and defendant's dog, which ended | ever, that the killing was necesin open combat. The defendant's dog was muzzled, and thereby incapacitated for defence. The plaintiff's dog was the aggressor, and it made a second attack upon the defendant's dog after having been once driven away. The defendant then seized the plaintiff's dog, whirled it by its hind legs in the air, and then dashed its brains out against the stones in the street. Defendant also offered evidence to prove that the dog was accustomed to bite mankind, which was excluded, the justice ruling that he would not receive evidence that the dog was ferocious unless the acts of ferocity were done within a year prior to the trial. D. Levy, for applt. A. H. Berrick, for respt. Held, That if the dog was killed whilst attacking the wife of the defendant, the plaintiff has no right of action; but the defence of a human being is not the only circumstance that will justify the killing of the dog. The owner of an animal may lawfully kill a dog if such killing be necessary to save the animal from death or from serious injury. The killing cannot be done to avenge an attack that has ceased and can only be justi fied when done to avert impending danger of death or serious injury to the animal. 6 Jones, N. C., 293; 65 N. C., 416. If two dogs are fighting and cannot otherwise be separated, the dog that made the attack may lawfully be killed. Saunders, 84. To constitute a justification, it must appear, how sary, and that the dog that was killed was the aggressor. There is some evidence that the killing was an act of vengeance, but a finding that the killing was necessary could not be at all reasonable. 9 Johns.,533; 4 Cow., 351. Further held, That the justice erred in excluding evidence that the dog was accustomed to bite mankind. There is no such limit known to the law as laid down by him. Acts of ferocity done at any time may be shown, but they will not make out a defence if it appear that for a long time the dog had ceased to be dangerous. If, however, it is proved that a dog is accustomed to bite mankind, that it was upon the highway, unmuzzled and in a condition to do injury to human beings, the killing of it is lawful. 21 Wend., 407; 13 Johns., 312. For error in excluding testimony, a new trial was ordered, without costs of appeal. Opinion by Van Hoesen, J.; Larremore, P. J., and Daly, J., concur. BROKERS. DEFENSE. N. Y. COURT OF APPEALS. Avila, respt., v. Lockwood et al., applts. Decided Jan. 20, 1885. In an action against brokers for moneys re ceived by them in a fiduciary capacity, the answer set up that the moneys were the proceeds of a sale of goods for plaintiff's assignor; that said assignor, in an action against the vendee, claimed to rescind the sale and recover the goods; that such action was pending, although judgment was had therein against said assignor, and that such action was a bar. Held, That the de fense could not prevail. This action was brought to recover of defendants $7,600 with interest from March 21, 1881. The complaint alleged that on or about that date the defendants, as agents and brokers of the Brooklyn White Lead Co., a domestic corporation, in the course of their employment and in their fiduciary capacity as such agents and brokers, received and had to and for the use of said company $7,600, which money belonged and was due to said company. That payment of said sum had been demanded and no part thereof had been paid. That said claim had been assigned to plaintiff. The answer set up as a defense that said company, in an action brought by it against these defendants and the Manhattan Chemical Co., about March 1, 1881, alleged that it was the owner, and entitled to certain sugar of lead which these defendants had sold or agreed to sell and deliver to the Manhattan Chemical Co., and claimed in said action as owner to rescind said sale and recover said sugar of lead in specie, instead of the price thereof. That said action was still pending, although judgment was had therein against the Brooklyn White Lead Co., and these defendants alleged that said action is a bar to this action, and that said Brooklyn White Lead Co. having elected to rescind said sale and to recover said sugar of lead (which sugar of lead these defendants and said Manhattan Chemical Co. are ready to deliver upon demand or its equivalent), that this action cannot, or ought not to be maintained; that the moneys claimed in the complaint are the same moneys, the proceeds of said sale of said sugar of lead which the alleged assignee of plaintiff rescinded. That plaintiff is not the real party in interest, but that the Brooklyn White Lead Co. is such party. W. F. MacRae, for applts. Wm. N. Dykman, for respt. Held, That the defense set up should not prevail, as if upheld it would require the court to hold that an ineffectual judgment divested a successful party of his property and gave the wrong. doer a new advantage. The title of the successful party is not disturbed until his judgment is in some way satisfied. 48 N. Y., 6. Although defendants have disposed of the property, as they still hold the proceeds of the sale, they should, as required by the judgment appealed from, pay them over to the person appointed by its owner to receive them 8 Cow., 43; Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Danforth, J. All concur. JUSTICE OF THE PEACE. The People ex rel Lawrence, respts., v. Mann et al., applts. Decided Jan. 20, 1885. A justice of the peace does not "hold the office of justice or judge of any court" within the meaning of Art. VI. of the Con- | such an official. stitution, and the limitation contained therein does not apply to said official. Reversing S. C., 19 W. Dig., 290. The question presented in this case is whether the limitation of age contained in § 13, Article 6, of the Constitution applies to justices of the peace. Said section is as follows: "Justices of the Supreme Court shall be chosen by the electors of their respective judicial districts. Judges of all courts mentioned in the last preceding section shall be chosen by the electors of the cities respectively in which said courts are instituted. The official terms of the said justices and judges who shall be elected after the adoption of this article shall be fourteen years from and including the first day of January next after their election. But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age." The section preceding mentions the Superior Court of the City of New York, the Court of Common Pleas of said city, the Superior Court of Buffalo and the City Court of Brooklyn. J. S. Millard and Geo. W. Parker, for