was in reference to the present transaction. -Id.

11. In the absence of fraud and collusion, an attorney employed to search the title to real estate is only liable to the person who employs him. The National Savings Bank of D. C. v. Ward, 330.

12. Upon an application by a party for substi tution of another attorney in place of his attorney of record, ordinarily the court will see that the attorney is protected as to his fees; yet where the attorney's conduct has been improper and neglectful, the court will deny this protection, and direct an unconditional substitution, leaving the attorney to his action for his fees.-Pierce et al. v. Waters et al., 432.

18. The right of an attorney to retain money in his hands collected by him, as compensation for professional services rendered, and for disbursements expended by him, is settled. In re petition of Knapp, 435.

14. Where the question of an attorney's compensation is involved the court ought to consider whether the items or service were such as to be the proper subject of charge, and also whether they have been shown to have been necessary under the circumstances.-Id.

15. An attorney has a lien to the full amount on a judgment which is exclusively for costs and disbursements, and payment of the same to the party is wrongful, as the record itself is sufficient notice of such lien.-Wright v. Fleming, 450.

16. The prevailing attorney gave notice to the opposing attorney, "that the clerk, etc., has readjusted the costs of the defendant, and that said costs, etc., have been heretofore assigned to me on account of my costs." Held, Such notice admits of the construction that the prevailing attorney was merely an equitable assignee, and justice seems to demand such construction.-Id.

17. On an application for the disbarment of an attorney affidavits and minutes of testimony may be used as a basis for the order to show cause, but on the trial the accused is entitled to confront the witnesses and crossexamine them. In re Eldredge, 566.

18. An attorney, for the purpose of obtaining depositions favorable to him, sent money to the witnesses and prepared beforehand their answers to the interrogatories. The depositions were afterwards shown to be false. Held, That the attorney's conduct was inexcusable; that it was a corruption of justice and deserved the censure and discipline of the court. Id.

See APPEAL, 36; ASSIGNMENT. 1; EVIDENCE, 12, 20; REFERENCE, 14, 15, 17, 18.

AWARD.

See ARBITRATION; EMINENT DOMAIN, 3, 5.

BAIL.

See ARREST, 4, 5, 8; SHERIFFs, 1–3, 7.

BANKRUPTCY.

1. A cause of action to recover damages for a wanton trespass by defendant in entering plaintiff's store, and ejecting him and seizing his property and converting same, without right, is not discharged by defendant's discharge in bankruptcy. - Newman v. Goddard, 7.

2.

3.

4.

5.

Where a person acting as assignee does a wrongful and tortious act, the party wronged has no claim by reason of such tort against the trust estate in the hands of such assignee, even though the tort were for the benefit of such estate only, but must sue the assignee personally for his wrong. If the assignee

be sued as such, there is no cause of action. -Griswold v. Watkins, 12.

In like manner, services rendered or money paid to such assignee are chargeable to him personally, he having his remedy over against the estate on his accounting.-Id.

Any action which is an attempt to reach and share in the bankrupt assets in the hands of an assignee in bankruptcy must be prosecuted in the courts of the United States, and the state courts have no jurisdiction in such a case.-Id.

Where, after a discharge in bankruptcy, a new promise is relied upon to sustain the action, if it appears to have been a collateral promise it must appear that the condition has been fulfilled.-Goldman v. Abrahams, 108.

6. A composition in bankruptcy does not operate to discharge a debt fraudulently contracted.-Argall v. Jacobs, 120.

7. Where certain notes were given for goods purchased, which debt for the goods purchased was contracted by fraud, a discharge in composition proceedings in bankruptcy does not discharge the debt upon the notes, which are evidences merely of the debt for goods purchased, which debt was contracted by fraud.-Id.

8. Claims existing prior to adjudication in bankruptcy in favor of the bankrupt are merged in the bankruptcy proceedings and cannot be sued.- Wilson v. Gould et al., 192.

9.

