month's delay in the execution of a written contract.

son River Railroad Co.,

See FACTOR.

AMENDMENT.

Pratt v. Hud-

305

1. In an action on a bill of exchange, the want of an averment of a ne-
gotiation of it to the holder, may be supplied by amendment; and
the propriety of the allowance of such amendment is not reviewable
in the court of appeals. Van Duzer v. Howe,

AMENDMENT TO THE CONSTITUTION.

531

1. Where a general banking law reserves the right to alter or repeal,
though the articles of association of a bank incorporated under its
provisions provide that the shareholders shall not be individually
liable, yet it is competent for the people of the state, by an amend-
ment of the constitution, to provide that the stockholders of such
banks shall be liable in their individual capacity, for the debts and
engagements of the corporation. Matter of Lee's Bank of Buffalo, 9
2. An amendment of the organic law is not subject to the same tech-
nical rules of construction as an ordinary act of legislation. Id.

APPEAL.

1. The court of appeals cannot reverse, upon a consideration of the evi-
dence; on which a question of bona fides was determined in the court
below. Griffin v. Marquardt,

121

2. Where the only error in a judgment is an excess in amount, and
such excess consists of a distinct item, or can be definitely ascer-
tained by mere computation, the appellate court may affirm, on the
appellee electing to release the ascertained excess. Chouteau v. Suy-
dam,

179

3. A defendant whose interests are, in no way, affected by the form of
the judgment, cannot appeal from it, though erroneous as to his co-
defendants, who acquiesce. National Fire Ins. Co. v. McKay, 191
4. The court will not reverse for an immaterial variance in the corpo-
rate name of a party plaintiff, which was amendable in the court be-
low. Baptist Society v. Robinson,

234
5. The court has power, on appeal, to conform the pleadings to the
proofs, when the variance is merely formal. Pratt v. Hudson
River Railroad Co.,

305
6. The court of appeals will not reverse for an immaterial variance be-
tween the pleadings and the proofs, which was amendable below.
Cardell v. McNiel,

336
7. In an action on a bill of exchange, the want of an averment of a
negotiation of it to the holder, may be supplied by amendment; the
propriety of the allowance of such amendment is not reviewable in
the court of appeals. Van Duzer v. Howe,
531

8. The court will presume nothing in favor of the party alleging

error; it must be made affirmatively to appear.
Pultz,

APPORTIONMENT.

Carman v.

547

1. Rent is not apportionable between the executors of tenant for life,
and the remainder-men; and this, notwithstanding the tenancy for
life is created as a provision for a widow. Marshall v. Mose-
ley,
280

ASSAULT AND BATTERY.

1. In an action for an assault and battery, not committed in the pres-
ence of witnesses, ill-feeling on the part of the defendant towards the
plaintiff, may be shown, as a link in the chain of circumstantial evi-
dence. Jewett v. Banning,

.

27
2. So also, that the defendant did not deny the assault, when charged
with it, though he had denied it on a former occasion in the presence
of other witnesses; the weight to be given to such evidence is for
the jury.
Id.

ASSIGNMENT.

1. The fact that an assignor for the benefit of creditors believes that
his estate is sufficient for the payment of his debts, does not, per se,
invalidate the assignment, if there were no intent to hinder and de-
lay the creditors. Ogden v. Peters,

.

23
2. A clause in the assignment, directing the trustee "to convert the as-
signed property into cash, as soon as the same may conveniently
and properly be done," is mere surplusage, and does not affect its
validity.
Id.

3. An assignment for the benefit of creditors, which directs the trustee
forthwith to take possession of the property, and sell the same,
without delay, for the best price that can be procured, is valid.
Griffin v. Marquardt,
121
4. A direction to pay accommodation indorsers the sums for which
they are respectively liable, does not invalidate the assignment; in
such case, the holders are, in fact, the cestuis que trust.

Id.
5. An assignment by an insolvent debtor, of all his personal property,
made directly to a creditor, reserving the surplus, if any, to the as-
signor, is, in effect, a chattel-mortgage, and valid as against the
other creditors, in the absence of any evidence of an intent to hinder
or defraud them. Dunham v. Whitehead,
131

6. A clause in an assignment for the benefit of creditors, directing the
assignee to dispose of the assigned property, at such time and in such
manner, as may be most conducive to the interests of the credi
tors, and convert the same into money, as soon as may be consistent
with such interests," does not invalidate it; it is mere surplusage,
and gives the trustee no discretionary power. Jessup v. Hulse, 160

7. One who has made a loan of money upon a draft issued in violation
of law, may, nevertheless, recover the amount loaned, in an action
for money had and received; and such right of action will pass to a
transferree of the drait. Oneida Bank v. Ontario Bank,

490
8. In an assignment by an insolvent firm of the partnership property,
in trust for the benefit of creditors, the giving of a preference to the
separate debts of one of the partners, renders it fraudulent and void
in toto, as against firm-creditors; not merely illegal, as to the prefer
Wilson v. Robertson,

ence.

See COVENANT.

TRUST FOR CREDITORS.

AVERAGE.

