CHECKS.

1. Defendant, on his marriage with plain-
tiff, placed a check drawn by him among
the presents, nothing having been pre-
viously said about it. Thereafter plaintiff
presented it for payment, which was re-
fused. Held, That an action upon the
check could not be maintained, as it was
without consideration and did not con-
stitute a valid gift.-Cloyes v. Cloyes, 347.

CHILDREN.

1. By Chap. 364, Laws 1864, defendant was
authorized and empowered to "take, re-
ceive and hold under its care and control
children of Roman Catholic parentage
between seven and fourteen years of age
who may be committed to its care as idle,
truant, vicious, homeless or vagrant chil-
dren," etc. Held, That this statute con-
fers no right or power to detain children
after they have arrived at the age of four-
teen years.-Fassett v. The Society for
protection of destitute Roman Catholic
children, 513.

2. Upon a commitment as a homeless child
no trial and conviction and the filing of
a record thereof, as in cases of children
charged with vagrancy or petit larceny,
is required.-Id.

3. It being the duty of the magistrate to
cause a notice of the commitment to be
served upon the parent, it will be pre-
sumed that the officers performed their
duty, especially as it appeared that plain-
tiff's step-mother caused his commitment,
and his father shortly thereafter visited
him -Id.

See NEGLIGENCE, 20.

CIVIL DAMAGE ACT.

1. In an action brought by a wife under the
Civil Damage Act the court admitted
evidence to show a request from plaintiff
to defendant not to sell liquors to her
husband; a notice to defendant that the
husband was in the habit of abusing
plaintiff; that defendant had previously
sold liquor to the husband, and that the
liquor was sold without a license. Held,
No error.-Grady v. Prigge, 61.

2. A parent of an adult child is not entitled
to recover damages for injury to his means
of support under the Civil Damage Law
in absence of proof that he is a poor per-
son unable by work to maintain himself,
and that the child was, before and at the
time of the injury, under a legal obliga-
tion to support him. and that by reason
or in consequence of the child's intoxica-
tion his accustomed means of mainten-
ance have been cut off or diminished.-
Stevens v. Cheney et al., 274.

3. Under the Civil Damage Act, Chap. 646,
Laws of 1873, the complaint need not
allege a sale or giving of liquor to the
intoxicated person if it state the facts
required by the statute.-Ford v. Ames,
411.

4. A complaint alleged that defendant sold
or gave away intoxicating liquors at a
certain place; that said liquors caused the
intoxication of plaintiff's husband; that
in consequence of such intoxication he
was drowned; that by reason of such
intoxication caused as aforesaid and of
the death of her husband plaintiff, who
was wholly dependent upon her husband,
was injured, etc. On demurrer, Held,
that the complaint was sufficient.--Id.

CODE CIVIL PROCEDURE.

See APPEAL, 14, 15; ATTACHMENT, 5, 14;
ATTORNEYS, 10; BANKS, 11, 12; CONTEMPT,
1, 2; CONTRACT. 11; CONVERSION, 9; Cor-
PORATIONS, 3, 4, 6, 14; COSTS, 6; CREDIT-
OR'S ACTION, 7; DEPOSITIONS, 2; EJECT-
MENT, 1; EVIDENCE, 3; EXECUTION, 6, 7;
EXECUTORS, 10, 15, 16; INJUNCTION, 1;
MUNICIPAL CORPORATIONS, 6; PARTIES, 2,
3; PARTITION, 1; PLEADING, 6, 18, 19; RE-
CEIVERS, 7; REFERENCE, 3: SCHOOLS, 2;
SERVICE, 1; SURROGATES, 2, 3, 10; TRES-
PASS, 1; VENUE; WILLS, 12.

CODE CRIMINAL PROCEDURE.
See CONSTITUTIONAL LAW, 1; CRIMINAL LAW,
4, 6; MURDER, 3.

CODE OF PROCEDURE.
See APPEAL, 7.

COMMON CARRIERS.

1. Defendant sold separate tickets to plain-
tiff over its own and a connecting line in
which it was not interested, but for
which it sold tickets as agent. Held,
That the separate tickets were insuf-
ficient evidence to justify the conclusion
that defendant contracted to carry plain-
tiff beyond its line, and that it was not
liable for injuries occurring on the con-
necting line-Poole v. The D., L. & W.
RR. Co., 114.

