which the corporation was created, gave no authority to the societies incorporated under it to take by devise. Held, also, that where a devise made directly to a corporation not authorized to take by devise is accompanied with a trust, it is wholly void in relation to the trust, as well as the legal estate. Discussion of the questions whether charitable and pious uses, when not consistent with the general rules of law, were sanctioned by the law of this state previous to the adoption of the Revised Statutes; and if so, whether they are not abolished by the statutory provisions in relation to trusts and perpetuities. Decree, that the heirs are entitled to the property, the costs of all the parties and the counsel fees of the executors to be paid out of the fund in the hands of the executors. The ex'rs of Abraham E. Brower, deceased v. The trustees for the Corporation of the Methodist Episcopal Church, Margaret Warner and others, CHEQUE. 17 302 Held, that a memorial stating, as part consideration for an annuity, the payment of a cheque on the 29th December, 1837, drawn on the defendant's bankers, was not void for! not stating when the cheque became payable as the court would presume the cheque was drawn on the day of date and imported payment on the same day. Doe d. Church v. Pontifex and un'r, Where the plaintiff's agents had upon presentation of a check for £112 16s. 6d. the amount of a debt due by him to A., refused to pay and retained the sum on account of a debi due from A. to B., for whom they were also agents, and B. agreed to indemnify the plaintiff against A.'s claim, and A. had brought an action against the plaintiff which B. defended by plaintiff's consent, but to satisfy the judgment in which the plaintiff paid £161 13s. 6d. : Held, that plaintiff was entitled to recover the latter amount from B. as money paid to B.'s use. Lewis v. Campbell, CODE. See INJUNCTION. ANSWER TO COMPLAINT. WITNESS. DIVORCE. APPEAL. PRACTICE. Costs. TRUSTEE. ARREST. COMMON CARRIERS. 144 COMPOSITION WITH CREDITORS. When there is a composition with creditors, every security privately given to a particular creditor, to induce him to sign the deed, is fraudulent and void. When the security is taken from the creditor himself, it is void upon the ground of duress, as well as of fraud. Such a security is not rendered valid by the circumstance that it could not operate to diminish the fund upon which the other creditors depend, nor to lessen the ability of the debtor or other person liable, upon the composition debt, to meet its stipulated payments. Held, that the note in suit having been exacted by the plaintiff as the condition of his signing a composition deed, was founded on an illegal consideration and wholly void. ads. Breck, CONSIGNOR AND CONSIGNEE. Cole 273 A factor, to whom goods are consigned for sale at his discretion, and who, after receiving the goods, makes advances upon them at the request of the consignor, without any special agreement as to its terms, is, notwithstanding such advances, bound to obey the directions of the consignor in regard to the time and terms of sale of the goods, though given subsequently to making the advances. If the factor wishes, in such a case, to reimburse himself the amount of his advances, he must, as a general rule, before he can sell the goods for that purpose, give reasonable notice to the consignor and demand the repayment of the advances; after which, if the advances are not refunded, he may sell so many of the goods as may be necessary to satisfy the amount due, including the charge attending the sale. Marfield, appellant against Goodhue and others, respondents, CONTINGENT LEGACY. See PIOUS USES. CONVEYANCE OF PASSENGERS. See ADMIRALTY JURISDICTION COPYRIGHT. 110. A purchaser under a sheriff's sale of a copperplate on which a map is engraved, acquires the right to take impressions therefrom and to sell them. Mr. Justice Pitman dissenting. Stevens v. Gladding and an'r, October No., 297 CORPORATION. Where private property is taken for a public use by a municipal corporation of varied powers and duties, in the exercise of the right of eminent domain, delegated by the state, in a proper case, and the estate which the corporation is authorized to take is a fee simple absolute, for which full compensation is made, the property does not revert to the owner in case the public use is discontinued. Property taken by such a corporation for an alms-house establishment is not subject to the same rule as that which applies to land taken for a road by a turnpike company. Heyward and o'rs v. The Mayor, &c. of New-York, 244 A corporation was created by statute, with power to make life and fire insurances, to grant annuities, and to make loans and invest its capital on bonds and mortgages; and the last section of the act declared that it should expire at the end of fifteen years, except