See CHATTEL MORTGAGE, 8; CORPORATIONS, RECORD. See MORTGAGE, 6, 16. REDEMPTION. See EXECUTION, 3, 4; TAXES, 1, 2. REFERENCE. 1. The complaint alleged that plaintiff's as- 2. When a case is one purely of fact, de- 3. An objection to the allowance of interest 4. The rule in case of conflicting evidence 5. Under an order of reference to take proof 403. RELEASE. See MORTGAGE, 19. RELIGIOUS SOCIETIES. See MANDAMUS, 1. REPLEVIN. 1. When plaintiff requires the replevin of a 2. Defendant, upon false representations, 3. In the absence of proof that it was 4. It is not to be inferred, as matter of law, RESCISSION. RESIDENCE. See ELECTIONS. REVIVOR. 1. Where an action is to recover for two See CORPORATIONS, 2, 10. ROCHESTER, See ASSESSMENTS, 9. SALARY. See CORPORAT.ONS, 3, 5; N. Y. CITY, 1, 2. SALE. 1. Under a contract for the sale of wagon hubs the vendees were to sort and count them after delivery. Held, That title passed to the vendees on delivery.—Price et al. v. Heath, 131. 2. The proposition that fraud must be proved and will not be presumed applies to civil as well as criminal trials.-Id. 3. The fact that vendees found themselves insolvent five months after making the contract is not of itself evidence of their fraud in making the purchase.-ld. 4. On a sale of goods which are clearly identified, as bags of coffee distinguished by marks and numbers, the title passes to the purchaser notwithstanding a requirement that they be weighed; especially where the question affects an innocent purchaser or pledgee of the vendee. —Sanger et al. v. Waterbury et al., 224. 5. A sale of property absolute in its terms containing the condition that the vendee, as the purchase price of the property, should pay to each of the creditors of the vendor a certain percentage of their several debts pro rata, less than the full amount, in full of such debts, is not fraudulent as tending to hinder and delay creditors.-Chadwick v. Burrows et al., 255. 6. Under such an agreement the vendee cannot require that any of the creditors not consenting to the agreement receive such percentage in discharge and satisfaction of his debt, but such creditor is entitled to receive such sum in abatement of his claim.-Id. 7. Such vendee is in no respect a trustee, but his payments are made in pursuance of an original undertaking to pay them as the purchase price of the property bought by him.—Îd. e. Where upon a sale and purchase of goods possession is obtained by the purchaser by means of a fraud, the vendor has the right to repudiate and rescind the sale and bring an action of replevin for the goods. He is bound, however, to rescind promptly on discovering the fraud, and must restore, or offer to restore, whatever he has received of value on the sale.Schoonmaker et al. v. Kelly, 301. 11. One M. agreed to sell to a corporation certain ties to be delivered at specified points, a certain sum to be paid on deliv. ery and the balance when they were taken and used. The ties were delivered and the advance paid, but they were never inspected or taken by the company. Held, That no title passed to the company. -Cornell v. Clark, 566. 12. Subsequently M. sold the ties to plain tiff, who had been a director of said company, who paid for and took them away. Held, That the legal title was vested in plaintiff, and that the property could not be taken under execution against the company.-Id. See ACTION; BANKRUPTCY; EVIDENCE, 22; FRAUD, 5, 6, 10; REFERENCE, 1; WARRANTY. SCHOOLS. 1. In an action by a school teacher for wages the complaint alleged a contract with the trustee; performance of services thereunder, and a refusal by the trustee to pay. On demurrer, Held, Sufficient. and that if plaintiff was not a qualified teacher or had omitted his duty such defenses should be brought in by answer.Ellis v. Sharp, 202. 2. Defendant was elected collector of taxes for a school district in Oct., 1882. He received the warrant for the collection of school taxes Dec. 11, 1882. He had not then been notified to give a bond nor had its amount been fixed. He however posted the statutory notices requiring voluntary payment, and in the lifetime of the warrant subsequently demanded payment of a tax of plaintiff which was refused. The warrant expired and was renewed by the trustee Jan. 23, 1883. The next day defendant gave his bond to the trustee. He again demanded payment, which was refused, and he levied upon and sold property of plaintiff. Held, That his action was legal. The notices already posted were sufficient, as the bond once given related back and made him competent to execute the warrant. The statute is mandatory as to the giving of the bond, but directory as to the time when it shall be given.