Where an action is pending, and the defendant obtains a discharge in bankruptcy, and does not make any motion to amend his answer and the plaintiff obtains a judgment by default, the defendant will not be allowed to open the judgment so as to set up the discharge, where he has been guilty of laches in making such motion and does not excuse his delay.-Henderson v. Savage, 298.

See ASSIGNMENTS FOR CREDITORS. 3; BANKS, 9; CORPORATIONS, 15; IMPRISONED DEBTOR, 2; PLEADING, 3, 4; SURETYSHIP, 10.

BANKS.

1. Plaintiff delivered to defendant, for collection, a note payable at the Bank of L. Defendant forwarded it to L., where it arrived the day it was due, and received a draft on N. Y. in payment thereof; but the draft was not paid, as the Bank of L. had failed after sending it. Held. That defendant was not liable to plaintiff as plaintiff had sustained no damage; that the attempt of the bank to pay by draft was no payment, and plaintiff could have tendered it back and demanded the note, or have sued on the note.-Indig v. The Natl. City Bank, 44.

9.

be made parties defendant.-Hun v. Carey et al., 514.

Such a liability is not provable in bankruptcy, and a discharge in bankruptcy is not available as a defense.-Id.

10. Where moneys have been wrongfully obtained by a bank, an officer thereof who has committed none of the alleged wrongs, but acted merely as the agent or officer of the bank in receiving the money, is not personally liable therefor.-The American Natl. Bk. v. Wheelock, 540.

See ACCOUNT, 3; CONVERSION, 5, 8; GUARANTY, 3; NATIONAL BANKS.

BAR.

The defense of pendency of former action involving same cause of action is well pleaded to a complaint, which, for causes of action, alleges matter set up (with other defenses) as counterclaims in an answer in a former action brought against the plaintiff by the defendant in the second action.-Demond v. Crary, 34.

371, laws of 1875.-Id.

4. Banks have a lien upon the money deposited by their customers for the payment of any indebtedness which may be owing from the latter. Falkland v. The St. Nicholas Natl. Bk., 222.

5. A bank may charge the account of a customer with the amount of a note due from the customer and held by the bank, and thus set off, pro tanto, the claim due from the bank to the depositor or customer. The relation between the bank and the depositor is that of debtor and creditor.-Id.

6. A banker's lien upon all securities deposited with him by a customer is not affected by any latent equities which may exist between that customer and third parties, of which the banker had no notice.-Id.

7. Stockholders of a bank incorporated under the general state law can be compelled to return dividends declared by the bank when insolvent only in an equitable proceeding. An action at law for money had and received will not accomplish the object.-McLean v. Eastman et al., 359.

8. While a savings bank was in an insolvent condition the trustees voted to purchase land and erect a banking house at an expense $100,000, which was done. When plaintiff was appointed receiver the building and lot with about $1,000 worth of assets constituted the entire property of the bank, and the building and lot were swept away on foreclosure. Held, A case of improvidence and reckless extravagance, and that the trustees were liable for the damages caused thereby; that an action to recover such damages is triable by jury; that all the trustees need not

3.

4.

5.

6.

7.

that the counterclaims in the former suit were withdrawn after issue was joined in the present suit.-Id.

Where the issues and parties in two actions are the same, judgment in one action is conclusive between the parties in the other.Jackson v. Binns, 105.

In an action brought by defendant against plaintiff for money loaned, the complaint gave plaintiff credit for moneys collected by defendant as agent, and claimed judgment only for the balance. The answer contained no counterclaim, but consisted solely of a general denial. In an action to recover the aforesaid moneys collected by defendant as agent, Held, that the judgment in the former action was not a technical bar to this; that plaintiff was not bound in the former action to set up this claim in his answer, nor to avail himself of the credit given by the complaint, but had a right to reserve it for a cross action.-Brown v. Gallaudet, 155.