as to insurances upon lives and granting annuities. By a subsequent statute, passed at the same session, the corporation was authorized to receive and execute trusts, of all kinds of property, in the same manner as other matters, and was directed to convert that property and invest the same in stocks and bonds and mortgages. It also provided for an increase of the capital stock of the company from $500,000 to $2,000,000. A statute, passed fourteen years afterwards, classified the directors, and limited the amount of trusts to five millions of dollars. Neither of the acts subsequent to the first contained any limitation upon the existence of the company. Held-That the charter was perpetual. That the limitation to fifteen years did not apply to the life insurance, annuity or trust powers conferred on the company; and that it had the power to loan money on bond and mortgage after the fifteen years had expired. That, in respect to the three principal purposes for which the corporation existed, it had power to loan on bond and mortgage. The power to loan is a necessary incident, and is implied as to all those purposes, although the express power to loan expired with the fifteen years. Clowes and wife, appellants against The Farmers' Loan and Trust Company, respondents, COSTS, 249 meanor, but merely alleged an attempt to defraud, &c., the conviction thereon was set aside and judgment arrested. Regina v. Marsh, 102 To warrant a conviction for seduction under the act of 22d March, 1848, there must be evidence to support the testimony of the female of a promise of marriage, as well as of the seduction. The People v. Hine, 139 If a servant receives from his master goods to sell and appropriates them to his own use, he is not guilty of embezzlement but larceny. Regina v. Hawkins, 356 DATE OF INSTRUMENT. The date of an instrument in writing is only prima facie evidence of the time of its actual execution. Parol evidence, when fraud or mistake is alleged, is always admissible to show when the instrument was in fact executed and delivered. Cole ads. Breck, 273 DEATH BY ACCIDENT. In an action for compensation to administratrix for testator's death, which was alleged to have been caused by the defendant's neglect, the judge who presided at the trial .directed the jury that if in their opinion the death happened from pure accident, or might have been avoided by due care on the part of the deceased, or the driver of the omnibus in which he rode, they would find for the defendant; and that if the death was attributable to the neglect of the defenda 's servant, to find for the plaintiff. He'd, a right direction and rule nisi for new trial was discharged. Thorow good, adm'x v. Bryant, 69 DEATH CAUSED BY WRONGFUL ACT, NEGLECT OR DEFAULT. Under the act of 1847, giving to the representatives of a deceased person a remedy by action where death was caused by wrongful act, neglect or default, the measure of damages is the pecuniary loss which the widow and next of kin have sustained by the death. Such action may be maintained, notwithstanding that the act causing the death is a felony and the wrong doer has not been tried therefor. Wise, adm'x, &c. v. Teerpenning, 153 DEMURRAGE. The shipper of a cargo is liable to the vessel for any unnecessary detention in loading or unloading, although no express contract is made on the subject. Whether the same rule applies to a mere consignee. Quere. Every improper detention of a vessel may be considered a demurrage, and compensation may be obtained for it under the name of demurrage. The admiralty has jurisdiction over sea, freights and demurrage resulting from such voyages. Sprague and o'rs v. West, August No., 241 On motion for a new trial, held, that a certificate of burial was not shown to be produced from the proper legal custody, where the witness who produced it stated he went to K., and upon inquiring for the house of the parish clerk, he saw, at a house to which he was directed, a man who said he was the parish clerk, and who produced a book, in answer to a request for the certificate, H. B., and the witness copied the same from such book. Doe d. Arundel v. Fowler, 271 In an action to recover a sum of money which had been paid by mistake, certain letters were ld properly to have been admitted to show a demand, and that no defence thereto had been set up, although no answer was sent, nor any admission of the receipt made. Gaskill v. Sheen, 302 EXECUTORS. Held, affirming the decision of the Vice-Chancellor of England, that executors who have proved a will are liable for the due execution of the trusts thereof, and will be accountable for a devastavit committed by a co-executor, notwithstanding any clause of indemnity coutained in the will. Stiles v. Guy, 101 Reasonable repairs and improvements, enhancing the value of the property, may be made by an executor upon leasehold