each lot according to its frontage. The commissioners must exercise their judgment as to the amount of benefit each lot receives, and must assess the property accordingly, and the report must show that the assessment has been so made: Id.

appren

Parent and Child—Right of Father to Wages-Emancipation.—A father may claim for services rendered by his son, a master by his tice or hired laborer, and may charge for it as done by himself: Brown vs. Ramsay.

Where a father sues for labor performed by his son, the plaintiff must prove that he is the principal in doing the work and the son the agent, either in fact or in law, and either that the son, being emancipated, was working under him as his servant, or that he was not emancipated or was incapable of emancipation: Id.

On a certiorari from the Court of Common Pleas this Court will not review the decision of the Court below on questions of fact; but where the question is a mixed one of law and fact, the only inquiry here is whether there was a mistake or misapplication of the law by the Court below: Id.

If there is legal evidence before the Court below, upon which they can reach the conclusion to which they arrive, this Court will not reverse the judgment because the evidence would bring them to a different conclusion: Id.

The right of the father to the services of his child ceases on the child's attaining the age of twenty-one years, and it is then the right of the child to receive its own wages; but arriving at the age of twenty-one is not ipso facto emancipation; the child may elect to remain with the parent or may be incapable of emancipation, and if it so remain, or such incapacity exists, the parent will be entitled to the child's wages: Id.

Whether a child has been emancipated or not, or is incapable of emancipation by imbecility or otherwise, are questions of fact to be decided by the peculiar circumstances of each case: Id.

A child may be emancipated by the act of the father and without the election of the child, as where the father turns the child from his house, and will not permit it to remain at home in his family: Id.

The law will not presume any change in the relation of parent and child from the mere fact that the child has arrived at the age of twentyone: Id.

COURT OF APPEALS OF NEW YORK.1

Evidence-Examination of Witness-Privilege.-On the cross-examination of a witness he cannot be asked whether he had been convicted of petit larceny, although he do not object. The party has a right to insist that the fact be proved, if at all, by the record: Newcomb vs. Griswold.

So also the party may object, though the witness do not, to a question whether the latter had made certain statements in an affidavit which was not produced: Id.

Married Woman-Separate Property, Liability for Husband's Debt.— A wife, by allowing chattels belonging to her, and which remain in specie, to be employed by her husband in the carrying on of a business for their common benefit, does not devote them to her husband so as to render them liable for his debts: Sherman vs. Elder et al.

Otherwise, it seems, as to articles used by the husband as merchandise, whether a part of the goods belonging to the wife before marriage, or purchased out of the earnings and accumulations of the business: Per ALLEN, J.: Id.

An assignment by the wife of the goods and chattels, "as well as all claims and demands for any portion of them," is valid, and carries the right of action for the taking by a creditor of that part of her property which remained in specie and was not made merchandise, though used by the husband in his business: Id.

Usury-Mortgage-Conveyance subject to a Mortgage Debt.-Where land is conveyed subject to a usurious mortgage, which the grantee assumes to pay, the mortgagee acquires a right to an appropriation of the land for that purpose, which cannot be divested without his assent: Hartley vs. Harrison et al.

Held, accordingly, that a subsequent arrangement between the parties to the deed, whereby, as between them, it became a mere quit-claim, was inoperative to open the defence of usury to the grantee: Id.

Quare, however, whether the personal liability assumed by the grantee is not discharged by the release of his grantor. So held in the Supreme Court, and the question not passed upon by this court: Id.

Judgment by Confession-Fraud.—A judgment by confession entered

1 From E. P. Smith, Esq., State Reporter.

upou an insufficient statement, but not impeached for actual fraud, is good as between the parties: Miller vs. Earle.

Where the property of the defendant has been sold under an execution upon such a judgment, the purchaser's title cannot be impeached by a creditor having no judgment or lien on the property at the time of the levy: Id.

Sale-Purchase with Design not to Pay-Fraud.-Though the omission of a purchaser of goods for credit to disclose his insolvency is not necessarily fraudulent, yet if the purchase be made with a preconceived design not to pay, it is a fraud: Hennequin et al. vs. Naylor.

Such design may be inferred by the jury from the circumstances and conduct of the vendee, not only in respect to the sale in question but in other contemporaneous transactions: Id.

Evidence-Exemplification of Will.-The exemplification of the record of a will, in order to be evidence, under ch. 94 of 1850, must contain the proofs taken before the surrogate. A mere exemplification of the will, recorded as having been proved, is insufficient: Hill et al. vs. Crockford.

Account Where it Lies.-The action of account, at common law, would only lie between two merchants. It was unavailable where the partnership consisted of a larger number: Appleby vs. Brown.

