2. A statement in a promissory note
that it was given for money loaned
is not conclusive; it is open to
either party to show the actual
consideration. Miller v McKenzie.

In proceedings by a creditor for the
sale of the real estate of a deceased
person it appeared that the real
estate had been sold under a judg
ment in a partition suit, but that
at the time of the sale the pur-
chaser was notified of the petition-
er's claim. Held, that the provision

687

tinguished. Sanford v. Ellithorp.

52

Williams v. Sargeant (46 N. Y. 481),
distinguished. Sanford v. Elli-
thorp.

52

of the statute (§ 72, ch. 460, Laws of | Levin v. Russell (42 N. Y. 251), dis-
1837, as amended by chap. 211, Laws
of 1873), prohibiting the sale in such
proceedings of real estate, the title
to which has passed out of any
heir or devisee to a purchaser in
good faith and for value, unless
the application for the sale shall
be made within three years after
the granting of letters testament-
ary or of administration, did not
apply; that the purchaser having
bought with full knowledge was
not a purchaser in good faith.
Mead v. Jenkins.

BROKER.

See STOCKBROKER.

BURDEN OF PROOF.

31

Quinby v. Strauss (90 N. Y. 664), dis-
tinguished. Sanford v. Ellithorp,

52

Parsons v. Lyman (20 N. Y. 103),
distinguished. In re Hughes.

60
Despard v. Churchill (53 N. Y. 192),
distinguished. In re Hughes. 60
Nodine v. Greenfield (7 Paige, 544),
distinguished. Lockman v. Reilly.

70

Parker v. Mayor, etc., of Macon (39
Ga. 725), distinguished. Cain v.
City of Syracuse.

89

People v. Corporation of Albany (11
Wend. 539), distinguished. Cain
v. City of Syracuse.
89
Jones v. New Haven (34 Conn. 1),
distinguished. Cain v. City of
Syracuse.

89

Norristown v. Moyer (67 Penn. St.
356), distinguished.
89
Sutherland v. Olcott (29 Hun, 16),
reversed. Sutherland v. Olcott. 93
Vail v. Vail (4 Paige, 317), overruled.
Cook v. Lowry.

109

13

Hull v. Hull (24 N. Y. 647), overruled.
Cook v. Lowry.
109
Bissell v. M. S. & N. 1. R. R. Co. (22

Somerville v. Crook (9 Hun, 664), dis-
tinguished. Sanford v. Ellithorp.

52

123

335

N. Y. 258), distinguished. Nassau | Rutherford v. Rutherford (1 Denio
Bk. v. Jones.
33), distinguished. In re Cottrell
Whitney Arms Co. v. Barlow (63 N'
Y. 62), distinguished. Nassau Bk.
v. Jones.
123
Woodruff v. Erie R. Co. (93 N. Y. 618).
distinguished. Nassau Bk. v. Jones.

123

Kerr v. Dougherty (79 N. Y. 327), dis-
tinguished. Hollis v. Drew Theo-
176
logical Seminary.
Lefevre v. Lefevre (59 N. Y. 434), dis-
tinguished. Hollis v. Drew Theo-
177
logical Seminary.
Duncan v. Pope (47 Ga, 445), distin-
guished. Todd v. Weber.
Nine v. Starr (8 Oreg. 49),
guished. Todd v. Weber.
Moncrief v. Ely (19 Wend. 405), dis-
tinguished. Todd v. Weber. 190

190

Lewis v. Lewis (11 N. Y. 220), distin-
335
guished. In re Cottrell.

Woolley v. Woolley (95 N. Y. 231), dis-
tinguished. In re Cottrell.

335

distin-

190

O'Donnell v. A. V. R. R. Co. (59
Penn. St. 239), disapproved. Vick v.
N. Y. C. & H. R. R. R. Co. 273
Waldele v. N. Y. C. & H. R. R. R.
Co. (29 Hun, 35), reversed. Waldele
v. N. Y. C. & H. R. R. R. Co. 274

Chaffee v. Baptist Mis. Con. (10 Paige,

85), distinguished. In re Cottrell.

Valentine v. Valentine (2 Barb. Ch.
430), distinguished.
Hancox v.
Meeker.
539
Drake v. Price (5 N. Y. 430), distin-
guished. Hancox v. Meeker. 539
Betts v. Betts (4 Abb. N. C. 317) dis-
tinguished. Hancox v. Meeker

539
Morgan v. Hannas (13 Abb. [N. S.]
361), distinguished. Hancox v.
Meeker,
539

335 Cram v. Cram (2 Redf. 246), ques.

plaintiffs, at the request of H. and
for the purpose of increasing the
depth of the lot, demised to him a
piece of land in the rear of said lot,
of the same width; this lease was
for the same time as the first one,
and ceased upon its termination;
it contained the same covenants for
renewals and for determining the
rent to be paid thereon. The two
leases being about to expire, arbi-
trators were nominated by the par-
ties pursuant to said covenants,
the same persons being nominated
under each lease. The arbitrators,
not agreeing as to the method of
ascertaining the value of the de-
mised premises, were about to ap-
point an umpire, as provided for in
the lease, when this action was
brought to restrain their action and
to adjudge the rights of the parties
in respect to the matter of disagree-
Held, that the complaint
was properly dismissed. Living-
ston v. Sage.
289

