NOTES OF CASES.

In Laughlin v. The Chicago & Northwestern Railway Co., 28 Wis. 204, was decided a novel point in the law of carriers, viz.: That where goods shipped in parcel pass through the hands of successive carriers, and when delivered to the consignee the parcel is found to have been opened, and some of the goods stolen, the jury may presume, in the absence of evidence to the contrary, that the loss happened through the fault of the last carrier. This decision is based mainly on the theory that the condition of a thing once proved is presumed to continue until the contrary is shown. The only case cited, bearing directly on the point, was Smith v. The N. Y. C. R. R. Co., 43 Barb. 225, and the court remarked that it knew of no other case. The case of Smith v. The N. Y. C. R. R. Co. was affirmed in the court of appeals in 1869, but the case was not reported. The decision was substantially in conformity with that in the Wisconsin case.

debenture was fraudulently issued. This case has never been overruled, although it may be doubted whether it can stand with some of the more recent cases to which we shall have occasion to refer. Considerable doubt was thrown upon its authority by Vice-Chancellor Malins in the most recent case upon the subject, Re South Essex Estuary Company, Carey's claim; and we are, at any rate, fairly entitled to draw attention to the contract which it presents to some more recent decisions, as an example of the gradual evolution of a new doctrine. But, however this may be, of the following there can be no question, that, although in the absence of any thing more than a mere assignment, the assignee will take subject to the equities subsisting between the original parties to the contract, there is nothing to prevent a debtor from contracting an obligation with his creditor that he will not avail himself of such equities as against the assignee of the creditor. This was the nature of the decision in In re Agra and Masterman's Bank, Ex parte Asiatic Banking Corporation, 15 W. R. 414, L. R., 2 Ch. 391. There the question arose upon a letter of credit given by Agra and Masterman's Bank, and containing a promise to accept bills drawn upon the bank, the particulars of which were to be indorsed, by parties negotiating bills under it, on the back of the letter of credit; and it was held that, whatever might be the effect of the contract at law, in equity the holders of bills negotiated under it were entitled (L. R., 2 Ch. 397), as assignees of the original contract, to hold free from equities attach

ment.

A similar question was decided in Middlebrook v. Broadbent, 47 N. Y. 443, which was an action on a bond conditional upon the validity of a patent. It was contended that the federal courts had sole jurisdiction, but the court in an elaborate opinion held otherwise.

ASSIGNMENT OF CHOSES IN ACTION.

It is a well-known rule that the assignee of a chose in action takes subject to all the equities to which it is liable in the hands of the assignor. For this rule it will be sufficient to refer to such cases as Mangles v. Dixon, 3 H. L. Cas. 702, and Graham v. Johnson, 17 W. R. 810, L. R., 8 Eq. 36. To this rule, however, there are exceptions, and it is our present purpose to discuss the principal cases in which the strict rule has been modified in equity, and in which it has been held that, where, from the nature or terms of the contract between the parties, it appears that it must have been intended that assignments free from equities should be allowed, there the assignee is entitled to hold free from equities which would have attached as against the assignor.

The case which is commonly cited as the leading case on the subject, and as antagonistic to the interests of the assignee, is Athenæum Life Assurance Society v. Pooley, 7 W. R. 167, 3 De G. & J. 294. In that case debentures under the common seal of a joint-stock company, the issue of which by the directors to the first holder was a fraud upon the company, found their way in the ordinary course of business into the hands of a bona fide purchaser for value without notice of the fraud, and he was registered by and received interest from the company. It was nevertheless held that the purchaser, being only the purchaser of a chose in action not assignable at law, took subject to the equities attaching as between the company and the person to whom the

