the agreement, still there was no he could not be dispossessed or delegal right, for such agreement was prived, yet the use of the lot was void under the statute of frauds. restricted by the established rules Mandamus is an extraordinary and by-laws of the corporation, and remedy to be resorted to with great caution. It cannot be substituted for the ordinary appropriate legal remedy. such rules and regulations were operative and excluded the right to have the body of Dennis Coppers in said plot. He took the plot subIt is disobedience of some statu-ject to the rules and regulations of tory command, or of some specific the appellant, one of which excluded requirement of law, which entitles a the burial of the body of Dennis party to a mandamus. Here the Coppers, who was a freemason. defendant, if bound at all, was so bound by contract and not by law. Mandamus is not a proper or appropriate remedy in such a case as this, and the court ought not to have N. granted the writ. Further, the relators have no status; they are neither the legal re NEGOTIABLE PAPER. INQUIRY. Y. SUPREME COURT. GENERAL James Van Schoonhoven, applt., v. presentatives, next of kin, or assigns Edward J. Curley et al., respts. of the deceased. In legal contemplation, they are strangers to the alleged contract sought to be enforced. It may be their duty to see to the proper burial of their brother. But where the right to burial in a particular place or manner depends upon legal rights vested in the deceased, such rights can only be enforced by those to whom they have descended. See 46 N. Y., 505; id. 10; 11 N, Y., 563; 2 Hill, 45; 64 N. Y,, 600; 71 N. Y., 172. In every aspect of this case we think a mandamus should not have been granted. Decided May 14, 1880. Where a purchaser of negotiable paper, even for full value, has notice of facts which put him upon inquiry, he is bound to make such inquiry, or failing so to do, his rights are subject to the effect of such facts as inquiry would have developed. Every person is presumed to know the exist ence and contents of the general statutes of the United States. a Action for conversion, based upon warehouse receipt, to recover the value of fifty barrels of whiskey, the property of plaintiff, as was alleged. The receipt given by the defendants, upon which this action was largely based, acknowledged that fifty barrels of whiskey manufactured by the defendants in March, 1875, was in Opinion by Barrett, J.; Brady, J., its warehouse at Camp Nelson, Kenconcurring. Davis, P. J., concurs tucky, subject to the order of in the result upon the ground that Messrs. Gill & Co. Upon the back while it is true Dennis Coppers had of the receipt was printed an act of certain rights of property in the use the Legislature of the State of Kenand enjoyment of the lot of which tucky, which made such receipt a Ordered reversed, and motion for mandamus denied, with $10 costs. warehouse receipt, and provided Held, It is an established rule of that such receipt was a negotiable law that where a purchaser of negoinstrument, like bills of exchange, tiable paper, even for full value, has and also made it a penal offence for notice of facts which put him upon a warehouseman to remove the inquiry, he is bound to make such goods for which such a receipt is given without the written consent of the person holding such receipt and the production of the receipt. inquiry, and failing to do so, his rights are subject to the effect of such facts as inquiry would have developed. The receipt showed that the Applying such principle, the dethe whiskey was made by the re- fendants were chargeable with spondent in March, 1875, and that knowledge of the facts appearing in April following said whiskey was upon the receipt, together with entered for deposit in said distillery knowledge of the United States warehouse, in the manner and form statutes referred to, and also with required by sec. 3,293 of the R. S. knowledge of the Kentucky statof the U. S. ute endorsed on the receipt, which Said warehouse receipt was given was subordinate to the United States Jan. 26, 1876. statute. By the knowledge derived By the provisions of the Revised from the United States statutes Statutes of the United States whis- and receipt they were informed that key so entered in said bonded dis- the whiskey could not be in the detillery warehouse must be removed fendant's bonded distillery warewithin one year, and the tax thereon paid, or same becomes forfeited to the United States Government. The plaintiff obtained the said receipt from Gill & Co. on June 21, 1976, and paid full value therefor, and took also a bill of sale of the whiskey, and thereupon applied to the defendants for the whiskey, and was informed that the defendants could not deliver the whiskey as they had, as was the fact, on or abont May 1, 1876, previously delivered the whiskey called for by the receipt to Gill & Co. In an action upon the receipt and the foregoing facts, to recover the value of the whiskey converted as alleged by defendants, the complaint at the circuit was dismissed. S. B. Brownell, for applt. house the property of Gill & Co., as the same, having been entered in such warehouse more than a year previously, was either removed elsewhere or forfeited to the Government of the United States. If the defendant had made inquiry the fact of the delivery to Gill & Co. would have been revealed, and it was negligence on the part of the plaintiff to neglect to make such inquiry. It cannot be said that the respondent ought legally to be held liable for the fraud of Gill & Co., inasmuch as the injury caused by that fraud is chargeable to the neglect of the appellant in not making inquiry as to the place of deposit or whereabouts of the whiskey before purchasing. The maxim volenti non fit injuria, seems to us to be applicable to the case, and it follows from these con siderations that the court below was in the City and County of New correct in dismissing the complaint. York. The plaintiff's title is founded upon a judgment and execution and sale thereunder, and also upon a sheriff's deed of the property Barrett, J., dissents upon the sold. To prove her case plaintiff ground that plaintiff was put upon offered in evidence a sheriff's certiinquiry merely, either that the whis- ficate of sale of the defendant's key had been forfeited, and as to interest in the land in question to that he took his risk, or had been plaintiff. Such certificate was obwithdrawn by the defendants jected to on the ground that same from the bonded distillery ware- was not acknowledged, and had not