estate, occupied by the legatees as a residence. In the matter of the final accounting of the ex'rs of Downing, 317 FALSE IMPRISONMENT. Three actions were brought against a constable for false imprisonment, aud against another defendant for pointing out the plaintiffs as the parties concerned in the sale of a horse which had escaped and broken a boy's arm, and the plaintiffs were taken into custody, but discharged by a magistrate: Held, that the question of bona fides of the constable was rightly imported into the question by the judge in his direction to the jury, and that In an action of assumpsit on a French judgment, evidence was held properly admitted under a plea of non-assumpsit, to prove that the foreigu judgment was irregular and void on the ground of insufficiency in the service of notice or process according to the law of France. Vallee v. Dumergue, 301 FRAUD. Agreement void, as being a fraud on the Common Council and as being inconsistent with public policy and sound morality. Wall and others v. Charlick and others, A 230 deed was set aside for fraud, except so far as related to bona fide creditors, where it was executed for the purpose of avoiding the Judicial Committee of the Privy Council, who had confirmed a decree of an Ecclesiastical Court for a divorce. Blenkinsopp v. Blenkinsopp and others, 270 FRAUDULENT ASSIGNMENT. An assignment by an insolvent debtor of all his property in trust to pay certain specified creditors; and then (without making any provision for other creditors) in trust to reconvey the residue of the property to the debtor held to be a fraud upon the creditors who are not provided for by the deed. Barney v. Griffin and others, 68 IMMORAL CONSIDERATION. A demurrer was allowed to bill filed for the discovery of the consideration and terms of an instrument, and for an injunction restraining an action at law thereon, where the plaintiff admitted by his bill that he had participated in the immoral act which the deed was calculated to produce. Benyon v. Nettlefold, 204 INJUNCTION. On a motion to show cause why an injunction should not issue, the defendant may read in opposition to the motion, the affidavits of third persons, although he has put in his answer denying the whole merits of the complaint. The answer in such case is only used as an affidavit. The court will, however, permit the plaintiff to put in affidavits in reply to such new matter. Sec. 226 of the Code does not conflict with the allowance in this case of affidavits in reply on behalf of the plaintiff. Upon an application to dissolve an injunction on the answer of the defendant, such new matter not responsive to the complaint, should, perhaps, be considered as an affidavit merely, within the meaning of this section. Florence, jr. v. Bates, 13 An injunction will only be granted in aid of a legal right, where such right has heen estab 37 lished at law and continues to exist. Sain- LIABILITY OF ATTORNEY FOR REter v. Ferguson, FRESHMENTS. Held, reversing the decision of the Vice Chancellor of England, and dissolving an injunction staying further proceedings on a judgment recovered in an action for breach of contract, that as there was no fraud shown in obtaining the contract, for the breach of which the action was brought, the plaintiff at law was entitled to proceed on the judgment. Maclure v. Ripley, 297 Where a warrant of attorney was given further to secure the payment of moneys advanced at the plaintiff's request, and the defeasance provided that judgment might be entered and execution issued on default of payment of the premiums of a policy of insurance, which was also given by way of security; an injunction was dismissed with costs to restrain execution, where the policy had been forfeited by non-payment of the premiums, although the creditor had at the expiration of four days procured a renewal of the policy by payment of such premiums. Winthrop v. Murray, 298 JOINT STOCK COMPANY. In order to entitle a purchaser of shares in a joint stock company to have the transfer set aside, he must show that false representations as to the prospects and success of the company were made either by the directors or by some anthorized person; and that a mis-statement by the law agent employed only to recover the debts, was insufficient to support a charge of fraud. Barnes v. Pennell and others, 35 JURISDICTION OF THE U. S. CIRCUIT The United States Circuit Court have jurisdic- Where the residence of the defendant is out of LESSOR AND LESSEE. 105 Where an attorney to an abortive railway company had sometimes ordered refreshments for the provisional directors, and had, when called on for payment, promised to see to it and get it paid, and had also subsequently paid money on account, he was held liable in an action to recover the balance, although the bill had first been made out in the name of the company. Held, that the registry of shareholders had been properly rejected as evidence at the trial. Hitchcock v. Smith, LIBEL. 