is set more clearly in relief in Re Blakely Ordnance Company, Ex parte New Zealand Banking Corporation, 16 W. R. 533, L. R., 3 Ch. 154. In that case an antecedent contract was entered into between a promoter and Messrs. Blakely & Dent, whereby the latter agreed to sell their business to a company, when formed, part of the purchase-money to be paid in debentures of the company payable to bearer, an agreement which was adopted by the articles and carried into effect by debentures being given under the seal of the company, covenanting for payment to Blakely & Dent, "their executors, administrators, or assigns, or to the bearer hereof." That a deed or bond might covenant for payment to bearer, and that the bearer could sue upon it at law in his own name, was held to be a proposition which could not be supported. But it was held that the effect of the whole transaction was that the company could not set up against the bearers equities to the benefit of which they would under other circumstances have been entitled. They had contracted not to avail themselves of such equities, and could not subsequently be heard to advance them in their own favor. Re General Estates Company, Ex parte City Bank, 16 W. R. 919, L. R., 3 Ch. 758, is a similar case in which the instrument as to which there was some question whether it was not in fact a promissory note, although called on its face a "debenture ". - was, in form, an undertaking "to pay to the order of A. B." Lord Justice Wood there said: "Where there is a distinct promise held out by a company, informing all the world that they will pay to the order of the person named, it is not competent for that company afterward to set up equities of their own, and say, that because the person who makes the order is indebted to them they will not pay." Higgs v. Northern Assam Tea Company, 17 W. R. 1125, L. R., 4 Ex. 387, is another case, and one of additional interest as having been decided at common law on a special case, in

which debentures payable to A B, "his executors, administrators, or assigns," were held to be, in the hands of assignees who had been treated by the company as proprietors, free from a right of set-off, which would have attached as between the company and the assignor. Adding to these, two cases in the South Essex Estuary and Reclamation Company - namely, Ex parte Chorley, 19 W. R. 430, L. R., 11 Eq. 157, and Carey's claim, in which the official liquidator was not allowed to call in question, in the hands of purchasers for value without notice, the validity of Lloyd's Bonds, which might have been invalid in the hands of the person to whom they were issued-we are left with the one case of Re Imperial Land Company of Marseilles, Ex parte Colborne and Strawbridge, 19 W. R. 223, L. R., 11 Eq. 478, in which the principles of all the former decisions will be found very fully considered. In the last-mentioned case the instruments were described on their face as debenture bonds, were stamped as bonds, but were expressed to be that the company "bind themselves and their successors to pay to the bearer." It was there held that the instruments were promissory notes, or, at any rate, negotiable in- | struments, and that holders for value without notice of equities were entitled to prove free from equities.

The decision of Lord Cairns in Re Natal Investment Company, 16 W. R. 637, L. R., 3 Ch. 345, when compared with the cases above referred to, is, no doubt, not free from difficulty. Vice-Chancellor Malins, indeed, in Ex parte Colborne and Strawbridge, went so far as to say that he was unable to see how that decision could be reconciled with Ex parte New Zealand Banking Corporation and Ex parte City Bank. In Re Natal Investment Company, the debentures were made payable to "A, or to his executors, administrators, or transferees, or to the holder for the time being of this debenture bond." His lordship held the word "transferees" to be equivalent to assigns; and the further words, "to the holder for the time being," to add nothing to the legal effect of the bond, beyond this

that, to save the trouble and expense of assignments by deed, the company would recognize the holder as being in as good a position as if he had become assign by deed. Of this case it may be well to notice that it was not a case of set-off, but a case of failure of consideration for the debenture assigned. On this ground it is distinguishable from both of the cases referred to. The case must probably be taken to have been decided on its own particular facts, and, at any rate, we have the authority of Lord Hatherley in Re General Estates Company, Ex parte City Bank, for saying that he did not overrule the other cases. — Solicitors' Journal.

BANKRUPTCY LAW.

NOTES OF RECENT DECISIONS.
ASSIGNEE- -DUTIES OF.

It is the duty of an assignee to disclose to the creditors, upon inquiry, and where it appears they are ignorant thereof, the main facts known to him relating to the condition and assets of the bankrupt estate. Where he knows there is a large sum of money on deposit in a bank, belonging to the estate, against which the bank claimed, and were purchasing set-offs, it is his imperative duty to state these facts to creditors inquiring concerning the value of their claims. It is not a sufficient excuse that he could not give definite estimates as to what the estate would pay, or

that he says he did not intend to mislead any one. He is presumed to intend the necessary consequences of his own acts, and the suppression of the existence of this large deposit must mislead creditors and affect their action. Nor is a sufficient answer or excuse that the books of the bankrupt could be examined by the creditors. The assignee should also make, in season, the reports prescribed by the rules in bankruptcy. Where an assignee has failed in properly informing creditors in regard to their rights and the value of the assets, and the information has been suppressed in the interest of one class of creditors, it is the duty of the court to remove him. On a revisory petition to the circuit court, the proper practice is to direct the district court to remove the assignee and to appoint some other competent person in his place. In re Perkins, U. S. C. C. Ill., 8 N. B. R. 56.

