prudence and attention which sensible men are accustomed to give
under similar circumstances.

COOK v. NEW YORK CENTRAL R. R. Co.
NONSUIT REFUSED― Conflicting Evidence - Delivery without
Authority of Owner.

NOTE,

See EVIDENCE. 1.

ACCOMMODATION-Authority of Partner to make or endorse
-Notice. Code, §§ 136, 274.] As it is no part of the business
of a mercantile firm to make or endorse notes for third persons,
there is no implied authority for an individual member of such firm
to make or endorse such paper in the firm name. Consequently
the holder of such paper, with notice that it was made or endorsed
for the purpose of accommodation merely, without the consent of
the firm, cannot recover upon it.

Where the maker of a note, endorsed by a firm, presents the same
to be discounted for his accommodation, such fact shows upon its
face that it is a mere accommodation endorsement.

FIELDEN V. LAHENS

PAGE

8

67

218

OBLIGATION--Statute of Frauds-Performance of void Contract-
Evidence

See STATUTE OF FRAUDS. 2.

OFFICERS, JUDICIAL, Assessors protected like all

See ASSESSORS.

ORDINANCE, CORPORATION- False Imprisonment

Metropolitan Police Board

See FALSE IMPRISONMENT.

250

196

Powers of

266

OWNER, DELIVERY WITHOUT AUTHORITY OF-Conflicting
Evidence-Nonsuit refused.

67

See EVIDENCE. 1.

Р

PAPER, NEGOTIABLE-Rights of Assignee of bonâ fide holder

PARTITION-Heir-at-law-Expectancy-Transfer.] The expectancy
of an heir is capable of being transferred as security for the pay-
ment of a just debt, and when the same is done during the lifetime
of the ancestor, it will be deemed to be a transfer of all legal and
equitable right of such heir's expectancy in the estate of such an-
cestor; and although there can be no vested estate in the pro-
perty during the life of the ancestor, a Court of Equity will
recognize and protect the interest of the transferee after the death
of the ancestor.

STOVER V. EYCLESHIMER.

PARTNER, Authority of to make or endorse Accommodation Note
-Notice. Code, §§ 136, 274

See NOTE,

290

218

PARTNERSHIP-Any Partner may secure Creditor.] Either mem-
ber of a firm has a right to secure a creditor thereof by a transfer of
partnership property, or to give a chattel mortgage for that pur-
pose.

MCCLELLAND v. REMSEN

PART PAYMENT-Compliance-Statute of Frauds

See STATUTE OF FRAUDS. 1.

PENALTIES FOR ENCROACHMENT ON HIGHWAYS-Con-
struction of Statute.

See CONSTRUCTION OF STATUTE.

gation-Evidence

PERFORMANCE OF VOID CONTRACT-Statute of Frauds Obli-

See STATUTE OF FRAUDS. 2.

PLAINTIFF, PRESUMPTION FOR-Nonsuit-Negligence-Rail-
road

See NONSUIT.

PLEADING-Demurrer-Cause of Action.] In actions brought under
the statute of 1849, as amended in 1853, entitled "An act in rela-
tion to suits by and against joint-stock companies and associations,"
the judgment recovered against the company is not the foundation
of the action against a stockholder of the company on failure to
satisfy such judgment by execution against the company. The
action authorized by the 4th section of the act, against individual
stockholders in such cases, is based upon the original cause of action
against the company; and in such proceeding the original cause of
action must be stated in the complaint.

2.

WHITEHEAD v. ALLEN

Equitable relief first-Lease-Assignment.] Under the
Code, the same complaint may contain legal and equitable causes
of action; the legal causes should be tried by a jury, and the
equitable may be tried by the Court.

When the Court erroneously decide, on motion of Plaintiff, that
the Defendant is not entitled to a jury because the complaint sets
up an equitable cause of action, it is no waiver by the Plaintiff of
any legal cause of action contained in his complaint; and should he
fail to establish an equitable cause of action, he may, nevertheless,
recover upon any legal cause of action which he may establish,
as contained in his complaint.

