FELONIOUS ASSAULT.

1 To sustain a conviction for an assault under
Chap. 74, Laws of 1854, the jury must find
that the assault was committed with a sharp
as well as with a dangerous weapon. The
People v. Hickey et al.
273

2 A person cannot be convicted of an assault
with intent to do bodily harm, under the
statute of this State, unless the jury find that
the same was committed without justifiable or
excusable cause. Leishman v. The People. 413
See CRIMINAL PRACTICE AND PLEADING,

2.

2 Where the risk is accepted with a condition
which is never brought to the knowledge of
the insured, a breach of such condition will
not avoid the policy.
Id.

3 An insurance in the name of the owner of
the property, but loss, if, payable to the
mortgagee to the extent of his interest, is not
an insurance of the interest of the mortgagee,
but of the property of the mortgagor for his
benefit, and as collateral security for the
mortgage. The Ulster Co. Sargs. Inst. v.
Decker et al.

175

4 Where a policy stipulates that any false rep-
resentations as to the condition, situation or
occupancy of the premises shall render it void,
the contract is violated at its inception if the
premises are not occupied as represented. The
Farmers & Drovers' Ins. Co. v. Curry et al.

declared by statute to be representations and
6 Although statements in an application are
not warranties, still the parties may make a
valid agreement that they shall be considered
warranties.
Id.

7 One of several cestuis que trust may insure
his interest in the trust property in the name
of the trustee, but loss, if any, payable to him-
self, and in case of loss receive the entire pro-
ceeds, provided no unfair advantage is taken
of the others in effecting the insurance. Har-
vey v. Cheny et al.
380

8 Where the owners of whiskey in a distiller's
bonded warehouse are sureties on the, distil-
ler's bond, their liability for the government
tax in case of the destruction of the property
and failure of the distiller to pay is an insur-
able interest. The Germania Fire Ins. Co. et
al. v. Thompson et al.
525

9 A sale by one of the partners of all his in-
terest in the partnership will not deprive him
of this insurable interest.
Id.

10 The appointment of a receiver in an action
to dissolve a partnership does not change the
legal title to or possession of the partnership
property so as to avoid a policy of insurance.
Keeney, rec'r., v. The Home Ins. Co.

527

13 An executory contract of sale of the prem-
ises does not transfer the title so as to work a
forfeiture of the policy.
Id.

14 A provision in a policy that it should be void
in case the premises become "vacant and un-
occupied" must be construed and applied in
view of the subject-matter of the contract,
and of the ordinary incidents attending the
use of the property. Whitney v. The Black
River Ins. Co.

565
15 The continuing of the use of a planer in a
sawmill is not a violation of a provision of the
policy that it should be void if the premises
were used so as to increase the risk, even
though the company were ignorant of its use
at the time the policy was issued.

ld.

5 Where the policy provides that if the inter-
est of insured is other than that of sole and
unconditional ownership, it must be so ex-
Vol. 5.-No. 27

|

596

17 Where four policies of insurance, similar in every respect, except dates and amounts, and covering the same property, were issued by the same insurance company, and proofs of the loss was made under one policy with notice that they applied to all. Held, That such proofs were sufficient, especially as they had been held by the company without objection for nearly thirty days, and the company had offered to pay a much larger amount than that of any one policy. Dukin v. The Liverpool, L. and G. Ins. Co.

598

18 Where a policy insures two or more persons, as interest may appear," one of them being a mortgagee and the others owners, but it is not so stated, the policy is not therefore rendered void. ld.

19 Where the total loss was made payable to plaintiff as mortgagee, but one of the insured was equitably entitled to a part thereof; and the plaintiff's complaint was not for the full amount, but only for the actual amount of his claim. Held, That plaintiff might amend so as to claim the full amount of the loss, notwithstanding the other party had also brought suit to recover the amount claimed by him. Id.

See SUBROGATION, 2, 3.

FORECLOSURE.

See MORTGAGE, 2, 7, 11, 12, 15, 16, 24, 32.

FORFEITURE. See CORPORATIONS, 14.

FORGERY.

1 Where evidence, otherwise unimportant, was clearly inadmissible, and the Court was satisfied that it was introduced for a purpose other than the one stated, and for which its admission would be improper, the verdict was set aside for error. Cole v. Cole, exr. 452 2 This principle applied to a case in which the Other issue was whether a note was forged. notes of the maker were introduced, as alleged, solely on the question of the feeling existing between the parties at a certain time. By their introduction and submission to the jury the latter were enabled to make a comparison of hands. Held, Error.

See EVIDENCE, 31.

FRAUD.

ld.

1 Whether there is an acceptance of a gift or not depends upon all the circumstances anterior and subsequent, and when these circumstances have been considered by the auditor, to whom the matter has been referred, and by the surrogate, and have led them to the conclusion that there was an acceptance, their conclusions will not be disturbed where there is evidence on which they might arrive at such decision. Child et al., exrs., v. Child. 16

2 A delivery by a father to his sons of checks payable after his death, accompanied by passbooks on the savings banks where his money was deposited, is not a valid gift of the moneys in such banks. Curry et al. v. Powers.

