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that she could not make the payment as agreed, and declined to take the premises. Plaintiff proved a verbal arrangement with the holders of the mortgages, that they should take the mortgage to be given by defendant and release their mortgages. It does not appear that any releases were executed. Defendant was a married woman having a separate estate. The complaint was dismissed on the trial in the court below.

Held, that it was not error. A tender of the deed, without the releases of the mortgages, was not an offer to perform under the contract. That defendant's note stating that she could not perform, even if it relieved plaintiff from the obligation to tender a clear title, did not relieve him from the necessity of having the mortgages discharged before a specific performance could be adjudged. Hinckley v. Smith. Opinion by Leonard, C.

2. Coverture is not a defense to an action for the specific performance by a married woman of a contract for the purchase of land, where she has a separate estate. (Earl, C., dissenting.)

TENANTS IN COMMON-MEASURE OF DAMAGES.

1. This action was originally commenced in justice's court, for damages for the unlawful conversion of a quantity of corn and oats. It appeared that plaintiff and defendant were tenants in common of the grain, and agreed to a division thereof, and settled upon the portion belonging to plaintiff, without making any actual separation of the quantity to which plaintiff was entitled. Defendant retained possession of the grain. Plaintiff afterward demanded his share of the grain, and defendant refused to deliver it to him.

Held, that the apportionment operated as a severance of the tenancy in common, and plaintiff could maintain an action for the conversion thereof against the defendant his former co-tenant, although his portion was never in fact separated. Defendant's possession after the severance was simply that of a bailee. (Matthews v. Coe, distinguished and limited.) Lobdell v. Stowell. Opinion by Lott, Ch. C.

2. It was proper for plaintiff to prove, on the trial in the county court, what had been the highest price of the grain between the time of the conversion and the trial. The highest price up to the last trial was the proper measure of damages. Ib.

GENERAL TERM ABSTRACT.

SUPREME COURT SECOND DEPARTMENT.

LIFE INSURANCE.

Suicide by one insane: sane or insane: construction of policy. Action on a policy of life insurance which provided that it should be void "in case he (the insured) should die by his own hand, sane or insane."

The insured died from a pistol shot wound received from the discharge of a pistol while in his own hands. The judge charged the jury that if the death was caused by an accidental explosion of the pistol, or if, at the time of the explosion, the mental condition of the assured was such that the act was not a voluntary act of his own will, in either case, the company was liable. The jury found that at the time of his death the insured was not a responsible being, and that the act was not a voluntary one. Plaintiff had judgment and defendant appeals.

Held, that the directions to the jury were right. In Breasted et al v. The Farmers' Loan and Trust Company, 4 Seld. 299, the words in the policy were similar to those in this policy, except that the words "sane or insane," were omitted, and it was held that the words "death by his own hand" had reference to criminal self-destruction, and that a death by accident, and one by the party's "own hand" stand on principle in the same category. The introduction of the words "sane or insane" in the policy can have no further effect than to hold the policy void if the assured intended self-destruction while in a state of insanity. Judgment affirmed. De Gogorza v. The Knickerbocker Life Insurance Company. Opinion by Barnard, P. J.

LEASES. See Executors and Administrators

MORTGAGES.

Defendant executed a mortgage, which, when acknowledged by her, had no name of a mortgagee therein. Defendant's husband, by agreement with his father, purposely left a blank, known only to them, in order that they could get the money and insert the name of the person who should advance it. Having failed to ac complish this purpose, defendant's husband inserted his father's name, without authority from defendant to do so. Defendant never ratified her husband's act. Held, that the mortgage was not made effectual as security for the loan. (Chauncey v. Arnold, 24 N. Y. 330, cited.) Trundy v. Erkenbrack. Opinion by Barnard, P. J.

NOTES AND BILLS.

What is bona fide holding of note.- Where a party took a note for which he canceled an old obligation and advanced $250, the difference between the note and the debt given up, and postponed the time of payment of the old debt until the note became due, Held, that he was a bona fide holder of the note. Cornell v. Perkins. Opinion by Barnard, P. J.

PARTIES, JOINDER OF. See Contracts.

PARTNERSHIP.

1. Amending summons to bring in newly discovered partners. Where plaintiff has a claim against a firm, and being unable to ascertain the names of all the partners, has obtained judgment thereon against one partner only and made a levy on the partnership property, he can, by leave of court, amend the summons and complaint so as to insert the names of the partners previously omitted. Phair v. Baragonotti. Opinion by Barnard, P. J.

