Reward. Riot. Revised Statutes. Revival. court of law; but the word "suit" may apply to a proceeding either at law or in equity, unless it is restrained by the context. Chancery, 1844, Didier v. Davison, 10 Paige, 515. 4. Effect on procedure. The provisions of the Revised Statutes, modifying practice in actions, take up the proceedings in causes pending where they find them; and where the statutes under which they were commenced are repealed, the subsequent proceedings must be regulated by the Revised Statutes. Supreme Ct., 1830, People v. Herkimer C. P., 4 Wend., 210. Followed, Chancery, 1830, Aymer v. Gault, 2 Paige, 284. 5. Offences committed under the old statutes were liable to certain punishments, and no greater can be inflicted; but the prosecution must be conducted by virtue of the statutes in force when the proceedings are had. Supreme Ct., 1830, People v. Phelps, 5 Wend., 9. 6. A penalty or forfeiture for violation of a statute, incurred before the Revised Statutes took effect, is not affected by them, but may be sued for and recovered as before, except where the penalty or forfeiture has been mitigated by the Revised Statutes. Supreme Ct., 1833, Myers v. Van Alstyne, 10 Wend., 98. 7. By the repealing act (2 Rev. Stat., 779, § 5), every act, right, suit, or proceeding, done, accrued, or commenced under the old law, remains in force, notwithstanding the repeal, but after the repeal, all future proceedings must be governed by the statutes then in force. The new statute confirms all rights accrued under the old law, but such rights are to be enforced according to the new remedy. Supreme Ct., 1831, People v. Livingston, 6 Wend., 526; People v. Haskins, 7 Id., 463.* 8. Hence, if an old remedy is indispensable to protect a vested right, it may be resorted to. Supreme Ct., 1831, People v. Haskins, 7 Wend., 463. REVIVAL. ABATEMENT AND REVIVAL; PARTIES, 385389, 607-619; PLEADING, IN EQUITY, 86-93. REWARD. 1. Finder of a thing not entitled to demand. a reward. Amory v. Flyn, 10 Johns., 102. 2. A public offer of a reward to any person who should find and restore lost property, gives to one who, relying upon such offer, rescues the property, a lien upon it for his compensation. Supreme Ct., 1849, Baker v. Hoag, 7 Barb., 113. 3. Where a reward is offered for the recovery of property stolen, the person who has acquired a knowledge of the facts necessary to a detection or discovery of the things stolen or lost, and has imparted such knowledge with the intent and for the purpose of bringing about a recovery or restoration of the property, taking upon himself the risk and consequences of a failure, and acting with a view to the benefit of the reward offered for the recovery of the property, if it is thereby recovered, is the one entitled to the reward. [1 M. & S., 108.] V. Chan. Ct., 1833, City Bank v. Bangs, 2 Edw., 95. 4. This principle applied where a number of persons claimed to share a reward. Ib. 5. A sheriff assumed to offer a reward for the discovery of a criminal, and, several parties claiming it, he referred them to the board of supervisors. Held, that a claimant, by submitting his claim to the supervisors, instead of insisting on it against the sheriff, and by receiving from the supervisors an award of a part of the sum offered, was concluded from making any further claim against the sheriff. Supreme Ct., 1856, Prentiss v. Farnham, 22 Barb., 519. As to General Principles regulating the right 9. Consolidation. Effect of clause inserted in general repealing act, saving statutes consol- of compensation for Services, see SERVICES. idated. Fort v. Burch, 6 Barb., 60. As to the General Principles of interpretation, see STATUTES. As to the interpretation of Particular Provisions, see the appropriate titles of their subjects. RIOT. 1. Several must be concerned. While defendant was committing mischief in the street, a crowd collected, but it did not appear * But compare, as to the application of this prin- that any person joined him in it. Held, that ciple, Huntington v. Forkson, 6 Hill, 149. he was not guilty of riot. To constitute a Rights. Roads. Robbery. Rochester. Bules. ROCHESTER. 