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FALSE IMPRISONMENT - Unverified pleading - Code of Civil Pro-
cedure, sections 523, 837 - allegations tending to accuse the pleader of a crime or
misdemeanor.

See DEHN D. MANDEVILLE.

335

FALSE REPRESENTATIONS - Lien, under a mortgage, upon land in
another State to secure future indorsements - burden of proof on the plaintiff.]
1. Where the plaintiff, in an action brought to recover money alleged to have
been paid to the defendant under the inducement of false representations,
seeks to recover upon the theory that the defendant falsely represented that
he had a lien upon land in another State, purchased by the plaintiff, by force
of a mortgage to secure future indorsements, given by a former owner of
the land, stating that certain promissory notes claimed to be covered by the
mortgage were made before the plaintiff's purchase of the land, whereas they
were in fact made after such purchase, the burden is upon the plaintiff to
prove that under the law of the State in which the land is situated no lien
could exist, under such a mortgage, by reason of notes made after the mort-
gagor ceased to own the land. WILLOUGHBY v. FREDONIA NAT. BANK..... 275

2. Notice to prevent further indorsements, necessary.] It is the law of
the State of New York that a mortgage to secure future advances or indorse-
ments is valid; is within the Recording Act; is notice to subsequent pur-
chasers and puts them upon inquiry as to the amount of advances or
indorsements already made; and it is only by notice to the mortgagee, or
other holder of the mortgage, that still further advances or indorsements
which shall be equally a lien on the mortgaged premises can be prevented. Id.

FAMILY - Services rendered to a relative, in the family-compensation,
after the death of the person to whom the services were rendered.

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FRAUD - Sections 380, 382, sub. 5, 1871 and 1872 of the Code of Civil Pro-
cedure must be construed together in applying the Statute of Limitations to a
judgment creditor's action based on the ground of fraud.

See WEAVER 2. HAVILAND...

Conveyance, by the equitable owner, of an interest in a decedent's

estate - when valid, although made to a trustee holding the legal title.
See MATTER OF LEDRICH

Assignment for the benefit of creditors - action to set aside the assignment
for fraud, brought after a judgment for an accounting by the assignee -fraudu-
lent intent in making the assignment.

See TURNEY D. VAN GELDER...

376

396

481

FRAUD - Continued.

Attachment - conversion of personal property - secreting property with
intent to defraud creditors.

See ZIEGLER 2. ZIEGLER...
See FALSE REPRESENTATIONS.

FRAUDULENT CONVEYANCE – Retention of the subject-matter thereof
as security to the grantee for the consideration paid by him.] When a convey-
ance made by a judgment debtor is set aside as in fraud of creditors, in an
action in the nature of a creditors' bill, it should be retained as security
to the grantee (although said grantee is affected with knowledge of the
fraudulent intent with which it was executed), for so much of the con-

sideration therefor as is represented by land conveyed to the grantor in
exchange therefor, which by reason of such conveyance to the judgment debtor
is made subject to, and the proceeds of which are applicable in satisfaction of,
plaintiff's judgment. BALDWIN 2. JUNE

2. To what consideration not extended.] Such security, however, is
not to be extended to an antecedent indebtedness of the grantor to the
grantee, included in the consideration for the conveyance. Id.

3. - Interest, when not allowed.] When the grantee in such a case has had
the use and profits of the premises covered by the conveyance, he is not
entitled to interest on the amount of the consideration for which the convey-
ance is retained as security. Id.

By a debtor.

See ASSIGNMENTS.

FREIGHT Lien and liability of common carriers for,

See CARRIERS.

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284

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GUARDIAN AND WARD - Surrogate's decree directing payment by an
administrator to a general guardian the general guardian may maintain an
action therefor on the administrator's bond appointment of a general
guardian - citation.

See PRENTISS V. WEATHERLY..

A general guardian has no power to submit a cause of action either on
behalf of or against an infant.
See COUGHLIN D. FAY...

daughter.

Savings bank account — in the name of a father as guardian of his
See O'BRIEN D. WEILER......
HANDWRITING - Evidence as to.

See EVIDENCE.

HIGHWAY - Defective ditch on a highway - work done by a highway com-
missioner under a contract with a landowner - damages.

See FROMM 0. IDE

HOMICIDE - Indictment for murder - conviction of manslaughter - scope
of cross-examination of the defendant - objection to a photograph as evidence -
intent - technical errors not regarded on appeal - Code of Criminal Procedure,
§ 542.

114

521

64

310

See PEOPLE 2. WEBSTER..