Where a judgment is recovered in an action for wages payable by installment, after the plaintiff is discharged, for any installment falling due after the discharge, and it does not appear that any services were performed by the plaintiff after such discharge and recovery, such judgment is a bar to an action by the plaintiff for damages for the breach of said contract.-Brodar v. Lord et al., 166. When a party elects to sue in an action for tort, arising on contract, he is thereby barred from suing upon the contract after the first action was dismissed.-Arnold v. Clark, 189.

Where a judgment has been recovered for a previous cause of action, for rent which was due at the time of the commencement of an

action for subsequent rent, the former judgment may be pleaded in bar in the subsequent action.-Jex v. Jacob et al., 254.

8. A former judgment of a court of competent jurisdiction with respect to a fact in issue is as evidence conclusive between the same

parties in a subsequent action or proceeding. -Ackley v. Westervelt, 391.

the goods as between the consignor and his creditors.-Nicholson et al. v. Conner, 293.

6. The mere possession of a bill of lading does not absolutely control the property.-Id.

1.

467.

See ACCORD, 1, 3; AccoUNT, 5; ATTACHMENT, 14; EMINENT DOMAIN, 4; PARTITION.

BARRATRY.

See BILL OF LADING, 1, 2.
BILL OF LADING.

1. A bill of lading for a box containing two bags of coin exempted the defendant company from liability for any loss, &c., occasioned by theft on land and water;" Barratry of master or mariners," &c. One of the bags of coin was stolen, and in an action to

recover the value thereof, evidence was given

tending to show that the theft was committed by the purser of the vessel. Held, That defendant was not liable.-Spinetti v. The Atlas SS. Co., 1.

2. The purser of a vessel is a mariner, and a theft by him is barratry.-Id.

3. A State statute which makes bills of lading negotiable by endorsement and delivery, or negotiable in the same manner as bills of exchange and promissory notes, does not charge them, or negotiation of them, with all the consequences which usually attend or follow the negotiation of bills and notes.-Shaw et al. v. The Merchants' Natl. Bk., 263.

4. The purchaser of a stolen bill of lading, with reason to believe that his vendor was not the

owner of the bill, or that it was held to secure the payment of an outstanding draft, is not a bona fide purchaser, and is not entitled to hold the merchandise covered by the bill against its true owner.-Id.

5. If a bill of lading is transferred as security for moneys advanced, it will pass title to

BILL OF PARTICULARS.

The court may in any case, in actions founded in tort as well as actions based upon contract, order either party to furnish a bill of particulars to the adverse party.—Stiebling v. Lockhaus, 203.

Where it appears that the plaintiff has presented a bill of particulars, and that the defendant has more knowledge of the particulars of plaintiff's claim than the plaintiff, and that the same sources of knowledge are open to the defendant as to the plaintiff, a motion for a further bill of particulars will be denied.-Pringle v. Leverich, 296.

See LIFE INSURANCE, 16; SLander. 1.

BONA FIDE HOLDER.

him

1. B., P. & Co., being indebted to F., gave their check, which was protested on presentation, no funds being then or subsequently in bank to meet it. Subsequently B., P. & Co. gave F. the note in suit in part payment of their debt, and F. returned the check. The note had been given for a particular purpose, and had been diverted by the payee, who loaned it to B., P. & Co. without consideration. Held, That the return of the check was not a surrender of anything of value, and did not make F. a holder for value. The Phoenix Ins. Co. v. Church, 376. See BILL OF LADING, 4; NEGOTIABLE PAPER, 3, 4; PARTNERSHIP, 2, 3; USURY, 5.

1.

BONDS.

A., the obligor on certain coupon bonds, which were secured by a mortgage to trus tees for the benefit of the bondholders, borrowed money upon his notes of a bank, and the latter discounted them in the ordinary manner. At the same time A. agreed with the bank to use this money solely to pay certain of these coupons then due, and that such coupons should thereupon be delivered to the bank, remain its property, and be a lien on the premises described in the trust mortgage. He applied the money received from the bank in the manner agreed. Held, That this application was a payment of the coupons, and that they could not be kept alive, by A.'s agreement with the bank, against the other bondholders.-Bockes et al. v. Hathorn, 79.