2. Receivers of partnership property. - By the appointment of a receiver of partnership effects, all the property of the firm passes to him, subject to all existing legal liens, and a levy on the partnership property, made on a judgment recovered against the partnership after the receiver was appointed, will be set aside. Ib.

3. Dissolution of partnership: what is a declaration of dissolution. - Where goods were ordered in the name of a firm, by a clerk in its employ, after a declaration made to the clerk by one of the partners that he "did not intend to go on with the business," such a declaration did not terminate the partnership of itself, and the firm was liable for the goods so purchased. Kellam v. Northrop. Opinion by Barnard,

P. J.

PAYMENTS. See Contracts.
PRACTICE. See Partnership.

PRINCIPAL AND AGENT. See Insurance.

PUBLIC OFFICERS.

Expenses incurred in defending title to office: construction of statutes. - Application having been made to the State superintendent to remove the relator from his office as trustee of a school district, under section 18, title 1 of the general school act, and having been refused, said relator asked for a mandamus to compel the payment of his expenses incurred in that proceeding.

Held, that the controversy was a purely personal one, and did not present a case in which relator was entitled to have the district pay his expenses. It is only when the trustees of a school district bring or defend an action or proceeding touching any property or claim of the district, or involving its rights or interests, that such trustee can ask the district to pay the expense incurred. Laws of 1864, chapter 555. The People ex rel. Berrian v. Drake et al. Opinion by Barnard, P. J.

REAL ESTATE.

1. Construction of a devise of real property.- Action to enforce specific performance of a contract to buy land. Plaintiff's grantor took the land under a devise in which the testator used words ordinarily used to devise a fee, but applied them to "the use of a farm of land" * * * "as long as he (the devisee) lives," and in the same clause of the will disposed of the fee simple of the premises after the devisee's death.

Held, that plaintiffs' grantor had no more than a life estate in the land, and plaintiff could not give a good title to defendant. Judgment for defendant. Hoag v. Henderson. Opinion by Barnard, P. J.

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1. Trustees entitled to possession of church property. - Plaintiffs were the trustees of the M. E. church at Rockville Center, which is a corporation under the general act of 1813, providing for the incorporation of religious societies. Defendant was regularly appointed pastor of this congregation by the conference, having ecclesiastical jurisdiction for that purpose. Prior to the appointment of defendant, the plaintiffs, under the instruction of the congregation, advised said conference that they would receive no minister whom the conference might appoint for the then ensuing year, and requested that no appointment be made. Defendant, being duly appointed, offered his services to the congregation, but was not received as pastor or permitted to act as such; but having obtained possession of the parsonage attached to the church, against the will of the trustees and congregation, he was sued in this action of ejectment. Plaintiffs had judgment. On appeal,

Held, that the members of the congregation must be permitted, so far as the civil courts are concerned, to determine their own course of conduct toward the ecclesiastical tribunal to which they voluntarily submitted in becoming Methodists; and the conference must be left free to declare, within its ecclesiastical jurisdiction, the relations between itself and those who, as Methodists, still refused submission to its authority. With this phase of the controversy we have nothing to do; the action is a naked action at

law. Plaintiffs have the legal title to the property in question and to its possession, and the members of the congregation, who are the corporation in fact, have authorized them to refuse to receive as pastor, any one whom the conference might appoint. Defendant relies only on his appointment by the conference. This furnishes no defense to the action. Judgment affirmed. The Trustees of the M. E. Church at Rockville Center v. Connor. Opinion by Barnard, P. J.

2. The trustees and members of the society, forming a corporation, have exclusive control over the premises in question, and no tribunal external to themselves, even in their own ecclesiastical organization, can, so far as the law is concerned, disturb them in their possession. Ib.

REFERENCE.

1. Finding on conflicting evidence not to be disturbed. - Defendant, a member of the firm of W. & Co., employed plaintiff to do defendant's work in the business of said firm, and on defendant's credit. Plaintiff did the work. The evidence was conflicting, but the referee found for plaintiff and gave judgment against defendant individually,

Held, that where the evidence conflicts, the referee's finding will not be disturbed. Judgment affirmed. Girardin v. Widerkorn. Opinion by Barnard, P. J.

