effected by a direct proceeding.-Cronin | 2. Defendant was executor and trustee under v. Stoddard, 143.
7. One B. was elected an excise commissioner but failed to procure approval of his bond. One K. was thereupon elected to fill the sup- posed vacancy, qualified and acted with the rest of the board in granting license to de- fendant. B. afterwards procured the ap- proval and acted with the board. Held, That there was no vacancy, and that de- fendant's license was no protection.-Id.
8. The Board of Commissioners of Excise of the city of Auburn may sue for penalties for violation of the excise laws.-The Board of Comrs. of Excise v. Burtis et al., 272. See OFFICE, 2.
1. Plaintiff in the first action replevied cer- tain malt and defendants failed to give a bond for its return. Before the sheriff de- livered it to the plaintiff, an execution in the second action was issued to him under which he levied on the malt. Held, That the levy could not be sustained.-The First Natl. Bk. of Oswego v. Dunn et al., 17.
2. An officer is protected in the execution of process regular on its face and coming from a court of competent jurisdiction.-Bodine v. Walters et al., 132.
3. An attachment was granted against de- fendant as a resident who had departed from the State with intent to defraud cred- itors. The execution directed its collection out of the attached personal property, and if that was insufficient, then out of the attached real estate. Held, That the exe- cution was not in conformity with subd. 2 of § 1370, and was void; that no title could be acquired thereunder even by a bona fide purchaser, and that the fact that the debtor had no other personal property out of which the execution could be collected was imma- terial.-Place v. Riley, 374.
See CHATTEL MORTGAGE, 1; FALSE IMPRIS- ONMENT, 1.
1. A testatrix by her will bequeathed one thou- sand dollars apiece to two of her grand- children to be paid out of the proceeds of her real estate when her executor might deem it advisable to sell." She then di- vided the "residue of her real estate' into two equal parts, one of which she devised to her daugher, directing her executor to pay such daughter the income arising from it "until he might think it advisable to sell the property," and the other she gave to her son, together with all her personal property. Held, That her executor had power to sell such real estate. In re opening of Riverside Park,
a will. In 1869 his final accounting was made, in which appeared the credit "amount invested under trusts contained in the will, $55,000," and a decree was thereupon entered adjudging that the ac- counts were finally settled and allowed. The petitioner herein, a legatee, prayed for an annulment of the decree, and for the revocation of the letters, and upon being compelled to elect stood for the revocation of the letters. It did not appear that the executor had ever receipted to himself as an executor, or had done any act to show that a change was made in his relation to the fund. The investments made prior to the decree were not challenged, but those made long afterward from subsequent col- lections formed the gravamen of the pe- titioner's complaint. The surrogate re- voked the letters testamentary on the ground that defendant had wasted and mis- applied the trust fund. Held, Error; that after the decree on final accounting the liability of defendant on the grounds alleged was that of a testamentary trustee solely, and that the petition cannot be allowed to stand against him as such inasmuch as such relief was not sought, and if it had been petitioner's election limited it to the revo- cation of the letters testamentary; nor is the case changed because the executor re- ceived property after the decree on the final accounting, as there is no pretence that any thing had been received which by error or fraud had been omitted from the account which was adjudicated.—In re es- tate of Hood, 316.
3. Letters duly granted to the plaintiff are conclusive evidence of his title to a mort- gage belonging to the intestate, and of his authority to sue.-Abbott v. Curran, 344.
4. Executors who are directed by the will of their testator to sell all his real and personal estate as soon as convenient after his death,
and when in their judgment they shall consider it most advantageous," are not in- dependent of a Court of Equity.-Mehl v. Hilliker et al., 416.
5. Where one who is appointed administrator with the will annexed, and successor to the testamentary trustee, is removed by the surrogate for failure to furnish new sure- ties in place of those released on their own application, he is not entitled, as trustee, to commissions on the value of the real estate held in trust, unless the trusts have been performed or fulfilled prior to his removal and accounting.--In re accounting of Baker, 447.
