the clause prohibiting other insurance without the company's consent.-Id.

10. The policy provided that it should be void if foreclosure proceedings should be commenced against the property. Plaintiff having commenced foreclosing his mortgage, the company, after the fire, required the insured, pursuant to a provision in the policy, to submit to an examination under oath. Held, That while there was a breach of the clause in the policy, yet the company's acts amounted to waiver.-Id.

11. Under a clause providing that " any fraud or attempt at fraud, or any misrepresentation in proof of loss on examination, or any false swearing," should avoid the policy, a misstatement, to have that effect, must be false and fraudulent, and not a mere mistaken expression of opinion.-Id

12. The policy in suit provided, that if the insured should have any other insurance on the property, without the consent of the company, it should be void. There was a prior policy on the property, issued by another company, which provided that if the insured should have or thereafter make any other contract of insurance without the consent of the company, it should become void. Held, that there was not a double insurance; that the former policy, by its own terms, became void on the issuing of the policy in suit, and that a compromise under the former policy, made after it became void, did not give vitality to it.-Doran v. The Franklin Fire Ins. Co., 555.

FIXTURES.

1. Neither gas fixtures attached to gas pipes in a building, nor mirrors put up after the house is built, and held in place by hooks or supports, some fastened with screws to the wood-work and others driven into the walls, and which are capable of being easily detached without injury to the walls. are fixtures.-McKeage v. The Hanover Fire Ins. Co.,

194.

2. A former owner, in applying for a loan on mortgage, represented that the gas fixtures and mirrors would go with the house, but no mention of them was made in the mortgage. Held, That the statements did not change the character of the property nor affect subsequent purchasers for value who had no notice of them.-Id.

FORECLOSURE.

See BAR, 9; CORPORATIONS, 13; EVIDENCE, 14; MORTGAGE, 1-4, 11, 12, 15, 21, 22.

FORMER ADJUDICATION.

1. The arguments and authorities presented by the appellant were all considered in a former adjudication of this court in another case which arose under the same will. Held, On the principle of stare decisis, the former

2.

241.

While the law declares a transfer of personal property in trust for the use of the person transferring it, and assignments to hinder, &c., creditors, are fraudulent and void as to creditors hindered, &c., the question of fraudulent intent, where the transaction is equivocal, and different inferences may be drawn as to its character, is a question of fact for the jury and not of law for the court. The controversy with respect to the good faith of the transaction, upon conflicting evidence, is for the jury.-Id.

3. In an action for equitable relief, to wit: on the ground of fraudulent concealment and overcharges, and for an accounting, the action must be brought within six years, and falls within 382 of the Code.-Carr et al. v. Thompson, 242.

3. A written instrument, executed and delivered to a bank, whereby defendant promises and guarantees to said bank all pledges of prop erty, warehouse receipts and other vouchers that may be given by W. as collateral security, and promises that the property so set over shall not be misapplied, and that if any default or misappropriation thereof shall be made, defendant will make good any deficiency, and fully satisfy the stipulation in receipts, does not render defendant liable only to make good a deficiency caused by diversion, but is also a guaranty of the existence of the property proposed to be pledged. The Farmers & Mech. Bk. of Buffalo v. Lang, 574.

4. Defendant is not released from liability under such guaranty by renewal of the note. -Id.

See ESTOPPEL, 6; EVIDENCE, 18.

GUARDIAN

1. It is not necessary that the complaint against sureties on general guardian's bond should aver an accounting with guardian, if the case is such that from its statement the extent of the guardian's liability appears without an accounting.-Girvin v. Hickman et al., 275.

2. It seems that where the guardian is a nonresident, so that he cannot be compelled by any process of court to come personally into this state and render an account, the action should be permitted to proceed against resident sureties without an accounting, as otherwise plaintiff would be remediless.-Id. 3. A guardian ad litem is responsible for costs, but the Code does not require him to file security therefor.-Steinberg v. The Manhattan R. Co., 346.

4. A guardian's consent to act is essential in order to have his appearance for infants amount to a waiver.-Stillwell et al v. Swart hout et al., 369.

5. A bond of a guardian, upon a sale of infant's real estate, is not void because executed before application made to the court in the matter, especially where the approval and filing were subsequent to the granting of the application.-Center v. Sproat, 447.

8.

9.

-In re appointment of guardian of Hubbard et al., 482.

The bringing of one of the infants into the state by strategem for the purpose of giving jurisdiction will not avail.-Id.

The father of the infants, becoming insane in 1875, was taken to Rhode Island, and there placed in an asylum. He never afterwards returned to this state to reside, nor was there any property of the ir fants' here. Held, That the father's legal domicil was Rhode Island, and that the courts of this state had no jurisdiction of a proceeding to appoint a guardian. -Id.