2. Ib.- Action to recover the price of a horse which plaintiff testified that he sold to defendant in July, 1870, for $100. Defendant testified that plaintiff purchased of him, in August, a colt for $500 and paid the horse in question to him upon the purchase, at $100. The referee found for plaintiff.

Held, that the referee's finding should not be disturbed. Judgment affirmed. Edson v. Dinehart. Opinion by Barnard, P. J.

SHERIFF.

Responsible for property retained by the debtor and forfeited after seizure under attachment.—The complaint avers a seizure by defendant, under attachment papers in favor of plaintiff, against R., of certain property of the latter, of more than the value of plaintiff's claim against him, the recovery of judgment, issue of execution and return of the same unsatisfied. The proof showed a seizure of this property by the United States government in March, 1867, and its release in April, before the seizure by defendant, and its seizure by the government for a forfeiture in and by an illegal use by R. after the seizure by defendant. There was proof from which the jury might have found that the defendant left the property in R.'s hands to be used in violation of law.

Held, that in such case the sheriff would be liable for its forfeiture for such use and it was error to charge the jury that "if the government actually sold the property in October, 1867, there was no property to be levied upon and sold in January thereafter, when the execution reached the sheriff's hands, and it follows that he is not liable." Judgment reversed and new trial granted. Doherty v. Campbell, sheriff, etc. Opinion by Barnard, P. J.

STATUTES, CONSTRUCTION OF. See Public Officers.

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WILLS.

Proof of authority: undue influence.- Action to set aside. probate of will. Testator was 60 or 70 years old when the will was made, and did not speak English well. He executed it at the store of E., who was the executor named therein; was testator's son-in-law, and whose wife was a large beneficiary under the will. One of the witnesses to the will testified that he signed it at E.'s request, and had no recollection of what testator said; he thought he saw testator sign, but could not swear to it. The other witness was requested to sign by E.'s son, and could not recollect whether deceased signed the will in his presence, but was under the impression that the deceased understood it was a will, but he did not tell the witness what the paper was, and witness did not know what it was. Witness talked in French with deceased about some points in the paper. Deceased said there was a clause in it about $2,000, which he had given to E. in his business, and asked witness if the words in English were correct according to the idea which he expressed in French; that witness looked over the paper and found it correct. There is no mention of $2,000 in this will. Another witness testified that the deceased acknowledged the paper to be his will, and that he had signed it; was not sure whether the other witnesses were then present; that testator said that he, witness, should certify it. This certificate is the usual formal acknowledg nent of deceased and E., that they had executed the foregoing instrument, and acknowledged that they executed the same. E. testified to the formal execution of the will, and contradicted both witnesses as to the request to sign and publication of the will to the witnesses by deceased. Proponent's lawyer drew the will, and he was not sworn, nor were any of the deceased's family sworn, to show why the son was cut off from participation in his father's estate, except for a very small sum. The dealing between the deceased and E. suggested a suspicion that he probably had a motive to be the executor of the will.

Held, that the probate should be set aside and the case be sent to a jury for determination. In the Matter of the Probate of the will of Andre Maclin. Opinion by Barnard, P. J.

Also, see Costs; Executors and Administrators.

FOURTH DEPARTMENT, APRIL, 1873.

CANAL BOATS-CONTRIBUTORY NEGLIGENCE. Action for damages. Plaintiff was the owner of a packet-boat on the canal, carrying passengers; defendant was a boatman, and navigating said canal with his boat. Plaintiff attempted to, pass with his boat the defendant's boat, claiming a preference in entering a lock, under the statute, as carrier of passengers. Defendant, to prevent such passage, inclined the bow of his boat so as to collide with plaintiff, causing serious loss. Defendant's counsel moved for nonsuit: 1. On the ground that plaintiff's boat was not chiefly used for transportation of passengers, and not entitled to a preference; 2. That plaintiff was guilty of contributory negligence. Plaintiff asked to go to the jury on these and other questions. Also as to whether defendaut intentionally and willfully ran his boat into plaintiff's. Court granted nonsuit.

