from the inventory, or that fraudulent
claims have been placed upon the sched-
ules. an examination should be ordered.
--Id.

8. If by inadvertence or mistake any of the
cre litors or claimants have received more
than their share of the fund the County
Court, on the accounting of the assignee,
has power and authority to order its res-
toration so that it may be properly dis-
tributed, and to enforce its order.-In re
accounting of Morgan, 341.

See ASSIGNMENT, 3; CREDITOR'S ACTION, 5,
6; LEASE. 14; MORTGAGE, 4; NEGOTIABLE
PAPER, 10.

ASSOCIATIONS.

1. Where the pleader intended to sue a joint
stock association and yet omitted to name
the President or Treasurer or the individ-
uals comprising it, a general appearance of
defendant waives this defect. It is however
incumbent on plaintiff to prove the exis-
tence of such association by competent
evidence, as this question is sufficiently
put in issue by the general denial.-Brooks
v. The Farmers' Creamery Ass'n, 58.

2. Where there is no allegation in the com-
plaint that defendant was a corporation,
a specific denial is not necessary in the
answer.-Id.

3. One Thompson was alleged to be super-
intendent and manager of defendant, and
he appeared and answered as such. The
merits were all with the plaintiff. The
judgment was, under § 3083 of the Code,
affirmed in favor of plaintiff notwith-
standing technical errors.-Id.

ATTACHMENT.

1. It is doubtful whether an order increas-
ing the security required upon an attach-
ment is appealable to the General Term.
-Riggs v. The C., Y. & P. RR. Co., 45.

2. The amount of security required upon an
attachment is in the discretion of the
Court or Judge and an order fixing it will
not be interfered with upon appeal, unless
such discretion has been abused.-Id.

3. It is not an abuse of such discretion to
require an undertaking in the sum of
$5,000 upon an attachment of certain
bonds of a foreign corporation in which
defendant's interest, assuming them to be
of par value, is $163.563.60 although, their
real value is uncertain and is probably
much less than par.-Id.

4. The appointment of a foreign receiver of
the corporation issuing the bonds on the
ground of its insolvency is no reason for
vacating an order previously made, fixing
such security.-Id.

5. An affidavit for an attachment, under
Code, § 636, stated that at the time the
debt was contracted defendant falsely
stated to plaintiff the amount of her in-
debtedness; that her property was insuf-
ficient to pay the true amount of her in-
debtedness; that she had refused to pay
this debt and had stated to plaintiff that
she was about to assign her property to
relatives whom she owed; that she had
discontinued her former business and was
not engaged in business. Held, That the
affidavit was defective and that no attach-
ment should have been issued upon it.—
Carpenter v. Wood.-145.

6. Defendant, with knowledge that a rail-
road company which was a depositor was
embarrassed, and that attachments were
being issued against it, certified a check
of the company for the balance of its de-
posit, payable to R., its assistant treas-
urer. An attachment against the company
was served on the bank, and thereafter
R. deposited the check to his individual
account and drew out the proceeds. Held,
sufficient to sustain a finding that defend-
ant had reason to and did believe when
the deposit was made that it was the prop-
erty of the company; that it was the duty
of defendant upon being served with the
attachment to take immediate steps to im-
pound the fund in its hands, and prevent
payment by any of its agents except to a
bona fide holder of its obligations.-Gibson
et al. v. The Nat'l Park Bk.—147.

7. The service of the attachment did not
create a lien on the moneys deposited.—
Id.

8. Where the clerk of the deputy signs the
certificate under directions from the lat-
ter, his act is to all intents and purposes
the act of the deputy, and valid.—Id.

9. Where there has been a substitution of
parties plaintiff upon the death of one,
proof of the facts showing a right to sub-
stitute is not necessary upon the trial.-
Id.

10. A person who has acquired a lien upon
or interest in property after it has been at-
tached may found a motion to vacate the
attachment upon the insufficiency of the
papers upon which the warrant was
granted.-The Marine Nat'l Bk. v. Ward
et al., 176.

