer on Part., S 764; 13 Metc., 132; 88 N. Y., 604. In In the prosecution of this action the survivors are exercising no new or derived powers and asserting no new or additional rights. 27 N.H., 289. It is in equity only that an entity of a partnership distinct from its members is recognized. 1 Story Eq. Jur., § 680; 50 Vt., 668; 20 N. J. Eq. (5 C. E. Gr.) 172; 18 N. Y., 77. The entire cause of action is in the surviving plaintiffs because it was in the firm; there has been no demise requiring revival of the action, but they are the beneficial parties plaintiff, and the action proceeds for their benefit. Code Civ. Pro., 758. See 13 N. Y., 322. Dyckman v. Allen, 2 How., 17, distinguished. The action is still pending. New trial granted, costs to abide event. Opinion by Bradley, J.; Haight and Childs, JJ., concur. EXECUTION. PENSION. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. James A. Stockwell, receiver, Pension money received in the form of a draft and deposited in a savings bank is exempt from execution under Code Civ. Pro., § 1393. The interest earned by such deposit is also exempt. Defendant Rowell was granted a pension by the United States. government for his services as a private soldier in the War of the Rebellion. He received a draft from the pension agent which he endorsed and delivered to the National Bank of Malone, the other defendant. He also delivered to the bank $100 in cash, pension moneys. He never had actual possession of said $1,000, except as above stated. The action is by a receiver in supplementary proceedings to reach these moneys. The complaint was dismissed. Beman & Munsill, for applt. Held, That the moneys were exempt under Code Civ. Pro., § 1393. It did not cease to be a pension because deposited in a savings bank on interest. 7 Lans., 106. Its identity is not lost because Rowell is now a creditor of the bank. The section is not intended to prevent the pensioner from using the money, and if the question was before us we should be disposed to hold that everything bought in the ordinary way with this money would also be exempt. The fact that the pensioner never had the actual possession of the money, that is, that he endorsed the draft and deposited it, can make no difference. That is the ordinary manner in which business is done. applt, v. The National Bank of See, as to the exemption, 18 W. Malone et al., respts. Decided May, 1885. Dig., 355. Judgment affirmed, with costs. Opinion by Learned, P.J.; Landon, J., concurs; Bockes, J., doubts. EVIDENCE. WITNESS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. In re probate of the last will and testament of Charlotte D. Hewitt. Decided April, 1885. As the wife of a contestant of a will, who is also an heir at law of the decedent, would become vested with an inchoate ground that the witness, as the wife of an heir at law contesting the will, was interested in the event of the action, and was incompetent under § 829 of the Code. "Q. How, besides from what you saw, did you learn her condition; from seeing her did you obtain the knowledge? A. From herself. Q. What did you learn from her in regard to her condition? A. I used to hear her say that she was discouraged and didn't think she would be well right of dower in the lands of the de- again; I heard her say she paid cedent if the will should be declared void and refused probate, she is interested in the event of the proceeding, and so dis qualified, under § 829 of the Code, from testifying as to personal transactions or communications with the deceased, for the purpose of showing her mental and physical condition: and this, although both are legatees under the will. Appeal by the executor from decree of surrogate's court refusing probate of the last will and testament of Charlotte D. Hewitt, deceased. Probate was refused upon the sole ground that the decedent was not of sound mind and memory at the time of executing said will. Melinda Hewitt was sworn as a witness on behalf of the contestants, and testified that she was the wife of Jefferson Hewitt. It previously appeared that Jefferson Hewitt was an heir at law of the deceased and one of the contestants, and that she left both real and personal estate. The witness and her husband were legatees under the will to the extent of $50 each. The following questions and answers were put and given, subject to exceptions taken by respondent's counsel mainly upon the out large sums for medicine and for doctors' bills. Q. Did what you saw and heard that night from her impress you as being rational or irrational? A. Rational. I had a conversation with her, it might have been an hour after; when I went there no one was present. Q. What was the conversation? A. She said that she had been advised to make her will, and told that it would not shorten her days." F. D. Wright, for proponent and applt. Tabor & Storke, for contestants and respts. Held, That as the witness was the wife of a contestant of the will who was also an heir at law of the decedent, and would become vested with an inchoate right of dower in the real estate of the decedent if the will should be declared void, she was interested in the event of the proceeding, and so disqualified, under $ 829 of the Code, from testifying as to personal transactions or communications with the deceased. 30 Hun, 555. The evidence was material and |