11

HORSE RAILROADS:
See RAILROAD.

as to the

HUSBAND AND WIFE - Agreement of separation - covenant
wife's support - parties to an action to enforce it.] 1. When an agreement of
separation, made by a husband and wife and a trustee, contains a covenant
on the part of the husband to pay a certain annual sum to the trustee for the
wife's support, but contains no express covenant to pay any sum to the wife,
and the trustee agrees to indemnify the husband for the wife's debts, the wife
cannot (at all events without a refusal by the trustee to enforce the covenant
and his joinder as a defendant) maintain an action at law against her husband
to enforce his covenant to pay money to the trustee; but the trustee, as the
trustee of an express trust within section 449 of the Code of Civil Procedure,
is entitled to maintain such action. LORD v. LORD

2.-

Separation from bed and board - alimony.] The alimony allowed
in a judgment of separation from bed and board, for the support of the wife
and three daughters awarded to her custody, fixed at $200 a month, where
the wife had no means for supporting herself and daughters except as
derived from her husband, and the husband had an income of about $9,500 a
year. EMERSON 2. EMERSON..

Married woman

her husband.

action by, for a personal injury, without joinder of

See WELD v. N. Y., L. E. & W. R. R. Co......
Former adjudication - a party who has procured a judgment cannot
See VAN KOUGHNET v. DENNIE..

impeach it.

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Alimony - waiver of a jury trial, as a condition of granting.
See LOWENTHAL D. LOWENTHAL..

- Ejectment - claim by the defendant in right of his wife.
See DANIHEE 2. HYATT

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537

37

249

179

366

255

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INFANT - Conversion of promissory notes belonging to an infant - contracts
between attorney and client — an infant's liability for legal services - avoidance
of an infant's executory contract.] 1. As a condition of the settlement of an
action for a breach of promise of marriage, brought by an infant, the defend-
ant in that action agreed to give her his promissory notes for a certain
amount; in the infant's absence these notes were taken by her attorney,
Breen, and were made payable to him, without the infant's knowledge or
consent; thereafter a third party, Williams, by arrangement with Breen,
indorsed the notes and obtained their discount by and transfer to a bona fide
holder before maturity. The proceeds of the notes were received by Breen
and Williams, and only a portion thereof turned over to the infant; there-
after the infant, by guardian, brought an action against Breen and Williams
to recover the value of the notes, on the ground of their conversion.

Held, that as the evidence tended to show that before any of the notes were
transferred, both defendants knew that the plaintiff was an infant, and that
there was a concert of action on their part to procure the notes without pay-
ing the plaintiff an adequate compensation therefor, it was sufficient to require

INFANT - Continued.

the submission to the jury of the question of Williams' good faith in pro-
curing, indorsing and transferring the notes, and to justify a verdict against
him, as well as against Breen.

An attorney who seeks to avail himself of a contract made with his client,
must establish affirmatively that it was made by the client with a full knowl-
edge of all the material circumstances known to the attorney, and is in every
respect free from fraud on his part, or misconception on the part of the
client, and that a reasonable use was made by the attorney of the confidence
reposed in him.

If a liability exists on the part of an infant to pay for services performed
by an attorney, when necessary for the infant's protection or that of his estate,
such liability is limited to the actual value of the services rendered, and the
infant will not be bound by any agreement which he may have made as to
the amount.

An infant cannot authorize or consent to the transfer of a promissory
note belonging to him, so as to relieve another from liability for a conversion
of the note.

PAGE.

Semble, that an executory contract of an infant, relating to his personal
property, may be avoided by him during infancy. PETRIE D. WILLIAMS... 589

2. Tender.] The defendants contended that the plaintiff could not
recover without tendering to the defendant Breen all she had received from
him. It appeared that the defendants were permitted to prove all that had
been advanced to the plaintiff, and the jury deducted that amount from the
value of the notes other than those which had been delivered to Williams for
real estate conveyed to the plaintiff, and also that all the money that had
been paid to the plaintiff by Breen had been expended or squandered by her
during her infancy.

Held, that under these circumstances, the defendants had no moral or legal
right to require the plaintiff to restore the money received by her, as they
were allowed the full benefit of the amount thus paid, and the plaintiff could
not make such restoration, Id.

3. Testimony given by one defendant in another proceeding, inad-
missible as against a co-defendant.] Before the trial and subsequent to the
transfer of the notes in question, the defendant Breen had been examined in
proceedings supplementary to the execution, at which examination the
defendant Williams was not present; a part of the testimony given on this
examination which tended to rebut receipts of the plaintiff acknowledging
certain payments to her by Breen was admitted in evidence against both
defendants, over the objection of the defendant Williams, that it was
incompetent and hearsay.