Held, the county court erred in directing a nonsuit. Boats carrying passengers have a preference under the

Revised Statutes, and plaintiff's boat was such a one, and entitled to enter the lock first. Plaintiff was entitled to have the jury pass upon the question, whether he contributed to his own injury or whether it was the willful act of the defendant alone. Defendant had no right to obstruct the way or hinder plaintiff from passing, or do him an injury. It appears by the evidence, clearly, that defendant urged his boat against that of plaintiff. The case should have been submitted to the jury. Houghton v. Wallace. Opinion by Smith, J.

CERTIORARI.

The defendants on April 14, 1871, commenced initiatory proceedings to pave a street. Subsequent action was had in alleged conformity with the city charter. On or about July 20, 1871, the work was commenced and was completed, accepted and approved by the city' authorities, September 27, 1872. The superintendent of the work was a person appointed by the defendants, on the petition of the relators and others. The certiorari was granted about 9th January, 1873, long after the work was completed, and the assessment roll for its payment was at the time in the hands of the city treasurer for collection.

Held, that so long a time has elapsed, that it would be unjust and unreasonable to review the proceedings with a view of their reversal. The relators and those interested have laid by and seen the work completed under a superintendent of their own selection, and are estopped from questioning the right of the city to make such improvements. The common council, in principle and in fact, are agents of the property owners and relators, and those interested herein, by allowing the improvements to be made without remonstrance, have affirmed these acts. Granting the common-law writ of certiorari is in the discretion of the court, and if improvidently issued the court will dismiss the writ. Writ of error quashed with costs to respondent. People ex rel. Curtis v. Common Council of Utica. Opinion by Smith, J.

CONTRACT.

Plaintiff agreed with defendant to purchase, and defendant to sell a certain quantity of shingles, and all defendant might manufacture during a certain time, at a fixed price. Plaintiff advanced a sum of money on the contract and took shingles amounting to a part of the sum, and then refused to take more. Defendant sold the remaining shingles at a loss and claimed to deduct the loss from the amount of money in his hands belonging to plaintiff. In an action brought by plaintiff for the whole amount of his money in defendant's hands, the referee allowed the amount of the loss to be deducted, and gave judgments for the balance.

Held, that the referee's conclusions were correct. He practically charged plaintiff with all the shingles manufactured and delivered under the contract, allowed him to apply on the contract price the proceeds of the sale, and charges him with the loss sustained by defendant by his non-performance, and gives judgment for the excess. Judgment affirmed. Simmons v. Lee. Opinion by Smith, J.

CONTRACT BY BAILEE.

It appears that defendant was the owner of a horse, and intrusted same to one T. residing in another county, to be kept at pasture without any charge therefor. T. kept said horse on his farm and occasionally rode him.

he took said horse to a village to attend a fair and left him in the hotel barn at night. The horse was tied with a halter in a stall in said barn, and in the morning one of his legs was found to be broken. T. then sent for the plaintiff and employed him to take care of said horse, and attempt to cure him for a certain sum. Plaintiff agreed to do so, and removed the horse to his barn. Defendant, at the time of the accident, was absent, and in another county, but was shortly afterward informed of the accident, and that the horse was left with plaintiff under above arrangement, and made no objection to it. In an action to recover for the keeping of said horse by plaintiff,

Held, that T., as bailee in the absence of the owner of the horse, was bound to take such care of him as he would of his own, and would have been guilty of negligence, if he had omitted to do so. His contract was a reasonable one, as appeared by the evidence. As bailee in possession, he had implied authority to contract on behalf of defendant, until at least defendant could be informed of the accident, and make other arrangements if he chose. Defendant was appraised of the contract and did not disaffirm it, and is liable for amount of plaintiff's claim. Hailer v. Blanchard. Opinion by Smith, J.

COUNTY COURT -APPEAL.

Appeal from the report of a referee in an action pending in the circuit court. No motion for a new trial was made in said court previous to this appeal, nor had the referee's report been reviewed in said court.

Held, that section 344 of the code, giving the right of appeal from judgments rendered in the county court, never intended to give such reviews upon cases and judgments not rendered or reviewed, and affirmed by said court. Motion for new trial should first have been made in said court. The same rule applies to judgments rendered by referees in that court, as to those rendered by the court itself. Appeal dismissed with costs. Hatcher v. Ferrill. Opinion by Smith, J.

EVIDENCE-PRACTICE.