2. Plaintiff was injured by an accident
while riding on one of defendant's trains
on a free pass containing a stipulation ex-
empting defendant from liability for
such occurrences. He had also purchased
a ticket on the drawing room car on said
train, paying therefor the sum of one
dollar. Held, That, it not appearing what
were the relations between the company
alleged to have operated such drawing-
room car and the railroad company, the
car must be presumed to have been run for

defendant's benefit, and the acceptance of
plaintiff as a passenger thereon for hire
avoided the stipulation in the pass ex-
empting defendant from liability.-Ul-
rich v. The N. Y. C. & H. R. RR. Co., 162.

3. Where a common carrier delivered goods
to a consignee without payment of freight,
and thereafter a dispute arose as to the
amount to be paid, Held, in an action of
replevin, that the question whether plain-
tiff had waived its lien was properly sub-
mitted to the jury.-The Geneva, I. & S.
RR. Co. v. Sage, 167.

4. When goods are delivered to the first of
several connecting carriers under a bill of
lading directing that the consignees be
notified of the arrival of the goods but
not directing the delivery of the goods to
them, and the goods are transferred to the
last of said carriers without notification
to him of the provision in the original
bill of lading directing notice only of the
arrival of the goods to be given to the con-
signee, said carrier will not be guilty of
a conversion of the goods by delivering
them to the consignee.-Furman v. The
Union Pacific RR. Co., 204.

5. A bill of lading, not accepted by the con-
signee or owner of the property, made
out after the property has been shipped
and not received until it is well on its way
toward its port of destination, will not
have the effect of merging or superseding
a preceding contract for the carriage of
the property made between the parties
and under which it has previously been
received by the carrier.-Swift et al. v.
The Pacific Mail SS. Co. et al., 400.

6. In the absence of any restriction con-
tained in its charter, a corporation en-
gaged in the business of transporting
property has power to make a contract for
the carriage of property not only over its
own route but also over others connect
ing with it to the place of destination of
the property; and it follows from this
fact that two corporations engaged in the
above business whose routes connect
can enter into a joint contract with the
shipper of goods to carry the same over
their continuous routes.-Id.

See LIMITATION, 2.

COMMON PLEAS.
See APPEAL, 13.
COMPROMISE.

1. A debtor has the right to make the best
compromise with his creditor that he
can, using no fraud or culpable artifice to
accomplish that result. Each party to
such a compromise has a right to the ad-
vantage his superior skill, foresight and
knowledge may give him.-Graham v.
Meyer, 424.

2. Before a compromise of a disputed claim
can be annulled on the ground of fraud
the creditor must restore the money paid
him with interest, and restore to the
debtor his right to appeal from the judg-
ment, if any, previously recovered on
said claim, if such right has been lost by
lapse of time.-Id.

See ATTORNEYS, 7, 10, 11; FRAUD, 6.

CONSIDERATION.

See CONTRACT, 13; JUDGMENT, 3.

CONSTABLES.

See EXECUTION, 7, 8.

CONSTITUTIONAL LAW,

1. Sub. 3 of 8 of the Code of Criminal
Procedure, providing that the deposition
of a witness taken before the magistrate,
in the presence of the defendant, who at
the time had an opportunity of cross ex-
amining the witness, may, under certain
circumstances, be read in evidence upon
the trial, is not unconstitutional-The
People v. Williams, 69.

2. Chap. 522, Laws of 1884, entitled "An
act laying out public places, parks, and
parkways in the 23d and 24th Wards of
the City of New York, and in the adja-
cent district in Westchester Co., and au-
thorizing the taking of lands for the
same," does not violate § 16 of Art 3 of
the Constitution of the State of New York
because it provides that a portion of the
parks so laid out shall be used as a pa-
rade ground for a division of the Nation-
al guard.—In re application of The May-
or &c. of N. Y., 102.

3. An avenue or parkway, from 400 to 600
feet in width and a mile or two in length,
joining two parks, is not a road or high-
way within the meaning of § 18 of Art.
3 of the Constitution of the State of New
York, and the legislature is not prohibited
by said section from laying out, etc., the
same by a local bill, and the power to do
so is not abridged by the fact that an ex-
isting highway is included within such
parkway.-Id.