Held, that this testimony was competent as against Breen but not against
Williams, and that its admission as against the latter was error which called
for a reversal of the judgment as against him. Id.

4.

Right of orphan asylums to bind out children - chapter 438 of the Laws
of 1884-record of a conviction, as evidence.] When the mother of a child,
placed in an orphan asylum but not committed to its care by any instrument
in writing, or by any mayor, county judge, or superintendent or overseer of
the poor, has paid for its support while in the asylum, there has not been an
absolute surrender of the child to the asylum in such a manner as to give
the asylum jurisdiction, under chapter 438 of the Laws of 1884, to bind out
the child.

An error, if any, in reading in evidence, under the defendant's objection,
in a proceeding by habeas corpus to remove a child from the custody of the
person to whom it has been bound out by an orphan asylum, a record of the
defendant's conviction of a crime, is cured by the defendant's subsequently
going upon the stand as witness in his own behalf. (Code of Civ. Pro. § 832.)

5.

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PEOPLE EX REL. STEWART T. PASCHAL...

Power of the Supreme Court over the custody of infants.] The ancient
power of the Supreme Court to control the custody of infants by the writ
of habeas corpus has not been taken away by the enactment of section 12 of
chapter 438 of the Laws of 1884, which provides for an application to the

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INFANT - Continued.

Surrogate's Court of the county in which the foster parent resides, for a can-
cellation of agreements of adoption. If the statute of 1884 is broad enough
to afford relief on the ground that the foster parents of an adopted child are
immoral or improper persons to have the custody of a child, it but affords a
concurrent remedy to that of an application to the Supreme Court by writ of
habeas corpus. Id.

6. Submission upon agreed facts -infants.] A general guardian has
no power to submit a cause of action either on behalf of or against an infant,
so as to give the court jurisdiction to adjudicate upon the rights of the infant.

PAGE

COUGHLIN D. FAY.....

- Rights and duties of guardians of infants.

521

See GUARDIAN AND WARD.

INHERITANCE TAX:

See TAX.

INJUNCTION - Trade-mark-size and color of wrappers similarity of

names.

-

See BABBITT T. BROWN.

Agreement to pool corporate stock - not enforcible by injunction.
See WILLIAMS V. MONTGOMERY..

INJURY:

See NEGLIGENCE.

a

a

INSANE - Application for
supersedeas and the discharge of
committee,
on the ground of recovery of sanity.] On the application by an adjudged
lunatic, alleging that he had recovered his sanity and praying for a super-
sedeas and for the determination of the question of his sanity at Circuit, it
appeared that since the petitioner was adjudged insane, he had been given
two opportunities to have the question of his sanity again passed upon by a
sheriff's jury, but had willfully neglected to avail himself thereof, and that
he had escaped from the custody of his committee, and had left the State
of New York, and refused to disclose his whereabouts, so that it was impos-
sible to procure an examination, by a disinterested physician, as to his pres-
ent mental condition.

515

416

Held, that the application was properly denied. MATTER OF BLEWITT.... 127

INSURANCE - Mutual benefit associations contract of membership and
endowment.] A reply by the general active officer of a fraternal and mutual
benefit association, to a request of a member for blanks on which to make
proof of a disability, that it was useless for the member to submit proofs of
disability, as his claim would be rejected, constitutes a waiver on the part
of the association of the obligation to present proofs of disability, and of a
compliance with the formal procedure required by the association to perfect
the member's claim. HUTCHINSON . SUPREME TENT, ETC....

2.- Total permanent disability.] A certificate of membership in a
fraternal and mutual benefit association provided that, in case of permanent
or total disability, the member would be entitled to receive one-half of the
endowment, as provided in the laws of the order; the member, in his
application for membership, agreed that the constitution of the order should,
with his application, form the basis of his contraet for endowment.

The constitution provided that "a total and permanent disability to per-
form or direct any kind of labor or business, or upon reaching the age of
seventy years, shall entitle a member holding a certificate of endowment so
disabled or aged to the payment of one-half of the endowment to which he
would be entitled at death."

A member, who was a railroad switchman, accidentally lost all the fingers
of one hand, in coupling cars, and brought an action against the association
to recover one-half of the amount of the endowment.

Held, that the constitution of the association was a part of the contract
between the parties;

That, under the definition furnished by it, a disability that would entitle the
plaintiff to recover, must be not only permanent, but total, so as to render

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