the vacancy was filled by appointment in Feb. 1886. Held, That there was no vacancy to be filled at the election in April following. Appeal from order denying motion for a mandamus to compel respondents to declare said Elliott elected a justice of the peace of the town. Respondents are the election officers of the town. It appeared that one O. was a justice of the peace whose term would have expired Dec. 31, 1886. He resigned his office June 23, 1885, and on Feb. 16, 1886, one V. was appointed in pursuance of Chap. 166, Laws of 1875, to fill the vacancy. At the annual town meeting in April, 1886, there were cast 121 votes for one W. and 112 votes for Elliott, the latter ballots specifying that they were for a full term; while those for W. had no specification. Respondents refused to certify Elliott's election, and contended that but one justice was elected, and certified to W.'s election. This application was then made for a mandamus to compel respondents to determine that both W. and Elliott were elected justices and that Elliott was elected for a full term. The application was denied. John H. Kemble, for applt. W. J. Gaynor, for respts. Held, No error. The term of O., who resigned, was to expire Dec. 31, 1886. By the act of 1875 the term of V., appointed to fill the vacancy Feb. 16, 1886, did not expire until Dec. 31, 1886. There was, therefore, no vacancy to be filled at the election in April, 1886. The office to be voted for was for the long term beginning Jan. 1, 1887. To that office W. was elected and not the relator. Relator is in error in claiming that by force of the Constitution an election must in all cases be had to fill a vacancy occurring before the expiration of a full term. To determine how that shall be is within the power of the legislature. The Constitution merely provides that when the legislature directs an election to fill a vacancy occurring before the expiration of a full term the person elected shall hold for the residue of the unexpired term. That provision is not infringed. In the absence of any constitutional prohibition the legislature exercises the sovereign will of the people. There is no inhibition upon the legislature declaring in a certain instance that there is no vacancy. The act of 1875 did not fall within any constitutional provision, and was valid. Order affirmed, with costs. Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur. FORECLOSURE. EVIDENCE. Decided Nov., 1886. In an action to restrain the foreclosure of a bond and mortgage, of which defendant was assignee, upon the ground of payment, plaintiff, who was the widow and devisee of the mortgagor, was allowed to testify that in certain years there were settlements of mutual accounts between the mortgagees and the mortgagor; that certain amounts were then found due the latter and that these were agreed to be indorsed on the bond and mortgage. Held, No error. That these declarations of the mortgagees were competent as part of the res gestæ. Action to restrain the foreclosure by advertisement of a bond and mortgage given in 1869 by George P. Holcomb to Henry H. and Ephraim Alderman upon the ground of payment. Defendant is assignee of the bond and mortgage. Holcomb is dead and plaintiff is his widow and devisee of the land. It appeared that upon the mortgaged premises was timber which the Aldermans used. Under objection, plaintiff testified that there was a general looking over of accounts between her husband and the Aldermans on several occasions. She then stated amounts thus found due her husband in several years, and said they were agreed by the parties to be indorsed on the bond and mortgage. It did not appear that they were at any time actually indorsed thereon. Upon this evidence, mainly, plaintiff succeeded. R. E. Andrews, for applt. James Lansing, for respt. Held, That the evidence was admissible. If these were simply the declarations of Alderman they would be improper against his assignee for value. 72 N. Y., 548. But if declarations form part of the res gesta of the acts of the mortgagor and mortgagee, by which the accounts between them for lumber which the former had furnished the latter were settled N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Charles Mather v. B. Perly Freelove et al. Decided Oct., 1886. A demand for personal property made at a place distant from where the property is, by a person having a right to the property, and an express refusal of the person of whom the demand is made to allow the person demanding to take possession of the property, is sufficient evidence to justify a jury in a finding of conversion. Where a sale of personal property is pro cured by the fraudulent representations of the vendee, such sale is voidable at the election of the vendor and where such fraudulent vendee has sold the property the burden is on a purchaser to show that he is a bona fide purchaser. Where a purchaser, in fact, makes payments to his vendor of a considerable portion of the purchase money expressed in a bill of sale, such fact would be sufficient evidence to establish his bona fides where there is no proof that such purchaser had notice of the fraud of his vendor in obtaining the property, but the evidence of a party to an action, supported by that of his wife, to the fact of such payment, though uncontradicted, is not necessarily conclusive. In such case the jury may consider all the circumstances and determine whether the transaction was a bona fide sale, or a mere contrivance to cover the property and hold it for the benefit of the pretended vendor. In such case it is not error for the court to refuse to charge that there was no evidence to show "that the purchase evidenced by the bill of sale was not the entire contract," as the jury have the right to inquire whether such instrument fully expressed the purpose of the parties thereto. It is not sufficient in an action of this nature that an instrument was conclusive between the parties to it. The fact that Freelove was indebted when he left in December, and the manner of leaving, were competent evidence on the question of motive in making the bill of sale. Where evidence of the character of a witness has been introduced for the purpose of impeachment, the truth or falsity of the reports testified to is not in issue. It is a question of reputation only. Motion for new trial on exceptions taken at Circuit and ordered to be heard at General Term. Action replevin to recover five cows, alleged to have been obtained by defendant Freelove of plaintiff by fraud. In Feb., 1879, plaintiff sold the cows to Freelove and took his note due in one year for the purchase price. Freelove was then in possession of a farm