right of redemption of his real estate previously sold upon execution on the judgment against him, under which defendant claims title. The action in which the receiver was appointed was not one in rem, relating to real estate or within the common-law powers of the court of chancery, in which it was pending, having reference to fraudulent trusts or conveyances of real estate or one affecting the title of the land. It was a proceeding in the nature of a creditor's bill as authorized by the provisions of the Revised Statutes (2 R. S. 174), to collect a judgment recovered for $199.12, and prior to the sale upon the execution, under which the defendant claims title, the receiver had been fully paid the amount due on that judgment, and the only claim by him was for some unpaid costs of a warrant of commitment. The receiver, however, executed a reconveyance to the judgment-debtor subsequent to the sale on execution of the lands, under which defendant claims title. Such an action by creditor's bill (2 R. S. 174, § 39) is confined to such satisfaction as may be obtained "out of any personal property," etc., belonging to the judgment-debtor, and did not bring the real estate of the debtor within the jurisdiction of the court of chancery, and could, at most, affect it only by a sequestration of rents due or to become due. It did not authorize the court to sequestrate the title to the land and vest it in its receiver. It could not supersede the necessity for a sale under execution of the debtor's interest in the land nor deprive him of the right of redemption afforded by statute. 3 How. 185; 6 Barb. 599-603, unreversed in this respect in 6 N. Y. 252-255; 9 N. Y. 148, cited. The act of 1845 (ch. 112) does not profess to extend the general jurisdiction of the court upon proceedings instituted as a mere creditor's bill, that in no way involved its powers in matters of alleged trust or fraud, nor authorized it to seize upon or sequester the debtor's title to real estate. The statute (2 R. S. 370, § 46) authorized the redemption of real estate sold under execution: First. By the judgmentdebtor; or Second. (If dead) By his heir or devisee; or Third. By his grantee "who shall have procured an absolute title by deed," etc. The title vested in the receiver was not such an "absolute title " by deed or otherwise as divested the judgment-debtor of right of redemption. The purchaser acquired a mere lien (Vaughn v. Ely, 4 Barb. 157; Hodge v. Gallop, 3 Denio. 536, cited), and on payment of the amount necessary to make the redemption the sale and the certificate thereof became void. The right of redemption is remedial and is to receive a liberal construction in favor of those whose estates would otherwise be divested. Dutton v. Hepburn, 10 Pet. 1; Chapin v. Cartamis, 15 Ill. 427; Masterton v. Reasley, 3 Ohio, 310. The right of redemption and its exercise having been duly proved the defendant failed to establish any claim of title, and the judgment against him should be affirmed. Livingston v. Arnoux. Opinion by Robinson, J. STATUTES, CONSTRUCTION OF. See Penal Acts; Contracts; Redemption of Lands.

their manufacture. The referee has found, on conflicting proofs, that these words "were not used by the plaintiffs to designate the ownership or origin, or particular manufacture of this preparation, but solely to indicate to physicians and the community of druggists the name of the three principal ingredients of which it is composed, to wit, iron, mixed or combined with phosphorus and Calisaya bark." On appeal from judgment in favor of defendant, entered on referees' report: Held, that the finding fully warrants the judgment, and nothing appears in the evidence to warrant its reversal. To maintain a claim to a trademark, it must be shown to consist of a “sign, device,” or words indicating plaintiffs' ownership of the goods sold or manufactured by them, and distinguish their particular origin with them from those manufactured or sold by others. The terms, devices, or symbols so claimed must not be used as descriptive of the article as to kind, quality, composition, utility, designed use, class of customers, or place of its origin. Amoskeag Manufacturing Co. v. Spear, 2 Sandf. 599, 612; Corwin v. Daly, 7 Bosw. 222; Candee v. Deere, 5 Am. Rep. 125; Witherspoon v. Currie, 23 L. T. N. S. 443; Fetridge v. Wells, Abb. Pr. 144; Batty v. Hill, 8 L. T. N. S. 791; Wolfe v. Goulard, 18 How. Pr. 64; Williams v. Johnson, 2 Bosw. 1, cited. The testimony clearly showed that this name was adopted as intending to indicate, by well-understood scientific terms, the article and its chemical compounds. There is no legal basis for affording the plaintiffs a monopoly of these terms of the English language, such as they seek by their complaint. Judgment affirmed. Caswell v. Davis. Opinion by Robinson, J.; Larremore, J., concurring.