4. The constitution has not required that
lands taken for public parks shall be with-
in the corporate limits of the city for the
benefit of whose inhabitants they may be
designed. All that can be required is
that they shall be so contiguous to the
municipal territory as to be conveniently
accessible by its population for its use
and enjoyment.-Id.

5. A direction, contained in an act of the
legislature, to commissioners to be ap-
pointed thereunder for the purpose of
appraising the value of lands to be taken
for a public use, to make a just and equi-

table estimate of the loss and damage sus-
tained by the owners in the taking of their
property includes the taking of evidence
concerning the value of the property, and
the omission to provide in direct terms
for the taking of such evidence does not
render the act unconstitutional, even if
the taking of such evidence were essential
under the constitution. Such commission-
ers are not required by the constitution
to take evidence concerning the value of
the property intended to be appropriated.
They may act upon the knowledge or in-
formation acquired by their own personal
examination and investigation.—Id.

6. An act providing for the taking of land
for public purposes which provides an op-
portunity for the owners of such land to
appear and be heard before the commis-
sioners appointed to appraise it does not
violate the provision of the constitution
prohibiting any person from being de-
prived of property without due process
of law, and if such opportunity be provi-
ded the legislature has power to deter-
mine the form and time and manner of
notice to be given, and personal notice is
not necessary.-Id.

7. The right, provided by such an act, of
presenting objections to the appraise-
ment of the commissioners, both to the
commissioners themselves and to the
Court upon the application for the confir-
mation of their report, upon which any
matter which may be alleged against the
report is to be considered, includes the
right to support such objections by the
presentation of affidavits.-Id.

8. When an act of this character has pro-
vided that the three commissioners of
appraisement shall act together in per-
forming their duties, a provision author-
izing a majority of them, in case of a dis-
agreement, to fix the value of the prop-
erty to be taken does not render said act
unconstitutional as violating § 7 of Art. 1
of the constitution.-Id.

9. An act providing that leases and other
contracts in regard to lands taken for
public purposes shall cease and be deter-
mined upon such taking does not violate
the provision of the Constitution of the
United States prohibiting the States from
passing any law impairing the obligation
of a contract. - Id.

10 When an act taking land for public parks
imposes upon the city for the benefit of
whose inhabitants it is taken the obli-
gation of making compensation for the
same, and in default thereof gives a right
of action against said city, this is all that
is necessary by way of providing for com-
pensation to the owner whose property
may be taken.-Id.

11. Chap. 272, Laws of 1884, prohibiting the

manufacture of cigars in certain classes
of tenement houses in certain cities, is
unconstitutional. In re application of
Jacobs, 141.

12. Under the mere guise of police regula-
tions personal rights and private property
cannot be arbitrarily invaded, and the de-
termination of the legislature is not final
or conclusive.-Id.

13. A declaration in the title or in the body
of an act that it is intended for the im-
provement of the public health does not
conclude the courts.-Id.

See CORPORATIONS, 7, 8; TAXES, 3.

CONSTRUCTION OF STATUTES.
See STATUTES.

CONTEMPT.

1. The proceeding by attachment, under
the Revised Statutes, to enforce a Surro-
gate's decree, has been suspended by S
2555 of the Code. Under this section
a Surrogate may by order punish for con-
tempt a refusal or wilful neglect to obey
his decree.-In re Snyder, 19.

2. This section applies to the case of an ex-
ecutor wiose trust was created, and
whose wrongful acts in the trust were
done, before this statute went into oper-
ation, but who was called to account
thereafter.Id.

3. A witness convicted of contempt of court
for the contumacious and unlawful refu-
sal to answer certain legal and proper in-
terrogatories propounded to her as a wit-
ness on a certain day cannot be committed
to the county jail until she shall purge
herself of the contempt aforesaid, and
make answer to such legal and proper
interrogatories which may be propounded
to her as a witness," but only until she
shall make answer to the interrogatories
which were propounded to her on the
previous day.-The People ex rel. Jones
v. Davidson, 324.

out his interest in the contract.-Hol-
combe v. Munson et al., 48.

2. A verbal addition to a written contract
which fixed the amount of goods to be
delivered thereunder, said amount being
over fifty dollars in value, no part there-
of having been delivered and nothing
having been paid thereon, is void and
there can be no recovery upon the verbal
agreement.-Id.