2. In an action upon an indemnity bond, indemnifying the plaintiffs against certain debts of a copartnership, a judgment against the members of the firm, upon a copartnership indebtedness indemnified against, is prima facie evidence of a debt of the copartnership against the indemnitors.-Mack et al. v. Hyman et al.

See ARREST, 4, 5; EXECUTORS, &c., 6; GUARDIAN, 5; SURETYSHIP.

BROKERS.

an office an opportunity of showing that he was unjustly deprived of his office, and if he can sustain his position in that respect the court should facilitate every lawful effort to secure its emoluments.-Id.

A writ of certiorari only lies to review a final determination; but an order adjudging a person guilty of contempt in resisting the process of the court, and directing his punishment, is such a final determination as is reviewable by the writ of certiorari, although the warrant in pursuance to such order has not issued. The People ex rel. Gilmore v. Donohue, 427.

7. The mayor's removal of a police commissioner, under the charter of the city of New York, may be reviewed by certiorari apart from and without the approval of such removal by the governor.-The People ex rel. Nichols v. Cooper, 439.

BURGLARY.

1. The statute authorizing the indictment, trial and conviction of a burglar in a county into which he has brought the stolen goods, is valid.-Mack v. The People, 538.

CERTIORARI.

1. The granting or quashing of a writ of certiorari is entirely a matter of discretion. -The People ex rel. Cornell v. The Comptroller of N. Y., 104.

2. The court wisely exercised its discretion in quashing the writ in this case, to review the relator's removal from the office or position of Clerk of Washington Market, inasmuch as the relator delayed eight months after his removal before applying for a writ of certiorari.-Id.

3. A writ of certiorari brings up only the exceptions taken at trial.-Pontius v. The People, 357.

4. Where a relator permits a long time to elapse without seeking his remedy by an application for a writ of certiorari, the writ, if granted, may be quashed by reason of laches; but where the relator has shown diligence in his attempt to enforce his right, such writ will not be quashed even though a considerable length of time has expired since the occurrence of the wrong sought to be remedied.-The People, ex rel. Hatzel v. The Board of Aldermen, 390.

5. The writ of certiorari is allowable, although relator's term of office had expired, to give an officer claiming to be unjustly deprived of

While it is true that an order or judgment, to be reviewed on common law certiorari, must be complete and final before the writ will lie, yet the removal by the mayor under the charter is such a stage in the proceedings (in the nature of an interlocutory judgment), that such removal may be properly made the subject of review by this court upon certiorari, without the approval by the governor. -Id.

See FORCIBLE ENTRY; REMOVAL, 3;
TION, 17.

CHATTEL MORTGAGE.

TAXA

1. Defendant's assignors sold certain machinery to a corporation under an agreement by which it was to be paid for at certain specified periods, such payments to be secured by notes and chattel mortgages. The notes and mortgages were accordingly delivered. Defendant afterwards took possession. In an action to recover possession, brought by the receiver of one who had purchased at an execution sale, it was claimed that the mortgages were void under the Act of 1848, prohibiting the mortgaging of their property by corporations. Held, That the transaction must be construed as a whole, and was in effect a conditional sale; that the rights of the vendors did not depend on the act of the corporation in creating a lien, but upon their own act, and are secured by the rule protecting equitable liens of vendors, which the courts will enforce.-Coman v. Lakey, 152. 2. Plaintiff held a chattel mortgage on certain horses which were removed, without his consent, by the mortgagor to Canada, and there sold to D, who bought in good faith. D. sold to a resident of this state, who afterwards sold them in Canada to defendant, also a resident of this state. In an action for conversion, Held, That plaintiff's title was superior to that acquired by defendant, and that the law of Canada, giving defendant a good title, could not be permitted by comity to operate

in this state to the inconvenience of its citizens.-Edgerly v. Bush, 308.

