nature of a condition subsequent. Neglect to comply with it would defeat a recovery, but its observance does not constitute any part of plaintiff's cause of action. 82 N. Y., 10; 10 Wend., 334; 12 id., 120. It is not necessary in the complaint to anticipate the adverse party's answer and forestall his defence and reply. It is only when the matter is such that the affirmation or denial of it is essential to the apparent or prima facie right of the party pleading, that it must be affirmed or denied by him in the first instance. 11 Cush., 130; 101 Mass., 145; 8 Johns., 33; 4 id., 304; 3 id., 438. Miller v. City of Buffalo, 1 Sheld, 490, considered. Judgment reversed, with costs, and defendant allowed to answer on paying costs of appeal and Special Term. Opinion by Barker, J.; Smith, P. J., concurs in result; Bradley, J., concurs; Haight, J., not sitting. FICTITIOUS NAMES. AFFI DAVIT. ARREST. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. James G. Ross, respt., v. Samuel P. Wigg, applt. Decided Oct., 1884. Although one who violates the statute forbidding the transaction of business under fictitious names is liable to punishment therefor, the property thus acquired is still his and may be sold or transferred by him in any of the modes known to the usages of business. A bill of sale given to close out and terminate such business is not within the evil which that statute was designed to prevent. The officer before whom affidavits may be taken without the State, under § 844, Code Civ. Pro., is one who is authorized to take acknowledgment of deeds by the laws of this State and not by those of the State of his residence. The fact that the officer knew the affiant or had satisfactory proof of his identity need not be certified by the officer. A certificate by the clerk that he knows the name of the officer subscribed to the jurat to be the autograph signature of such officer is a substantial compliance with § 844. What facts are sufficient to show an intent to dispose of property with intent to defraud creditors within the statute relating to orders of arrest and warrants of attachment. Appeal from order denying motion to vacate an order of arrest and a warrant of attachment. He had also Plaintiff was a resident of Canada, and had for a long time carried on business there under the name of "Ross & Co.," without having a partner. for six years prior to December 18, 1882, carried on business at Oswego under said name without a partner. On that day, at Quebec, he, in the name of Ross & Co., sold said business to defendant for $87,743.32, of which no part was paid down. Defendant, who was his confidential agent, agreed to remit him all collections from the business weekly as fast as received, with the exception of $8,000, which he was to repay within two years with interest. Defendant was also to pay all of plaintiff's debts contracted in the business and unpaid at that time. Plaintiff was compelled to pay drafts drawn for said debts, which defendant refused or neglected to | terminate and close out the lumpay, and also drafts accepted ber business it is doubtful whether for defendant's accommodation, it could be held invalid even if it amounting in all to $111,024.65, on which defendant paid $29,791.21. The drafts were all drawn, dated and made payable in Canada. This action was brought to recover the balance due, and upon the affidavits of plaintiff and one P. an order of arrest and a warrant of attachment were issued. The attachment was levied on certain property of defendant, and he was arrested and confined in jail in default of bail. Geo. N. Burt and W. F. Cogswell, for applt. W. H. Kenyon, for respt. Held, It does not appear that any of the several contracts set forth in the complaint was entered into in violation of the usury laws of this State, or of the statute prohibiting persons, from transacting business under fictitious names. 3 R. S., 7 ed., 2253; Laws of 1833, Ch. 281; Laws of 1849, Ch. 347. These statutes are penal laws and have no extraterritorial force. 87 N. Y., 430. Assuming that plaintiff had carried on the business in violation of law he did not forfeit the property he had acquired thereby or placed it outside of legal protection. 72 N. Y., 196. If he violated the statute he was liable to punishment therefor, but the property thus acquired was still his, and was subject to sale and transfer by any of the modes known to the usages of business. As the bill of sale was given, not to carry on, but to had been executed and was to be performed within this State. Such a transaction does not come within the evil which the statute was designed to prevent, as it does not impose upon the public or induce credit to be given upon a false basis. 