such a bond that it was the intention of
the parties to protect the company against
the happening of a certain contingency,
the bond will be construed so as to give
effect to this intention although the con-
tingency in question was not mentioned
in the recital of the bond.-Id.

3. In an action on a bond of indemnity
whereby the sheriff was indemnified from
any damages which might accrue to him
for levying under an execution upon per-
sonal property which he might judge be-
longed to the judgment debtor, the court
was requested to charge that if neither
the sheriff nor any of his deputies judged
the property taken under the execution,
in reference to which the indemnity ap-
plied, was owned by the judgment
debtor, then defendant was entitled to a
verdict. The court refused so to charge.
Held, Error, notwithstanding the fact
that there was no evidence that the per-
son making the levy did not judge the
property levied upon to be owned by the
judgment debtor. That the mere act of
levying is no evidence that the property
levied upon was judged by the person
making the levy to belong to the judg-
ment debtor.-O'Donohue et al. v. Sim-
mons, 485.

See SHERIFFS.

INDIANS.

1. The treaties of 1789 and 1795 made by
the state with the Cayuga Nation were
public transactions, and in case of a vio-
lation by either party the other contract-
ing party alone can demand satisfaction.
Neither a citizen of the state nor any por-
tion of the members of the Indian Nation,
unless recognized by the state as the Na-
tion, can complain.-Cayuga Indians v.
The State, 439.

INDICTMENT.

See CRIMINAL LAW, 3, 4, 6.

INJUNCTION.

1. The defendant Trust Co. held certain
bonds and stock of a corporation as trus-
tee to secure certain notes of such corpo-
ration. Default was made in the payment
of such notes, and the Trust Co. proceeded
to sell the bonds and stock pledged to it.
Plaintiff then commenced an act on in
which he procured an injunction prohibi-
ting such sale, which was subsequently
vacated. On an application to assess the
damages sustained by the Trust Co. by
reason of such injunction, Held, That the
interest on said notes, which had accrued
during the time said injunction was in
force, was a proper item to be included in
the estimate of such damages under § 624

of the Code of Civ. Pro.-Friend v. The
Mercantile Trust Co., 332.

2. An injunction will not lie under the
State sanitary laws to restrain the sale
of imports of teas in original packages,
though such teas be adulterated, unless
it is shown that such injunction is im-
peratively necessary to prevent serious
danger to human life or serious detriment
to health.-The Health Dept. of N. Y. v.
Purdon et al., 447.

See RAILROADS, 14.

INSOLVENT INSURANCE COMPANIES.
See EVIDENCE, 4.

JUDGMENT.

1. No final judgment can be entered upon a
decision of the Special Term sustaining a
demurrer to one of the causes of action
set forth in the complaint, and dismissing
the complaint as to that cause of action
with costs to the defendant, and directing
judgment to be entered accordingly,
while the issues of law raised by the other
grounds of demurrer remain undeter-
mined. The entry of a judgment for
costs by defendant is, in such case, ir-
regular; but the remedy of plaintiff is by
application to the Special Term, and not
by appeal.-Robinson v. Hall, 4.

2. Plaintiff had verdict for $44 and judg-
ment was entered therefor. Defendant
was entitled to costs and another judg-
ment was entered in her favor for $74
costs. On defendant's motion both judg-
ments were set aside and judgment was
directed for the residue of the costs after
deducting the amount of the verdict.
Held, No error, although plaintiff had
assigned his verdict to his attorneys for
their services before the judgment for
costs was entered.-Warden v. Trost, 101.
3. A corporation having bid in certain
property on foreclosure and entered judg-
ment for deficiency, subsequently agreed
with the mortgagor to make him a new
loan and to reconvey said property to him
and satisfy the judgment on his giving a
mortgage on it for the deficiency and one
on other property for the loan, which
agreement was carried out and a satisfac-
tion of the judgment executed but not
delivered. In an action to foreclose the
last mentioned mortgage it was set aside
for usury.
Held, That the company was
thereby deprived of the only considera-
tion for its agreement to satisfy the judg-
ment; that the judgment was thereby
revived, and that the satisfaction should
be surrendered by the holder to the rep-
resentative of the corporation.—Russell v.
Nelson et al., 535.