11. An affidavit made for the purpose of ob-
taining an attachment in an action in
which a national bank is the plaintiff is
not sufficient for that purpose when it is
made by a person who is stated to be the
vice-president and a director of plaintiff,
but who is not shown to have had any
special knowledge of or connection with
the business affairs of the bank beyond
what is implied by said statement, and

the allegation in regard to counterclaims
is that the plaintiff is as deponent is in-
formed and verily believes, entitled to re-
cover of the defendants the sum of $700.-
000 over and above all counterclaims
known to the plaintiff or to deponent."-
Id.

12. In order to warrant the granting of an
attachment upon the ground that the de-
fendant has inade a fraudulent convey-
ance of a portion of his property, such
fraudulent conveyance must be shown by
something more than allegations merely
upon information and belief.-Id.

13. After the assignment of a chose in ac-
tion by a defendant it cannot be seized
through the instrumentality of an at-
tachment issued against him.-Ham-
burger et al. v. Baker, 213.

14. An action for damages for the conver-
sion of personal property is within sub.
2 of § 635 of the Code of Civ. Pro., and is
one in which plaintiff is entitled to an at-
tachment; and the fact that the same
complaint contains a statement of anoth-
er cause of action, plainly referring to the
sale of the same goods, for damages for
the sale and delivery of the said goods in-
duced by false and fraudulent representa-
tions, will not deprive plaintiff of his right
to said attachment.-Gladke et al. v.
Maschke.-281.

15. The only essential part of a certificate
given by one possessing property of a
debtor against whom an attachment has
been issued is that showing the balance
due to him; the dates and items of the
account are admissions which may be used
as evidence, but are open to explanation,
and the person giving it is not estopped
from showing a mistake as to them-
Almy et al. v. Thurber et al., 536.

Held,

16. D. & Co., a London firm, drew a draft
upon N., a merchant in N. Y., and de-
livered the same to McC. & Co., a London
banking firm, for transmission to N. Y.
for collection. McC. & Co., forwarded
such draft to the First National Bank of
N. Y.. which collected it from N.
that thereby the First National Bank be-
came the debtor of D. & Co. for the amount
of the draft and not of McC. & Co., and
that such debt was subject to levy under
an attachment against the property of D.
& Co.-Naser et al. v. The First Nat'l Bk.,
573.

ATTORNEYS.

1. There is no presumption that counsel
have personal knowledge of the truth or
falsity of affidavits presented by them in
court.-Woodbridge v. Cook et al, 94.

2. In the absence of any evidence of such
knowledge an action does not lie against

an attorney for conspiring to procure the
discharge of a judgment debtor, on the
ground that the affidavit of service of the
notice of the motion for such purpose on
the creditor's attorney was false.-Id.
3. A reference of an action on an attor-
ney's bill should be ordered in a proper
case.-Gregory v. Seaman et al., 214.

4. As between the original parties to the
transaction a manual delivery of shares
of stock is sufficient, without a formal
transfer, to support a lien thereon for the
purpose of which the delivery was made;
and this rule holds good as against a re-
ceiver in supplementary proceedings of
the property of the party making the de-
livery.-Corey v. Harte, 247.

5. Where an attorney receives from his
client shares of stock as security for pro-
fessional services, and upon demand of a
receiver of his client's property appointed
in supplementary proceedings delivers
the same to said receiver with a written
notice of his lien thereon and takes a re-
ceipt therefor, he does not thereby sur-
render or waive his lien. - Id.

6. M., having moneys to invest, gave them,
as alleged, to C., an attorney. for that
purpose, who, on demand, failed to ac-
count for them. M. then began an action

in which the attorney was arrested. The
action is pending. Upon a separate ap-
plication to the court for an order direct-
ing the attorney to pay over these same
moneys, Held, That the matter was dis-
cretionary, and as an action was pending
the order should be refused.-In
application of M. v. C., 297.

re

7. When it is agreed between plaintiffs in an
action and their attorney that the latter
is to receive one-tenth of the recovery to-
gether with the costs and allowances, he
has the right to prosecute the action to
secure his compensation, and he cannot
be deprived of this right by an agreement
with defendant, ente, ed into by plaintiffs
without his consent, not to further prose-
cute the same.-Forstmann et al. v.
Schulting, 358.

8. It is not necessary for the attorney, in
such a case to procure leave of the court
to continue the prosecution of the action.
-Id.