2. Dissenting opinion. The learned chief judge, in dissent, reviews exhaustively the testimony before the referee, and says that it did not warrant the judgment and it should be reversed. He says the word was distinctive, being new in its application, and, as a compound word or name, it denoted what it was in fact, a new product or preparation compounded for the first time in a new way. It was new-it was distinctive — in its character, and denoted the origin of the article to which it was affixed. That is, it denoted what plaintiff meant it should, a peculiar preparation which was first made and sold by them. It comes in all respects within names of like character, protected as trademarks. The learned judge cites Delaware Canal Co. v. Clark, 13 Wall. 322; Burnett v. Phalon, 3 Keyes, 594; 9 Bosw. 195; The Congress, etc., Co. v. The High Rock Co., 45 N. Y. 291; Bradley v. Norton, 33 Conn. 157; The Dixon, etc., Co. v. Sugenheim, 2 Brewster, 21; Lockwood v. Bostwick, 2 Daly, 555; Dale v. Smithson, 12 Abb. Pr. 237; Meserole v. Tyneburg, 36 How. Pr. 14; Pidding v. Hone, 8 Sim. 477. Ib. Opinion by Daly, C. J., dissentiente.

SUPREME COURT-FIRST DEPARTMENT, MAY TERM, 1873.*

ABATEMENT. See Revivor.

ACTION PENDING. See Summary Proceedings.
ADMISSIONS. See Pleadings.

ARREST. See Brokers.
ASSIGNMENT. See Sheriffs.

AUCTIONS. See Contracts.

* Prepared by Hugh L. Cole and Nicholas Murray, counselors at law, No. 8 Broad street, New York City.

BROKERS.

Construction of contracts: property received in "fiduciary capacity:" arrest. - Appeal from an order denying a motion to vacate an order of arrest. This action was brought to recover damages for the alleged conversion of certain United States bonds, received by the defendant in a fiduciary capacity, and as the agent of plaintiff. The complaint alleges an unauthorized and fraudulent disposal of the bonds, and refusal to deliver them to the plaintiff after the demand and notice, required in a certain receipt. This recites the receipt of the bonds and says: "These bonds we hold subject to the order of A. L. P. (the plaintiff), at ten days notice, agreeing to collect the coupons for his account free of charge, and to allow him two per cent per annum interest on the par value of said bonds, said interest to commence and count June 1, 1866. The order of arrest was based on the verified complaint and an affidavit of a third party to the effect above stated.

Held, that the cases on which the appellant relies (as Dry Dock Bank v. American Life Insurance Co., 3 N. Y. 355; and Dubois v. Thompson, 25 How. Pr. 418) are inapplicable to this case, as they were a mere borrowing of stock which was not to be returned in specie. The receipt in this case made it the duty of the defendant to return the same bonds received by him, on ten days' notice. Even if he had a right to use the bonds for his own purposes, that right was subordinate to the obligation which he assumed to return the same bonds, to collect the coupons on them and repay the proceeds to the plaintiff. He was bound to protect the bonds and to return them on demand. His refusal to do so was a conversion for which the defendant is liable. Order affirmed. Palmer v. Hussey. Opinion by Ingraham, P. J.

CASES REVIEWED. See Former Adjudication; Usury. CODE OF PROCEDURE. See Landlord and Tenant. CONFLICT OF LAWS. See Usury. CONSTITUTIONAL LAW. See Landlord and Tenant.

CONTRACTS.

1. Description of premises: interpretation of contracts: when map will control description: specific performance: auction sales. Appeal from a judgment in favor of plaintiff. This action is to compel a specific performance of a sale of certain lots, in the city of New York, purchased by the plaintiff at auction. The point in dispute is substantially whether the conveyance thereof should describe them as bounded on a street. A map prepared by defendant was produced at, and came into possession of plaintiff, before the bidding at the auction. By this map all of the three disputed lots were bounded on the boulevard, and lot No. 63 appears to be at its south-easterly intersection with 135th street, and Nos. 70 and 71 are respectively at its north-easterly and southeasterly intersections with 134th street. The justice below also found that the auctioneer, before putting up these three lots, described them to the persons present, including the plaintiff, as corner lots. 135th street, on the map, appears to cross the boulevard as does 134th street, except that a dotted line runs across that street on the east line of the boulevard. The judgment directs that lot No. 63 be described as bounded northwardly by the strip of land laid out and designated on the map as 135th street; and so as to the other lots.