PRACTICE.

1. To the rule to show cause why the debtor should not be adjudged bankrupt, respondent appeared on the return day and filed a general demurrer to the petition. The argument of the demurrer was postponed a few days, by consent, and, after argument, was overruled as frivolous. Debtor then asked leave to file a general denial and demand for trial by jury. (Form 61.)

Held, the respondent having elected to demur on the return day, has waived the right given him under section 41, to file a general denial and demand a jury trial. It is discretionary with the court, on overruling the demurrer, to thereupon adjudge the debtor a bankrupt or to allow him to answer over on terms. In this case respondent's demand for trial by jury was refused, but he was allowed to file a general denial referable instanta to the register to take proof. In re A. Benham, Sup. Ct. Utah, 8 N. B. R. 94.

2. The application for review given by the first paragraph of the second section of the act extends to that class of cases wherein the district court, by section 1, is given jurisdiction to issue summary orders, and to proceedings of that court in the ordinary proceedings in bankruptcy, or upon petition therein, where special aid and relief is sought in any matter embraced in that jurisdiction. In re Casey, U. S. C. C. Vt., 8 N. B. R. 71.

3. The precise form in which this application is to be made is not regulated by statute. The practice of this court is, the party desiring such review must present to this court a petition setting forth: 1. So much of the proceedings in the district court as is necessary to show the order complained of, the main facts upon which it was based, or the evidence, where the facts are in dispute. 2. Pointing out specifically the supposed error or errors, and asking a review and reversal or modification of the order complained of. A general allegation of error in an order, without saying specifically in what the error consists, has been repeatedly held insufficient, and will be disregarded. Ib.

4. There is no specific limitation of time within which a review of summary proceedings may be sought. Such review may be applied for at any time before the supposed erroneous order is carried into execution. An order in a suit in equity for the foreclosure of mortgages as follows: "That a decree of foreclosure be made in favor of A on mortgages number one and three, and in favor of B on mortgage number two, and that the case be referred to the clerk of said court to ascertain the sums due on said mortgages respectively," is only an inlerlocutory order, and therefore cannot be appealed from. Ib.

5. The circuit court will only entertain an appeal under the eighth section of the act, in suits in equity, from final decrees and not from interlocutory orders not settling all the rights in controversy. Ib.

6. A notice of appeal cannot be considered as proper process under paragraph one, section 2, for revising summary proceedings of the district court under section 1. Ib.

7. A notice of appeal does not per se bring before the circuit court the proceedings in the district court or any part of them. Query, If it is even sufficient to warrant the circuit court in making any order to have the proceedings in the district court certified to the circuit court. Possibly where a party had honestly mistaken his remedy, and there would be otherwise a failure of justice, the circuit court might give sufficient effect to the notice of appeal to allow a proper petition for review to be filed nunc pro tunc as an amendment thereto. Ib.

SALE-FRAUD.

The bankrupt law does not recognize every sale of property made by a person in embarrassed or failing circumstances as necessarily a fraud on the act, but only such transfers made for a fraudulent object. Hence a debtor who is unable to command ready money to meet his obligations as they fall due is not forbidden by the said act from making a fair disposition of his property in order to accomplish this object. Tiffany, Trustee, v. Lucas, U. S. Sup. Ct., 8 N. B. R. 49.

DIGEST OF RECENT AMERICAN DECISIONS.*

SUPREME COURT OF WISCONSIN.

AGENCY.

It seems that where a husband absconds, with an intention not to return, his wife would have authority to sell and dispose of his property for the necessary support of herself or his family, and the law would likewise presume that she was authorized to care for and preserve the property, and to do such acts and make such contracts, as might be necessary for that purpose, and probably also, in most cases, to carry on his ordinary business; but apart from this, he would retain the dominion and right of disposition of his own property. Butts v. Newton, 632.

BILLS AND NOTES.

1. In case of a note payable to order, indorsement, as well as delivery, before maturity, is necessary to cut off equities existing between the maker and payee before the delivery. Beard v. Dedolph et al., 136.

2. But the bona fide holder of such note by delivery only is protected against every thing subsequent to such delivery, especially if the note be afterward indorsed to him; such indorsement being held to relate back to the time of delivery as to any equity outside of the note itself. Ib.