1. That the inhabitants, and not the Com riot there must be an assemblage of two or more persons to do some illegal act. Gen. Sess., 1817, Rodman's Case, 2 City H. Rec., 88. 2. The mere circumstance of being pres-mon Council, constitute the Corporation. Suent in a church in which a riot occurred, without taking an active part in suppressing it, is not sufficient to hold the defendant guilty of the riot. Gen. Sess., 1817, Scott's Case, 2 City H. Rec., 25. preme Ct., 1857, Clarke v. City of Rochester, 24 Barb., 446; S. C., 5 Abbotts' Pr., 107; 14 How. Pr., 193; and see Lowber v. Mayor, &c., of N. Y., 5 Abbotts' Pr., 325. the assessment of damages has been made and confirmed. [18 Johns., 506; 20 Id., 269.] Supreme Ct., 1828, Hawkins v. Trustees of Rochester, 1 Wend., 53. 2. Proceedings for opening a street can3. Officers, &c., liable for. City or county not be discontinued by the Corporation after within which property is destroyed by a mob or riot made liable to the injured party in an action brought within three months, if he used diligence to prevent the damage and notified the mayor of the city or sheriff of the county of the danger when himself informed. If such officers neglect to protect him, either they or the city, &c., may be held liable. Laws of 1855, 800, ch. 428. 4. Duty of military in case of riot. Laws of 1854, 1051, ch. 398, tit. 6, art. 2; 1862, 941, ch. 477. RIGHTS. Bill of, of citizens and inhabitants. 1 Rev. Stat., 92. ROADS. HIGHWAYS; PLANK-ROAD COMPANIES; PRI- PANIES. ROBBERY. 1. Defined; and distinguished into first and second degrees. 2 Rev. Stat., 678, §§ 55, 56. 2. Violence, or threats reasonably calculated to put a man in fear, essential to constitute robbery. Dayton's Case, 2 City H. Rec., 167; 6 Id., 86. 3. Obtaining money through the influence of a threat to prosecute that party on an unfounded charge may amount to robbery in the second degree. Oyer & T., 1839, People v. McDaniels, 1 Park. Cr., 198. 3. How an ordinance for local improvement should be passed, under sections 188, 189, of the charter. People v. City of Rochester, 21 Barb., 656. 4. Poor. The city of Rochester being by law in the condition of a town, in respect to the mode of supporting its poor at the county poor-house, the income of the poor-house farm of the county must be applied to the support, indiscriminately, of the county, town, and city poor, kept on the farm. Supreme Ct., 1856, City of Rochester v. Supervisors of Monroe, 22 Barb., 248. 5. The expenses incurred by the board of health in the execution of the general health act (Laws of 1850, ch. 324), and their regulations under it, are chargeable on the county, and are to be allowed by the supervisors, and collected by general tax. Supreme Ct., 1854, People v. Supervisors of Monroe, 18 Barb., 567. 6. Process of the Mayor's Court of Roch ester may be tested on any day of the term, and made returnable on any other day of the 1884, 338; 2 Rev. Stat., 210, § 11.] Chancery, same term, or at the next term. [Laws of 1836, Burns v. Morse, 6 Paige, 108. RULES. 1. Former rules in civil actions abrogated, so far as inconsistent with the Code. Code of Pro., 4. It is not necessary in such a case that the prisoner should have made the charge to the prosecutor in explicit terms, or in any particular form of language. It is enough § 469. that the language used was intended to communicate such a charge, and was so under-perior Court and Common Pleas to meet biennially stood by the prosecutor at the time. Ib. 5. Punishment of. 2 Rev. Stat., 677, § 57. As to Describing the property in the indictment, see INDICTMENT, 104. 2. Judges of Supreme Court and of N. Y. Suto make and revise rules. Code of Pro., § 470; and see SUPREME COURT. 3. Court cannot make rule inconsistent with the Code. N. Y. Com. Pl., 1850, Lakey v. Cogswell, 8 Code R., 116. The Contract;-What Constitutes a Sale. S. 1. As to parties liable. Though the goods were furnished to, and were for the benefit of, a third person, yet if they were furnished upon request of defendant, and upon his credit, the defendant is liable as upon a sale to himself. It is deemed an original undertaking. Supreme Ct., 1852, Baker v. Rand, 13 Barb., 152. N. Y. Superior Ct., 1829, Graham v. O'Niel, 2 Hall, 474; 1857, Rogers v. Verona, 1 Bosw., 417. N. Y. Com. Pl., 1856, Griffin v. Keith, 1 Hilt., 58. 