4. One of the makers of a joint and several

promissory note was sued upon it by the
holders and judgment entered against
him only. He subsequently transferred
to the holders a bay mare, without any
agreement as to the price it was to be re-
ceived at the holders agreed that the
mare should be taken in satisfaction of
the judgment as to the maker sued, in
any event, that they would sell the mare
and after deducting the costs incurred
would apply the balance pro tanto in sat-
isfaction on their claim on the note under
the judgment against the other maker.
Held, That by the transfer of the mare
the judgment was satisfied as to both
makers.-Coonley v. Woodruff, 570.

See APPEAL, 5, 6, 9; ASSOCIATIONS, 3; COR-
PORATIONS, 19; CREDITOR'S ACTION, 5, 6;
JUSTICE'S COURT, 1; LUNATICS, 2; PARTI-
TION, 3; PLEADING, 16; PRACTICE, 32.

as well as the checks drawn upon and
paid by the bank, exceed $400, these items
do not constitute a matter of account be-
tween the parties of which a justice's
court has no jurisdiction, where the only
item in dispute is a certain check claimed
to have been drawn by the depositor.-
Brisbane v. The Bank of Batavia, 270.
See COSTS, 5; EXECUTION, 7.

LACHES.

1. One T., who was plaintiff's attorney in a
foreclosure action, purchased the property
himself and two years thereafter sold it
and took back a mortgage which he after-
wards assigned to defendant as security
for loans. In an action to recover moneys
paid on the mortgage and for an assign-
ment thereof, Held, That plaintiff by fail-
ing to enforce her right to the property or
the proceeds before the sale and assign-
ment lost her right to the land or
mortgage, and that she had no rights
which could be enforced against the as-
signee of the mortgage.-Phillips v. The
Highland Nat'l Bk, 192.

LANDLORD AND TENANT.
See LEASE.

LEASE.-

1. A new stipulation may, by consent of the
parties, be added to a contract after its
execution, if such stipulation is evidenced
and executed in the mode that the origin-
al contract is required to be evidenced
and executed.-Vidvard v. Cushman, 7.
2. Where the added stipulation is written
in the lease by the lessor in the presence
and with the assent of the lessee, it is un-
necessary to re-sign the lease.-Id.

3. Defendant let a house to H. until May 1,
1883. In May, 1882, H. sublet a room on
the ground floor to plaintiff. On April 1,
1883, H. surrendered the lease to defend-
ant, but plaintiff continued in possession
of his room. Defendant in April, 1883,
employed G. to put a new roof on the
building. This was not done to stay
waste, but to improve the estate. Plain-
tiff was not consulted, but his possession
was not interfered with. After the old
roof was taken off G. notified plaintiff to
protect his goods, as the rew roof could
not be put on that day. Plaintiff prom-
ised to do so. A heavy rain came on and
plaintiff was damaged. Held, That de-
fendant was liable.-McVie v. McNaugh-
ton, 89.

4. In an action to recover rent due upon a
lease, a breach of covenant to keep the
rooms heated by means of a steam heat-
ing apparatus is a proper subject of

counterclaim, and it is error to exclude
evidence to show that the rooms were in-
sufficiently heated and rendered so un-
comfortable that the tenant could not
work therein; and the fact that he con-
tinued to occupy the rooms during the
time the rent accrued is no bar to recover
damages for breach of the covenant, es-
pecially when the lessor promised to im-
prove the heating.-Ellwood v. Forkel, 95.
5. The lessor in a lease under seal in which
there is no undertaking on his part to
make repairs is not chargeable with the
expense of repairing.-Simpson v. Swike-
hard, 107.

