1. The relator was charged with neg-
lect of duty as a member of the
Metropolitan Police, by reason of
being absent from duty from October
26, 1861, to January 8, 1863. On
this charge he was convicted, on a
trial before the Board of Police.
As the rules stood at the time of
such conviction, there could only
be a conviction for absence from
duty without leave. Held that the
effect of the conviction was that the
relator was convicted simply of be-
ing absent from duty, for the period
mentioned; and that the conviction
was for a matter which, at the time,
constituted no offense. The People
ex rel. Cook v. Board of Police,

626

2. And that, although, so far as the
proof was concerned, it perhaps
would be incumbent on the accused,
after absence from duty had been
shown, to prove that he had leave,
it was absolutely necessary that the
record should show a conviction
for some offense punishable by the
board convicting him.
ib

absence during the time he was un-
lawfully dismissed from service. He
is not guilty of any offense for be-
ing absent at such a time. Per
ib
LEONARD, J.

MORTGAGE.

1. In June, 1853, D. and wife executed
a mortgage to B. to secure the pay-
ment of $7500. In 1859 a judgment
was recovered against D. upon the
bond collateral to this mortgage,
and an execution issued thereon was
returned unsatisfied. In December,
1853, D. and wife conveyed the
mortgaged premises to S. & C. for
$41,000, by a full covenant deed,
the purchase money being paid or
secured by mortgages upon the
premises. One of the mortgages
was for $7500, which was deposited
with a third person, for this pur-
pose, viz: that if D. should fail to
procure the original mortgage to B.
to be set aside, the depositary
should dispose of the mortgage so
deposited with him, to pay off the
original mortgage, and should de-
liver the proceeds to S. & C. for
that purpose; and if D. should suc-
ceed in setting aside the inortgage
to B. then the depositary should de-
liver the mortgage in his hands to
D. to be disposed of as he should
see fit. In an action subsequently
brought by B., to foreclose the origi-
nal mortgage given by D. and wife,
D. set up the defense of usury, but
failed to establish the defense. The
mortgage deposited was then, with
the consent of S., delivered to D.
who assigned the same, and the as-
signee brought a suit to foreclose
it. In an action brought by B.
against S. & C. to foreclose the
original mortgage given by D. and
wife, it was held that the defendants,
by their purchase and grant, ac-
quired all the estate and title of
their grantor, with the right to de-
fend their title against the plaintiff's
mortgage; and that they were not
estopped, by the circumstances above
mentioned, from proving usury in
such mortgage. MORGAN, J. dis-
359
sented. Berdan v. Sedgwick,

2. A subsequent mortgagee, who takes
his mortgage expressly subject to a
prior mortgage, which is liable to be

4. A principal is liable for the false
representations of his agent, made
in and about the matter for which
he was appointed agent, not on the
ground of express authority given
to the agent to make the statement,
but on the ground that as to the
particular matter for which the
agent is appointed he stands in the
place of the principal, and whatever
he does or says in and about that
matter is the act and declaration of
the principal, for which the principal
is just as liable as if he had person-
ally done the act, or made the de-
claration.

ib

5. The power of the agent to render
the principal liable for representa-

7.

Thus, where a municipal corpora-
tion had power to negotiate a lease
of a slip, and in the course of such
negotiation to render itself liable for
any misrepresentation made in rela-
tion thereto; Held that it had also
power to appoint an agent to con-
duct the negotiation, and from such
appointment there flowed to the
agent the power to render the cor-
poration liable for any misrepre-
sentation. CLERKE, J. dissented. b

8. After the granting of a lease of a
slip, by the corporation of New
York, to S., the lessee informed the
officers of the corporation that his
possession of the property, which
had been represented to him to be-
long to the city, had been obstruct-
ed. The common council then passed
a resolution directing the property
to be surveyed. It was surveyed,
and the surveyor made a map rep-
resenting the property to belong
precisely in accordance with the
representations made to S. There-
upon another resolution was passed,
directing the corporation counsel to
put and keep the lessee in the pos-
session and enjoyment of the prop-
erty as laid down on the map.
that the reasonable presumption and
fair intendment was that the com-
mon council, when it passed these
resolutions, knew of the representa-
tions that had been made, and passed
the resolutions in view of them; and
that this was a ratification of the act
of the committee in making such
representations; and the common
council, in effect, again represented
that the corporation owned the
property.
ib

Held

N

NEGLIGENCE.

1. The defendants were engaged, un-
der a contract with the state au-
thorities, in removing a sunken boat
from the channel of the canal, by
means of a steam dredging machine,
in the vicinity of the plaintiff's farm
buildings; using wood for fuel, with-
out any spark-catcher or screen up-
on their smoke-stack. A high wind
blowing the sparks and cinders to
and over the farm buildings, the de-
fendants were notified by the plain-
tiff's agent or servant of the danger
to said buildings; notwithstanding
which, the defendants continued to
use their dredge, keeping up the fire
thereon without putting on a spark-
catcher, or using any extra precau-
tion to prevent injury from fire.
The buildings of the plaintiff being
consumed by fire communicated to
a pile of straw, by sparks; Held that
the defendants were guilty of care-
lessness and negligence, and were
liable for the damages occasioned
by the fire. Teall v. Barton,