3. Where a chattel mortgage is in the form of a bill of sale, upon condition that, on pay. ment of a certain sum on demand, it should be void, on demurrer to complaint upon the mortgage. Held, That the fact of the ownership being alleged, it was not essential to allege that there was a default, and that the omission to plead it did not create a pre sumption that it had not occurred.-Malcolm v. O Reilly et al., 328.

See DURESS.

CLOUD ON TITLE.

1. An action to set aside an instrument as a cloud on title can only be brought where the alleged cloud exists without right. Unless the circumstances are such as to sustain an action for slander of title, a court of equity will not interfere, and the party affected must wait until the pretended title is asserted.-Ryerson et al. v. Willis, 283.

2. To authorize the interposition of the court to remove the lien of an assessment as a cloud on title, it must appear that the record or proceedings are not void on their face, and that the claimant under it would not, by his proofs in an attempt to enforce his claim, develope the defects rendering it invalid.Dederer v. Voorhis et al., 407.

CODE OF CIVIL PROCEDURE.

See APPEAL, 17; ARREST, 4; EVIDENCE, 3, 6, 7, 11, 14, 24; FRAUD, 3, 5; PRACTICE, 13, 19, 25; REFERENCE, 4, 20; REPLEVIN, 3.

COMMON CARRIERS.

1. A complaint alleged that defendants, as common carriers, received certain goods at P. to carry and deliver the same to plaintiff on demand at R.; that plaintiff demanded said goods, but defendants refused and still refuse to deliver the same to him. Held, Sufficient to uphold a recovery against defendants either as common carriers or warehousemen. -Golden v. Romer et al., 5.

2. In an action against a common carrier for loss 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.Canfield v. The B. & O. RR. Co., 445.

3. 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.—Id.

See CONVERSION, 4.

CONFLICT OF LAW.

See CHATTEL MORTGAGE, 2.

CONSIDERATION.

See CONTRACT, 6; NEGOTIABLE PAPER, 5, 6.

CONSPIRACY.

1. In an action for damages resulting from a conspiracy to defraud, the jury may render a verdict in favor of one defendant and against another; the question of liability depending upon whether or not the particular defendant was a guilty participant in the alleged wrongful combination.-Fuller et al. v. Robinson, 487.

2. The existence of a conspiracy to defraud being established, all the persons who with fraudulent intent participated in such conspiracy are responsible for the damages resulting therefrom to the injured party.-Id.

3. The presumptions in such cases are in favor of innocence.-Id.

See PRACTICE, 23.

CONSTITUTIONAL LAW.

1. A statute which merely impairs a remedy, operating by way of limitation in point of time, is not unconstitutional.-Dubois v. The City of Kingston, 82.

2. Plaintiff was elected an alderman of New York City for a term of two years from January 1, 1870. In June, 1870, he was superseded by an alderman elected under the provisions of ch. 137, Laws of 1870. In an action for salary accruing after June, 1870, Held, That the act of 1870 was constitutional and valid, and that plaintiff, after June, 1870, was not de jure or de facto an incumbent of the office, and could not maintain this action.Long v. The Mayor, &c., of N. Y., 405.

See BURGLARY; MUNICIPAL CORPORATIONS, 1; REFEREE; SURROGATES, 5; TAXATION, 2; TOWN BONDS, 2; WHARFAGE.

CONSTRUCTION OF STATUTES.

1. A special act will not be deemed repealed by implication, in consequence of the passage of a general law containing a general repealing clause of inconsistent legislation.— Whipple v. Christian, 99.

2. In an action to recover from the stockholders of an Iowa corporation a debt due from the corporation, on the ground that they became liable because the proceedings taken to incorporate it were not in accordance with the statute of that state, it appeared that the Supreme Court of Iowa, in a suit against a stockholder of the same company, had held that the company was organized, and the stockholders were not personally liable for its debts. Held, That that decision was conclusive as to the construction to be placed on the Iowa statute.-Jessup et al. v. Carnegie,

150.

3. The effect of the repeal of one act which amended another is to restore the latter statute in all respects as it stood before the amendatory act was passed.-In re Livingston St., 235.