6. While the covenants in a lease under seal
cannot be modified by parol executory
agreement, yet the complete execution
of the parol agreement may operate as a
satisfaction of the undertakings in the
lease-Id

7. Proof that the value of the products of a
farm exceeded the rent, and that the
lessor did not take them, will not consti-
tute a defense to an action against the
surety on the lease under a covenant that
the products should be the property of
the lessor until the rent is paid. It must
appear that the lessor took them or was
negligent in not doing so.--Clarke v.
Quinn, 110.

8. An action may be maintained against the
surety on a lease without joining the
principal-Id.

9. A landlord by instituting summary pro-
ceedings to evict his tenant affirms the
lease as it exists, and is precluded from
seeking a reformation thereof as a defense
to an action brought to restrain the prose-
cution of such summary proceedings.—
Lovatt v. Watson et al., 193.

10. An action for negligence against the
landlord cannot be maintained by the
tenant for personal injuries caused by the
giving way of stairs unless the landlord
knew the stairs were unsafe to use or
from the facts and circumstances in the
exercise of ordinary care and prudence
he should have known of their dangerous
condition.-Spellman v. Bannigan, 205.

11. The contract of a landlord to put or keep
in repair does not contemplate personal
injuries which may follow a breach of
the contract and indirectly or remotely
grow out of it. Such damages are acci-
dental and remote, nor is a landlord
liable to his tenant for a breach of his
contract to repair unless he had notice of
the necessity for such repairs and then
only after a reasonable time for him to
make such repairs.—Id.

12. Where the landlord has created no nui-
sance and is guilty of no wilful wrong or

fraud or culpable negligence he is not lia-
ble for any injury suffered by any person
occupying or going upon the premises
during the term of the lease.-Edwards
v. The N. Y. & H RR. Co., 230.

13. Negligence on the part of a landlord is
not to be inferred simply from the fact
that the structure which he lets breaks
down; it must be shown he had reason to
know that it was dangerously weak and
imperfect.-Id.

14. Defendant was the general assignee for
the benefit of creditors of one M. and
under the assignment took possession of
the stock of goods owned by M. and en-
tered upon the premises in which they
were kept, which M. leased from
plaintiff. Defendant notified plaintiff
that he could not assume the lease of the
premises and offered to pay $50 a month
as rent therefor, which plaintiff refused,
asking $100, and threatened to dispossess
defendant unless he paid the latter sum,
which defendant refused to do. Plaintiff
did not dispossess defendant, however,
and the latter remained upon the premises
for two months while selling off the goods.
In an action upon the lease to recover
two months' rent, Held, That the defend-
ant's occupancy was not as assignee under
the lease, but as merely a tenant by suf-
ferance. That it seemed that the defend-
ant was liable for rent at the rate of $100
per month.-Weil v. McDonald, 440.

15. A covenant by a tenant to repair does
not enure to the benefit of a stranger who
sustains an injury in consequence of its
breach, but can only be enforced by the
landlord or his assigns.-Odell v. Salomon
et al., 473.

16. The owner or occupant of a building is
not chargeable with the duty of constant
inspection of the premises; reasonable care
in their use so that they do not cause in-
jury to others is all that the law requires.
-Id.

17. The fact that a defect was discovered
by an expert after close examination and
keen scrutiny is not sufficient to charge
the owner or occupant with negligence
in not having discovered and remedied
it.-Id.

18. The defendant in an action to recover
an installment of rent cannot interpose a
defense which was equally applicable to an
action for a prior installment in which he
did not interpose said defense, but per-
mitted a recovery.-Townsend v. Read et
al., 509.

19. A sub-tenant cannot plead a technical
merger as a defense to an action for an
installment of rent brought by the original
landlord under an assignment to him of
the lease with the sub-tenant, where the

rent is payable on the first of each month,
and the assignment was made during the
month sued for and after the first.--Id.

20. Where the rent is payable on the first
of each month in advance, and the first
of the month is Sunday, the tenant has
till midnight of the second to pay his
rent.-Boehm v. Rich, 510.