To render the assignee of a lease liable for rent to the lessor, the
whole term must be assigned and transferred to the assignee.
Therefore, an assignment reserving the last day of the term, does
not render the assignee thus liable to the lessor.
DAVIS V. MORRIS

Judgment

POWER to Reform-Mistaken Averment-Variance-

See JUDGMENT. 3.

POLICE BOARD, METROPOLITAN, Powers of-False Imprison-
ment Corporation Ordinance

See FALSE IMPRISONMENT.

See CAPITAL.

POLICE DISTRICT, CAPITAL-Constitutionality of Statute

POSSESSION OF ASSIGNED PROPERTY UNCHANGED-Pre-
ferential Assignment-Presumptive of Fraud

See ASSIGNMENT.

PAGE

182

263

326

250

8

258

226

235

266

354

129

PAGE

POSSESSION OF REAL ESTATE by Husband under Wife, not
adverse-Damages-Interest

See REAL ESTATE.

3.

POWER OF REFEREE to allow Amendment-Liability upon Agree-
ment to pay Third Party. Code, § 272, 173

See LIABILITY.

SUPREME COURT to strike Attorney from Rolls

See ATTORNEY.

TO REFORM PLEADING-Mistaken Averment-Variance
-Judgment 3.
See JUDGMENT.

3.

SELL REAL ESTATE-Will-Executor-Trustee
See WILL.

57

328

74

235

184

PRACTICE-Bill of Particulars-Amendment-Discretion.] A bill of
particulars attached to a complaint forms a part of the pleadings
in the case; and under the provisions of law authorizing a referee
to allow amendments of the pleadings, he may allow such bill of
particulars to be amended by the substitution of a new one in its
stead. Such permission to amend is in the discretion of the ref-
eree, and not reversible.

2.

3.

MELVIN V. WOOD

-Case.

RIGNEY V. SAVORY.

297

296

The

Service of Process on Convict in State Prison.]
service of process upon a convict in State Prison is valid to confer
jurisdiction upon the Court over the person and rights of the con-
vict. Then, the service of a process commencing a foreclosure suit
against the property of the convict is valid to give the Court juris-
diction to foreclose his equity of redemption in the premises

DAVIS V. DUFFIE.

-

PREFERENTIAL ASSIGNMENT - Possession Unchanged- Pre-
sumptive of Fraud

PRESUMPTION REPELLED-Lapse of Time-Mortgage-Title to

See ASSIGNMENT.

Real Estate

See TITLE.

54

129

24

An

PRINCIPAL AND AGENT -

Transfer of Stock Warranty.]

agent, with express authority to sell, has no implied authority to
warrant, where the property is of a description not usually sold
with warranty.

One employed to make a sale of bank stock is not, presumptively,
empowered to warrant it in the name of his principal.

The receipt of the proceeds, by the owner of the stock, in igno-
rance of an unauthorized warranty by the agent, is not a ratification
of the unauthorized engagement.

When a party claims, receives, and retains the property of another,
knowing that it was obtained by an unauthorized use of his name,
it is a ratification of the assumed agency, which evinces his assent
to the original contract.

So, too, when an agent, acting within the scope of his actual
authority, perpetrates a fraud for the benefit of his principal, and
the latter receives the fruits of it, he thereby adopts the fraudulent
acts of the agent.

But the mere receipt, by the owner, of the proceeds of his own

property, is not a ratification of a collateral contract made without
his authority, and to which he never knowingly assented.

SMITH V. TRACY

PROCESS, SERVICE OF, on Convict in State Prison-Practice

See PRACTICE. 3.

PROPER SUBSTITUTION in case of Trustee Dying.

See TRUSTEE,

PROPORTIONAL DEDUCTIONS--Legacy, what Constitutes--Dower

See LEGACY.

PROVOCATION TO MURDER-Evidence of-Admissible when
See EVIDENCE. 3.

PURCHASER UNDER JUDGMENT OF FORECLOSURE-Juris-
diction

See FORECLOSURE.

R

RAILROAD-Negligence-Nonsuit-Presumptions for Plaintiffs

See NONSUIT.