2. So held, even where there was a charge made in the seller's books against the third person. Supreme Ct., 1836, Porter v. McClure, 15 Wend., 187. 3. The superintendents of the poor obtained supplies, and which were charged by plaintiff to "the county poor-house," there being a fund in the treasurer's hands known as the "poor fund," on which the superintendents were accustomed to draw. Held, that a finding that the credit was given to the fund, and that the superintendents were not liable, should not be set aside. [1 Car. & P., 16; 1 Com. L., 301.] Supreme Ct., 1850, Hayes v. Symonds, 9 Barb., 260. 4. What is sufficient evidence of a ratification by the principal of his agent's purchase. Vanderbilt v. Persse, 3 E. D. Smith, 428. 5. Where a landlord, at the request of an agent of a tenant of lands, delivered some loads of hay upon the premises, and the tenant, upon the bill therefor being presented to him, remarked that there was more than he should want, but that he would see about it;-, Held, that the proof of the agent's authority to give the order being defective, the tenant should not be charged with so much of the hay as was left by him upon the premises at the termination of the tenancy. Ib. 6. The assent of a sheriff to a sale by an execution debtor, of goods held under levy, gives no validity to the sale, so as to devest a previous purchaser from such debtor of his title. Supreme Ct., 1829, Frost v. Hill, 3 Wend., 386. 7. Subject-matter. The route of a newspaper carrier may be the subject of sale as a good-will. Ct. of Appeals, 1854, Hathaway v. Bennett, 10 N. Y. (6 Seld.), 108. 8. Good-will. But the sale of such route gives the purchaser no right of action against the proprietor of the paper, for refusing to furnish him with papers for the purchased route, although the proprietor has recognized him as carrier, has substituted his name on the books in place of the former carrier, and has furnished him for a time with papers. Ib. 9. What agreement will amount to a sale of a slave. Trongott v. Byers, 5 Cow., 480. See infra, 23. 10. What amounts to a contract. Except for the Statute of Frauds, any words importing a bargain, whereby the owner of a chattel signifies his consent to sell and another person signifies his consent to buy it, at present, for a specified price, would be a sale and transfer of the right to the chattel. Supreme Ct., 1808, De Fonclear v. Shottenkirk, 3 Johns.,* 170. 11. Question of fact. Whether a contract for the sale of chattels has been completely made, is a question of fact for the jury. Supreme Ct., 1816, De Ridder v. McKnight, 13 Johns., 294; and see QUESTIONS OF LAW AND FACT, 14. 12. Instances. If one sends an order to a merchant for a specified quantity of goods on a specified credit, and the merchant sends a The Contract;-What Constitutes a Sale. less quantity, on a shorter credit, there is no agreement until the buyer assents to receive them, and if they are lost on the way, the seller must bear the loss. Supreme Ct., 1808, Bruce v. Pearson, 3 Johns., 534. 17. Common carriers having in their possession property of H., and similar property of D., by mistake delivered to the defendant the property of H. upon the order of D. They subsequently paid H. the value of the property. Held, that they might as purchasers maintain an action against defendants for the value. Supreme Ct., 1857, Hudson River R. R. Co. v. Lounsberry, 25 Barb., 597. 18. Oral condition. Where the seller delivers a written contract of sale upon a condition imposed orally,-e. g., that the buyer shall make a deposit,-the latter has a reasonable time to comply. If he tenders performance of the condition within such time, the 13. One indebted to plaintiff and defendant placed a carriage in the hands of defendant, to pay the debts. Defendant kept possession of the carriage for more than a year, used it as his own, and did not sell it. Held, that having had a reasonable time to sell, he might be regarded as a purchaser and as chargeable with the amount of the debt due to the plaintiff. Supreme Ct., 1819, Norton v. Squire, 16 Johns., 225. 