was entitled to payment without regard to any liability assumed by the receiver in regard to the lease.-The People v. The National Trust Co., 571.

10. The dissolution of a corporation does not terminate a lease of premises occupied by it; it can only be canceled with the consent of the lessor.-Id.

See BAR, 7; MORTGAGE, 11; RAILROAD COMPANIES, 11-14.

LEAVE TO SUE.

1. The owner of a debt secured by mortgage cannot enforce the obligation by action after judgment in an action to foreclose the mortgage, unless authorized by the court.-Earl v. David, 8.

2. But the court may, upon terms, grant such leave to sue, and allow the complaint in an action already begun to be amended by setting up such leave nunc pro tunc.—Id.

3. Plaintiffs recovered a judgment in the U. S. Circuit Court for the Southern District of New York, and docketed the judgment in Ulster County. Upon an action brought upon this judgment, Held, That leave to sue thereon, under sec. 71 of Old Code, was not necessary. That section applies only to judgments recovered in the first instance in the courts of this state.-The Goodyear Dental Vulcanite Co. et al. v. Friselle et al., 446.

LEGACY.

See WILL, 3, 4; SERVICES, 2.
LIBEL.

1. While a citizen has the right to criticise the report of a public official with satire and ridicule, he cannot in such criticism attack the private character of such official; to do so would be libellous.-Hamilton v. Eno, 403. 2. The court was asked to charge that unless defendant was moved by actual malice, it was not a case for punitive damages, and that the jury should give such damages only as they thought plaintiff had really borne. Held, That the latter part of the request asked for too much, and that the court was not bound to take the good part of the request from the bad and to charge the good. -Id.

8. Matter that will serve to mitigate damages must be connected with or bear upon the defamatory charge.-Id.

LIEN.

1. A vendor's lien for the purchase price of land is waived where a note is taken by him in which a third person joins as security, and, a fortiori, where the obligation taken is that of a third person, and not of the vendee.- Hazeltine v. Moore et al., 293.

1.

2.

3.

LIFE INSURANCE.

An insurance policy, payable to the wife of the insured at the expiration of a certain time, or at the death of the insured if before the expiration of that period, is not assignable by the wife.-De Jonge v. Goldsmith, 35. In case of the assignment of such a policy to a bona fide purchaser who subsequently pays premiums, the assignee is entitled to the repayment of the premiums out of the amount due on the policy, and the assignor will be entitled to the balance, although she guarantees and warrants the validity of the assignment. Id.

One M. obtained a policy in defendant's company from one R., who was not an agent of defendant, which provided that it should be void in case of non-payment of any note when due. He paid half the first premium by a note, which provided that in case it was not paid, the policy should be void. He also gave a note to R. for more than the annual premium, on the understanding that he should take care of the premium note. Before the first note came due the policy was assigned to plaintiff, but the note was not paid. On application by plaintiff to pay the second annual premium, defendant's agent corresponded with defendant, which notified the agent of the non-payment of the note and claimed a forfeiture. M. had died during the time of this correspondence. Held, That the policy was forfeited; that no waiver was shown, and that none could be inferred from a retention of the note by defendant; that R. was not an agent or authorized to waive or modify any condition; that plaintiff stood in the place of M. and took the policy subject to all its conditions; that she had no right to rely on the statement in the policy that the first annual premium was paid.—How v. The Union Mutual Life Ins. Co., 39.

4. A policy provided for payment in 60 days after the receipt and acceptance of proofs of death. The company had blanks for such proof which they refused to furnish on application therefor on the ground that the policy was null and void. Held, A waiver of the condition as to furnishing proofs of death. -Grattan v. The Mutual Life Ins. Co., 111. Insured represented himself in his application as a soda water maker;" the medical examination stated that that was his occupation and he was out of doors most of the time selling it. It appeared that that was his

5.

trade, but at that time he was engaged in selling it in the streets. Held, That his answer was not a false representation, and did not amount to a breach of warranty that his answers were true.-Id.

6. The medical examiner's certificate was filled up by him and signed by insured. It contained a statement that he had given true answers to the examiner, which were the same as those contained in the certificate. One of the questions was left unanswered, which was subsequently filled in by the examiner, but incorrectly. Held, That this answer must be taken as the declaration of the insurer, and that it was competent to prove by parol the actual transaction be

tween insured and the examiner.―ld.