9. General authority to an attorney to col-
lect does not imply the right to receive
an assignment of personal property in
payment of the debt.-Sheridan v. Farn-
ham, 470.

10. Section 66 of the Code is not designed
to prevent litigants from fairly settling
their suits without their attorney's assent,
but simply to protect attorneys from be-

ing deprived of their compensation by
settlements which deprive them of the
means to recover it.-In re Tuttle v. The
Village of Cortland, 528.

11. A settlement made in good faith by the
parties will not be set aside at the instance
of the attorney of one of them where it
appears that the sum agreed to be paid
under the settlement to his client exceeds
the amount necessary to satisfy his lien,
and especially where the opposite party
has offered to pay his claim directly to
him.-Id.

See AGENCY, 4; ASSIGNMENT, 1, 2; CORPO-
RATIONS, 28; FRAUD, 2.

BAIL,

See ARREST, 4, 5.

BANKRUPTCY.

1. An assignee appointed by a foreign court
in bankruptcy proceedings taken in invi-
tum acquires no title to property of the
bankrupt beyond the limit of the court's
jurisdiction. And this is so, whether the
question arises between the bankrupt and
the assignee, or between the assignee and
creditors of the bankrupt residing in this
State. In re assignment of Haynes et al.,
461.

See BANKS, 8, 9; MORTGAGE, 5.

BANKS.

1. The knowledge of a director or stock-
holder of a bank will not charge the bank
with notice unless he is acting for and in
the business of the bank.-The Discount
& Deposit Bank v. Oosterhoudt et al., 25.
2. In 1865 Margaret Ganley deposited two
Treasury notes with defendant for safe
keeping, and took from its cashier a paper
stating that they were to be delivered to
her on surrender of the receipt. In 1866
her husband, without her knowledge or
subsequent ratification. induced defend-
ant, without producing the receipt, to sell
the notes and pay over the proceeds to
him, and purchased real estate therewith.
She died in 1869, and no administrator was
appointed until plaintiff was in 1879.
The husband died in 1874. Plaintiff pro-
duced the receipt, and demanded of de-
fendant the notes, which were refused.
He then began this action. Held, That
the action was not barred by the Statute
of Limitations; that the statute began to
run from the time of the demand, and not
from that of the sale; that the fact that
the husband, if living, would be entitled
to a portion of the recovery is no defence,
and that plaintiff, as administrator, was
not obliged to resort to the real estate. -
Ganley v. The Troy City National Bank,
305.

3. Three persons deposited with a bank and
to her credit money of a woman, then in-
sane, upon an agreement made with the
pay ng teller that it was not to be with-
drawn except in the presence of all three.
No such agreement was entered in the
pass-book and the teller had no authority
to make such an agreement. Subse-
quently one of the three presented a
check or order signed by the insane wo-
man with her mark and witnessed by
another person and also the pass-book.
The subscribing witness' signature was
identified and the bank paid. It had no
notice of her insanity. Held, That the
bank was protected; that the teller had
no apparent authority, by virtue of his
position, to make such an agreement as
above stated, and that the bank was not
put on inquiry by the circumstances of the
deposit and its withdrawal.-Riley v. The
Albany Savings Bank, 319.

4. The administrator of the insane person
proceeded in a Surrogate's Court against
the person who drew out the money and
it was there adjudged that the money
drawn out was the proper money of the
insane person and was in the possession
of the man proceeded against. Held,
That the administrator had elected his
remedy and could not thereafter bring
this action against the bank for the same
debt.-Id.

5. A deposit was made with defendant by a
man who gave his name as S. and a pass-
book was issued to him. Thereafter one
V. being in prison, a stack of hay on his
farm was sold, and at the bottom the
pass-book was found, and afterwards
given to V.'s administrator. A precise
duplicate of this book was presented to
the receiver of defendant by a man who
answered the description of the depositor,
and his signature comparing favorably
with the original signature a dividend
declared was paid to him. On a claim by
V.'s administrators for said dividend,
there was no evidence as to who S. was,
or that there was such a person. nor that
the book was ever seen in V.'s possession;
there was evidence tending to show that
the depositor's signature was in V.'s
hand-writing. Held, That the burden
was on the claimants to establish that V.
made the deposit, and that the proof was
not so conclusive that the court was
bound to believe that he did; that the re-
ceiver was protected by his payment
made with due care and diligence.-The
People v. The Third Avenue Savings
Bank, 414.