-Duntley v. Davis, 297. See N. Y. CITY, 6. SEDUCTION. See INDICTMENT, 4. SERVICES. 1. In an action to recover for services performed for defendant's testator, defendant, who was the widow of said testator, was asked as a witness what proportion of plaintiff's time was devoted to the business of her testator. Held, Admissible; that the question called for a fact within her knowledge, and not for an opinion.-Johnson et al. v. Myers, 55. 2. Another witness was asked if he had been with J. when he was professedly in said business. Held, That this did not call for declarations of J. that he was at work for testator, but to show that witness knew the kind of business in which J. was engaged.-Id. 3. Where the business requires the best judgment, skill and ability and is largely of a confidential nature, is varied and in many respects responsible, proof of the capacity and ability of the person performing it is pertinent, and he is entitled to be paid for his services on that basis.— Id. 4. Construing the terms of a contract for personal services in a mercantile business where the pay was to consist of a certain proportion of the "net profits" of the business.-Eldredge v. Smith, 146. 5. An effort to obtain other employment is not a condition precedent to plaintiff's right to recover damages from his employer for a wrongful discharge.—Howson v. Mestayer, 152. 6. Prima facie, plaintiff's damage is the amount of the stipulated compensation, and the burden is on defendant to show that through plaintiff's negligence the damages have been increased.—Id. 7. A mere conjecture on plaintiff's part that by obtaining the discharge of another he might get employment in such other person's place, there being no evidence of the salary to be earned, etc., does not amount to proof that plaintiff could have found other employment.-ld. 8. Full performance of an indivisible contract for the services of a husband and wife for a definite period is excused by the inability of the wife to perform the services through illness, and unless the contract provides some means to sever the services, the husband is not required to proceed alone.--Costen v. Decker, 231. 9. That in such case the recovery must be upon the quantum meruit, and the stipulated price for the services is some evidence of their value.-Id. See LIMITATION, 3. SET OFF. 1. A husband, acting as the agent of his wife, leased her interest in a mill to plaintiff, who agreed to pay the rent in flour and feed and other mill products, to be delivered at the husband's flour and feed store, to which the wife assented. In an action against the husband for the price of the flour, etc., delivered at his store, Held, That the evidence warranted a finding that the husband was authorized by his wife to apply the amount of the rent due in payment for the goods; that he was entitled to set off such amount, and that the referee erred in finding to the contrary.-Whiting v. Hood et al., 158. 2. Defendant's assignors, R. & Co., indorsed and delivered to plaintiffs the note of B., representing that it was as good as the Bank of England, etc., and requesting them to indorse it and procure it to be discounted at the bank and forward the proceeds to them; all of which plaintiffs did. At this time plaintiffs were indebted to R. & Co. upon a claim not then due; and both said B and R. & Co. were insolvent, and shortly after the latter made a general assignment to defendants. Subsequent thereto said note became due and plaintiffs were obliged to take it up, and afterwards their indebtedness to R. & Co. became due. Held, That under the special circumstances of the case plaintiffs were equitably entitled to have their demands set off and applied in extinguishment of their indebtedness to R. & Co., although the liability of plaintiffs upon said note itself was but conditional and had not become fixed at the time of the assignment to defendants.-Rothschild et al. v. Muck., 173. 3. Equitable set off is never justified save where other remedies are impossible and where the demand allowed is put beyond reasonable doubt.-Armstrong et al. v. McKelvey et al., 367, SHERIFFS. 