3. Two brothers, A. and B., owned real and
personal property as tenants in common.
They agreed by oral promise that each
should by will leave to the other all his
property, and they accordingly executed
their wills and left them with their at-
torney. Afterward B. destroyed his will
and died intestate. Held, That A. can-
not sustain an action against B.'s heirs
for specific performance of the parol
agreement. -Gooding v. Brown et al., 106.
4. A contract for the sale of land provided
that the vendee should pay all taxes and
assessments to be laid or assessed on the
premises during the time he was in pos-
session under the contract. He took pos-
session in September. Thereafter, in De-
cember, the Supervisors levied the tax
and issued their warrant for its collection.
The vende neglected to pay, allowed the
premises to be sold for non-payment, and
after the purchaser received his deed ar-
ranged with him for a surrender of a por-
tion. Held, That the tax was laid after
the vendee took possession, and that spe-
cific performance of the contract should
be decreed.-Van Bromer v. Shaffer, 139.
5. Plaintiff agreed with defendant to
sprinkle a portion of a street. Such con-
tract was within the powers of defendant
and all the proceedings to effect it were
regular on their face, and plaintiff in
good faith did the work. The proceed-
ings were in fact irregular, in that the in-
itiatory petition was not signed by a ma-
jority of the persons taxable for the ser-
vice. Held, That plaintiff was entitled to
recover for his services.-Schier v. The
City of Buffalo, 241.

6. Where the market value of merchandise
at the place of delivery is controlled by
its market value at a neighboring place,
evidence of its value at the latter place is
competent in an action upon breach of
contract to deliver such merchandise.-
Wilsey v. Yourden, 278.

7. Where the writings executed by the re-
spective parties read together contain a
definite agreement of bargain and sale,
and lack no element of an entire contract,
evidence of an oral warranty by the seller
is not admissible. -Eighmie v. Taylor,
306.

8. Defendant having, as agent, purchased

certain real estate for one D., desired to
take an interest in the purchase. D. pro-
posed that he should take the chances of
profit or loss and go in even. Defendant
agreed to this and D. completed the pur-
chase, paying his own money and taking
title in his own name. Held, That the
contract was valid within the statute as
being in the nature of a partnership
agreement.-Babcock v. Read, 316.

9. It is no longer the rule that an agree-
ment in restraint of trade cannot trans-
cend the boundaries of the state in which
it may be made -The Diamond Match
Co. v. Roeber, 353.

10. The reason upon which the principle
has been maintained by which a person
was permitted to bind himself not to en-
gage in a competing business within a
prescribed locality authorizes and sanc-
tions its extension in an equal degree, and
renders it applicable to the enlarged
bounds prescribed for modern business
transactions, and accordingly only such
restraints upon trade are invalid as vi-
olating public policy as are unnatural and
unreasonable, and not required by the
parties for their protection in the ordinary
and legitimate course of their dealings —
Id.

11. An extra allowance cannot be granted
under § 3253 of the Code of Civ. Pro in
an action to restrain defendant from
carrying on a certain business in viola-
tion of a contract not to do so entered in-
to by him with plaintiff.-Id.

12. It is not necessary under the Statute of
Frauds that the whole agreement should
be contained in one writing; but where
the letters of the respective parties are
all connected and relate to each other
they may be read together and collect-
ively furnish the written evidence of the
agreement -Peck v. Vandemark, 408.

13. The surrender by a soldier's widow of
her pension on her re-marriage and the
marriage itself will furnish ample con-
sideration for an antenuptial promise by
the second husband to provide for her by
will.-Id.

14. Defendant took a conveyance of person-
al property and of a hotel business, and in
consideration thereof agreed to pay the
debts of the grantors and assignors as
soon as he was able to do so. In an ac-
tion by a creditor of the grantors upon
this clause plaintiff gave no evidence of
defendant's ability to pay. It appeared.
however, that defendant had conducted
the hotel business at a profit, had paid
upon mortgages which were on the per-
sonal property when he bought; had
paid other creditors of the grantors and
that there was an equity in the mort-
gaged personal property. Held, That the

plaintiffs were properly nonsuited.-Som-
mers et al. v. Brigham, 433.