93

4 Under the law applicable to gifts causa mortis, the title to non-negotiable choses in action will pass by delivery only. Cornell et al., exrs., v. Cornell. 388

5 In an action involving the validity of a gift, to which the executor of the donor is a party, evidence of conversations between the donor and witnesses, one of whom is the donee and another the residuary legatee, is inadmissible.

See ADVANCEMENTS, 1; EVIDENCE, 17.

GUARANTY.

See NEGOTIABLE PAPER, 11.

GUARDIAN AND WARD.

id.

1 The mother, who was also general guardian of a minor, paid over to her husband, his stepfather, a pension to which the minor was

2 A Court of Oyer and Terminer has no power to issue a writ of habeas corpus in the case of a person held in custody by virtue of a warrant of extradition, The People ex rel. Connors v. Reilley.

115 3 Such a person is not a prisoner detained in the common jail of any such county, upon any criminal charge," within the meaning of sec. 27, ch. 460, Laws of 1847. Id.

4 Where a writ of habeas corpus has been is sued in such a case by an officer having authority so to do, the warrant of the Governor is not conclusive, but such officer may go behind such warrant and determine whether any crime was sufficiently charged against the relator in the affidavits presented to the Gov

ernor.

HIGHWAYS.

Id.

2 A person whose rights are injured by such obstructions is entitled to equitable relief without first bringing an action of trespass and

establishing his legal right by judgment. Id 3 A highway cannot be said to be opened and worked unless it is passable for its entire length. Beckwith et al. v. Whalen. 286

4 Referees appointed by a county judge to hear an appeal from an order of the commissioner of highways have only the power to consider and determine whether the highway, as proposed by the commissioner to be laid out or altered, is Lecessary and proper. Rector v.

Clark et al.

355

See BRIDGES, 4; NUISANCE, 1, 2; RAILROAD COMPANIES, 14, 15.

HUSBAND AND WIFE.

1 A tract of land was conveyed to a husband and wife. He deeded his interest to her, she giving back to him a mortgage. Held, That the deed and mortgage were void. Daly's admrs. v. Wright et al. 229

2 The wife's interest under such a conveyance is in no sense her separate estate. Id.

2 A statute extending the time for the finding and filing of indictments for bribery, &c., from three to five years, passed after the commission of the offence, is an ex post facto law, and an indictment found under it cannot be sus302 The People v. Lord. tained.

3 It is no objection to an indictment that two or more offences of the same nature, upon which the same or a similar judgment may be given, are charged in different counts. Taylor v. The People.

359

INJUNCTION.

1 An irregularity in obtaining an injunction against a corporation is not waived by an apWilkie plication to dissolve the injunction. v. The Roch. & St. L. RR. 352

2 The provisions of an injunction to restrain a RR. Co. from operating its road over land adjudged to belong to the party obtaining it was suspended for ninety days to enable the RR. Co. to perfect its title. Held, To be satisfied if within that time the necessary proceedings are commenced. The Washington Cemetery v. The P. P. & C. I. RR. Co.

395

3 The plaintiffs were second mortgagees and their mortgage became due presently. The mortgaged premises were an insufficient security, and the defendant, the mortgagor, was insolvent. The first mortgage was unpaid. A portion of the mortgaged premises was valuable wood land, from which the defendant was cutting and had cut large quantities of wood. The Court sustained an injunction restraining the defendant from further cutting and also from removing timber already cut by him. Herman et al., exrs., v. Stewart et al. 408 4 Parties to an action and their servants and agents may be enjoined. If a person enjoined is in fact a mere servant or agent, it does not vitiate the injunction to name him in it. Farrington v. Birdsall et al. 421

5 The parties in interest may, in a Court of Equity, test the right of a petitioner to prose

See LIFE INSURANCE, 14, 15, 18.
INSPECTION OF BOOKS AND PAPERS.
See PRACTICE, 25.

INSURANCE COMPANIES.

1 The owner of a paid-up policy cunnot main-
tain an action to remove a trustee of the
company for an abuse of trust. The word
"creditor" in the statute means a judgment
creditor. Belknap v. The North American Life
Ins. Co. et al.
235

2 The right of action given to creditors by S
35. of 2 R. S., 463, is not taken away by § 17
of Chap. 463, Laws of 1853.
ld.

3 It rests in the discretion of the Supreme
Court to order payment of individual claims
against an insolvent insurance company from
time to time, or to order the assets to be dis-

tributed as they accumulate in the receiver's
hands, or upon making the final order in the
proceeding. In re Miller v. Wickham, recr. 311
4 The submission of a brief signed by counsel
for "Foote and others, policy-holders," does
not make them parties to the application, or
bind them by the result.
Id.

See APPEAL, 15.

INTEREST.

1 A bond was given conditioned for the re-
moval of certain liens on land within two
years. Held, That interest was to run after

eral jurisdiction of a sister State, the want of
1 In the case of a judgment of a Court of gen-
jurisdiction may be shown by extrinsic evi-
dence, and the recital of a jurisdictional fact
in the record is not conclusive, but may be
contradicted by extrinsic evidence. Ferguson
v. Crawford et al.
116

2 The Supreme Court has concurrent jurisdic-
tion with the Surrogate to enforce the pay-
ment of legacies. Lewis et al. v. Maloney. 358
3 The amendment of 1874 to the Bankrupt
Act has not deprived the State Courts of juris-
diction over actions by assignees in bankruptcy
for the collection of assets of the bankrupt