72 N. Y., 196. Moreover, the act does not apply to co-partnerships located and transacting business in foreign countries, as they are permitted to use "their styles or firms of their houses in this State." The bill of sale does not in terms state where it is to be performed, but as it binds defendant to "remit" to plaintiff weekly all collections, the presumption is that he was to remit to plaintiff at his place of residence. But if it is. silent as to the place of performance, the rights and liabilities of the parties under it are to be determined by the lex loci contractus. 2 Parsons on Cont.. 582; 22 Barb., 118; 14 Wend., 249. Therefore, if it was valid by the laws of, Canada, where it was made and dated, it is valid everywhere. where. 72 N. Y., 474; 35 Barb., 182; Story Confl. Laws, § 282. All of the contracts except the bill of sale were by their terms to be performed in Canada. Whether, therefore, the action is upon the drafts themselves or upon the implied promise to pay, springing from the fact of payment by plaintiff for the benefit of defendant and at his request, they are Canadian contracts and are to be where they were made. governed by the laws of the place | cases.' We think that this is what the legislature intended in enacting the section. By the act of 1870 acknowledgment of deeds. may be taken before the judge of any court of record within the Dominion of Canada. The affidavit of P. was not considered on the motion to vacate, the justice holding that it was not certified as required by § 844, Code Civ. Pro. The affidavit was taken before the judge of the County Court in York Co. in Canada. The jurat stated that the court was a court of record, having a seal, but did not state that the judge knew the affiant or had proof of his identity. The clerk's certificate stated that the name of the judge subscribed to the jurat was known to him to be the autograph signature of said judge. It is claimed by appellant that § 844 means that the affidavit may be taken before an officer authorized by the laws of a foreign state or the State of his residence to take and certify the acknowledgment of deeds. 66 66 Held, Untenable; that under 844 and Chap. 208, Laws of 1870, the judge was authorized to take the affidavit. The word State" as used in § 844 in each instance means the State of New York. The expression as used in this section, before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds," means an officer thus anthorized by the laws of this State. The commissioners, in their note to this section, say, "It is thought better that all officers authorized to take acknowledgments should be empowered to administer oaths, and that their acts should be authenticated in the same manner in both Vol. 20-No. 10. Also held, That the fact that the officer knew the affiant or had satisfactory proof of his identity need not be certified by the officer in his jurat. Section 844 does not require that the certificate of the judge should state this. Also held, That the certificate of the clerk was a substantial compliance with the statute, because it not only implied all that the statute requires, statute requires, but included more and furnished a better safeguard. 4 Ed. Ch., 70; 2 Barb. Ch., 232, 2 Cow., 552: 6 Johns., 149. The moving papers, besides the foregoing facts, showed that although defendant admitted that he had large sums on hand he refused to pay the same to plaintiff; that he ceased to make payments since August, 1883, but continued to sell off the property; that he had substantially no other property; that he refused to give plaintiff a mortgage on a new dock for the amount of plaintiff's money invested therein; that he attempted to settle $10,000 of the money on his intended wife so that if anything should happen to the business she would have it to fall back upon; that he said he had plaintiff in his hands and could do with him as he liked; that he never intended to pay him at the time agreed on, and should not pay until he got ready, and that he intended to bring plaintiff to his terms and could fix his property in twenty-four hours so that he could get nothing out of it; that he told plaintiff that if he pushed him for payment he would make him lose all he could; that subsequently defendant told P. that he intended to sail for England; that subsequently he gave a mortgage to his brother and was in the city of New York with three or four trunks. Held, That these facts made out a prima facie case and gave the court jurisdiction. Such declarations and threats are not consistent with an honest purpose, and without proof of any furtive act tend to show that he is about to remove or dispose of his property with intent to defraud. 