REAL ESTATE-Deed not recorded-Consideration not paid-Subse-
quent Grantee.] A deed of real estate is not rendered invalid from
the fact that the considerations are not paid at the time of its exe-
cution and delivery. A subsequent grantee of land, purchasing
with knowledge of a prior conveyance, is not a bond fide pur-
chaser, even though the prior deed be not entered of record.
RING v. STEELE

2.

3.

Executor can enforce Bond to pay Mortgage on Tes-
See EXECUTOR.

tator's

Location of Boundary-Evidence.] Actual and con-
tinued possession of the premises adjoining the located line is not
essential to the existence of practical location. It does not depend
upon a pedis possessio of the land adjoining; but its existence may
be established by any competent evidence of the fact.

The surveying out, and fixing upon a line between adjoining
properties by the parties themselves, is such a practical location as
will control courses and distances; especially when, from the de-
scription in the deed or from the decay of boundaries, the line would
otherwise become uncertain. But such practical location must
have been acquiesced in for twenty years.

As evidence of acquiescence, it is competent to inquire of a wit-
ness whose relations to all parties have been such that, had there
ever been any dispute about the correct location of such line, he
would most likely have heard of it, “Did you ever hear of there
being more than one west line," etc., describing the marked line in
controversy.

RATCLIFFE V. GRAY

Possession of Husband under Wife, not adverse-Dam-
ages-Interest.] Where the husband is in possession under the
title of his wife, his possession can in no sense be considered as
adverse to her, as to those claiming under her.

Under the Code, the Plaintiff seeking to recover possession of land
may unite in the same complaint a claim to recover the land with
a claim for damages for withholding the same.

Interest is properly allowable upon damages for the unlawful
detention of real estate.

VANDERVOORT v. Gould

PAGE

345

54

100

18

1

333

8

46

171

117

57

PAGE

REAL ESTATE, Power to Sell-Will-Executor-Trustee
See WILL. 1.

repelled
See TITLE.

Title to Mortgage-Lapse of Time-Presumption

184

24

211

The

Words "Good and sufficient Deed "-Construction See WORDS. 1. RECEIVER-Compensation of-Discretion of Supreme Court.] Supreme Court has authority to fix upon the compensation to be paid to a receiver appointed by it to receive and apply rents pending the controversy attending the probate of a will.

A receiver is an officer of the Court, and as such, in the absence of legislation upon the subject, the Court has authority to determine the compensation to be paid.

GARDINER V. TYLER

RECOVERY FOR LOSS OF SERVICE, by whom-Injury-Misnomer no ground of Appeal

See APPEAL.

.

FROM STOCKHOLDERS-Insolvent Company divides

its Capital

See COMPANY.

REFEREE, POWERS OF, to allow Amendment Liability upon
Agreement to pay Third Party. Code, §§ 272, 173

See LIABILITY.

RELIEF TRIAL, EQUITABLE-Pleading-Lease-Assignment
See PLEADING. 2.

RELIGIOUS CORPORATIONS-Trustees-Cestui que trust-Change
of Doctrine.] A religious society incorporated under the General
Act of 1813 (April 5), is a corporation of all the members of such
society, and not of the trustees, or a limited portion of the mem-
bers.

The trustees of such society cannot take a trust for the sole benefit of members of the church, as distinguished from other members of such congregation.

Nor does such statutory incorporation contemplate or recognize the devotion of the corporate property to the support of a perpetual and unchangeable system of religious faith and doctrine.

A majority of the corporators, without respect to their religious tenets, have the entire control over the revenues of the corporation. GRAM V. PRUSSIA EMIGRATED EVAN. LUTH. GER. Soc. REMEDY AGAINST TAX ILLEGALLY ASSESSED-Injunction. Code, § 11.

See INJUNCTION.

REPLEVIN-Delivery-Title.] When property contracted to be delivered at a certain place, and at a certain price, has been delivered at the place so that it can be identified, and so that nothing further remains to be done except perhaps to measure or count, so as to determine the amount to be paid, the delivery is complete, and the title is fully vested in the vendee.

HYDE V. LATHROP

REVISED STATUTES:

Part II., Ch. 2.

See WILL. 2.

16i

203

124

328

226

339

106

320

148