21. In such a case where the landlord on
the second of the month obtains a sum-
mons in summary proceedings to dis-
possess the tenant for non-payment of
rent, and the tenant before the return
day removes in pursuance thereto, this
constitutes a surrender by the tenant and
an acceptance by the landlord of the
premises and the tenant is not liable for
the ensuing month's rent, even though
the landlord does not continue the pro-
ceedings. Id.

22. A renewal of a lease operates as a re-
newal of all the provisions contained in
or made a part of the lease.—Wadsworth
V. Wadsworth et al,529.

23. A farm lease made in February, 1879 for
the term of one year, provided that if the
lessee should not lease the farm for 1880,
he must deliver to the lessor, by Septem-
ber, 1889, one-third of the crop of winter
wheat raised on the pasture lot. The
lease was renewed for one year from
April, 1880. and in the fall the lessee put
in a crop of winter wheat upon said lot,
and in the summer of 1881 harvested the
The lease was not renewed for
1881. Plaintiff claimed one-third of said
wheat. Held, That said provision of the
lease continued in operation upon the re-
newal, and plaintiff was entitled to re-
cover.-Id.

same.

21. At a meeting of a Masonic lodge, a quo-
rum being present, by a majority vote a
committee was authorized to lease a room
for its use. The by-laws gave such a ma-
jority power to act. The committee did
so and signed the lease with the name of
the lodge, adding by their committee.
S. J. T., L T. F and C. H." They affixed
their own seals. Held, That the lodge
was bound and that an action on the lease
was well brought against its treasurer.—
Cohn v. Borst, 561.

See MORTGAGE, 23-27.

LEGACIES.

See WILLS, 17, 18.

LIBEL.

1 In an action for libel in publishing plain-
tiff as a swindler in having obtained cred-
it by false representations, where the
truth of the statement is pleaded in justi-

fication and mitigation, evidence that de-
fendant's general agent, to whom the rep-
resentations were made, communicated
them to defendant and that it relied
upon them, is competent in mitigation of
damages.-Kimball v. The Herald Co,

34.

2. Publishing an article which states that a
judgment has been recovered against a
person is not actionable unless special
damages are alleged and proved. Such

a publication is not an act from which
the law presumes that damages ensued.
-Woodruff v. The Bradstreet Co., 97.

3. The complaint in an action by a charit-
able corporation for a libel on account of
which it is alleged that various persons
declined to make charitable donations to
plaintiff which it otherwise would have
received should state the names of the
persons who, for that reason, declined to
make such contributions, and if it fails
to state such names the plaintiff will be
ordered, upon motion, to serve a bill of
particulars containing such statement.-
The N. Y. Infant Asylum v. Roosevelt et
al., 331.

LICENSE.

See CANALS.

LIFE INSURANCE.

1. Where a life insurance policy provides
for an accumulation and preservation ef
dividends which it had earned at the ex-
piration of ten years from surplus profits
derived from lapsed policies, which divi-
dends were to be apportioned equitably
and applied to an annuity bond, or paid
in value to the assured in cash. Held, 'That
the relation created between the company
and the insured is not fiduciary, but rests
in contract, and that the insured is not
entitled to an accounting; the determi-
nation of the amount of dividend being
confined to the company, and only to be
questioned in an action alleging non-per-
formance of contract obligation.-Uhl-
man v. The N. Y. Life Ins. Co., 5.
See INDEMNITY, 1, 2.

LIMITATION.

1. One W.. who was indebted to plaintiff,
conveyed certain real estate to his sons by
deed which charged the land with and
the grantees assumed to pay said indebt-
edness with interest. Held, That the ac-
knowledgment of the indebtedness, al-
though made to strangers to it, was just
as effectual to defeat the statute of limit-
ations as if it had been made directly to
plaintiff or his authorized agent, as it was
intended to be communicated to and in-
fluence him.-De Freest v. Warner et
al., 18.

2. The contract of a carrier to carry a pas-
senger is an important element in the
passenger's right to recover for a personal
injury caused by the carrier's negligence,
but only as inducement and not as sub-
stance. The real ground of action is the
tort or negligent act of the carrier, where-
by the passenger is injured; and such ac-
tion must be brought within three years.
-Webber v The Herkimer & M. Street
RR. Co., 47.