Held, that if by defendant's map, and by the statements of his auctioneer, the purchasers were justified in

believing that the lots in question were corner lots, he must carry out the sale in the manner in which they were justified in understanding it. The familiar prineiple, that the words of a contract must be taken most strongly against him who uses them, should hold this defendant strictly to all which the purchasers might properly understand from the map or the auctioneer's language. There can be no doubt that the lots, as sold, were respectively bounded on their side by a strip of land designated as a street. Judgment affirmed. Phillips v. Higgins. Opinion by Learned, J.

2. Evidence of intention. - Evidence of what the defendant intended to sell is clearly inadmissible. The rights of the parties depend on what took place at the sale, not on the intentions of the defendant, which were not communicated to the plaintiff. Ib.

3. Description of premises: interpretation of contracts: covenants. This appeal is from a judgment in favor of the plaintiff and appellant, but which failed to award the entire relief demanded in the complaint. The action sought an injunction to restrain defendants from erecting any building upon or occupying, otherwise than for a court yard, a strip of land at and near the southeasterly corner of 22d street and Broadway, in the city of New York. It is founded upon an agreement in writing, executed May 12, 1849, between Kearney and Macomb, the then owners of the land affected by said agreement. The title of the parties to this action is derived from Macomb. The agreement recites, that the parties are severally owners of "divers lots of lands; " one of them of lots on the northerly side, and the other of them of lots on the southerly side "of 22d street, between the 4th avenue and Broadway." And whereas divers dwelling-houses have been erected on each side of said street which have been set back seven feet and six inches from the line of the street; and the parties hereto, deeming it for their mutual advantage that the lots fronting said street, when built upon between the said 4th avenue and Broadway, should be occupied exclusively for dwelling-houses, and that the fronts of all such dwelling-houses should be placed back seven feet and six inches from the line of the street, so as to range with those already built, and that no nuisance should be permitted on said lots between the 4th avenue and Broadway aforesaid." It is then agreed "that so much of their respective lots as is contained between the line of the street and a line seven feet and six inches therefrom shall forever remain and be enjoyed as a court-yard in front of any houses to be erected on said lots." The agreement also contains covenants against nuisances on the lots and provisions that the agreement shall run with the land. Held, that the recitals make it clear that the parties contemplated the erection of dwelling-houses only on the premises, and had in view the fronting of all of them on 22d street. This is apparent from the provision as to nuisances. The boundary on Broadway and 4th avenue is made subsidiary to the purpose of the parties, which was to create a court yard space on either side of the street from 4th avenue to Broadway, and to restrict the lots against nuisances. At the time the agreement was made the corner property was altogether unoccupied, and there was but little business use for it. The fact that the land on Broadway has become valuable for business purposes is no reason for modifying the agreement. It was not made for the benefit of the corner lot, but for all the lots described. The description used by the parties clearly embraces the lots on the Broadway corner, and the judgment should

be modified by extending the injunction to them. Clark v. The New York Life Insurance & Trust Co. et al. Opinion by Fancher, J.

Also, see Brokers.

CONVEYANCES. See Sheriffs.
COVENANTS. See Contracts.

DESCRIPTION. See Contracts. DISPOSSESSION. See Summary Proceedings. ESTOPPEL. See Former Adjudications.

EVIDENCE.

lease on November 30, 1866, were set up in the first action, and the finding was in favor of the plaintiff. The judgment was affirmed on appeal to this court. (Learned v. Ryder, 5 Alb. L. J. 232.) The answer in this action avers an abandonment by the tenant before the quarter's rent became due, on the 30th November, 1866, because the buildings had become untenantable, and that the tenant then surrendered the premises, and the plaintiff took possession of the same. Upon the trial the record of the former action was put in evi

Held, that there were circumstances of suspicion about the case, and so much conflicting evidence, that if the verdict had been for the defendant, it could not have been interfered with. But the case upon the evidence resolved itself into a question of credibility, and the finding of the jury must be sustained. Judgment affirmed. Jacobs v. O'Brien, sheriff. Opinion by Davis, J.