137

2. Held, also, that a question put to a
witness, as to whether he considered
it dangerous to use a steam-dredge
without a spark-catcher, was prop-
erly overruled; it not being a ques-
tion of science or skill, and not fall-
ing within the rule relating to
evidence by experts.
ib

3. And that a question, to a witness,
whether he had ever known any
accident to happen from sparks from
a dredge at the same distance from
the dredge, was also properly over-
ruled.
ib

4. The plaintiff, while driving his horse
drawing a loaded wagon, upon a
public highway, himself being on
foot at the time, in the highway,
met the two-horse wagon of the de-
fendant, loaded with ice. The de-
fendant had thrown his reins upon
the ice, and was walking behind his
wagon; the ice being so high that
he could not see ahead, and his
horses going without any guidance.
As the wagons approached each oth-
er, the plaintiff turned his horse to
the right, as far as he could go, out of

the road. He then stopped his horse
and stepped between the wheels of
his wagon, getting as close to the
wagon as possible. The defendant's
team not turning out, at all, the
whiffletree of his wagon caught in the
plaintiff's overcoat, and the plain-
tiff was thrown upon the ground,
and dragged along, receiving serious
injuries. In an action for damages
it was held: 1. That it was a proper
case to submit to the jury the ques-
tion whether the plaintiff was guilty
of negligence. But that negligence
on the part of the plaintiff was not
sufficiently established to authorize
the judge to charge that there was
such negligence on his part, contrib-
uting to the injury. 2. That there
was no error in the refusal of the
judge to charge that the undisputed
fact that at the time of the injury
the plaintiff was standing in the
open road, on the exposed side of the
his wagon, within reach of the whif-
fletree of the defendant's wagon, as
it was passing without a driver, es-
tablished negligence on the part of
the plaintiff. 3. That the testimony
being conflicting as to the degree of
blame attaching to the plaintiff, the
burden of proof was upon him to
satisfy the jury that he was free
from any negligence contributing to
the injury; and that the judge erred
in declining so to charge. Welling
v. Judge,
193

In cases involving mutual negli-
gence, the question whether inde-
pendent evidence is required of the
plaintiff, to establish that he was
not guilty of negligence, must de-
pend, greatly, upon the circumstan-
ces of each particular case. While
in some cases the plaintiff must
prove, affirmatively, that he did not
contribute to the injury, in others
the transaction itself, as presented
by the evidence, establishes that he
did not. Per MILLER, J.
ib

Where a party, having obtained
permission from a municipal corpo-
ration to lay gas pipes in a street,
makes a contract with another per-
son to do the work, he is liable for
the negligence of the servants of
the latter, in consequence of which
an injury is sustained by an individ-
ual. McCamus v. The Citizens' Gas
Light Co.,
380

PARTNERSHIP.

The defendants agreed to enter in
to copartnership with each other
as produce commission merchants,
the business to commence as soon
as one of the number should re-
ceive and pay in $6000. The money-
was not paid in, but nevertheless an
office was taken by the parties, upon
which a sign was placed, containing
the name of the firm, and bill-heads
were printed, and a set of books
opened in the firm name, without
any objection.on the part of either
of the partners, or any attempt to
repel the idea of a partnership.
One of the partners, in the name of
the firm, made an agreement with
H. by which the latter was employ-
ed as a traveling agent of the firm,
his compensation being a part of
the profits on the business he should
obtain; and the firm agreed to ac-
cept and pay H.'s draft upon them,
in favor of the plaintiff, for the
amount H. owned, to the plaintiff.
Held 1. That the defendants had, by
their acts and language, held them-
selves out and represented them-
selves to H. as partners; and that
as to the business with him they
acted as partners, and he believed
them to be and dealt with them as
such. 2. That the agreement with
H. though made by one of the part-
ners without the knowledge of the
others, being within the legitimate
scope of the business of the firm,
was as binding upon the firm as it
would have been had all assented
to it. Burns v. Rowland,
See PARTIES.

PLEADING.

See COMPLAINT.
PARTIES, 2. 3.

POSSESSION.

368

the debtors to account for and pay
over the proceeds of property sold
by them must be brought against
both; and if brought against one,
only, the objection of the non-joind-
er of the other is properly taken by
demurrer.

See ATTORNEY, 1.
VENDOR AND PURCHASER, 5, 6.

ib

surety, was, after the execution
thereof, by agreement between the
principal and the payee, but with-
out the knowledge or assent of the
surety, altered by an addition
thereto, making the interest paya-
ble semi-annually; Held, that this
was a material alteration, which
rendered the instrument void, as
against the surety. Dewey v. Reed, 16

2. The maker of a promissory note
has the whole of the last day of
grace in which to pay it. And if it
be payable at a bank, an action
commenced against the maker on
the last day of grace, though it be
after banking hours at such bank,
will be prematurely brought, and
the plaintiff should be nonsuited.
Smith v. Aylesworth,
104

3. The official seal of a notary public,
upon his certificate of the present-
ment and non-payment of a prom-
issory note, and of protest and
notice, verifies the whole official re-
cital of facts, whether in one part
or more, if all are on the face of
the same paper thus impressed.
And it makes no difference whether
the impression of the seal is at the
top of the recital or recitals, or at
the bottom, or in the middle. Ol-
cott v. Tioga Rail Road Co., 179