3. A note to which the maker's signature has been procured by false representations as to the character of the paper itself, he being ignorant of its true character, and having no intention to sign such paper, and being guilty of no negligence in doing so, is void even in the hands of a holder for value, before maturity and without notice. Walker v. Ebert, 194.

4. In an action on a negotiable promissory note by * From 29 Wisconsin Reports.

one who claims as such holder, where that defense is properly set up in the answer, the defendant should be permitted to show that at the time he signed the note he was unable to read or write the English lauguage, in which it was written, and that it was then represented to him, and he believed it to be a contract of an entirely different character, and that he never delivered the instrument to any one. Ib.

5. In such a case, the defendant, never having intended to sign such an instrument, must be regarded, at least in the absence of evidence of negligence on his part, as never having executed it. Ib.

CORPORATION.

A corporation may suspend or expel a member for a breach of his corporate duty, such a violation of any reasonable rule or even by-law of the corporation, though its charter grants the power of suspension or expulsion only in general terms, or does not expressly grant such power at all. Dickenson v. The Chamber of Commerce, etc., 45.

DIVORCE.

In divorce suits, the court has plenary power over the whole subject of alimony and allowance, both before and after judgment rendered; and it may reserve its adjudication as to the amount of permanent alimony until after the judgment of divorce, and, in the mean time, may order the payment of temporary alimony or suit money. Williams v. Williams, 517.

EXPRESS COMPANY.

Where a package is delivered to an express company directed to "A, care of B," a delivery to B at the proper place discharges the company's liability. Ela v. American M. U. Express Co., 611.

MUNICIPAL CORPORATION.

The legislature may authorize a town or other municipality to levy taxes therein, for public purposes not strictly of a municipal character, but from which the public have received or will receive some direct advantage; or where the tax is to be expended in defraying the expenses of the government, or in promoting the peace, good order and welfare of society, or in paying claims founded upon natural justice and equity, or upon gratitude for public services or expenditures, or in discharging the obligations of charity and humanity. State ex rel. McCurdy v. Tappan, Town Clerk, 664.

NEGLIGENCE.

1. The fact that plaintiff, at the time he suffered injuries to his person or property from the negligence of defendant, was doing some unlawful act, will not prevent a recovery, unless the act was of such a character as would naturally tend to produce the injury. Sutton v. The Town of Wauwatosa, 21.

2. Thus, the fact that plaintiff was driving his cattle to market on Sunday, in violation of the statute, when they were injured by the breaking down of a defective bridge, which the defendant town was bound to maintain, would not prevent a recovery upon due proof of defendant's negligence in constructing and maintaining such bridge. Ib.

3. The owner of a warehouse adjoining a railway track, and of goods stored therein, is bound, as against the railway company, only "to use what would be ordinary care and prudence under the circumstances, to avoid injury" to such warehouse and goods by fire from the locomotives on the road. Ward et al. v. The Mil. & St. Paul R. R. Co., 144.

4. In an action for such injury, brought by such owners against the railway company, it was error to instruct the jury that plaintiffs could not recover unless their warehouse was "in such condition as very prudent and cautious men would generally keep their own property in under like circumstances." Ib.

5. What constitutes ordinary care in respect to property depends upon the value, character and situation of the property in question; the question in each case being, what care would usually be exercised by men of ordinary prudence, in respect to property of the same kind, and similarly situated. Ib.

STAMPS.

The burden is on the party who disputes the validity of an instrument, on the ground that it was not stamped at the time of its delivery, to show that the stamp was omitted with intent to evade the revenue laws. Rheinstrom v. Cone, 26 Wis. 163, adhered to; and John v. The State, 23 id. 504, modified. Grant v. Conn. Mut. Life Ins. Co., 125.

COMMISSION OF APPEALS ABSTRACT.

AGREEMENT-LICENSE.

1. Defendant gave to T. & T. a license to explore and test his lands, and in case they found or became satisfied that there was oil therein, and elected before a specified time to take, agreed to convey to them or whomsoever they should direct. They did not examine or make an election, but assigned the contract. Plaintiff, as assignee thereof, claimed the right to elect, and asked specific performance.

Held, that prior to an election, T. & T. had no interest in the lands. That the right of election was personal, and could not be transferred, and that, therefore, plaintiff's election did not satisfy the contract, or give a right of action. Mindenhall v. Klinck. Opinion by Earl, C.