15. Plaintiff made a written contract with
specifications to build for defendant a
house. Upon the trial evidence was ad-
mitted that the materials furnished were
as good as were ordinarily used in much
more expensive houses; also that they
were of the same quality and grades as
lumber the prices of which plaintiff's
husband, acting as her agent, had in-
quired the prices of shortly before. Held,
'I hat upon the question of substantial
performance the evidence was compe-
tent.-Slade v. Cherry, 434.

16. One who, as a member of a firm, has
contracted with another for the perform-
ance of a certain thing may
as an in-
dividual make a valid promise concern-
ing the same matter.-Pond v. Stark-
weather, 446.

17. In an action upon a promise to pay for
goods it appeared that on a negotiation
of a sale of the goods to defendant's firm
one of his partners objected to some of
the terms of the offer, whereupon defend-
ant agreed orally that if the vendor would
comply with his partner's wishes defend-
ant would pay according to the objec-
tionable terms. Held, That this was not
a promise by the firm, but was a distinct
contract binding on the promissor.—Id.
18. When relations exist between two per-
sons founded upon ties of blood, love and
affection, to which are added those of
confidence in fiduciary matters, and a
contract is made or any other proceeding
adopted by which one disposes to the oth-
er of all his property, the law regards the
transaction with great jealousy and re-
quires that it shall be established by tes-
timony so reasonably certain as to estab-
lish beyond reasonable doubt, not only
the fairness and validity of the transac-
tion on its merits, but that it was not the
result of undue influence exerted through
the elements above stated.--Tucker v.
Dean, 519.

19. A land contract provided that if the ven-
dee should fail to perform any part of
the contract the vendor should have the
right to declare it void and retain the
payments made, besides all the improve.
ments, and to take immediate possession
of the premises, &c. The vendee, after
making various payments, left the prem-
ises, and the vendor took immediate pos-
session and used the farm as his own, &c.
Held, That the vendor thereby elected to
treat the contract as rescinded, and could
not recover for its breach.-Moody v.
Gerharts, 524.

See AGENCY; COMMON CARRIERS, 6; DEEDS,
6, 7; FIRE INSURANCE, 1; FRAUD, 1; RAIL-
ROADS, 14; SPECIFIC PERFORMANCE, 1, 2;
STOCKS, 4.

CONVERSION.

1. Plaintiff's horse was stolen. Defendant
about the same time purchased a horse
from one W. There being evidence
enough to submit the question of the
identity of the horse to the jury, they
found that defendant had purchased
plaintiff's horse. Held, That defendant
was guilty of a conversion even if the
purchase was innocently made by him.-
Bates v. Riordan, 134.

2. Defendant was bound to deliver certain
shares of stock, and upon demand duly
made, on the day fixed therefor, refused
to make delivery. Thereafter he tendered
the stock, which had decreased in value,
to plaintiff, who accepted it. On the
trial, plaintiff's offer to prove such de-
crease as the measure of damages was re-
fused, and the jury was instructed that
the measure of damage was the interest
on the value of the shares from the day
of the wrongful refusal to deliver to the
day of actual delivery. Held, Error. The
measure of damage, if the case be con-
sidered a breach of contract, was the
difference between the value at the
time of refusal and the value at the time
of delivery, to be computed by the
jury. If it be considered as conversion,
it was merely a constructive conversion,
and defendant after his refusal could,
as he did, deliver the shares, which
goes in mitigation of damages. -Boomer
v. Flagler, 152.

3. One of the patrons of a cheese factory
may maintain an action against the sales-
man or agent of the patrons to recover
his share of the proceeds of a check which
the salesman had received, but failed to
present within a reasonable time, where-
by the check became worthless, the ma-
ker having become insolvent.-Soule v.
Mogg, 186.

4. In an action for conversion where defend-
ant seeks to justify under an attachment
against the property of the person from
whom plaintiff purchased the chattels in
question, and plaintiff gives evidence of
the sale and a valuable consideration paid
by her before the levy, and also gives
some explanation why there was not a
visible change of possession, the case
should be left to the jury, and the burden
is on defendant to show the fraudulent
nature of the transfer, in case the jury
find a purchase for valuable considera-
tion.-Hough v. Bowe et al., 190.

5. That plaintiff paid the attaching credit-
or's claim to the sheriff does not bar the
action, the payment being compulsory
and under protest, and to enable plain-
tiff to recover possession of the property.
-Id.

6. Such return and acceptance is not a sat-