PARTIES.

an unfounded action, no judgment for the defendant's costs could be collected, as the board of trustees have no property. Supreme Ct, II. Dist., 1863, Trustees of Fire Department of Brooklyn a. Acker, 26 How. Pr., 263.

7. A mutual insurance company may maintain an action for damages against one who, by assuming to act as agent for a third person, without authority, has procured insurance, and given a note in the name of the latter, which is not binding upon him. The provision in the statute authorizing the corporation to maintain suits against members or stockholders (Laws of 1849, 448, § 16), does not limit the right of action of such corporation to suits against members or stockholders. It was not designed to restrict its power to maintain suits, but to remove a possible doubt as to its right to maintain suits at law against members and stockholders arising from the quasi partnership character of the companies. They may sue like other corporations. [§ 17.] Ct. of Appeals, 1863, White a. Madison, 26 How. Pr., 481.

8. The statute providing for the appointment of trustees of the estates of debtors imprisoned for crimes (2 Rev. Stat., 15), does not make it necessary to have trustees of the estate of an imprisoned debtor appointed, in order to foreclose a mortgage upon his property. The appointment of trustees would not dispense with the necessity of making him a party to the action of foreclosure. N. Y. Superior Ct., 1861, Davis a. Duffie, 8 Bosw., 617.

9. Plaintiff was in actual possession of land, under a contract to purchase, and was entitled to a conveyance upon making the payments required; -Held, that he could maintain an action against third persons to recover damages for injuries done to his interest while he was in the actual occupation and possession of the premises. As the possessor of the premises, he was entitled to maintain the action. [2 Greenl. Ev., § 618; 1 Ch. Pl., 71; 20 Barb., 311.] Supreme Ct., III. Dist., 1862, Honsee a. Hammond, 39 Barb., 89.

10. A surviving assignee in trust cannot maintain an action against the executors or administrators of a deceased co-assignee, to require them to account for and pay over money collected by the deceased as such assignee. The cestuis que trust are the proper plaintiffs. Supreme Ct., I. Dist., Sp. T., 1864, Bartlett a. Hatch, Ante, 461.

11. An assignee for the benefit of creditors represents, in his capacity as assignee or trustee, all the creditors of the estate, and they are not necessary parties to an action for a payment out of the fund. Supreme Ct., 1864, Mathews a. Duryee, Ante, 256.

12. A person against whom the plaintiff has a right to any final relief in his action against other principal defendants, is properly made a party

PAYMENT INTO COURT.

defendant. Supreme Ct., I. Dist., Sp. T., 1863, Hammer «. Barnes, 26 How. Pr., 174.

13. Thus the plaintiff in an action to restrain a defendant from disclosing a secret of manufacture, in violation of his contract, may join as defendant a person to whom the principal defendant has communicated the secret. Ib.

14. But such person is not a necessary party. Ib.

15. Where there is nothing in the complaint to show that the judgmentdebtor has attempted to collude with the judgment-creditor to cheat the attorney of the latter out of his costs, the judgment-debtor cannot be made a party in an action by the attorney to recover his costs, with a view of having the amount declared a lien upon the judgment. Supreme Ct., V. Dist., 1863, Adams a. Fox, 40 Barb., 442. 16. The non-joinder of a party plaintiff or defendant, is no ground for a dismissal of the complaint, defendant having failed to raise the objection by demurrer or answer. Ct. of Appeals, 1863, Hosley a. Black, 26 How. Pr., 97.

17. Under the Code of Procedure, a defendant is not entitled to compel

an assignee of the cause of action pending the suit, to become a plaintiff without his consent. Supreme Ct., I. Dist., 1864, Packard a. Wood, Ante, 318.

AMENDMENT, 5; ANSWER, 9; DEFENCES, 15; EXECUTORS AND ADMINISTRATORS, 33, 34; WILL, 6.

PARTNERSHIP.

1. Where a partner lends trust-money to his firm, no debt is created against the joint estate in favor of the cestuis que trust, unless the fact of its being trust-money is known to the other partners. N. Y. Superior Ct., Sp. T., 1858, Willett a. Stringer, Ante, 152.

2. Of the liability of partners, where the statute is not fully complied with, in the organization of a limited partnership. Haviland a. Chase, 39 Barb., 283.

EXECUTORS AND ADMINISTRATORS, 32.

PAYMENT INTO COURT.

Under a decree that the plaintiff is entitled to redeem from a mortgage and to have a conveyance thereof, with covenants against the grantor's acts, upon payment of a specified sum, the plaintiff is not bound to pay the redemption money unless the defendant complies with the di

PLEADING.

rections of the decree respecting a conveyance. Hence the inability of the defendant to convey or to give a covenant against his own acts which will not be broken in its inception, is not a ground for granting plaintiff leave to pay the money into court instead of tendering it to defendant. N. Y. Superior Ct., 1861, Davis. a. Duffie, 8 Bosw., 691.

PENALTIES.
EQUITY.

PLACE OF TRIAL.

An action which involves the question whether a conveyance of land is fraudulent as against creditors is not necessarily local, within the meaning of section 123 of the Code of Procedure, so as to require the place of trial to be laid in the county where the land lies. Supreme Ct., 1863, Rawls a. Carr, Ante, 96.

PLEADING.