2. Separate property of married woman: semble.-The common law regarding the business relations of husband and wife is unchanged, save by the statutes; and under the statutes as against creditors the property with which the wife trades must come elsewhere than from her husband. Ib.

3. Burden of proof: notes, bills, etc.: conflict of testimony. This action is brought to recover upon certain promissory notes. The notes in suit, with others, were indorsed, without consideration, by the defendaut, for the purpose of their being used to effect a settlement with the creditors of the maker of the note, and, if such settlement failed, they were to be destroyed. The settlement did not take place, and these notes went into the possession of the plaintiff. On appeal from judgment in favor of defeudant:

Held, that to enable the plaintiff herein to recover upon the notes, the burden is on him to show that he took them before their maturity and paid value for them. Upon these questions the testimony was contradictory, and the referee having found on such conIflict of evidence for the defendant, the judgment cannot be disturbed on appeal. Michelbacker v. Staab. Opinion by Ingraham, P. J.

4. Admission of evidence. The question whether defendant had not indorsed other notes for the maker of the ones in suit was immaterial and properly excluded. Ib. Also, see Wills; Sheriffs; Reference; Former Adjudication.

FIDUCIARY CAPACITY. See Brokers.
FORECLOSURE. See Landlord and Tenant.

FORMER ADJUDICATION.

Estoppel by former adjudication: landlord and tenant: surrender: evidence: case reviewed. This action was brought to recover the rent of a house and lot in the city of New York, with the furniture, falling due on the 1st day of February, 1867. The action is against the surety on the lease. . A previous action had been brought for the rent due in August and November, 1866, and a recovery had therefor. The question as to the condition of the house, and the surrender of the

refused to allow evidence to prove that the premises had become untenantable from injuries from the elements, and of the abandonment and surrender averred by the answer. The reason assigned for this ruling was, that these questions had all been gone into upon the former trial, and a verdict rendered for the plaintiff. The court directed the jury to find a verdict for the plaintiff. On appeal from the judgment entered thereon:

There was no decis

Held, this ruling was erroneous. ion in the former action that the surrender was not a bar to rent which would accrue subsequent to such surrender. That decision was merely that a surrender on November 30 was no defense to a claim for rent due on the 1st day of November preceding. It decided nothing as to the effect of that surrender on the subsequent liability of the defendant. Judgment reversed and new trial ordered. Learned v. Ryder, Opinion by Ingraham, P. J.

INNKEEPERS. See Reference.
INJUNCTIONS. See Contracts.

JURORS. See Landlord and Tenant.

LANDLORD AND TENANT.

1. Redemption by dispossessed tenant: summary proceedings: foreclosure of mortgage on lease. -- The relators seek, on certiorari, to reverse the decision of Justice Fowler, in certain dispossession proceedings taken before him. The important question is as to the position which the relators hold to the defendant Stuyvesant. The facts of the case appear sufficiently in the holding of the general term.

Held: In 1867 Stuyvesant leased, for ten years, to Browning and Moore, certain premises in New York, for the rent of $6,000 per annum. In 1868 B. and M. executed to Stuyvesant a mortgage on the leased property, and other property, for $20.000. In April, 1869, Stuyvesant went into possession under a dispossession warrant. By the statute (4 Stat. at Large, 66, act 1842, ch. 240), as the unexpired term exceeded five years, the lessee had a right to redeem within one year. B. and M. had, therefore, a right to redeem their lease, by paying the rent in arrear, and costs. Thereupon Stuyvesant, the mortgagee, proceeded to foreclose the mortgage, in an action in which the relators were parties. On the foreclosure sale the relators purchased, and accepted the deed executed under the judgment, October, 1869. Under that deed they went into possession. That deed in form conveys the premises, with the leases, unexpired, of B. and M., "to have and to hold for the unexpired term of said leases." The judgment under which the deed was executed provided that out of the avails of the sale there should be first deducted the rents due by B. and M., on the lease, before the payment to the plaintiff of the amount due on his mortgage. By this, Stuyvesant in effect provided that the statutory right of redemption should be exercised, so that any purchaser at the foreclosure sale should obtain the benefit of the lease to B. and M., free from

The Albany Law Journal.