applts. such an official. A justice of the peace may therefore be elected to and hold the office after "the last day of December next after he shall be seventy years of age." Order of General Term, affirming order of Special Term awarding an absolute right of prohibition, reversed, and writ dismissed. Opinion by Andrews, J. All concur. ABORTION. EVIDENCE. N. Y. COURT OF APPEALS. The People, respts., v. Vedder, applt. Decided Feb. 3, 1885. A woman upon whom an abortion has been produced at the instance of her paramour is not an accomplice in the commission of the crime within the meaning of the section of the Code requiring corroboration of the testimony of an accomplice. Defendant, with one P., was indicted for producing a mis-carriage upon the body of one W. On the trial W. was called as a witness by the people and gave evidence. Her evidence was objected to by defendant on the ground that it was uncorroborated, and therefore inadmissible, as W. was an accomplice. The objection was overruled, and the court charged the jury, with the consent of the district attorney, that they should acquit the defendant unless they found that W.'s testimony was corroborated by other evidence tending to connect him with the commission of the crime. The court also stated to the jury that W. could not be regarded technic ally as an accomplice in the com- | (Laws of 1848, Chap. 40), to charge mission of the crime. J. H. Clute, for applt. D. Cady Herrick, district attorney, for respts. Held, No error; that W. was not an accomplice within the meaning of the Code requiring corroboration of her testimony as matter of law.. 29 N. Y., 523; Penal Code, § 294; 10 Vroom, 599; 11 Gray, 85; 116 Mass., 343; 9 Texas Ct. App., 237. Judgment of General Term, affirming judgment of conviction, affirmed. him with certain debts of the corporation. Defendant was one of the trustees from 1872 to June, 1875. The corporation failed to make its annual reports as required (§ 2) in 1873, 1874, and 1875. This action was brought January 14, 1878, to charge defendant with certain debts alleged to have existed at the time of such defaults. The complaint alleged that said corporation hired of plaintiff certain premises for a . term of six and a half years from November 1, 1872, at a yearly rental Opinion by Ruger, Ch. J. All of $5,000 and the taxes and Croton concur. TRUSTEE. LIMITATIONS. N. Y. COURT OF APPEALS. The Rector, etc., of Trinity Church, respt., V. Vanderbilt, applt. Decided Feb. 10, 1885. Neither the continuance of default in paying water rates imposed for each year, and "if not so paid before the first day of February after they are so imposed, the company will pay on that day, as additional rent, all penalties and interest imposed for non-payment of the same." Defendant admitted these allegations to be true, and it was found that in 1873 and 1874 water rates and taxes were imposed upon said premises, which became due and payable in May and September in each of those years, and were not paid. The judge found as conclusions of law that a right of action accrued for the water rates and taxes imposed in 1873, by reason of the omission to file a report in 1873 and 1874, but that such right is barred by the statute of limita cover them accrued to the lessor until the tions; that a right of action for 1st of February after they were due. Affirming S. C., 15 W. Dig., 499. This action was brought against defendant as trustee of a manufacturing corporation, organized under the general manufacturing act those imposed in 1874 accrued to John McNamee, for applt. Held, That the liability of the corporation was upon the covenant to pay the water rates and taxes. Defendant's liability depended upon the existence of the debt, a default in making the report, and the trusteeship. 27 N. Y., 297; 81 id., 49. If there is no obligation giving a present right of action against the company, there is no debt which can be demanded as a penalty against the trustee. 62 N. Y., 203; 63 id., 62; 68 id., 34. Here there was an alternative contract, and the party to be charged could elect which alternative he would perform, and could be charged only upon a breach of both. The water rates and taxes imposed in 1873 the company was not chargeable with until February 1, 1874, and as there was a failure to file a report within. twenty days of January 1, 1874, the statutory liability accrued against defendant. The statute of limitations commenced running against the same on February 1, 1874, and the cause of action was barred before this action commenced. 27 N. Y., 297; 35 id., 412; 50 id., 137; 62 id., 203; 79 id., 404. Neither the continuance of the default, nor subsequentomissions on the part of the company to make a report, could as to the debt in question either renew the old liability or create a new right of action. The statute operates upon the remedy, and the omission of the creditor to pursue it cannot stop its running. 79 N. Y., 404. was Also held, That the taxes and water rates of 1874 did not accrue as a debt against the company Vol. 20.-No. 21a. until February 1, 1875, and at that time the defendant became liable because of the previous default of the company, and as the action. was brought within three years a recovery could be had against him. Judgment of General Term, affirming judgment at Circuit, affirmed. Opinion by Danforth, J. All concur, except Rapallo, J., who votes for reversal of defendant's appeal. SET-OFF. N. Y. COURT OF APPEALS. Littlefield, respt., v. The Albany County Bank, impld., appll. Decided Jan. 20, 1885. Whoever takes an assignment of an over-due debt or obligation takes it subject to all the equities of the person who makes the assignment, and the debtor has against him the same equities as against the assignor. Plaintiff on buying out his partner J.'s interest in the firm gave him certain promissory notes in payment, on the agreement that plaintiff should attend to the prosecution of an appeal from a judgment against the firm, and that J. would pay half the expenses and of the judgment if affirmed. J. became insolvent and assigned the notes to defendant after maturity and judgment was recovered upon them. Plaintiff was compelled to pay the judgment against the firm. Held, That he was entitled to have half of the amount paid by him on the judgment and for expenses thereon set off against the judgment recovered on the notes. This action was brought to have certain sums paid by plaintiff for the defendant, J., applied in satisfaction of a judgment obtained by J. against plaintiff in an action on certain notes, any recovery in which had been assigned by J. to |