14. An agreement to relinquish to a copart-written agreement becomes absolute. N. Y. ner the exclusive control of debts due the firm, Superior Ct., 1852, Scott v. Pentz, 5 Sandƒ., in consideration that the copartner would col- 572. lect such debts and pay over half of the proceeds, and should be responsible for such of them as should not be sold by a certain day. Held, not a sale of choses in action within the statute. Ct. of Errors, 1840, Mersereau v. Lewis, 25 Wend., 243. 15. The owner of flour shipped it, taking a forwarder's receipt, and drew a bill against the shipment upon a consignee. He procured this bill discounted, delivering to the lender the forwarder's receipt, upon a parol agreement that it should be held as security for the acceptance of the draft. The consignee refused to accept the draft, being already in advance to the consignor, but received and sold the flour, keeping the proceeds. Held, in an action by the lender against the consignee, that the transaction between the original owner and the plaintiff amounted to a sale of the flour to plaintiff, in trust to deliver it to the consignee, in case he accepted the draft; otherwise, to sell it and pay the draft out of the proceeds, returning the surplus. That the consignee was therefore liable to the lender, in trover for the flour. Ct. of Appeals, 1851, Bank of Rochester v. Jones, 4 N. Y. (4 Comst.), 497; reversing S. C., 4 Den., 489. 16. A bill of sale, of goods in the possession of the bailee of the vendor, is not merely a transfer of a right of action, but of the goods themselves; unless, indeed, the bailee has already converted the goods to his own use, or contests the title of the vendor. N. Y. Superior Ct., 1853, Heine v. Anderson, 2 Duer, 318. Compare Thurman v. Wells, 18 Barb., 500. 19. Date of sale. Where a sale and purchase of bills were agreed upon on the 13th, and the bills were drawn on that day, but the bills were not delivered until the 15th,—Held, that the sale was on the 15th; and the drawee having failed on that day, the buyer was entitled to rescind. Supreme Ct., Sp. T., 1848, Leger v. Bonnaffe, 2 Barb., 475; S. C., less fully reported, 8 N. Y. Leg. Obs., 235. 20. Provision for return of property. Leather having been delivered under an agreement in peculiar terms, to pay for it at certain rates, with a privilege of returning any on hand at time of settlement;-Held, that the transaction was a sale, and not a delivery to sell on commission; that parol evidence was inadmissible to explain the transaction, and that a destruction by fire was the loss of the buyer alone. Supreme Ct., 1817, Marsh v. Wickham, 14 Johns., 167. 21. The seller of a horse, on delivering the animal to the buyer and receiving the price, agreed that he would within a certain time take back the horse and refund the money, if the buyer should not in any way injure it,— Held, a conditional sale; and that the horse was at the risk of the buyer while in his possession. Ct. of Errors, 1836, Taylor v. Tillotson, 16 Wend., 494. 22. Selling ale in barrels on the understanding that the barrels shall be returned, or if not returned, shall be paid for at a stipulated price, is not a sale of the barrels, but a bailment. N. Y. Superior Ct., 1852, Wescott v. Tilton, 1 Duer, 53; S. C., 10 N. Y. Leg. Obs., 278. Ct. The Contract;-What Constitutes a Sale. of Appeals, 1858, Westcott v. Thompson, 18 N. Y. (4 Smith), 363. 23. What facts amount to a sale and delivery,-e. g., of a slave, as distinguished from taking him on trial with a view to a sale. De Fonclear. Shottenkirk, 3 Johns., 170. 29. Where cotton was to be brought to New York, weighed there and paid for by the plaintiffs,-Held, that as something was to be done before title to the cotton passed, the contract was executory. Supreme Ct., 1829, Russell v. Nicoll, 3 Wend., 112. 