2. A mere license is personal to the licensee, and is not assignable. So, also, a right of election to take title to lands, uncoupled with a vested interest therein, cannot be claimed or exercised by an assignee. Ib.

COMMON CARRIERS-ABANDONMENT — PRACTICE.

1. Where a disaster happens to a cargo in consequence of a peril or accident, not within the exceptions in the bill of lading, a mere acceptance of the goods by the owner at the place of disaster or an intermediate port, will not preclude him from his remedy. It must appear that the acceptance was intended as a discharge of the vessel and her owner from any further responsibility. The case of The Propeller Mohawk, 8 Wall. 153, distinguished. To establish the settlement of a large and unquestionable claim for a small sum, the evidence should be clear and satisfactory. Home Ins. Co. v. Western Transportation Co. Opinion by Earl, C.

2. A plaintiff upon appeal must stand by the theory of his case, as presented by his complaint, and upon the trial. Accordingly, held, that where plaintiff sued and claimed upon the trial as assignee, he could not upon appeal assert a claim other than that given by the assignment. Ib.

COMMON CARRIER.

1. Plaintiff delivered to defendant a trunk, to transport from Baltimore to New York. Defendant gave a

receipt, containing a statement among other things, that as part of the consideration of the contract, it was agreed that the holder in case of loss should not demand beyond the sum of $50, at which the article forwarded was thereby valued, unless otherwise expressed.

Held, that by accepting the receipt and omitting to have a different value expressed, plaintiff assented to the valuation, at $50, and to a limitation of his claim to that sum, in case of loss. An express company is a common carrier, and it may limit its commonlaw liability by express contract. Blossom v. Dodd, 43 N. Y. 264, distinguished; Belger v. Dinsmore, President, etc., Adams Ex. Co. Opinion by Lott, Ch. C.

2. The legal presumption is, in the absence of fraud, concealment or improper practice, that stipulations limiting its common-law liability, contained in a receipt given by such company for freight, were known and assented to by the party receiving it. Ib.

CONTRACT.

Action to recover commissions claimed to have been earned by plaintiffs, as ship-brokers, in chartering a vessel for defendant. The latter, after failing to charter his vessel to the United States government, employed plaintiffs, who were related to one of the government agents, to effect a charter, which was accomplished by them.

Held, that plaintiffs' relationship, and the probable influence they could exert in consequence, did not forbid their employment, or render the contract illegal. Southard et al. v. Boyd. Opinion by Earl, C.

INSURANCE.

1. A condition in a policy of insurance, that no insurance, whether original or continued, shall be considered as binding until the actual payment of the premium, may be waived by the company or its authorized agent, and this waiver may be shown by direct proof that credit was given, or may be inferred from circumstances. Bodine v. Exchange Fire Ins. Co. Opinion by Earl, C.

2. An insurance agent can employ a clerk, and authorize him to contract for risks, to deliver policies and renewals, to collect premiums and to give credits therefor, and the act of the clerk in such cases is the act of the agent, and binds the company. Ib.

MARRIED WOMEN-LEASE - ESTOPPEL.

1. Action upon a written warranty for rent, under a parol demise. The defense is, that plaintiff was a married woman; that the demised premises were not her separate estate; and that she had no legal capacity to make the demise sued upon.

Held, that where a married woman leases lands, whether for money paid from her separate estate or upon credit, to the extent of her interest therein, the lands become her separate estate, and she can let them or enter into. any contract in reference to them, the same as if she were a femme sole. Prevot v. Lawrence. Opinions by Earl & Gray, CC.

2. A lessee, who by virtue of the letting remains in possession during the term of the lease, and who is not disturbed in any manner therein, is estopped from denying the lessor's title although he did not obtain possession originally from such lessor. Ib.

3. In order to claim the benefit of the estoppel in a suit for the rent, it is not necessary to allege in the complaint, that the lessee occupied under the lease.

It is sufficient to set out the lease, and if the lessee answers, denying the title, it is conclusively established by showing use and occupation. Ib.

PROMISSORY NOTE-NOTICE OF PROTEST.

