EVIDENCE, PLAINTIFF'S, OF COST-Trover and Conversion—
Evidence of Value-Rebuttal

See TROVER. 2.

-Presumption Knowledge of Contract-Liability of Third
Party. Mere knowledge by the Defendant, that a party had
agreed with the Plaintiff to procure his, Defendant's, notes in pay-
ment for property purchased by such party, imposes no liability
upon the Defendant.

FITCH v. DEDERICK

EXCEPTIONS IN MARINE INSURANCE POLICY-State of
Civil War-Historical Facts as Evidence

See MARINE INSURANCE.

EXCHANGE, BILL OF-Usury-Acceptance by Drawee-Custom-
ary Rate of Discount

See BILL OF EXCHANGE.

EXECUTION

2.

3.

Sheriff's Liability for Non-return.] A Sheriff neglect-
ing to return an execution within the time required by law, is, primâ
facie, liable for the amount called for on the execution. If he
would avoid such liability in any degree he must show that the De-
fendant in execution had not sufficient personal property whereon
to levy the same, or some evidence in mitigation of damage. Failing
to do so, it is not error for the Judge to direct a verdict against
him.
BROOKFIELD V. REMSEN .

PAGE

328

192

Statutory Exemption-Team of Householders-Joint
Debtors and Owners.] The language of the statute, exempting
from levy and sale on execution certain property of the judgment-
debtor, should be construed in harmony with the humane and re-
medial purposes thereof.

Where two householders own a team between them, which, if
owned by either individually, would be exempt under the statute,
it is likewise exempted as firm property.

STEWART V. BROWN

Sale in Good Faith-Principal and Surety-Consider-
ation-Liability.] The assumption of a new liability is a good
consideration to constitute the party assuming it a purchaser in
good faith.

Where a surety of the parties purchased of them their stock of
goods, and agreed to assume their liabilities, and to indemnify them
against their indebtedness for the same, his relation as surety for
them became changed to that of principal; and that change of re-
lation and new liability furnished a sufficient consideration to con-
stitute him a purchaser in good faith.

As against a purchaser in good faith, an execution does not
become a lien on the personal chattels of the debtor until actual
levy.

WILLIAMS V. SHELLY

EXEMPTION OF UNITED STATES SECURITIES FROM TAXA-
TION-State Taxation-Savings Banks

See STATE TAXATION.

STATUTORY, FROM TAXATION-Team of House-

holders-Joint Debtors and Owners

159

302

278

502

314

See EXECUTION.

EXPLANATION OR CONTRADICTION OF RECEIPT-Payment
by Note-Parol Evidence-Fraud

See PAROL EVIDENCE. 1.

EXPULSION OF PASSENGER FROM CAR-Principal and Agent
-Obligation to Indemnify-Former Judgment as Evidence-Note of
Surety in Satisfaction.] When the conductor, by obeying the in-
structions of the railroad company, to enforce the rules and regula-
tions of the company, has been held liable, upon the ground that
the company had no authority to make and enforce such rule, he
may recover of the company the damage he may have sustained in
consequence of such obedience.

HOWE v. BUFFALO, NEW YORK & ERIE R. R. Co.
EXTRINSIC EVIDENCE-Form of Complaint-Acceptance of Draft
-Letter of Credit

See LETTER OF CREDIT.

PAGE

245

249

105

F

FACTS AS EVIDENCE, HISTORICAL-State of Civil War-
Marine Insurance-Exceptions in Policy

See MARINE INSURANCE.

FACT, FINDINGS OF-Evidence-Bond and Mortgage-Considera-

159

27

Practice-Foreclosure-Building Associations

311

FAITH, GOOD, SALE IN-Execution-Principal and Surety-Con-
sideration-Liability.