6. Under an arrangement between banks
by which the bank collecting checks sent
by the other is to remit any balance found
due the other by draft on N. Y., less ex-
change, the collecting bank is not en-
titied to offset against the proceeds of a

check collected the amount of a check
previously accounted for, the amount of
which it has repaid on a claim that it was
forged.-Hall v. The Tioga National
Bank, 416.

7. The acceptance by an irretrievably in-
solvent bank of the deposit of drafts just
before the final closing of its doors con-
stitutes such a fraud as entitles the de-
positor to reclaim the drafts or their
proceeds.-Craigie et al. v. Hadley, 425.

8. Neither the creditor of an insolvent bank
nor its assignee in bankruptcy has any
equity to have such deposit applied in
payment of the obligations of the bank. -
Id.

9. A repayment of such deposit does not
constitute a preferential payment under
the Bankrupt act.-Id.

10. A husband to quiet and appease his wife
deposited money to her credit in the de-
fendant bank and gave to her a bank book
showing the deposit. At the same time
he told the cashier it was his own money
and he would let it rest in that way for
a short time. The wife drew checks
against the account which the bank paid
and charged to her account. The wife
died. The bank became insolvent. Held,
That a perfect gift to the wife of the de-
posit was made out and that the husband
could not reclaim the money as against
other creditors.-The People v. The State
Bank of Fort Edward, 432.

11. The words "a liability created by law,"
in § 394 of the Code, mean simply a lia-
bility created by some statute.-Brinck-
erhoff et al. v. Bostwick et al., 468.

12. The liability of bank officers for negli-
gence or misconduct is a common law lia-
bility arising from their relations to the
bank and the manner in which they dis-
charge the duties thereof, and an action
thereon is subject to the limitation of ten
years prescribed by § 388.-Id.

13. Where the endorser of a note, dis-
counted by a bank and past due, gave to
it as collateral security a mortgage upon
an agreement that it would not sue him
upon said note until it should ascertain,
after the foreclosure of another mortgage
which it held against the maker of the
note, what sum would remain unpaid up-
on the note, Held, that this was a valid
extension of time to the endorser and
constituted the bank a holder for value of
his mortgage.-Durkee v. The National
Bank of Fort Edward et al., 477.

14. Under an agreement that a president
should be paid out of the net profits of a
bank, to entitle him to salary it must ap-
pear that the profits were actually real-
ized and not estimated. So where a bank

held government bonds which were worth
more than their cost on a certain day and
a calculation of the bank's assets and lia-
bilities was made as of that day and the
bonds, though not sold, were put in at
their current price, whereby it appeared
that there was a profit, and that the
president was therefore entitled to salary,
Held, that the method adopted was incor-
rect; that there having been no sale of the
bonds there could not be, as to them, any
net profit.—Jennery v. Olmstead et al.,
565.

See ATTACHMENT, 6, 7, 11; EXECUTORS, 14;
JUSTICES COURT. 2; SURETYSHIP, 2.

BAR.

1. By the will of one M. a trust was created
for the life of his son, the income during
his minority to be added to the principal
and the income of the whole fund to be
thereafter paid to him. In an action by
the son to have the trust declared void
and the fund paid over to him, judgment
was rendered declaring the trust valid.
Held, That said judgment was a bar to
an action by creditors of the son to re-
cover the accumulations of income; that
the estoppel was available to the son of
the beneficiary although he was not in
esse when it was rendered, and that the
executor of M. could not waive the es-
toppel to the prejudice of the persons
beneficially interested and claiming it..
Pray et al. v. Hegeman et al., 224.

2. A former adjudication is none the less a
bar to a subsequent action involving the
same questions because the unsuccessful
parties in the former action have joined
another person with them as plaintiffs in
the subsequent one.- Meagley et al. v. The
City of Binghamton, 370.