and considerable personal property. The evidence tended to show that plaintiff was induced to sell six cows and take his note by reason of false representation made by Freelove. On Dec. 12, 1879, in the night, Freelove and his family left this State for the West and has not returned. Before he left he made a bill of sale to defendant Ranny, his brother-in-law, of all his personal property on the farm and a lease of the farm for a term ending April 1, 1881. Defendant Ranny took possession of the farm and the personal property, claiming title to the latter. Plaintiff caused a demand of the cows in question to be made of Ranny and brought this action. The demand was made at the city of Auburn, some miles from the farm, and he refused to deliver it up. Plaintiff had a verdict. Waters & Knapp, for defts. Held, The evidence supports the finding of the jury that defendant Freelove procured the property of plaintiff by fraud, and that plaintiff's efforts to reclaim were reasonably made. That the demand made by plaintiff of Ranny was sufficient, and his express refusal to surrender the property was sufficient evidence to justify the finding of the jury of conversion of the same by him and as to its possession at the time of such demand. 37 Hun, i, and cases cited. That the sale having been procured by the fraudulent. representations of Freelove to plaintiff was voidable at the election of plaintiff, and the burden was on Ranny to establish that he was a bona fide purchaser from Freelove, the fraudulent vendee. 79 N. Y., 254. That if, of the consideration expressed in the bill of sale ($3,000), Ranny in fact made two payments (the sum of $370 and $1,500), on account of the purchase, as testified to by himself and partially corroborated by his wife, that fact would be sufficient to establish his good faith, and give protection to his title as against plaintiff, as there was no evidence that he was advised of the circumstances of Freelove's purchase and he was not required to make any inquiry as to them, 93 N. Y., 118, but, in view of the relation of Ranny to the action and that of his wife, though uncontradicted, their evidence was not necessarily conclusive of the fact to which they testified. That the jury were permitted to consider all the circumstances and were justified in the conclusion that the purchase and payment were designed as a contrivance to cover the property, rather than to constitute a bona fide sale and purchase of it, and that the title was placed in Ranny to aid in the conversion of the property into money for the benefit of Freelove. That in order to determine the question whether the transaction between Ranny and Freelove was, or was not, a mere pretended sale and purchase and that Ranny was not to buy the property and make it his own, but only intended to get a pretended prima facie title to it in order to enable him to dispose of it for the benefit of Freelove, in which case Ranny would not be a bona fide purchaser of the property as to anybody, and certainly not as to this plaintiff, who had been induced to part with it by fraud, the jury were permitted to look beneath and behind the bill of sale, and say whether the transaction was what it purports to be, and in this respect they must Vol. 25-No. 15a. be governed by the evidence; that fraud would not be presumed. That the refusal of the court to charge that there was no evidence to justify the jury to find "that the purchase evidenced by the bill of sale of the personal property was not the entire contract as to that property" was not error. It was true that is the only evidence to support the sale, but that it embraces or fully expresses the purpose of making it is another inquiry, which arises out of the circumstances surrounding the proceedings which produced it, and that inquiry does not depend upon the fact that as between the parties to it they would be concluded by its terms. 1 Greenleaf Ev., § 279; 55 N. Y., 223; 77 id., 613. That though the fact that Freelove was indebted at the time he left in December, and the manner of his leaving, were not important, the evidence was competent as bearing on the question of his intent and motive in disposing of his property. That when impeaching witnesses have been asked on the cross-examination what particular things they have heard bearing on the character of the witness, evidence cannot be introduced tending to show the truth or the falsity of such rumors. The inquiry is concerning reputation only and the truth or falsity of the rumors is not in issue. Motion denied, and judgment ordered on verdict. Opinion by Bradley, J.; Barker and Haight, JJ., concur. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The People ex rel. Sigmund Neustadt, exr. and trustee, and trustee, V. Commissioners of Taxes, etc., of the City of N. Y. Decided Dec. 31, 1886. An executor residing in the city and county of N. Y., where the personal property of the estate which he represents is situated, may be assessed for the full amount of such personal estate notwithstanding that he has co-executors who do not reside in said city and county; and, if all the executors are included in said assess ment, the commissioners of taxes may correct the same, within the time allowed for that purpose, by striking from the assessment roll the names of the nonresident executors. The relator, together with two other persons, D. and H., were assessed as executors of the estate of Adolph Hallgarten, deceased, for personal property to the amount of $375,000. After this assessment was made the relator applied to the commissioners, within the time allowed for that purpose, for its correction upon the ground that his co-executors D. and H. were not residents of the city and county of N. Y., and that the personal property of the estate was not in his possession or under his control any more than it was in the possession and under the control of his co-executors, for part of said property consisted of railroad bonds registered in the names of all three of the executors, another part consisted of money which had been loaned on bond and mortgage taken in the names of all three executors as trustees, and the remainder con- George A. Strong, for relator. Held, That it appeared that the personal property of the estate was in the city where the testator resided, and the assessment could lawfully be made by the tax commissioners of that city, provided the relator could be held to have the control or possession of this personal property. 1 R. S., 6th ed., 934, § 5. That when a testator appoints several executors they are deemed in law but as one person. 7 Wend., 583; 4 Bacon's Abr., 3d ed., 1860, 37-8. That they have a |