10. A special guardian was directed, by order, to pay certain debts existing against the estate of infants out of the proceeds of a certain mortgage given by him in their behalf. He neglected so to do, made payments not authorized by the order, and exhausted the fund. On appeal by a creditor named in said order, Held, that the guardian's proceedings should be set aside; that they were not helped by an order of confirmation granted without notice to the creditor appellant, and that the guardian should be charged with interest upon the amount due the creditor from the date of the order of confirmation.In re Lampman, 498.

11. In such proceeding both the referee's report and the order directing payment should state specifically the objects to which the avails of such a mortgage should be applied.-Id.

1.

HABEAS CORPUS.

A person who has given bail to the sheriff for the jail limits upon a body execution is not under such restraint by the sheriff as authorizes a resort to the writ of habeas corpus. In re Lampert, 109.

2. While the office of the writ of habeas corpus is to remove all unlawful restraints upon personal fredom, yet this removal is procured by the production of the body. Without the production of the body the case has no statThe restraint to authorize a resort to the writ must be real and substantial, not a mere moral restraint.Id.

3.

us.

It is not the function of a writ of habeas corpas to determine such a collateral question as whether the prisoner was privileged from arrest when arrested, and as to whether or not such privilege, if existing, was waived. The proper manner to raise such questions is by motion. Id.

to the sureties on his bond, in an action against them, that there had never been a formal accounting by the guardian.-Id.

7. The Supreme Court has power to appoint guardians of infants only where the infants or the property are within its jurisdiction.

1.

32.

HIGHWAYS.

HUSBAND AND WIFE.

B. retained about half his property after deducting the amount transferred to his wife. Held, That the settlement was not unreason

able nor utterly disproportionate to his means.- -Carr et al. v. Breese et al., 518.

See CONVERSION, 3; CRIMINAL LAW, 6, 7.

IMPRISONED DEBTOR.

1. It is no defense to an application for the discharge of an imprisoned debtor that he made a false and fraudulent representation as to the solvency of a person to whom credit was given by the person who has recovered a judgment for damages against the prisoner for the injury thus sustained.-In re Fowler,

45.

2. Nor is the fact that the prisoner applied for his discharge as a bankrupt any such disposition of the property as is contemplated by the act.-Id.

INDICTMENT.

1. It is a sufficient description of the property stolen, same being sixty trade dollars, where the indictment charges the accused with stealing "sixty silver coins of the kind usually known as dollars, of the value of one dollar each."-Miller v. The People, 249.

2. The omission to state in an indictment the court in which it is found is not fatal, especially so when objection is not taken until after conviction. Such statement is usually contained in what is denominated the caption, which really constitutes no part of the indictment, and when the trial is had in the court in which the indictment is found and presented no caption is required.- Gray v. The People, 250.

3. Any defect in such caption may be amended at any stage of the proceedings.-Id.

4. An indictment is sufficient which charges certain instruments to have been forged, setting them forth, although no name is given to the instruments charged to have been forged.-Id.

See PERJURY, 1.

INFANT.

1. An infant, who with his parents' consent becomes member of a family of a relative, upon an agreement by the latter to bring him up properly, educate him, &c., cannot recover the value of his services if the relative perforins his agreement, but if there is a breach of the agreement by the latter he may recover.-Lind v. Sullestadt, 291.

2. A party is not liable for breach of promise of marriage and seduction committed during infancy.-Leichtweiss v. Treskow, 303.

See GUARDIAN.

INJUNCTION.

1. Where a preliminary injunction is vacated upon a stipulation, the sureties on the undertaking are only relieved from liability for

2.

damages accruing subsequent to the time of its vacation; they are still liable for all damages which accrued prior thereto the same as if it had been vacated on motion or by a decision of the court.-Dickinson et al. v. Hermann, 268.

Where an injunction is obtained restraining certain proceedings, damages sustained thereby cannot be recovered beyond the amount specified in the undertaking on which the injunction is obtained - The Pacific Mail SS. Co. v. Toll, 269.

3. This court should not grant a reference to determine the damage arising by reason of an injunction order where an appeal has been perfected from the judgment in the suit. After such appeal has been perfected there is no such final decision as authorizes the granting of the order of reference.-Howard et al.v. Park et al., 363.

1. The affidavit of service of the order to show cause under the two-third act was subscribed with the name of certain person, and had a jurat signed by the proper officer, but no name of a deponent was inserted in the body thereof. Held, Sufficient. - The People ex rel Kenyon v. Sutherland, 371.