1. A sheriff may justify a return of nulla bona to an execution issued upon a judgment after he has levied upon property under the preliminary process of attachment issued in the action before judg ment; but he is liable for his error in 2. A recital in a sheriff's deed of the issue 3. Nor is evidence of the county clerk that 4. A bond given by a deputy sheriff to the See EXECUTION; INDEMNITY, 1–3. SLANDER. 1. On the assessment of damages by a writ 2. Defendant has the right to meet so far as 3. An inquisition will not ordinarily be set 4. But in an action for slander where im- 5. Defendant stated to several persons that culty between them, and testified that SPECIFIC PERFORMANCE. 1. The property in question was sold by an 2. An agreement to convey embraces an 4. That by the terms of the instrument in 5. While it is presumed when nothing ap- 6. In such case plaintiff cannot be required 7. When it is made to appear that a reasonable doubt exists as to the validity of a title the court will not compel a purchaser to take a title, but will leave the vendor to his action for damages. -Ferris v. Plummer, 467. 8. An objection based on a decision of a General Term cannot be considered captious nor unreasonable on the part of a purchaser.-Id. See ADVERSE POSSESSION, 3; CONTRACT, 1-4, 6. STATUTE OF FRAUDS. See FRAUD, 10. STATUTES. 1. The provisions of the appropriation acts of 1874 and 1875 in relation to the letting of contracts for work at the Buffalo State Asylum referred to future work and future contracts.-McMaster v. The State, 181. See ASSESSMENTS, 3, 5; ASSIGNMENT FOR CREDITORS, 4; EMINENT DOMAIN, 1; LIFE INSURANCE, 10; MUNICIPAL CORPORATIONS, 1; N. Y. CITY, 5; RAILROADS, 14. STAY. See EXECUTION, 1; PRACTICE, 23; RECEIVER, 3. STOCKHOLDERS. See CORPORATIONS, 1, 8; LIMITATION, 1; RAILROADS, 23. SUBMISSION OF CONTROVERSY. 1. The court has no power to amend the claim for relief in an agreed case submitted under § 1279 of the Code Civ. Pro. when one of the parties thereto objects to such amendment.-Kingsland v. The Mayor, &c., of N. Y., 334. 2. A submission of controversy under § 1279 is limited to such cases as can be followed by an effectual judgment, and cannot be entertained for the purpose of obtaining an injunction.-The Cunard SS. Co. v. Voorhis et al., 468. SUBSCRIPTION. See NEGOTIABLE PAPER, 1; RAILROADS, 23. SUICIDE. 1. Suicide, when the attempt is successful, is not a crime under the Penal Code. It is only an unsuccessful attempt which is made a crime.-Darrow v. The Family Fund Soc., 310. SUMMARY PROCEEDINGS. 1. Semble, That in summary proceedings the question of fraud in obtaining an alleged lease cannot be litigated. The tenant is confined to denials and cannot make affirmative allegations therein.Becker et al. v. Church, 134. SUPERVISORS. See MANDAMUS, 8; N. Y. CITY, 4; POOR. SUPPLEMENTARY PROCEEDINGS. 1. Where an order is made by a justice of the Supreme Court to examine a nonresident debtor who has a place of business in another judicial district, the order must be made returnable before a judge of that district.-Browning v. Hayes, 26. 2. There is no remaining provision of the statute authorizing a judge, in proceedings supplementary to execution, to order the application towards the payment of a judgment, or the delivery or transfer to the receiver for such purpose, of any other than personal property of the judgment debtor.-Smith v. Tozer, 252. 3. A direction in an order that a judgment debtor assign or convey real estate situate in the State of Illinois is not within the power of the judge, and the judgment debtor, in refusing to assign or to convey such real estate to the receiver, is not guilty of contempt.-Id. 4. The only manner in which a receiver in supplementary proceedings can become vested in the real property of the judgment debtor is by filing the order appointing him, or a certified copy thereof, in the office of the clerk of the county where the property is situated, and its situs must be within this State.-Id. 5. In case of real estate situated out of this State the Code of Civil Procedure provides a requisite remedy by action.Id. 6. Under § 2, Chap. 309, Laws of 1883, the surrogate of Steuben County has power, acting as county judge, to grant an order directing a defendant to appear and be examined in proceedings supplementary to execution in a case in which the county judge might have entertained such proceedings at chambers.-McIntyre v. Allen, 328. 7. T., a judgment creditor of D., instituted supplementary proceedings, and, after examining D. several days, no further |