6. Executors are not excused from the per- formance of the contracts of their testator by reason of his death, where such contracts relate to ordinary hired labor and where skilled personal services are not contem- plated. They may break the contract and discharge the laborer by paying him such
damages as he may suffer, but where the contract is performed without objection by the executors, they must perform on their part.-Lacy v. Getman, 473.
7. When a will directs that the executors named therein shall invest the personal es- tate and shall manage and take care of the real estate and keep the same in proper re- pair and pay all lawful taxes and assess- ments on said personal and real estate, and out of the net income of said real and per- sonal estate shall make certain quarterly payments to specified legatees, an assess- ment for constructing a road charged upon real estate is properly paid by the execu- tors out of the income of the estate.-Van Vleck et al. v. Lounsberry et al., 573.
8. When the executors, under such a will, have paid over to the persons entitled to the in- come of the estate the interest upon a mort- gage owned by the testator up to the time of the foreclosure of such mortgage by them, and buy in the property at the sale under such foreclosure, and pay over the income derived therefrom to the persons entitled to the same until the sale of such property by them at an advance over the purchase price, the amount of such ad- vance is a part of the principal and not of the income of said estate --ld.
See COSTS, 2: DISCOVERY, 1-3; EVIDENCE, 41, 52, 53; INDEMNITY, 1; LIMITATION, 3; NEGOTIABLE PAPER, 11, 12.
EXTRA ALLOWANCE.
See CoSTS, 1, 7; SUMMARY PROCEEDINGS, 2, 3.
FALSE IMPRISONMENT.
1. A justice of the peace who unlawfully is- sues a body execution against a party is lia- ble in damages for his unlawful arrest by the constable.--Campbell v. Kelly, 160.
2. No force or manual touching of the body is necessary to constitute an arrest and im- prisonment, but it is sufficient if the party is within the power of the officer and sub- mits to it.-Id.
FICTITIOUS NAMES.
1. Although one who violates the statute for- bidding 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 de- signed to prevent.-Ross v. Wigg, 215.
2. To violate the statute of 1883, forbidding
the transaction of business under fictitious names, the designation "and company must be used in the transaction of some busi- Where the business is consciously done with the partners under their real names, and not under any false designation, the statute is not violated.-Gay et al. v. Siebold, 270.
3. Defendants executed a hond conditioned for the faithful performance of duty by one S., as salesman, to plaintiffs by their indi- vidual names, doing business under the name of Gay Bros. & Co. They did busi- ness under that name, and the words "& Co." represented no actual person. Held, That the bond was outside of the statute and was valid.--Id.
1. Where the agent of an insurance company is informed, before issuing the policy, of the nature and extent of the interest of the insured-e. g., a contract for purchase- his knowledge is imputable to the company, and the latter is estopped from relying upon a condition in the policy, that if the insured is not the sole, absolute, and unconditional owner of the property insured, or, if the property be a building, of the land on which such building stands by a title in fee simple, and the interest of the insured be not truly stated in the policy, it shall be void.-Fole v. The Springfield Fire Ins. Co., 55.
2. And a condition that no officer shall have power to waive any of the provisions of the policy, unless such waiver be endorsed on the policy, will be deemed waived by de- livering the policy with knowledge by the agent of the true nature of the insured's title.-ld.
3. Where the insured and the special adjuster of the company entered into a written agreement for the appointment of apprais- ers to estimate the amount of damage, their award to be binding on both parties, and such award was made, Held, That this amounted to a waiver by the company of its right to rebuild or repair, and the in- sured was justified in refusing to permit the company to proceed with the building, and that defendant was bound by the award.- Id.
4. A complaint alleged that plaintiffs were lessees of a certain building which they sublet at a profit; that defendant insured their proprietary interest; that a fire occur- red which rendered the premises untenant- able from May to October, whereby the rent ceased under both leases for that period. and plaintiffs were injured by the loss of the profits on their lease for that time. Held, That the complaint stated a cause of ac- tion.-Carey et al., v. The Northern Assur- ance Co., 60.
5. A condition in a policy of insurance, that "if the interest of the assured in the prop- erty be any other than the entire, uncondi- tional and sole ownership of the property for the use and benefit of the asssured, it must be so represented to the company and so expressed in the policy," otherwise it shall be void, is not broken by reason of the existence of mortgages upon the prop- erty, no questions having been asked in reference thereto and there being no fraud- ulent concealment.-Aldrich v. The Home Ins. Co., 70.