537

1. The liability of a cargo to contribute in general average, is at an
end, when it has been completely separated from the ship, so as to
leave no community of interest between them. But if the adven
ture be not abandoned, and a portion of the cargo, though landed,
and separated from the rest, is still under the control of the master,
and liable to be again taken on board, in order to a continuance of
the voyage, the community of interest subsists, and it is liable to con-
tribute in general average towards whatever is done for the preser-
vation of the vessel and the rest of the cargo; and this, notwith-
standing the voyage is subsequently abandoned, and the ship and
cargo sold in the port of distress. Nelson v. Belmont,
36
2. Unearned freight is not to be included in estimating a general aver-
'age loss.
Id.

AWARD.

1. A common-law action will lie upon an award, though the submis-
sion provide that that judgment may be entered thereon in the
county court. Burnside v. Whitney,
148
2. Such action may be brought in the supreme court, before the next
term of the county court, after the making the award; if the de-
fendant have any ground for relief against the award, he may move
the county court for a stay of proceedings.
Id.

BANK OFFICERS.

1. A bond conditioned that the principal obligor shall faithfully dis-
charge "the trust reposed in him as assistant book-keeper" of a
bank, extends to his honesty, as well as his reasonable skill and dili-
gence. Rochester City Bank v. Elwood,

88

2. It is no defence to the surety that, at the time of an embezzlement,
the principal was employed in performing a duty usually assigned
to the teller; and that he made fraudulent entries in a book, gen-
erally kept by the latter, to cover up his embezzlement.

Id.

BANKS.

1. Where a general banking law reserves the right to alter or repeal,
though the articles of association of a bank incorporated under its
provisions provide that the shareholders shall not be individually lia-
ble, yet, it is competent for the people of the state, by an amendment
of the constitution, to provide that the stockholders of such banks
shall be liable in their individual capacity for the debts and engage-
ments of the corporation. Matter of Lee's Bank of Buffalo, . 9
2. The clause in the constitution of 1846 (Art. viii. § 7), relating to the
personal liability of the stockholders of banks, applied to existing
corporations. .

Id.
3. A banking association was formed in 1844, under the general act of
1838; its articles of association provided that the shareholders should
not be individually liable; it issued circulating notes after 1850;
and it was held, that the stockholders were individually liable, by
virtue of the amendment to the constitution, and the act of 1849, c.
226. The act of the corporation in issuing such notes, being the
exercise of a power conferred by the corporators, rendered them
liable for its consequences.
Id.

4. The provisions of the revised statutes (1 R. S. 603, § 4) prohibiting
any incorporated company from making any transfer or assignment
in contemplation of insolvency, extend to associations organized
under the general banking law. Robinson v. Bank of Attica, 406
5. The payment of a debt to a bonâ fide creditor, by a banking asso-
ciation, in contemplation of insolvency, is void; and the amount may
be recovered back by the receiver.
Id.
6. If there be an actual state of insolvency, such payment is within
the prohibition of the statute.
Id.
7. The drawer of a bill cannot object that it was discounted by a bank,
at a greater rate than six per cent., when having less than sixty
days to run; that restriction is intended for the benefit of the bor-
rower only. Oneida Bank v. Ontario Bank,
490

See SAVINGS BANK.

BILL OF EXCHANGE.

1. The drawer of a bill cannot object that it was discounted by a bank,
at a greater rate than six per cent., when having less than sixty
days to run; that restriction is intended for the benefit of the bor-
rower only. Oneida Bank v. Ontario Bank,
490

2. One who intrusts another with his blank acceptance, is liable to a
bonâ fide holder, though filled up for a sum exceeding that limited
by the acceptor; and this, it seems, on the ground of estoppel.
Duzer v. Howe,

Van

531

BILL OF LADING.

1. In an action against a sheriff, for not taking due care of a cargo of

coal, seized on a writ of replevin, the bill of lading is not evidence
of the quantity of coal on board. Moore v. Westervelt,

BONDS.

103

1. A bond conditioned that the principal obligor shall faithfully dis-
charge “the trust reposed in him as assistant book-keeper" of a
bank, extends to his honesty, as well as his reasonable skill and dili
gence. Rochester City Bank v. Ellwood,

BOOK-KEEPER.

See BANK OFFICERS.

BURDEN OF PROOF.

See EXECUTOR, 1.

FACTOR, 2.
PRESUMPTION.

CASES AFFIRMED, REVERSED AND OVERRULED.

Bangs v. Skidmore, 24 Barb. 29, affirmed,
Bartlett v. Judd, 23 Barb. 262, affirmed,
Belmont v. Coleman, 1 Bos. 183, affirmed,
Bevan v. U. S. Bank, 4 Whart. 301, criticized,
Boughton v. Otis, 29 Barb. 196, affirmed,
Briggs v. Palmer, 20 Barb. 392, affirmed,
Burnside v. Whitney, 24 Barb. 632, affirmed,
Church . Brown, 29 Barb. 486, reversed,
Condit v. Baldwin, 21 Barb. 181, affirmed,

88

136

200

96

39

261

574

148

315

219

Cox v. Platt, 32 Barb. 126, overruled, Wilson v. Robertson,

587

Draper v. Commercial Ins. Co., 5 Duer 234, reversed,

Fay v. Bell, Lalor 251, overruled, Mallory v. Gillett,
Hammond . Zehner, 23 Barb. 473, affirmed,

Holdane v. Trustees of Cold Spring, 23 Barb. 103, affirmed,

Parish of Bellport v. Tooker, 29 Barb. 256, affirmed,