14 Abb., 64; 27 How., 506. When it fur ther appears that the debtor, having recently stated that he was going to England, gives a mortgage to his brother, leaves his business and is found in the city of New York with three trunks and with $20,000 in money either in his possession or unaccounted for, apparently intending to sail for England the next day, the conditions of the statute relating to orders of arrest and warrants of attachment are fully fully complied with, and it is incumbent on defendant to answer or explain these allegations before a provisional remedy based thereon is set aside. Order affirmed, with costs. Opinion by Vann, J.; Hardin, P. J., and Follett, J., concur. POLICE JUSTICE. SALARY. N. Y. SUPREME COURT. GENERAL Decided Oct., 1884. Under the charter of the city of Rochester the common council may increase the salary of the police justice for the remaining portion of a partly expired fiscal year. Appeal from County Court judgment, affirming judgment of the Municipal Court of the city of Rochester. Plaintiff was police justice of the city of Rochester. Prior to May 18, 1880, his annual salary had been less than $2,500. On that day the common council passed a resolution that the salary be $2,500. On May 21 the resolution was presented to the Mayor, who within five days returned it, objecting to the same in writing as required by the charter, but did not give his reasons therefor until after the time prescribed by the charter therefor. Plaintiff received only the salary as before fixed, and his demand for payment of the increase being refused, he brought this action to recover it. The trial court held that he was entitled to the increase from the time the resolution was passed, with interest from the time of the refusal of the treasurer to pay it. The charter of the city makes the municipal year and the terms of its officers begin on the first Monday of April, and directs that the common council shall annually determine the salary of police justice and other officers, which TENANTS IN COMMON. shall not be diminished during the then current year, and that the SESSION. NOTICE. POS police justice shall not be entitled N. Y. SUPREME COURT. GENERAL to receive any fees, "but shall receive in full compensation for his services an annual salary to be fixed from time to time by the common council." John R. Fanning, for applt. George Truesdale, for respt. Held, That complete legislative power on the subject of plaintiff's salary was vested in the common council, subject only to the limitation that they should not diminish it. The office of plaintiff is a public trust, with its duties imposed wholly by law, and except as restricted by constitutional or statute law power may be vested and exercised to increase or diminish his compensation at pleasure. 2 Sandf., 355; 5 N. Y., 285; 80 id., 185, 190; 10 How., U. S., 402. The Mayor's failure to present his objections as prescribed permitted the resolution to become effectual. 39 Cal., 189; S. C., 2 Am., 432. The import of the charter provisions is not that the officer's salary must be uniform through the year, but that his compensation shall be a fixed one, termed salary, and shall be determined by the constituted authority designated as in its judgment the character and value of the services may from time to time require. Judgment affirmed. Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ., concur. TERM. FIFTH DEPT. Ann J. Thomas, applt., v. Orrin S. Bacon, respt. Decided Oct., 1884. Plaintiff made a lease to W., by its terms making the parties to it tenants in common of the crops then growing and thereafter to be sowed on plaintiff's farm, and giving plaintiff a lien on W.'s share. Held, That the lease not having been recorded, it is not good as against a subsequent mortgagee in good faith of W.'s share. The possession of one tenant in common is not notice to subsequent purchasers of any interest the co-tenant may have in the share of the actual possessor. Appeal from judgment on referee's report. Action for conversion of wheat and barley. Defence, that defendant took the property as agent of C., mortgagee of W., who owned it. In February, 1880, plaintiff and W. made an agreement under seal, by which plaintiff leased her farm to W. for three years from April 1, 1880, to work on shares. on shares. Certain wheat then growing on the farm was to be harvested by W. and equally divided, and W. was to leave a like quantity sowed at the end of the term, all of which should be plaintiff's. All crops and other products of the farm, during the term, were to be equally divided. W. agreed that plaintiff should have a lien on all crops sowed as security for any money owing her by W. and for the performance of W.'s obligations under the lease, and W. was to execute |