6. Where the assured, immediately after the fire, gave personal notice to the local agent, who informed the company, and afterwards the agent and the adjuster of the company called and examined the ruins, and plaintiff made a statement of his loss to them; the agent said it was not necessary to make out proofs of loss, Held, A waiver of the con- dition requiring written notice and proofs of loss, and the company was estopped from setting up the breach.-Id.
7. An informality in the proofs of loss may be waived by retaining it without objection, e. g., where the venue stated in the affidavit was in one county and the officer who took the affidavit resided in another.-Id.
8. When the application stated the premises to be insured were incumbered $300, and the proof of loss stated that at the date of the fire the premises were covered by a mortgage for $600, the insured is not estop- ped from showing that the mortgage was originally for $600, and that before his ap- plication he had paid $300.-Kelly v. The Agricultural Ins. Co., 125.
10. Personal property owned by the wife at her marriage, which has been used in com- mon in the household, like the husband's, is not covered by a policy upon the hus- band's property.--Id.
11. In determining the meaning of a policy regard must be had to the course of the trade to which it relates, and the underwri- ters will be presumed to have contracted with reference to it.-Barnum et al., v. The Merchants' Fire Ins. Co., 172.
12. Defendant issued a policy to plaintiffs on their store, "to be occupied as a fancy goods and Yankee notion store." The policy classed Yankee notions as extra haz- ardous, and fireworks as specially hazard- ous, and provided that if the premises were used for the carrying on of any trade, or for storing, etc., of any goods, etc., or for more hazardous purposes than called for by the original contract without consent of the company, it should be void. Held, That evidence was admissible to show that fire- crackers and fireworks constitute an ordi- nary, usual and recognized portion of a stock of fancy goods and Yankee notions. -Id.
13. The insurer may, by objecting to the proofs of loss, impose on the assured the duty of making them complete, and if it chooses to do so the time limited by the policy within which action may be com- menced is thereby extended.--Iă.
14. Where the falsity of a statement in an application filled in by one employed by the insurer to collect and report facts and infor- mation as to conditions of risks is set up as a defence, the insured may show that he stated the facts correctly and recover with- out demanding a reformation.-Bennett v. The Agricultural Ins. Co., 208.
15. Where a building is insured as unoccu- pied it is not necessary for the insured to obtain the consent of the company that it may remain so, even though it may have been occupied for a time after the policy issued.-Id.
16. Where the company retains the proofs of loss without objection that timely notice was not given, and bases its refusal on other grounds, it waives the objection that the Insured failed to give immediate notice of loss.-Id.
17. Plaintiff applied for insurance to H., an insurance agent, who employed E., a solici- tor of insurance, to obtain the same. E. applied to defendant's agents, who issued the policy, but stated to E. that it should be subject to approval by the company, and that if the company disapproved it the policy was to cease; the company did dis- approve, and H. and E. were so notified, but no notice thereof was given plaintiff, and the property insured was burned. Held, That the company was bound by the policy. --Hodge v. The Security Ins. Co., 234.
18. When one written instrument contains a reference to another as the basis or founda- tion on which the latter has been made, the first is to be regarded as so far included as to entitle it to be examined and considered in order to discover the intention and rights of the parties.-The National Filtering Oil Co., v. The Citizens' Ins. Co., 380.
19. When, by an agreement between two par- ties, the second party is to pay the first a certain royalty on every gallon of oil in fil- tering which a patent process is used, and such royalties are not to be less than $3,000 per year, and a policy of insurance on such royalties recited that, whereas the insured is to receive certain royalties which are guaranteed to amount to $250 per month the company will make good any diminu- tion in such royalties caused by the injury of the factory by fire, such insurance will be held to apply to a diminution in the amount of royalties over and above the guaranteed sum of $250.-Id.
20. The right to receive royalties on goods manufactured by certain patented ma-
chinery, which royalties may be diminished by the destruction or injury of the manu- factory by fire, is insurable, even though the person entitled to receive such royalties has no interest in the manufactory or ma- chinery so destroyed or injured.—Ïd.