The Revised Statutes (2 R. S., p. 385, § 49), though implying a different understanding on the part of the legislature, did not change the law or enlarge the cases in which the action might be brought: Id.

Highway- When it may be laid out over Railroad Track or Property— Constitutional Law.-A highway cannot be laid out over grounds acquired by a railroad corporation for the site of an engine-house, &c., necessary for its use at a station: The Albany Northern R. R. Co. vs. Brownell et al. An injunction suit will lie to restrain highway commissioners from taking possession of such a site: Id.

It seems that an injunction suit will not lie in a case where the commissioners would have the right to lay out a highway, but fail to acquire jurisdiction, or where their proceedings were irregular: Id.

The statute (ch. 62 of 1853), in authorizing the construction of highways across railroad tracks without compensation, does not violate the constitutional provisions against taking private property for public use or impairing the obligation of contracts: Id.

The title which a railroad corporation acquires to its track is qualified

as being taken for public use, and is subject to the exercise by the legislature of all the powers to which the franchises of the corporation are subject: Id.

Judgment by Confession-Validity.-A judgment by confession is valid as between the parties, though the statement on which it is founded does not conform to the Code in setting forth the origin and particulars of the indebtedness: Neusbaum vs. Keim et al.

Such a judgment, therefore, upon proof of its bona fides, authorizes the creditor to impeach a fraudulent transfer by his debtor: Id.

A statement, it seems, is sufficient under the Code, which, after declaring that the plaintiff had sold and delivered to the debtor large quantities of meat in 1854 and 1855, averred that there was justly due him, upon such sales, a balance of $2114, with interest from January 18, 1855: Id.

66

Insurance-Warranty-Free from Liens."-A marine policy of insurance upon the whole tackle," &c., of a vessel, containing a warranty that "the property is free from all liens," parol evidence is admissible that the property insured was the owner's equity of redemption in the vessel which was subject to certain mortgages known to the insurer: Bidwell vs. The North Western Ins. Co.

The existence of such mortgages is no breach of the warranty: Id.

Sunday Law-Newspaper.-A contract for the publication of an advertisement in a newspaper to be issued and sold on Sunday, is void: Smith et al. vs. Wilcox et al.

Habitual Drunkard-Promissory Note, what Payment of-The jurisdiction given to the County Courts for the custody of habitual drunkards (Code, § 30, sub. 8) is general, not limited to those having estates of less than $250: Davis vs. Spencer.

The reference in subdivision eleven of the same section to the powers of the old Courts of Common Pleas in this matter does not limit the effect of subdivision eight, but was intended to continue in the County Court cases then pending in the Common Pleas : Id.

An agreement between the payee of a note and the maker, made with the assent of the latter's partner, to apply the indebtedness of the payee to such maker and his partner in payment of the note, operates in presenti as a satisfaction of the note pro tanto: Id.

Id.

Whether the assent of the partner was necessary or material: Quare:

SUPREME COURT OF NEW YORK.

Action for Specific Performance.-When it appears, or is conceded, on the trial at a special term of an action for the specific performance of an agreement to sell and convey real estate, that the defendant is not, and never has been, able specifically to perform, the judge should decline to proceed with the trial, and should send the action to the circuit, for trial: Stevenson vs. Buxton.

The defendant, in such a case, has a right to have the question of damages tried by a jury; of which the justice, at special term, cannot deprive him, by a compulsory reference to a referee; particularly. where the fact that the defendant never had title, and was not and never had been able to specifically perform, is set up in the answer: Id.

Insurance-Transfer of Interest without Consent-Liability upon Premium Note.-A clause, in a policy of insurance, providing that the interest of the assured in the policy, or in the property insured, is not assignable without the written consent of the insurers; and that in case of any transfer or termination of such interest without such consent, the policy shall be void and of no effect, is to be regarded as a provision made for the exclusive benefit of the insurers, and to be practically exercised by them or not, at their option: Hyatt, receiver, &c., vs. Wait.

If, after the assured has transferred his interest in the policy and in the property insured, without the written consent of the insurers, the latter choose to rectify the transfer, and to continue the insurance, the policy will not be absolutely void: Id.

And if, after notice of such transfer, they treat the assignee as a member of the company, they will be estopped from denying such ratification and approval: Id.

Whether a policy of insurance be regarded as originally void, or only voidable in consequence of an unauthorized transfer, it is nevertheless conditionally susceptible of ratification and confirmation: Id.

Notwithstanding a policy be regarded as absolutely void, by reason of an unauthorized transfer, so far as to prevent an action for a loss, by the assured, against the company, the former is not released from the obligations of his deposit or premium note until he has complied with a condition of the policy and charter, requiring "the payment of his proportion of all losses and expenses that may have occurred prior to the surrender" of the policy, or alienation of the property: Id.