The judgment pronounced by the court below is correct, and should be affirmed. of the proceedings which it is de- the Freedman's Savings and Trusts signed to effect. Company the sum of $10,000, and executed to Daniel L. Eaton a deed of trust conveying a part of the lots owned by him in Mount Pleasant Opinion by Brady, J.; Barrett, J., as security for the repayment of the concurring. Davis, P. J., dissents loan. Under this deed of trust the upon the ground that under the lots were sold and bought in for charter the removal by the mayor the Freedman's Bank, and they is not a final determination, such as have resold several of them and to be the subject of review by cer- guaranteed the title to the purtiorari, but only one of the steps chasers. provided by the charter in the scheme for removal, which is rendered final and effective by the governor's approval. ORDER OF SALE. U. S. SUPREME COURT. The National Savings Society of the District of Columbia et al. applts., v. Creswell et al. (Oct., 1879.) It is the prevailing doctrine in courts of equity that real estate, subject to lien, which has been alienated in parcels to several persons at different times, shall be subjected to payment of such lien in the inverse order of alienation. A few months after the execution of the deed of trust above mentioned by Brown, he began to borrow money from the National Bank, the appellant in this case, and gave deeds of trust on other lots in the same subdivision to secure the payment of these loans. In July, 1874, the National Bank, fearing the loss of their security by the judgment against Brown of March, 3, 1870, purchased that judgment, and ordered an execution to be issued on it, which was levied on the lots conveyed to Eaton for the benefit of the Freedmen's Bank. The bank having passed into the control of Creswell and others, as Appeal from the Supreme Court commissioners appointed to wind of the District of Columbia. up Samuel P. Brown, being seized in fee of a large number of lots constituting the subdivision of a tract of land in the town of Mount Pleasant, The court granted such relief as had a judgment rendered against is authorized by the principle, that him March, 3, 1870, in favor of one where real estate is subjected to a Jolly, for the sum of $4,6.4.05, in lien in the hands of its owner, and the Supreme Court of the District he sells or mortgages separate parof Columbia, and the lots being cels of that property subsequently within the District, the judgment to different persons, and at different became from that day a lien on times, these parcels shall be subthem. On the 20th day of June of jected to payment of the lien in the that year, Mr. Brown borrowed of inverse order of their alienation. Held, no error; that this prin- with all its equitable burdens; it ciple was upheld in the ancient cannot be in the power of the English cases, 3 Coke, 11; 2 Atk., 444, and the principle was stated by Chancellor Kent, with his usual force and clearness, in 1821, in the case of Clowes v. Dickenson, which has become the leading case on this subject in this country. 5 Johns. Ch., 235. debtor, by the act of assigning or selling his remaining land, to throw the burden of the judgment or a ratable part of it back upon A." The doctrine and the reason upon which it is founded cannot be better stated than in this extract from the opinion. After referring to the case of Sir We may, as an additional reason, William Harbert, 3 Coke, 11, he suggest a principle often called into says: "This case settles the ques- action in recent times in the courts, tion as between the vendor namely, that where one of two inand purchaser or the heirs of the nocent persons must suffer a loss, it vendor and the purchaser, and if should fall on him who by reasonthere be several purchasers in suc-able diligence or care could have cession at different times, I appre- protected himself, rather than on hend in that case also there is no him who could not. In the case equality and no contribution as supposed, the second purchaser, at between the purchasers. Thus, for the time of his purchase, knowing instance, if there be a judgment that the land which he buys is against a person owning at the time subject to the incumbrance before three acres of land, and he sells one that already sold, can exact of the acre to A., the two remaining acres vendor security or protection are first chargeable in equity with against the incumbrance, which it the payment of the judgment debt, is out of the power of the first as we have already seen, whether vendor to do at the time his risk is the land be in the hands of the increased by the very act of the sedebtor himself or of his heirs. If cond purchaser. he sells another acre to B., the remaining one acre is then chargeable in the first instance with the debt as against B., as well as against A.; and if it should prove insufficient, then the acre sold to B. ought to supply the deficiency in preference to the acre sold to A.; because when B. purchased, he took his land a prior incumbrance equality is chargeable with the debt in the justice, and the debt shall bear hands of his debtor in preference to equally upon all the parcels originthe land already sold to A. In this ally subject to it in proportion to respect we may say of him as it is their values. said of the heir, he sits in the seat We are of opinion that the preof his grautor, and must take it ponderance of authority, as shown Since the decision in the case of Clowes v. Dickenson, the doctrine. there announced has been followed by much the larger number of courts of the different states, though there are a few of very high authority which have held that as between vendees of land subject to BREACH OF CONTRACT. Y. SUPREME COURT. GENERAL Decided June, 1880. A complaint alleged that defendant sold out his business to plaintiff and agreed not to engage in that business in a certain place and vicinity without plaintiff's consent, and that defendant established an office for such business at such place Held, that it alleged sufficient facts to constitute a cause of action. The action was ejectment. At the first trial defendant had judgment. Plaintiff appealed to the General Term, and the judgment was there The complaint avers that the affirmed. Plaintiff appealed to the defendant sold out his busiCourt of Appeals, where the judg-ness to plaintiff and entered into a ment was reversed and