21. In an action on such a policy of insurance to recover for a diminution of royalties caused by a fire in the factory it is no de- fense that, if there had been no fire, the same diminution would have occurred from some other cause.-Id.
1. Plaintiff recovered judgment for the value of certain machinery in a sawing-mill which was claimed to be personal property. It appeared that many of the articles, from the method of attachment, adaptation to the use of the premises and intent of the party affixing them, as shown by his insur- ing them for the mortgagee, were shown to be part of the realty. Held, That a new trial was proper to cure the error in allow- ing plaintiff to recover for them.-Bigler v. The National B'k of Newburg, 77.
2. The question whether a boiler and an engine in a factory, resting upon trucks so they could be drawn out of the building without injury thereto, is a fixture depends upon the intention of the proprietor who placed them there; and the question of intent is for the jury.-Hart v. Sheldon, 286.
See MORTGAGE, 1-3, 6-8, 12, 14, 15.
1. If it appears that a wife was not urged or drawn to the commission of a crime by her husband, but was inciter of it, she is liable as well as he.-The People v. Ryland, 63.
2. On the trial of an indictment for forgery, in the alteration and raising of a check, it appeared that defendant, a married woman, suggested the idea, procured the check by false representations, and delivered it to her husband; that it was altered in her presence, and that she received part of the proceeds of the crime. Held, That she was liable as a principal. Id.
3. Certain evidence held sufficient to support a charge and conviction of forgery in the third degree.-The People v. Dewey, 555.
4. It is sufficient, as a charge of forgery in the third degree, that the instrument set out in the indictment and alleged to be forged contains a personal covenant to pay upon a stated consideration.-Id.
5. The indictment charged the forgery of an instrument signed and sealed, and the in- strument produced on the trial was without signature or seal, they having been torn off.
Held, Not such a variance as to make the instrument inadmissible in evidence; nor were any explanatory allegations required to permit parol evidence of mutilation.- Id.
FORMER ADJUDICATION. See BAR, 1.
1. Complainant purchased certain bonds of defendant, who agreed that, if plaintiff at any time became dissatisfied with them, he would take them back on 30 days' notice, and repay the price paid with interest. Two years afterward, default in the pay- ment of interest on the bonds being made, plaintiff gave notice as agreed, but defend- ant refused to perform his agreement. Held, That the agreement was not within the statute of frauds; that the question whether the notice was given within a reasonable time was one of law, and that plaintiff was entitled to recover.-Fitzpatrick v. Wood- ruff, 2.
2. It was claimed that the interest of the debtor in the premises in question arose from an agreement by defendant in the convey- ance that he should have the use of the premises for three years. Held, That this created a parol lease for more than one year and was void.-Crouse et al. v. Frothingham et al., 22.
3. Certain evidence held sufficient to sustain referee's finding that a certain conveyance of real estate was not made with intent to defraud creditors.-The Third Nat'l B'k of Buffalo v. Cornes et al., 30.
4. A purchaser of personal property delivered in pursuance of an executory contract al- leged to have been procured by fraud waives the objection he might otherwise have to the contract by the acceptance of the property sold after knowledge of the fraud, and such acceptance precludes him from repudiating the contract in an action to recover the price of the article sold.— Baird v. The Mayor, &c., of N. Y., 100.
5. Since fraud without damage is not action- able, and as no damage can accrue to an ac- commodation endorser except upon default of the maker or acceptor and due notice thereof given, it follows that no cause of action arising from the fraudulent procure- ment of the endorsement can arise until the endorser has become legally chargeable as such, and, therefore, the time within which an action to recover damages for inducing the party to endorse by fraudulent repre- sentations may be brought will commence to run, not from the making of the en- dursement, but from the time the endorser has become chargeable.-Barnard v. Far- nam et al., 164.