This action was originally brought in a justice's court. On the trial defendant offered in evidence an execution, in an action between plaintiff and one D., with the sheriff's certificate attached, showing the payment of said execution against plaintiff by defendant, under section 293 of the code. Said payment was not alleged in the answer, and was in fact made after the commencement of this suit. Plaintiff objected to the testimony as not admissible, under the answer, and on the further ground that such payment was made after the commencement of the action. The justice received the evidence under objection, took four days for decision, and then gave judgment for the plaintiff, and rejected said evidence.

Held, that while the justice erred in receiving said testimony, he could not reject if after the close of the trial. Defendant might have put in a supplemental answer if the justice had refused the evidence on the trial, but the receipt of it and its rejection after submission of the case, when it is too late to rectify the mistake, is error. Hall v. Olney. Opinion by Smith, J.

EVIDENCE.

Action to recover the value of a cow belonging to plaintiff, and alleged to have been killed by defendant. Defendant alleged by answer, and proved, that said cow while trespassing on his premises drank whey,

and claimed that she died from the effects thereof. Defendant called two witnesses, both dairymen, who testified from experience and observation, the effects of whey when drank by cows, showing that it killed them, etc.

Held, that the evidence was admissible and proper. The cow drank whey as alleged, and it was proper to show the effects of whey on cows. The testimony of men in the dairy business, and who have long kept cows, derived from their observation and experience in such matters, was not merely an expression of opinion but a statement of facts, upon which an opinion might be based, and was proper to present to the jury. Casles v. Youny. Opinion by Smith, J.

MARRIED WOMEN.

Action on a promissory note of $40, made by defendant, who was a married woman, and had no seperate estate, nor was engaged in any business separate from her husband, tried before a referee, who found for defendant.

Held, that the contracts of married women are still invalid, as at common law, when not given in the cases allowed by the statutes of March 20, 1860, entitled "An act concerning the rights and liabilities of husband and wife." The note is not saved by this or any statute. The fact that defendant had expectations of receiving money upon the death of her husband, upon an ante nuptial agreement does make the note valid. It was clearly void when given. Judgment affirmed. Kinne v. Kinne. Opinion by Smith, J.

SURETY.

Action on bond of surety. — Plaintiff appointed one F., by written power of attorney, an agent to sell sewing machines. F. gave the bond in suit as security to plaintiffs for the payment of money collected, etc. This action is brought to recover of surety a balance due plaintiff by F. All the goods had been furnished F. by plaintiffs on his own order. F. had several partners interested with him in said sales, but it does not appear that plaintiff ever recognized them or relied upon them for payment, or ever sold them any of the machines they received, or ever relinquished the relation of principal to F.

Held, that plaintiff could recover on the bond. The relations of partnership, between F. and others unsanctioned by plaintiff, did not affect plaintiff's rights. Palmer v. Bagg. Opinion by Smith, J.

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1. Statute of frauds: promises to pay the debt of another.-Defendant was owner and S. a sub-lessee of certain premises in New York. S. employed plaintiff to repair the premises at an agreed price, $4,700, of which he paid $1,000 when the work was partly done. In default of further payment plaintiff left off the work, when defendant told him that he, defendant, had promised to pay S. $2,000 toward these repairs, and would pay it to plaintiff if he would complete the repairs; plaintiff did so and brought this action for the $2,000.

Held, that defendant was liable on his promise, which was an original one, and on valid consideration. Tallman v. Bressler. Opinion by Fancher, J.

2. Mortgage of lease: mortgagee not in possession is not liable for rent.-S. assigned to plaintiff the lease of said premises "as collateral security for the payment of $3,700 to become due to plaintiff on completion of the repairs; on the payment of said sum said plaintiff is to re-assign this lease to said S." Defendant sought to counter-claim against plaintiff for the rent due under the lease. Plaintiff entered into possession of the premises only for the purpose of making said repairs. Held, that plaintiff did not have possession as assignee of the lease, and was not a mortgagee in possession, or liable for the rent. It is only when a mortgagee takes possession that he has the estate com onere and becomes liable as assignee on the covenants in the lease. Ib. See, also, Counter-claim; New York City.

COVENANTS. See Negligence.

CORPORATIONS.