house; but were not put upon been recorded in register's office so inquiry or chargeable with notice as to make same evidence of its that the same was not in the lawful contents, and was excluded against possession of defendant, withdrawn, objection and exception. it is true, from the warehouse, but retained to cover their lien, it may be, for storage. SHERIFF'S DEED. N. Y. SUPREME COURT. GENERAL Decided May 14, 1880. Plaintiff also offered in evidence the sheriff's deed to plaintiff. This was objected to upon the ground that it did not appear that the proper notices of sale had been posted by the sheriff, &c. Solomon F. Higgins, for applt. Held, That under the law previous to the act of 1857, above referred to, the fact that the sheriff's certificate was not proved and acknowledged The act passed March 2, 1857, entitled "An Act relative to sheriff's certificates upon the sale as required by section 44 above reof real estate," makes the record or a certi- ferred to, did not invalidate the fied copy of such certificate evidence of its certificate, but such acknowledgcontents when same has been filed and ment and record were necessary to recorded with the county clerk or register, make the certificate presumptive as required by said act. The necessity of proof and acknowledgement, as required by 2 evidence of its contents. But the R. S., 370, sec. 44, to make same evidence Act of 1857 made a certified copy of of its contents is done away with. the certificate, which had been filed A sheriff's deed, based upon a previous sale of with the county clerk or register, real estate under execution, reciting the formal steps with respect to the sale, namely, evidence of its contents, and did posting the notices &c., is presumptive evi- away with the necessity of having dence that the sheriff performed his duty in same proved and acknowledged and posting the notices of sale required by law. recorded with the register before Appeal from judgment entered on same was presumptive evidence of dismissal of complaint at Circuit. its contents. The certificate having been filed with the county clerk, a certified copy thereof under the Act Action of ejectment to recover possession of certain land situate d of 1857, supra, was evidence of its being dead. The action was comcontents, and it was improperly ex-menced in 1857. During its pendcluded. ancy the original plaintiff died in 1863, and the original defendant in 1877, and the present plaintiff procured letters of administration of Further, the sheriff's deed was improperly excluded on the ground stated. 45 N. Y., 368. The deed was prima facie evidence that the posting David Green's estate, to which the of the notices required and recited therein had been performed by the officer. Held further, that the mistake in the date named in the certificate at which the interest of the judgment debtor in the land was sold, did not invalidate it. Nobody could be mislead by such mistake, and it is the duty of the court to disregard it. Judgment reversed, new trial ordered, costs to abide the event. Opinion by Davis, P. J.; Barrett, J., concurring. Brady, J., concurs in the result. BILL OF REVIVOR. N. Y. SUPREME COURT. GENERAL claim belonged, in 1873, and com- C. A. Jackson, for applt. Held, That, although the case referred to, 72 N. Y., 486, leaves the application of the rule declared by it quere as to equitable actions, nevertheless the whole reasoning of the opinion is a demonstration that no such distinction is designed to be made. Sec.757 of the Code, as it existed in 1878, and as it now exists, as John W. Green, admr., respt., v. amended, in 1879, coupled with the John Martine, applt. Decided May 14, 1880. It is no defence to a bill to revive and continue able actions in this regard. It is the duty provisions of the Code giving the right to the living party to compel a determination of the controversy, seems to establish thet, under the existing law as prescribed by the Code, the doctrine of laches as applicable to such cases is done away with. The judgment should be affirmed. Opinion by Brady, J.; Davis, P. J., concurring. Barrett, J., concurs in the result, and refers to the case of Coit v. The doctrine of laches is done away with as ap- Campbell, in this court, decided plicable to such cases. Feb. 6, 1880, as to the effect of the amendment of 1879 to sec. 757 Bill to revive and continue an action, both of the original parties of the Code of Civil Procedure. Vol. 10.-No. 6.* J. A. Shoudy, for applts. Held, The effect of the non-publication required as to one of the defendants, in the attachment obtained by Donnell, left that process effective only against the other defendant and reached only his individual interest in the copartnership property, and the firm having been insolvent at the time the attachment was issued, that interest amounted to nothing. 73 N. Y., 264. The result of these considerations is that the attachment issued upon the application of Donnell should be discharged, because no lien had been acquired by it, so that full force and effect should be given to the attachment obtained by Rountree and others, the subsequent attaching creditors, and the apparent obstacles to their lien removed. Order appealed from reversed. sec. 636 of the Code of Civil Procedure, in that the affidavit omitted to state plaintiff was entitled to recover the sum specified "over and Appeal from order denying mo- Barrett, J., concurs in the result, tion to vacate attachment in the and agrees with Brady, J., that the first entitled action. Motion by effect of non-publication was to subsequent attaching creditor to set destroy the attachment as to such aside an attachment of a previous defendant, but holds that Donnell's attaching creditor. The attachment attachment was bad ab initio, besought to be vacated was procured cause of the failure to comply with against the members of a copartnership, they being non-residents, and the affidavit upon which same issued omitted to state, as required by section 636 of the Code, that above all counterclaims known to plaintiff was entitled to recover the him." This provision is new, and sum named "over and above all was intended as a safeguard against counterclaims known to him," and the wrongful or oppressive use of further, as to one of the defendants, this remedy, in cases where the no publication was commenced plaintiff, though having a cause of within 30 days after the warrant was action against the defendant, knows granted, nor was such defendant very well that the latter has a counserved personally. terclaim equal to the demand or |