386

FEE, ESTATE IN-Life Estate-Construction of Will-Statute rela-
tive to Bequests

FELONY-Evidence-Confessions of Criminal.] Where a prisoner,
being arrested and imprisoned on charge of having committed a
felony, makes a free statement of his guilt, without any influence
having been used to induce the confession, or to interfere with the
free voluntary action of the prisoner's mind, such a statement
may be used as evidence on the trial of prisoner for the alleged
felony.

The remark of an officer to the prisoner, that he was in a bad fix,
that he was caught at last, and an inquiry as to who were the others
with him, had no tendency to influence the mind of the prisoner
improperly, so as to render his confession thereupon inadmissible
as evidence against him.

PEOPLE V. WENTZ

485

513

PAGE

FILING OF CHATTEL MORTGAGE-Renewal-Non-residence.
See CHATTEL MORTGAGE.

FINDINGS OF FACT-Evidence-Bond and Mortgage-Considera-
tion

See BOND AND MORTGAGE.

110

27

214

JURY-Insanity-Province of Court

See INSANITY.
FORECLOSURE - Original Contract- Usury-Subsequent Taint-
Practice Amendment of Complaint.] A party claiming to be the
victim of usurious exaction cannot avail himself of the invalidity
of a later contract to shield himself from liability on one of an ear-
lier date, which was honest and free from vice.

2.

3.

When a new note was given, including as a part of the considera-
tion thereof the amount of a note previously due and unpaid, the
fact that the new note was void for usury will not shield the party
from the payment of the original note.

FARMERS AND MECHANICS' BANK v. JOSLYN

-Practice - Judgment and Report of Sale-Amend-
ment nunc pro tunc.] The judgment of foreclosure and the report
of sale are proceedings in the same Court, which has authority to
amend its proceedings, including its order of sale at any time, nunc
pro tunc.

A motion to amend the order of sale after the premises had been
sold by the Sheriff of the county, so that it should read, "that the
premises to be sold by the Sheriff, &c.," instead of, “by A. B., re-
feree," &c., is in the discretion of the Court.

-Building Associations-Usury-Practice-Findings
of Fact.] This Court cannot go beyond the findings of the Special
Term to determine whether the conclusions of law are erroneous.
If a party desires to present questions of fact, he must present
them through the proper findings of the Judge, referee, or jury.
CITY BUILDING AND LOAN Co. v. FATTY.

-DEFICIENCY ON-Married Woman-Separate
Estate-Liability-Contracts-Statutes of 1848 and 1849 .
See MARRIED WOMEN.

FORMER JUDGMENT AS EVIDENCE-Expulsion of Passenger
from Car-Principal and Agent-Obligation to Indemnity-Note
of Surety in Satisfaction

See EXPULSION.

FORM OF COMPLAINT-Extrinsic Evidence-Acceptance of Draft
-Letter of Credit

See LETTER OF CREDIT.

FRAUD-Coercion-General Assignment - Conditional Preferences
-Composition Deed

See GENERAL ASSIGNMENT.

308

409

311

69

249

105

80

FRAUD, CONSTRUCTIVE-Specific Performance-Judicial Sale-
Election Day-Statute, Construction of

See CONSTRUCTIVE FRAUD.

OF VENDOR-Sale and Delivery-Title in Vendor-Bonâ
Fide Purchaser

See SALE AND DELIVERY.

FRAUDS, STATUTE OF-Parol Agreement-Consideration.
See PAROL AGREEMENT.

FRAUDULENT REPRESENTATIONS-Third Party-Evidence of
Intent to Defraud.] Upon the question of intent to commit a fraud
by the purchase of goods upon credit, it is competent to prove
that the same party made fraudulent purchases from other parties,
about the same time: such evidence is deemed proper for the pur-
pose of establishing the intent with which the purchase in question
was made.

-VENDOR-Bonâ fide purchaser.] A bonâ fide pur-
chaser for value from a fraudulent vendor acquires a good title.
BARRINGER V. HAMMOND.