ALBANY, OCTOBER 4, 1873.

RAILROAD AID BONDS IN THE UNITED STATES SUPREME COURT.

In addition to the decisions of the United States Supreme Court, which we noticed last week, there were several of the same term in relation to defenses to actions brought upon municipal bonds given in aid of railroads. In Kennicott et al. v. Supervisors of Wayne County, Mr. Justice Hunt, in delivering the judgment of the court, said:

"The following propositions may be considered as settled in this court:

"1. If an election or other fact is required to authorize the issue of the bonds of a municipal corporation, and if the result of that election, or the existence of that fact, is by law to be ascertained and declared by any judge, officer or tribunal, and that judge, officer or tribunal, on behalf of the corporation, executes or issues the bonds, with a recital that the election has been held, or that the fact exists or has taken place, this will be sufficient evidence of the fact to all bona fide holders of the bonds. Authorities, infra.

"2. If there be lawful authority for the municipality to issue its bonds, the omission of formalities and ceremonies, or the existence of fraud on the part of the agents of the municipality issuing the bonds, cannot be urged against a bona fide holder seeking to enforce them. Grand Chute v. Winegar; Com'rs of Knox Co. v. Aspinwall, 21 How. 539; Gelpcke v. Dubuque, 1 Wall. 203; Moran v. Miami County, 2 Black, 722.

"3. There must, however, be an original authority, by statute, to the municipality to issue bonds. Municipal corporations have not the power, except through the special authority of the legislature, to issue corporate bonds which will bind their towns: neither have they the power to sell or mortgage the lands belonging to such towns, without special authority. Marsh v. Fulton County, 10 Wall. 676.”

Grand Chute v. Winegar, decided at the December term, 1872, was an action to recover the amount of several bonds, with interest, bearing date March 12, 1855, and payable in fifteen years. The bonds were issued by the defendants, under authority of an act of the legislature, to aid in the construction of a plank-road. The defendants, among other things, set up that the bonds were issued without the authority of the town purporting to issue them, and through the fraud of the agents of the town and of the obligees. The plaintiff was a bona fide holder for value. On this question the court said:

ant, the board of commissioners, possessed no authority to execute, or to authorize to be executed, the bonds in question, and hence that they are obligations not binding upon the county of Knox, which this board represents. Our chief inquiry, therefore, will be, whether or not these several obligations were executed and put into circulation as evidence of indebtedness by competent legal authority. Upon the inquiry thus put the decision is stated by the reporter in the following language: 'Where the statute of a State provided that the board of commissioners of a county should have power to subscribe for railroad stock, and issue bonds therefor, in case a majority of the voters of a county should so determine after a certain notice should be given of the time and place of election, and the board subscribed for the stock and issued the bonds, purporting to act in compliance with the statute, it is too late to call in question the existence or regularity of the notices in a suit against them by the holders of the coupons attached to the bonds, who were innocent holders. In such a suit, according to the true interpretation of the statute, the board were the proper judges whether or not a majority of the votes of the county had been cast in favor of the subscription. The bonds on their face, import a compliance with the law under which they were issued, and the purchaser was not bound to look further for evidence of a compliance with the condition of the grant of the power.

In Woods v. Lawrence County, 1 Black R. 386, it was held that where the statute requires the grand jury to fix the amount of a subscription to railroad stock, and to approve of it, and upon their report being filed, empowers commissioners to carry the same into effect by making its subscription in the name of the county, and, if these things be done agreeably to the law, the county cannot afterward deny its obligation to pay the amount subscribed. In a suit brought to recover the arrears of interest on such bonds, it is not necessary for the holder to show that the grand jury fixed the manner and terms of paying for the stock; nor is it a defense for the county to show that the grand jury omitted to do so. It is enough that the manner and terms of payment were agreed upon between the company and the commissioners. In a suit brought upon the coupons by a bona fide holder, his right to recover is not affected by the fact that the railroad company sold the bonds at a discount of twenty-five per cent, contrary to the charter, which forbids the sale of them at less than their par value.