1. In pleading, the fact to be established by evidence must be averred, not the evidence itself. Illustrations of this rule. Supreme Ct., 1863, Cahill a. Palmer, Ante, 196.

2. The rule that under a complaint setting out a contract, and averring its performance by the plaintiff, evidence in excuse for non-performance is not admissible, has become of little importance in view of the power of amendment given to the court by section 173 of the Code. Ct. of Appeals, 1863, Hosley a. Black, 26 How. Pr., 97.

3. In pleading the judgment of a court of record of a sister State, the provision of section 161 of the Code of Procedure applies; and it is sufficient to allege that the judgment was duly recovered, without stating the facts conferring jurisdiction. Supreme Ct., Sp. T., 1864, Halstead a. Black, Ante, 227.

4. A party who has wholly performed a special contract on his part may bring his action upon the implied agreement of the other party to pay the stipulated price; and is not bound to set forth specially the agreement. Ct. of Appeals, 1863, Hosley a. Black, 26 How. Pr., 97. 5. And under such form of complaint he may give evidence to excuse a departure from the contract. Ib.

6. In an action for a conspiracy, the rule is to allow a great latitude in setting out in the complaint the particular acts from which the conspiracy is to be inferred, even so far as to allow the individual acts of

POWERS.

the conspirators to be averred. Supreme Ct., Chambers, 1863, Mussina* a. Clark, Ante, 188.

7. So far as the allegations of such acts are scandalous, they should be stricken out, unless they appear to relate to the foundation of the plaintiff's action. Ib.

8. Allegations which can in no aspect of the case made by a pleading be material, are irrelevant, and should be struck out on motion. Supreme Ct., 1863, Cahill a. Palmer, Ante, 196.

9. In actions in local courts of general jurisdiction,-e. g., the New York Superior Court,-it is unnecessary to allege in the complaint the facts, such as residence of the parties, which are necessary to the jurisdiction of the court over the person of the defendant. N. Y. Superior Ct., 1861, Spencer a. Rogers Locomotive Works, Ante, 110.

10. In averring the offence, in an action for divorce on the ground of adultery, precision as to time, place, and circumstances, is required. N. Y. Superior Ct., Anonymous, Ante, 48.

11. Examples of sufficient and insufficient averments in this respect. Ib. 12. Evidence of adultery in an action of divorce must accord with the allegations of such offence in the pleadings. Ib.

AMENDMENT; ANSWER; COMPLAINT; COUNTER-CLAIM; DEFENCES; DEMURKER; INJUNCTION, 3; JUSTICES' COURTS, 4; LIMITATIONS OF AcTIONS, 7; PARTIES, 3-6; PROCESS; VARIANCE.

POWERS.

1. When a general power is conferred upon two or more bodies, they must all come together for consultation and deliberation; though when they have done so, the vote of the majority of the persons present controls, even though one of the bodies should leave before the vote is taken. N. Y. Com. Pl., 1863, Gildersleeve a. Board of Education, Ante, 201.

2. The provision of 2 Rev. Stat., 555, § 27, that where a duty or authority is confided by law to three or more persons, a majority of such body may act upon a meeting of all, is applicable to the boards of trustees of common schools in the city of New York. Ib.

3. This provision, in its application to bodies intrusted with the management of matters of public concern, is to be thus interpreted: that when all the members are notified that a meeting is to be held, and a majority of the whole number attends, the majority so attending may organize and legally proceed to the transaction of business. As respects

* See note on page 508, supra.

QUESTIONS OF LAW AND FACT.

those who neglect or refuse to attend, it is the same as if they had attended and dissented from the act of those who were present. Ib. 4. Where, in matters of a private nature, a power is to be exercised by certain designated individuals, all must concur in its exercise, and the death, absence, or disability of any one of them, will not make the execution of the power by the remainder of them valid. Ib. 5. But where powers, to be exercised as a continuous public trust or duty, are confided to designated persons, and some die or become disqualified, the others may discharge the trust or perform the duty, provided there is a sufficient number to confer together, deliberate, and in view of a possibility of division of opinion, to decide upon the course to be adopted. Ib.

6. If such a power or duty is confided to two only, and one dies or becomes incapable of discharging it, the other cannot act alone, unless, to prevent a failure of justice, it is indispensable. Ib.

PROBATE.
WILL.

PROCESS.

The provisions of 2 Rev. Stat., 425, § 9, that no process, pleading, or record be impaired without the order of court, is still in force. N. Y. Superior Ct., Chambers, 1860, Macomber a. Mayor, &c., of N. Y., Ante, 35.

STAMPS, 1.

QUESTIONS OF LAW AND FACT.

1. Upon the uncontradicted testimony of an agreement between the mortgagor and mortgagee of chattels that the former may remain in possession of and may go on selling the chattels, it is error to submit it to the jury to determine, as a question of fact, whether the mortgage is fraudulent. N. Y. Superior Ct., 1861, Marston a. Vultee, 8 Bosw., 129.

2. That, where the evidence is conflicting, the question whether the plaintiff was on the car as a passenger, and was pushed off, or was there without right and dropped off, is one for the jury and not for the court to determine. Meyer a. Second Ave. R. R. Co., 8 Bosw., 305. 3. Where the evidence upon the questions of the misapplication of a note made for a specific purpose, and of the plaintiffs' taking it, bona fide, for value, is conflicting, it must be submitted to the jury, and