206 In support of a justification to a libel, that th plaintiff was "a libellous journalist," the record of a judgment obtained against the plaintiff for libel, with £100 damages was produced: Held insufficient, the libel being general. Wakley v. Cooke and another, 205 The publication of ex parte preliminary proceedings before a police magistrate in criminal matters is not privileged. The publisher must find his justification not in privilege, but in the truth of the publication. Stanley v. Webb, 209 The defendants, proprietors of a weekly paper, published of the plaintiff as follows: "Sometime about the year 1834, there was a Sunday paper in this city termed the Sunday Courier,' which was started by John Tryon. This establisment Tryon sold to Bennett, who gave his note for the purchase money, and which note Tryon paid away without recourse to himself. The man who took the note was at the time well off, the money was of no consequence to him, and Bennett got possession of the types, presses, &c., but he not having ability to make a Sunday paper go, it died off. When the note became due, Bennett could not pay, and begged the holder of the note to wait. The man did wait, and some years after, Bennett having got on, the note was sued, but Bennett pleaded the statute of limitations, and got off scot free." The defendants pleaded, 1st. Not guilty. 2d. That the said supposed libel was not published maliciously or falsely, but that the same was true in substance and in fact; and 3d. That it was not published maliciously, and that the plaintiff has not suffered any damage whatever. Demurrer to 2d and 3d pleas. Held, that the second plea was good, and that the third plea was bad; but that the declaration showed no cause of action; the words not being libellous per se, and that upon the whole case there must therefore be judgment for the defendants. Bennett against Williamson and Burns, 217 LIEN. The vendor of an unexpired term for years, has a lien and an equitable mortgage on the When a trust is created to secure the rents and 3, § 55, in the article of Uses and Trusts, but Hence, as every charge is a disposition, partial or entire, according to the amouut, the beneficiary cannot pledge the rents and profits by anticipation, nor create any lien thereon in law or equity. The objection is not answered by showing that Nor when the beneficiary is a married woman by him for the preservation or protection of Where the trustee is unwilling to become personally liable, he may, by an express agreement, transfer his own equitable lien to a third party, advancing the necessary funds, or rendering the necessary services. Noyes v. Blakeman, 189 MORTGAGE. The court will not stay the proceedings in a suit to foreclose a mortgage given for consideration money, on the ground that a suit has been brought to recover possession of the mortgaged premises by a third party claiming under an adverse title. It is only after eviction, where the premises have been conveyed with warranty, that the court will interfere, and that, in order to prevent circuity of action. Platt v. Gilchrist and others, 7 NON-RESIDENT DEBTORS. The plaintiff, in a judgment against two defendants in assumpsit, with process served only upon one, took out an attachment against both as non-resident debtors, swearing to a debt upon the judgment; whereupon the defendant, not served, gave a bond to dissolve the attachment, conditioned to pay any sum due by the alleged debtors on account of any debt so claimed and sworn to. In an action on the bond in the Superior Court, the plaintiff recovered upon proof of the judgment, and the joint liability of the defendant not served. Held, by Jewett, Cady and Hoyt, J. J., that the plaintiff could not recover because the affidavit upon which the attachment issued did not state that the demand, as against the defendant not served, arose upon the original contract, or that the judgment was to be made effectual by proof of such demand; and by Bronson, J., that such judgment was not evidence against the defendant not served, and that no action would lie upon it. Gardiner, Shankland and Strong, J. J. contra. A judgment may be reversed on bill of exceptions, by the vote of five judges of this court, though they may not agree that any one decision excepted to was wrong. It seems the law is settled, except in the Court of Appeals; that a joint debtor judgment may be sued or proceeded upon against all the defendants, in the same form as though all had been served, and that the plaintiff has no demand except on the judgment. The judgment is no evidence of the liability of the defendant not served, and only prima facie evidence of the amount of the demand. Oakley, respondent v. Aspinwall and others, appellants, PAROL AGREEMENT. 123 |