6. If a grantee is innocent of any fraudulent intent and without knowledge of outstand- ing equities and pays a valuable considera- tion he is entitled to protection at least to the extent of the amount paid, as against the creditors of the grantor, notwithstand- ing there were other considerations that were void as to creditors-e. g., agreeing to support a parent grantor. In such cases the conveyance should not be declared abso- lutely void as being in fraud of creditors, but the most that can be done is to direct a sale subject to the amount paid by the pur- chaser; the creditors' remedy to be limited to the value of the land beyond that.- Vial v. Matthewson, 168.
7. Where the evidence on the part of the grantee showed that he paid certain valu- able considerations exceeding the value of the land, and had no knowledge of plaintiff's claim against the grantor, but the referee omitted to find specifically whether all such considerations were or were not paid, or whether plaintiff had had such knowledge, or to find the value of the whole land, but found as a conclusion of law that the deed as to a certain portion of the land was fraudulent and void as to creditors because one of the considerations was void, the re- port was set aside.-Id.
8. The acceptance necessary to take a verbal contract out of the statute of frauds must be manifested by some act distinct from and in addition to the words of the agree ment, and mere receipt does not necessarily prove acceptance. In re assignment of Hoover, 185.
9. Where the purpose of a promise to pay the debt of a third person is to secure a benefit to the one making the promise it is an original undertaking and not within the statute of frauds.-Humaston et al. v. Beek- man, 238.
10. Where the evidence warranted the finding that the grantee took the deed not merely to cancel the grantor's debt to him, but also to delay other creditors, Held, No error to declare the deed fraudulent, and that the deed cannot be treated as security for the debt due the grantee, or for the purchase money advanced by the latter, as against a creditor who obtained judgment shortly after the deed was made.-Nugent v. Jacobs, 254.
11. A note or memorandum of an agreement to be valid under the statute of frauds must show on its face what the whole agreement is so far as the same is executory and re- mains to be performed and rests upon un- fulfilled promises.—Drake v. Seaman et al., 260.
12. Defendants agreed to hire plaintiff as salesman for three years and to pay him ac- cording to a writing signed by them which stated the salary to be paid, but said noth-
ing as to the hiring. Held, That the mem- orandum was not sufficient and that the contract, being by parol for more than one year, was void.-Id.
13. Exemplary damages are not allowed in an action for fraud and deceit.-Taylor v. Pal- mer, 267.
14. Plaintiff and defendant entered into a joint venture for the purchase and sale of potatoes, and plaintiff brought this action for an accounting. It appeared that while the potatoes were still unsold defendant verbally sold his interest in the venture to plaintiff for $500, but no part of it was paid at the time nor did defendant deliver the potatoes or do any act tantamount thereto. Subsequently plaintiff paid $200, but did not restate the terms of the sale. Held, That the contract was void within the statute of frauds and was not saved by the subsequent payment; also, that the fact of the action being for an accounting did not affect the question.-Randall v. Randall, 306.
15. By a parol agreement defendant agreed to sell to plaintiff a mill and machinery and receive in payment certain notes, etc., half the stock in a store, and possession of the store for the unexpired term, the rent for which he agreed to pay to the lessor. De- fendant took possession and carried on bu- siness in the store for a time and paid the rent up to the time he left, but failed to pay the balance of the term. Held, That de- fendant's promise to pay the rent was upon a new consideration, moving directly to him, and was not void under the statute of frauds.-Smart v. Smart, 385.
16. Defendants bought certain stock for plaintiff, who supposed he had enough money to his credit with them to pay for it, and subsequently sold it without his au- thority, failed and went into bankruptcy. Plaintiff proved his claim, with an account attached which did not show much money of his in defendant's hands when the stock was bought. In an action for the balance of his claim over the dividend received, Held, That the unauthorized sale of the stock was a conversion, but did not consti- tute a fraud under § 5117, U. S. R. S.— Stratford v. Jones et al., 409.
17. Both parties requested the court to direct a verdict, which the court did in favor of defendants. Held, That the parties sub- mitted the questions of fact to the court and waived the right to go to the jury, and that the evidence did not entitle plaintiff to a direction in his favor.-Id.
18. In an action to recover back the purchase price of stock, on the ground of fraud and deceit in representing it to be paid-up stock, it appeared that a few months previously plaintiff had sold to defendant unpaid stock in the same company, but did not know
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