1. Defendant indorsed a promissory note, made payable at a bank in the city of Rochester, where she resided, and had resided for ten years prior to the indorsement, and six months before the note fell due she removed to New York city. Plaintiff's agent made various inquiries shortly before the maturity of the note, among others, of a relative of defendant, and was informed she still resided in Rochester. When the note was left at the bank, for collection, the teller was informed that all the parties lived in Rochester, and he so advised the notary, who protested the note. No inquiry was made in Rochester upon the day the note matured. Notice of protest was mailed to defendant, addressed to her at Rochester.

unsafe condition. Notice of a defect, which could be discovered by proper examination, is not necessary in order to fix this liability. Ib.

3. Accordingly held, that where a coal hole had been excavated in the sidewalk of a city, and not properly covered, which coal hole was used by a lessee of the premises, for the benefit of which it was excavated, and in consequence of the defective covering, a passerby fell through and was injured, that the lessee was liable jointly with the lessor for the injuries resulting. Ib.

UNITED STATES REVENUE LAW EVIDENCE. 1. Under the provisions of the act of congress of June 30, 1864 (13 U. S. Stat. at Large, 270, § 97), which provides, that every person who shall have made a contract prior to the passage of the act, for the delivery of manufactured articles, is authorized to add to the contract price any duty subsequently imposed, and to sue for and recover the same, a person contracting to manufacture and deliver certain machinery, upon which after the making and before the delivery an increased tax or duty is imposed, is author

2. That the diligence required to charge defendant was no greater than that required by the common law, in a case where the place of payment differs from the place of residence. Ib.

REAL ESTATE BROKER.

1. To entitle a real estate broker to compensation for services in selling a piece of property, it is sufficient that the sale is effected through his agency as its procuring cause; and if his communications with the purchaser are the means of bringing him and the owner together, and the sale results in consequence, the compensation is earned, although the broker does not negotiate and is not present at the sale. Lloyd et al. v. Matthews. Opinion by Lott, Ch. C.

2. It is not necessary that the purchaser be made known to the owner as the broker's customer, if he is so, in fact. The owner is entitled to know that the broker has been instrumental in sending the purchaser, but when advised by the latter that he has received information of the purpose to sell and the price, it is the owner's duty to inquire whence the information was derived. Ib.

3. Where the owner has placed his property in the hands of two or more brokers to sell, notice to one of

price, and can sue for and recover the same, without having himself paid it. Babbitt v. Young. Opinion by Gray, C.

2. A party to a written contract who contracts in his own name, with nothing in the contract to indicate that he is acting for another, will not be permitted to prove by parol that he was in fact, to the knowledge of the other party, acting as agent simply. Ib.

VENDOR AND VENDEE -INSURANCE-PARTIES

PRACTICE.

1. Defendants contracted to purchase of plaintiffs a quantity of barley in store, and to be delivered at Lodi, Seneca county. On the refusal of the former to take and pay for the same, they were notified by the latter that the grain would be sold on their account, and they would be held responsible for the difference between the contract price and the avails of the sale. Plaintiffs made every effort to sell at Lodi, but finding the market dull, they shipped the grain to New York, where they sold it for the best price they could get. In an action to recover the loss,

Held, that the place of sale was not of necessity restricted to the place where the vendees had contracted to receive the property; that the vendors were authorized to exercise a reasonable discretion as to the

the latter chargeable with notice, because of acts of the owner in improving the property inconsistent with a design to sell, and his agency is not thereby revoked. Ib.

STREET -NUISANCE.

1. An unauthorized excavation in a street of a city, for the benefit of adjoining premises, is a nuisance, and all persons who continue or in any way become responsible for it, are liable to any person who is injured thereby, irrespective of any question of negligence. Irvine v. Wood et al. Opinion by Earl, C.

2. If the excavation is by license of competent authority, the one making it is bound to do it in a careful manner, and to see that it is properly and carefully covered, so as to make the street as safe for passage as before; and a liability attaches to whomsoever subsequently continues and uses it in an improper or

and that whether this discretion was properly exercised and in good faith, were questions of fact for the jury.

Also held, that the vendors had the right to insure the property, and charge the premium to the vendees. It is not necessary in such a case that the sale be made in the name of the vendee, if in fact it is made for him. Lewis et al. v. Greider et al. Opinion by Gray, C.

2. An agreement, by which one employed to purchase grain is to receive for his services one-half the profits realized, does not constitute him a partner, so as to make him a necessary party plaintiff in an action brought by his employer upon a contract, in reference to the grain so purchased. Ib.

3. An appeal from a judgment of a general term does not bring up for review an order denying a motion for a re-argument, made subsequent to the judgment. Ib.