3. A failure by the owner of property taken
for canal purposes to make claim for
damages within one year, as prescribed
by 1 R. S., 225, § 48, divests him of all
right thereafter to claim damages arising
as an incident to such taking.-Mark et
al v. The State, 63.

4. The claims mentioned in Chap. 321,
Laws of 1870, are of a different character
from those provided for by said § 48.-
Id.

5. An action by a husband to recover dam-
ages for the loss of services of his wife,
caused by a personal injury to her inflict-
ed through carelessness on the part of
defendant, is not an action to recover for
a personal injury, but is one to recover
damages for an injury to property, and is
not barred by the statute of limitations
until the expiration of six years. -Groth
v. Washburn, 75.

6. An administrator sold his intestate's land
to pay debts. The petition omitted the
name of one of the intestate's heirs, but
the proceedings were otherwise regular.
Held, That the omitted heir was not di-
vested of his title, and he is not barred
by the five years' statute of limitations
from recovering his share in the lands
sold.-Jenkins v. Young et al., 307.

See BANKS, 2, 12; CORPORATIONS, 11; CRED-
ITOR'S ACTION, 7; DURESS, 2; EXECUTORS,
8; MORTGAGE, 24; MUNICIPAL CORPORA-
TIONS, 6; TOWNS, 2.

LOANS.

1. In an action to recover an alleged loan it
was shown that plaintiff's intestate re-
ceived certain checks, and that on the
following day they were in the possession
of and used by defendant's testator, with
whom intestate resided. Held, That no
loan was proved; that if there was a di-
rect transfer it must be deemed a volun-
tary delivery in payment of an existing
liability rather than a loan.-Poucher v.
Scott, 175.

LOTTERY.

1. Upon the trial of an indictment charging
the crime of contriving or assisting in
contriving a lottery, the confession of the

defendant, consisting of his explanation
of the contrivance to a purchaser, is suf-
ficiently corroborated by proof of such
purchase and the production of the article
purchased to warrant a conviction upon
it under § 395, Penal Code.-The People
v. Runge, 38..

2. It is not necessary, in order to warrant a
conviction under § 325 of the Penal Code
for contriving or assisting in contriving
a lottery to prove that any person paid
or agreed to pay anything for any
chance for which the lottery provides.-
Id.

LUNATICS.

1. A sale to a lunatic will be set aside by a
court of equity, and the return of the
consideration adjudged, when the fact of
lunacy existing at the time of the sale is
established, whether the defendants had
or had not knowledge of its existence, ex-
cept that, where the sale is for the benefit
of the lunatic, and the defendants, if
they acted in good faith, can not be put
in statu quo, the sale will be upheld; and
allegations in the complaint in an action
brought for the purpose of setting aside
the sale, that defendants wrongfully and
unlawfully effected such sale, etc., will
not change such action from one in equity
to one for fraud and deceit.-Johnson v.
Stone et al., 159.

2. When the complaint in an action to set
aside a sale of stock made to a lunatic
charges a joint liability against defend-
ants for the return of the consideration,
but it appears upon the trial that they
owned different amounts of the stock
sold and received different proportions
of the purchase money, a judgment can
be entered ordering the return by each
defendant of the amount received by
him.-Id.

See TAXES, 13.

MALICIOUS PROSECUTION.

1. In an action for malicious prosecution
the burden of showing want of probable
cause is upon the plaintiff.-Marks v.
Townsend et al., 10.

2. When final judgment is entered in favor
of a party on trial, the prosecution is so
far terminated that he may sue for mali-
cious prosecution. - Id.

3. While a suit is pending no action in the
nature of a suit for maliciously or with-
out probable cause instituting the pend-
ing suit can be maintained.-Jones v.
McCaddin, 53.

4. The question as to the advice of counsel
is for the jury, as they are to determine
in considering the question of probable