FREIGHT MONEY-Charterers-Master of Vessel-Payment to one of
two Claimants-Effect of Trust.] Where two claimants for the same
service apply for payment to the party, bound to pay for such
service, and one party is recognized as being entitled and is paid,
the other party does not, thereby, acquire any claim upon the
party receiving payment, but must still enforce his claim, if he
have any, against the party bound to pay for such service.
PATRICK V. METCALF

PAGE

19

184

95

295

115

235

G

GENERAL ASSIGNMENT-Conditional preferences-Composition
deed-Coercion-Fraud.] A general assignment of property in
trust for the benefit of creditors-to pay, first, confidential and ac-
commodation creditors; secondly, those creditors who had exe-
cuted the conditional release, fifty per cent. on their claims; and
thirdly, the residue of the creditors-is not fraudulent and void
as to any class of creditors.

Such a trust, in no sense, operates to hinder or delay creditors
in prosecuting their legal remedies against their debtors.
SPAULDING V. STRANG

80

-Statute as to Set-off-Obligation of

Assignor

464

See STATUTE AS TO SET-OFF.

GOOD FAITH, SALE IN-Execution-Principal and Surety-Con-

sideration-Liability.

314

See EXECUTION. 3.

TO INTENDED PURCHASER, Advances made in

-Bill of Lading

366

See BILL OF LADING.

GRANDCHILDREN AND CHILDREN-Issue-Will-Devise-Re-

mainder

See WILL. 2.

412

H

PAGE

HOLDER, BONA FIDE-Promissory Note-Usury

See PROMISSORY NOTE. 3.

HOUSEHOLDERS, TEAM OF-Joint Debtors and Owners-Execu--
tion Statutory Exemption.

See EXECUTION. 2.

I

INCORPORATION-Trust-Director .

See TRUST.

INDEBTEDNESS, CERTIFICATES OF, not Exempt from Local
Taxes-United States Securities

See UNITED STATES SECURITIES. 1.

INDICTMENT, REQUIREMENT IN AN-Larceny-Special Prop-
erty in Agent-Jurors' Challenge-Interest.] The distinction be-
tween the commencement and the caption of an indictment stated
by Fullerton, J.

"The Jurors of the People of the State of New York in and for
the body of the county of Cortland, upon their oaths present," &c.,
is a sufficient commencement.

A caption is no part of the indictment, and is only used when
the proceedings are removed from an inferior to a superior court,
by error, &c., and it consists wholly of the history of the proceed-
ings in finding the indictment in the inferior court. Thus the his-
tory names the court where the indictment was found, the jurors'
names by whom found, and the time and place of the finding of the
same, with such averments as to show regularity and jurisdiction.
A person employed by the superintendent of the poor in a
county to purchase provisions for the poor-house, &c., has neither a
general nor special property in the property thus purchased.

The office of superintendent of the poor is a mere agency of the
county, and may be considered as having a special property in pro-
visions purchased for the use of the poor. But the actual property
is in the county, and, when stolen, should be laid in the indict-
ment as the property of the county.

PEOPLE V. BENNETT

INJURIES CAUSING DEATH-Measure of damages-Notes of Testi-
mony-Evidence.] It is not negligence for a passenger in a car,
when there are no seats unoccupied, to attempt to pass to another
car for a seat, in obedience to the direction of Defendant's em-
ployé.

The question of contributing negligence is one of fact, and be-
longs to the jury.

In an action for producing death by negligence, &c., the jury must
be satisfied that pecuniary injuries have resulted; and if so satis-
fied, they are at liberty to allow them from whatever source they
actually proceeded, and which could produce them.

MCINTIRE V. NEW YORK CENTRAL R. R. Co.

400

502

INSANITY-Findings of jury-Province of Court.] On the question
of insanity, the judgment of a jury, when guided by the ability
and discretion of an enlightened Judge, should not be lightly re-
versed.

When a decent, quiet, orderly man, meeting with losses of sup-
posed importance to his position in society, abandons his business,