2, As to sufficiency of proof of service by mail -Id.

3. The creditors were stated to have their residences in New York City, and the envelopes were directed generally to that city. They were addressed to the best of insolvent's knowledge. Held, A sufficient address.—Id. The name of one of the creditors, Storrs, was in the list spelled "Stores." Held, Sufficient; that it was case of idem sonans.—Id.

4.

may be required as a basis of its action.

Id.

3. When the actuary is continued in the employ of the receiver after his report is in, such employment is under and by virtue of section 13, and rot of section 8 of said chapter 902, Laws of 1869, and should have the approval of the superintendent of insurance department, and the receiver has the absolute power to discharge from employment at any time.-Id.

4. Approval of a reduction of salary of any such clerk or actuary may be assumed to have been given by the superintendent of the insurance department.-Id.

5. The court is not a proper tribunal to fix salaries of clerks and employees of a receiver. It has no power to modify the contract nor increase the salary promised.-Id.

6. The receiver of an insolvent insurance company gave notice that he would receive no more premiums. Some of the holders of policies then in force having afterward died, Held. That the policies could be enforced as if the premiums had been paid; that the claimants were entitled to the present value of the policies at the time of the dissolution of the company, less the unpaid premiums.In re Atty. Gen. v. The Guardian Mut. Life Ins. Co., 570.

INTEREST.

See ASSESSMENTS, 8, 9; GUARDIAN, 10; SHERIFFS, 6.

JOINT DEBTORS.

1. A joint debtor has no authority to bind a person jointly liable with him by his statements or admissions, unless he is the agent, or in some other way the representative of such person.- Wallis v. Randall, 343. See LIMITATION, 6.

JOINT STOCK COMPANIES.

1. The articles of association of a joint stock company did not authorize the directors to commence business until all the capital stock was subscribed for and taken; they provided that each share of stock should be subject to such assessments as should be required to pay losses, damages, &c., incurred in the legitimate business of the company. Only half the stock was taken, on which 50 per cent. was paid, and full-paid stock was issued. In an action to recover an assessment, it appeared that defendant had no part in the management of the company, and had never assented to the prosecution of the business before all the stock was taken. Held, That the directors had no authority to prosecute the business, or incur obligations therein, until all the stock was taken; that the assessments authorized by the stockholders were assessments upon the whole capital stock; that the

obligations incurred by the stockholders bound them, but were not binding on the non-assenting stockholders, and no valid assessment, therefore, could be made upon them.-Bray v. Farwell, 533.

JUDGMENT.

1. An action having been brought by a party as trustee, &c., and judgment having been rendered against him as such for costs, and the defendant having been permitted to modify his judgment, so as to make the costs chargeable to the trustee personally, but without prejudice to the plaintiff to move to correct the same. Held, That the judgment as amended was afterwards properly set aside by the Special Term, without prejudice to the right of defendant to move to charge the plaintiff personally with costs of the action, or re-enter judgment in the form as originally entered.-Butler v. The B. & A. RR. Co., 11.

2.

In the absence of fraud or imposition on the courts the General Term has no power, on motion, to vacate the judgment of the Special and General Terms, even as to costs, after they have been affirmed by the Court of Appeals.-Sheridan v. Andrews, 117.

3. Where the plaintiff recognized the existence of a judgment, and acquiesced in its validity for two years, he cannot, on motion, except for error in fact not arising upon the tiral, properly ask to have the judgment set aside. -Jex v. Jacob et al., 254.

4. The Supreme Court has no power to enter judgment by default against a party after his death, although where a party dies after verdict, and before the decision on a motion for a new trial, the court has inherent power to direct the entry of judgment as of a date preceding such death. But the court cannot enter judgment by default, nunc pro tunc, as of a period prior to the death of a party deceased.-Grant v. Griswold et al., 437.

5.

6.

7.

A judgment may be amended in furtherance of justice.-Id.

A judgment cannot be assailed collaterally upon the ground that same was entered on the report of a referee and that the order of reference was unlawfully granted. Such judgments must be assailed by review thereof. Mack et al. v. Hyman et al., 458.

The Special Term has power to amend the docket nunc pro tune, so that it shall conform to a judgment originally entered in this court, and, on proper cause being shown, is bound to exercise that power.-Berdell v. Berdell, 528.

See APPEAL, 9, 11; ASSIGNMENT, 1; BANKRUPTCY, 9; BAR, 3-5; EJECTMENT, 3, 4; EviDENCE, 10; LEAVE TO SUE, 3; MORTGAGE, 5, 6; PRACTICE, 21, 27-29; REFERENCE, 21.