Earlom v. Saunders (Amb. 241), dis-
tinguished. Hobson v. Hale. 601
Cowley v. Hartstonge (1 Dow. 361),
distinguished.
ment.
Hobson v. Hale.
601

Hereford v. Ravenhill (5 Beav. 55),
distinguished. Hobson v. Hale. 602

Burrill v. Baskerfield (11 Beav. 525),
distinguished. Hobson v. Hale. 602

Power v. Cassidy (79 N. Y. 602), dis-
tinguished. Hobson v. Hale. 606

2.

87

By it,

The firm of L. & Co. executed to
plaintiff, who was a creditor, a gen-
eral assignment of all its property
for the benefit of creditors.
the assignee after paying partner-
ship debts, if a surplus remained,
was directed to pay the individual
debts of the copartners, and to re-
turn to them any residue. At the
time of the assignment the firm
held a claim against the United
States government, which was in
the hands of a broker for collection.
Thereafter, plaintiff, under an
agreement with the members of
the firm, returned to them a por-
tion of the assigned property, and
released his claim against the firm,
upon receipt of a bond of indem-
nity, conditioned for the payment
by them of the other firm debts,
and an assignment to himself of
all their rights and interest in the
assigned property, except that so
returned to them. The government
claim was allowed and paid by
draft to the order of the firm,
which was delivered to defendant
L., one of the copartners: he trans-
ferred it to the other defendants
who had knowledge of the assign-
ment; they collected the same.
Plaintiff had not been discharged
as assignee, some of the firm debts

remained unpaid, and it did not
appear that the individual debts of
the copartners had been paid. Held,
that an action was properly
brought by plaintiff, as assignee,
to recover the proceeds of the col-
lection; that title to the claim
passed to him as such assignee by
virtue of the assignment, and the 1.
trust was not discharged, nor was
the title affected by the subsequent
agreement, as it did not transfer
to him, individually, the assets
held by him as trustee, but only
the interest of the firm in any sur-
plus. Stanford v. Lockwood. 582

3. S. being the owner of sixty-one
shares of defendant's stock, which
stood in his name upon its books,
for a valid consideration sold the
stock and assigned the certificates
to H., who presented them, with
the assignment, to defendant, and
demanded a transfer to himself
upon its books; this was refused.
H. thereafter sold and assigned
the certificates to plaintiff. In an
action to recover dividends de-
clared upon the stock, it appeared
that, after notice of the transfer to
H., defendant caused the stock to
be seized and sold under an attach-

ment issued in an action brought
by it against S. Held, that assum-
ing the purchaser could be deemed
a bona fide purchaser, as to which
quære, it did not affect the rights
of plaintiff as against defendant;
that it could not set up its own
wrongful act to defeat his title;
and that he was entitled to recover.
Robinson v. Nat. Bk. of New Berne.
637

4. Also held, that plaintiff's right to

maintain the action was not affected
by the fact that he could bring an
equitable action to compel a trans-
fer or an action at law to recover
damages for the wrongful acts of
defendant.

CERTIORARI.

Id.

When proceedings of State
comptroller, on application to cancel
tax sales, reviewable by certiorari.
477
See Clark v, Davenport.

CHARITABLE CORPORATIONS.

See BENEVOLENT, ETC., ASSOCIA-

TIONS.

CIVIL DAMAGE ACT.

Under the provision of the "act to
suppress intemperance, pauperism
and crime" (Chap. 646, Laws of
1873), giving to certain persons
specified, who shall be injured in
means of support by an intoxi-
cated person, a right of action
against any person who, by selling
intoxicating liquors, caused the in-
toxication, to maintain the action,
it is not essential to show that the
act of the intoxicated person which
caused the injury was the natural,
reasonable or probable

conse-

quence of his intoxication; it is
sufficient if it appears that the act
was done while the person was in-
toxicated, in whole or in part, by
liquors sold by defendant. Neuv.
McKechnie.
632

2. Such a cause of action is not taken
away or mitigated by the fact that
the act causing the injury con-
stitutes a crime.

ld.

3. In such an action it appeared that
the father of the plaintiff, while in
a state of intoxication, produced
in part by liquors sold to him by
defendants, murdered his wife and
then committed suicide. Plaintiff
was fifteen years of age; he lived
with and was dependent upon his
father for support. Held, that the
facts were sufficient to maintain
the action.
Id.

4.

It appeared that defendants sold
the liquor without a license, and
that they had been so selling for a
long time. Held, that submission
to the jury of the question of ex-
emplary damages, and an allow-
ance thereof, was proper.
ld.

CLOUD ON TITLE.

1. A certificate, issued by the State
comptroller upon sale of lands for
taxes, illegally laid, is not a cloud
on the title, as the record of the
proceedings, which one claiming