24. Product to be returned. Where a 30. Goods "to arrive." A contract to sell miller receives wheat, for which he engages certain cotton to be delivered on its arrival in to give in return a specified quantity of flour, New York, at any time after making the conthere being no provision for keeping it sepa-tract and before the first day of June,-Held, rate from other wheat, or for making the flour conditional upon its arrival before that day. from the identical wheat, the contract is a Ib. sale of the wheat, and not a bailment. Supreme Ct., 1839, Smith v. Clark, 21 Wend., 83;* overruling Seymour v. Brown, 19 Johns., 44. Ct. of Appeals, 1849, Norton v. Woodruff, 2 N. Y. (2 Comst.), 153. 31. If a part only arrives in New York before that day, the seller is not bound to deliver that. Ib. 32. An agreement for the sale of goods on board a ship known to both parties to be not 25. Plaintiff delivered wheat to defendant yet arrived, is an executory contract of sale, under an agreement that plaintiff should de- and does not pass the title. Ct. of Appeals, liver wheat at defendant's mill, and defendant 1850, Shields v. Pettie, 4 N. Y. (4 Comst.), 122; should manufacture it into flour, and deliver 1858, Benedict v. Field, 16 N. Y. (2 Smith), to plaintiff, 196 pounds of flour for every 4 595; affirming S. C., 4 Duer, 154. bushels and 15 pounds of wheat. Plaintiff was to furnish the barrels, and pay defendant so much per barrel. Held, not a sale of the wheat, but a bailment. Ct. of Appeals, 1850, Mallory v. Willis, 4 N. Y. (4 Comst.), 76. 26. A receipt for wheat, "subject to order any day after, &c., without charge for storage," imports a bailment. Evidence of usage among millers and sellers of wheat, is not admissible to show that it imports a sale. Ct. of Appeals, 1851, Wadsworth v. Allcott, 6 N. Y. (2 Seld.), 64. 27. W. delivered sheep to F. on an agree ment that, at the end of the year, F. should deliver to W. an equal number. Held, the sheep originally delivered to F. became his absolute property. Supreme Ct., 1816, Ketchum v. Evertson, 13 Johns., 359; S. P., 1827, Hurd v. West, 7 Cow., 752. 33. The plaintiffs executed a memorandum that they had sold to the defendants a certain quantity of pig-iron of a specified quality, "on board the ship S.," it being understood by both parties that the ship was then at sea. On arrival of the ship, the defendants received part of the iron, but, on ascertaining it was of inferior quality, they refused to take the rest, and were unable to return what they had received. Held, that the writing was not a sale but an agreement to sell, conditioned on the arrival of the iron; and the iron being not of the quality required, the bargain was at an end. That defendant, therefore, stood as a purchaser of so much as he could not return, at the market price; and plaintiff could recover that price, notwithstanding it was above the price stipulated in the contract for iron of a better quality. Ct. of Appeals, 1850, Shields v. Pettie, 4 N. Y. (4 Comst.), 122; affirming S. C., 2 Sandf., 262. 28. Executed and executory agreements. Whether an agreement of sale is to be deemed executory merely, or executed so as to vest 34. Validity. Where a sale was made and the title in the buyer, depends upon the intent a bill of sale, and the property itself, delivered of the parties as gathered from all the circumstances; and not upon the literal import of phraseology used in the agreement. N. Y. Superior Ct., 1856, Kelley v. Upton, 5 Duer, 336. This decision was reversed in the Court of Errors; but not so as to shake its authority as to this point. The reversal is not reported. See Baker r. Woodruff, 2 Barb., 520, 528. in another State,-Held, that the validity of the sale-e. g., whether it was fraudulent against creditors-must be determined by the laws of that State. Supreme Ct., 1856, D'Invernois v. Leavitt, 23 Barb., 63. 35. Wager contracts. A contract to sell goods to be delivered in future, is not invalid because the seller has no such goods at the time, nor any expectation, nor means of ob |