1. Transfers of stock.-Defendant, a corporation under the laws of Maryland, issued to one G., and entered on its books, a certificate for 100 shares of its capital stock. G., on Aug. 30, 1859, signed a blank power of attorney on the back of said certificate, and delivered it to M. as collateral security for a debt then due from G. to M. This power of attorney was not filled up till about the time it was first presented to the company, January 9, 1864, while this stock stood in G.'s name on the defendant's books, no notice having been given to defendant of said power of attorney, and on September 28, 1863, it was attached and sold in due form of law by a judgment creditor of G. In 1860 M. failed, and, among other property, assigned said certificate to plaintiff. In an action against the company the referee found that the title to the stock passed from G. to M. by the transfer of said certificate and the power of attorney; that the title of said stock passed from M. to plaintiff by the assignment to him, and gave judgment to plaintiff for the value of the stock in March, 1864, with interest. Held, that G. parted with all his interest in the stock by delivery of the certificate and power of attorney to M., and that the subsequent sale on attachment and execution against G. conveyed no title to the purchaser, the holder of the certificate and power alone had authority thereafter to have a transfer made on the defendant's books. The by-law of the company that "no transfer of stock shall be valid unless made on the books of the company," etc., is solely for the company's protection - until such transfer on their books, or notice thereof, the company will be protected in paying the dividends to the original stockholder, and the latter can vote at the elections; but a transfer of his stock by the shareholder, though not on the company's books, passes the title to the stock subject to any liens or claims of the company; and the latter is liable for suffering an act that invested a third party with the ownership of the shares without the production and surrender of the original certificate. Judgment affirmed. Smith v. The American Coal Company of Allegany County. Opinion by Fancher, J.

2. Corporations do not cease to exist by abuse of their powers: transfers after sale of stock for non-payment of assessments. - Plaintiff took transfers, dated April 8, 1867, of certificates of stock issued to D. on Feb. 26, 1856, and also of certificates issued to G. Dec. 21, 1854, and brought this action for damages for defendant's refusal to transfer this stock to him. Many years

prior to such purchase by plaintiff, and while the original stockholders owned the shares, they were sold for non-payment of assessments, and new certificates were issued therefor to the purchasers, the original owners having notice of and submitting to such action by the company. The charter of the company was a Vermont statute, and was expressly made subject to the compiled statutes of Vermont, which provided that the shares in any private corporation might be sold in case the owner should neglect or refuse to pay any tax or assessment duly laid agreeably to the by-laws thereof; and the charter of the company authorized the making and alteration of such by-laws as a majority of the corporators should direct. The assessment and sale in question were authorized at a meeting of the stockholders held in New York city, Dec. 26, 1856. Defendants had judgment.

Held, that the assessment and sale were made under lawful authority, and whatever irregularities existed in the manner and place of holding the meeting at which they were made, the original owners of the stock in question, having participated and acquiesced in the proceeding, were bound thereby, and, having lost their title, could convey none. A corporation does not cease to exist by an abuse of its power, until the State has forfeited its charter. Judgment affirmed. Ormsby v. The Vermont Copper Mining Company. Opinion by Fancher, J. Also, see Accounting.

3. Penalties: individual liability of officers of foreign corporations. Plaintiff Price, of the firm of Wilson, Price & Co., was a stockholder and director and the president of the N. J. Patent Company. That corporation was indebted to the firm of W., P. & Co. By the laws of New Jersey such a corporation is required annually to give a certain newspaper a verified notice, of the amount of stock actually paid in, signed by the president and a majority of the directors. The corporation neglected to give that notice, and thereby plaintiff incurred a statutory liability. Plaintiff having brought an action to settle the partnership of which he was a member, and for an accounting among the partners, the question arose whether the statutory liability he had incurred could be brought into the accounting. Held, that said liability for neglect was in the nature of a penalty; and, being imposed by the laws of another State, would not be enforced in our courts. Price v. Wilson et al. Opinion by Learned, J.

3. Reference: striking out testimony. - Where the trial by a referee was adjourned pending the crossexamination of a party to the action, and such party was notified to appear for further cross-examination under penalty of having his examination stricken out in case of default so to appear, and he having failed to appear, his examination was stricken out on motion and notice to said party's counsel. Held, to be correct. Ib. 5. Partnership: waiver.· Where by the articles of copartnership one of the partners was to be allowed $1,000 per annum for his services, and such services had been performed for sixteen months, the neglect of another partner having charge of the books, to credit him his salary, while the salaries of other partners had been credited, is not enough to show a waiver of the salary. Ib.

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