3. A complaint in ejectment set up legal
title and right of possession under certain
deeds. The answer alleged that the
premises were fraudulently included in a
trust deed to plaintiff's grantor. Judg-
ment was rendered awarding possession
to plaintiff and damages for detention.
Held, That such judgment simply vested
a legal title in plaintiff derived from the
trust deed, and left her as trustee in an
existing trust, and was not a bar to an ac-
tion to set aside the trust as void.-Jack-
son v. Andrews et al., 505.

See CONVERSION, 5; DIVORCE, 5; ESTOPPEL
LEASE, 4; LIMITATION; SURROGATES, 5.

BILL OF PARTICULARS,

1. Where defendant is not entitled to a bill
of particulars as a matter of right, but on
a demand by defendant plaintiffs serve
one which is defective, an order that
plaintiffs furnish a further bill of particu-

lars is in the discretion of the court, and
will not be interfered with where it ap-
pears that such further bill will be a facil-
ity which plaintiff should afford to de-
fendant in preparing a bill of particulars
which defendant had been ordered to
give.-Langdon et al. v. Brown, 239.
See LIBEL, 3.

BONA FIDE PURCHASER.
See MORTGAGE, 1.

BONDS.

1. The right of a bona fide holder for value
of a negotiable bond issued by a railroad
company to recover thereon is not affected
by the fact that the railroad sold the
bonds at a discount contrary to the pro-
visions of their charter, which forbade
the sale of them at less than their par
value.-Ellsworth v. The St. Louis A. &
T. H. RR. Co., 419.

2. A foreign corporation sold its bonds in
the city of New York, the principal and in-
terest being payable there. Held, That
they were New York contracts and valid
here although there were provisions in
the charter of the company which would
make them illegal in the State where the
charter was granted.-Id.

See EXECUTION, 8; SURETYSHIP, 2, 3.

BREACH OF PROMISE.

See MARRIAGE, 3.

CANALS.

1. The grant to plaintiffs of a right to draw
water from the canal for milling purposes
under Chap. 270, Laws of 1822, and Chap.
100, Laws of 1827, was a limited estate
liable to be defeated by the happening of
the contingency provided as a condition
subsequent. The contingency having
occurred and the commissioners having
duly exercised their right of revocation,
plaintiffs had no claim for damages
against the state.-Dermott et al. v. The
State, 486.

See LIMITATION, 3, 4.

CHARTER PARTY.

1. When by a charter party provision is
made for payment of the freight in a par-
ticular place and in a particular manner,
and the debtor provides the requisite
funds at the place named, if the creditor
does not accept payment in the manner
agreed upon he assumes whatever risk is
attendant upon his omission to do so.-
Holdsworth v. De Belaunzaran et al.,

127.

2. By the terms of a charter party a por-
tion of the freight was to be paid at Cadiz
in cash. Upon arriving there the master
of the vessel, although knowing that the
charterer's agent at that place had suffi-
cient moneys of theirs in his hands with
which to pay the freight, for convenience
in remitting the same to the owners,
allowed such agent to undertake to pro-
cure a draft for him and forward the
same to them, and relied upon the state-
ment of such agent that he had done so
without investigation. Such agent did
not procure a good draft, but drew an
unauthorized draft on the charterers,
having at that time no money of his in
their hands, and such draft when pre-
sented was dishonored. Held, That an
action could not be maintained against the
charterers to recover the freight for
which the draft was taken.-Id.

CHATTEL MORTGAGE.

1. A chattel mortgage given to indemnify
a surety upon an undertaking in an act on
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 mortgagee in taking
possession before any liability upon the
undertaking has accrued.-Filkins v.
Cruice, 292.

2. In the absence of any finding of fact
tending to show that the mortgagee 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 wrong-
ful is unwarranted, and especially so
when inconsistent with the facts found.-
Id.

3. An understanding or arrangement be-
tween the parties to a chattel mortgage
that the mortgagor shall be permitted to
deal with the property for his own bene-
fit renders the mortgage fraudulent and
void as to creditors, whether such arrange-
ment is contained in the mortgage or ex-
ists by parol, and whether such parol
agreement is valid or not.-Potts v. Hart
et al., 496.

4. Declarations made by the mortgagee's
bookkeeper at the time of taking the
mortgage, to the effect that it would not
affect the mortgagor in any way to give
it, are competent as part of the res gesta.
-Id.

See REPLEVIN, 1.