a new trial written agreement "not to engage granted, with costs to abide the in the life insurance business in the event. The judgment of the Court City of Rochester and vicinity withof Appeals was duly made the judg- out the consent of the plaintiff." ment of the Supreme Court. Upon Then follows an averment of a a second trial at Circuit plaintiff had breach by defendant of agreement, judgment, with costs. Upon the taxation of costs, defendant objected to taxing the costs at General Term. The clerk allowed them, but the Special Term, on motion, disallowed them, and from that order plaintiff appeals. J. E. Van Etten, for applt. by establishing an insurance office, J. Van Voorhis, for applt. Held, The plaintiff is entitled to and certain as to the territory with in the limits of the City of Rochester. proposed an amendment striking In that limit it is averred the de- from the case all these new findings fendant has established an office. and conclusions. This was allowed The contract alleged is definite, and by the justice upon the ground in that limit the defendant agreed "that no proposed findings were not to engage in the fire insurance submitted to the court before decisbusine-s, and it is enough to uphold ion and judgment." A motion was the complaint that we find an aver- made by defendant to resettle the ment of a breach of the contract set case and to allow the proposed findout, and sufficient facts appear to ings. This was denied, and from constitute a cause of action. that order defendant appeals. Judgment and order affirmed with costs. Opinion by Hardin, J.; Talcott, P. J., and Smith, J., concurred. Leslie W. Russell, for applt. Held, That under sec. 1023 of the Code of Civil Procedure, and other sections touching the subject, see sec. 993, a judge or referee cannot PRACTICE. FINDINGS OF LAW be required or permitted to make OR FACT. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. additional findings of fact or law upon the settlement of the case after his report or decision has been rendered. So far as rule 32 conflicts with this section, it is inoperative. Order affirmed. Opinion by Learned, P. J.; Bockes and Westbrook, JJ., concur. Decided September, 1880. Under sec. 1023 of the New Code, a judge or referee cannot be required or permitted to make additional findings of law or fact, upon the settlement of a case, after his report or SUPPLEMENTARY PROCEED decision has been rendered. So far as rule 32 of the Supreme Court conflicts with this section, it is inoperative. INGS. N. Y. SUPREME COURT. GENERAL Ashley, respt., v. Turner, applt. Decided September, 1880. Where a judgment debtor was examined in supplementary proceedings, under the Old Code, before a referee, and verbal notice was given him of a future application for a receiver, Held, That the notice was insufficient, and that he was entitled to a written notice of the application. Otherwise, had the examination been had before the judge who granted the order, and the application been made to him. This case was tried by the court without a jury. Defend int's counsel proposed a case on which to review a judgment for plaintiff herein, containing findings of fact and conclusions of law which were new. He did not request the court to pass upon these before its decision, except so far as the principles and facts contained in these new findings were stated in a brief of defendant's counsel, which he argued before the justice on the trial. On settlement This is an appeal from an order of the case, the plaintiff's counsel denying a motion to set aside the appointment of a receiver of defendants' property, appointed in supplementary proceedings taken under the Old Code. Defendant was examined before a referee appointed by a judge of the court. At the close of the examination he was verbally notified by the plaintiff's attorney that he should apply for a receiver before a judge at a certain time and place. John C. Fulton, for applt. L. M. & L. K. Soper, for respt. Held, That defendant was entitled to legal notice of the appointment of a receiver of his property, so that he might have an opportunity to be heard. Such legal notice must be in writing. A verbal notice like the present was insufficient. of goods alleged to be by the negligence of the carrier, the burden of proof as to the delivery is upon the plaintiff, and in such case the jury must be left free to determine it upon their own view of the evidence. It is error to charge in such a manner as to give the jury the impression that the plaintiff had sufficiently established the delivery to defendant of the missing goods. Appeal from a judgment entered on a verdict in favor of the plaintiffs and from an order denying defendant's motion for a new trial. The action was brought to recover the value of certain jewelry and silver plate which the plaintiffs alleged they delivered to the defendant in a box, at Washington, D. C., to be carried to New York, but which, through the defendant's alleged negligence, were abstracted Had the examination been had from the box while in the custody before the judge who granted the of the defendants. The delivery order, we see no reason why the of the packages to the defendant. plaintiff might not have at once and by it to the consignees in applied to the judge for an order New York were admitted. The appointing a receiver, without a contested questions of fact were, formal notice. But not so before a (1,) whether the missing goods referee. were contained in one of the boxes Order appealed from reversed, at the time of the delivery to the with $10 costs and disbursements, defendant for transportation; (2) and motion to vacate order appoint- if they were, whether they were abing receiver granted, with $10 costs. stracted therefrom before the duty Opinion by Learned, P. J.; Bockes of the defendant for their safe and Westbrook, JJ., concur. keeping had ended. A former verdict in favor of the plaintiffs was set aside by the NEGLIGENCE. BURDEN OF Court of Appeals. 75 N. Y., 144. PROOF. TERM. Estes & Barnard, attys., and N. Y. SUPERIOR COURT. GENERAL Benj. Estes, of counsel for plff. William B. Canfield et al. v. The Baltimore & Ohio Railroad. Decided June, 1880. Austen G. Fox & Waldo Hutchins, for deft. Held, That the burden of proof was upon the plaintiffs. That the question of delivery should have In an action against a common carrier for loss | been submitted as an open one to |