7. Defendant, in 1870, being the holder of two notes on which the firm of B. & Co. were liable, procured from B. a policy on his life, and paid the first premium. Two months later he accepted payment of said notes at less than their face, and delivered them to B.'s agent. Held, That the policy was held as collateral security; that the indebtedness was discharged, and that the defendant could not hold the policy to indemnify him for the deficiency.-Babcock v. Bonnell, 158.

8. Some years after B. expressed a desire not to be regarded as having an interest in the policy, and stated that the entire interest was in defendant. Held, That this did not have the effect of a release or create an estoppel. -Id.

9. Previous to the issuing of the policy, B. & Co. had given defendant a note for a cargo of coal, but the coal was stopped in transitu by defendant, and he afterwards sold it and claimed to hold B. & Co. for the balance. He held the coal when the policy was issued. The policy was to secure a fixed indebtedness. Held, That defendant had no lien on the avails of the policy to secure the balance of said note.-Id.

10. The act of a general agent of an insurance company in demanding payment of a past due note given for premium on a policy of life insurance, which note provided that if same was not paid at maturity the policy should cease, is an election to treat the policy in force and a waiver of the forfeiture, and a payment of the note pursuant to such demand keeps the policy in force.—Palmer v. The Phoenix Mutual Life Ins. Co., 179. 11. A general agent of an insurance company may waive a forfeiture.-Id.

12. Where the general agent of an insurance company for the collection of premiums requests the insured to send the money due upon a note for premium by mail, and the assured sends the amount of premium by mail, such sending is payment of the premium, although the general agent does not receive the money.-Id.

13. Information derived by a physician from at

tendance upon a patient, which information was necessary to enable such physician to prescribe, is privileged, whether such information was derived from oral statement of the patient, or from ocular inspection or otherwise, while such physician was in attendance upon the patient.-Dilleber v. The Home Life Ins. Co., 180.

14. It is not competent for a physician, in an action upon a life insurance policy, to testify to information thus obtained with respect to the health of the insured while such physician was in attendance upon such assured as a patient.-Id.

15. Where evidence is limited to a certain purpose, it can only be used for the purpose for which it was admitted.-Id.

16. In an action on a policy of life insurance, the answer alleged that the insured had had certain diseases, had obtained other insurances, and had been rejected by other companies, and that with regard to all these matters his answers in his application to defendant were false. The court ordered defendant to deliver a bill of particulars, stating the times, places and details of all these defenses which it expected to prove. But it appearing that defendant expected to prove its defense as to ailments by oral and written statements of the insured not limited to time and place, the order was modified so as to provide that the bill of particulars should not preclude defendant from giving evidence of confessions or admissions by the insured which were general as to time and place.Dwight et al. v. The Germania Life Ins. Co.,

1.

525.

LIMITATION.

The amendment of 1876 to sec. 94 of the Code of Procedure, relating to the time within which an action for an injury to the person must be brought, in effect repeals the six years' limitation set by sec. 91, subdiv. 5, for such actions, and reduces such time to one year. - Dubois v. The City of Kingston, 82. 2. A promissory note was made by two joint debtors. The payee afterwards died, leaving such note, having upon it several indorsements of payments, some within the six years, in her own handwriting. Her executors sued one of the joint makers, relying on such indorsements to take the case out of the statute of limitations. Held, That the indorsements are evidence, but not sufficient, standing alone, to establish the fact of payment by the debtor defendant to the owner of the note of the amount indorsed and at the time when it was indorsed. Some evidence of these facts must be given before a case is made for submission to the jury.-Hulbert et al. v. Nichol, 145.

more than five years, nor more than one year
after the disability ceased. These two terms
were independent of each other.-Acker v.
Acker et al., 305.

4. Under the amendment of 1870, this disability
was taken away, and a married woman was
bound to bring her action on a sealed instru-
ment within twenty years after her cause of
action accrued; and this rule applied to rights
of action which had then accrued.-Id.

5. The mortgage in suit was given in 1856.

Before that time the defendant had insured
his life for plaintiff's benefit, and the policy
was held as collateral for the mortgage. The
policy was forfeited, and in 1866 plaintiff re-
ceived a sum of money thereon from the in-
surers. Held, That this did not save the
right of action on the mortgage from the bar
of the statute.-Id.

6. A. and B., partners, became indebted to plain-

tiff, who sued them. The action was com-
menced in 1858. A. alone was served, but
judgment was entered in form against both.
In 1876 plaintiff took proceedings under the
Old Code, sec. 375, et seq. and summoned B.
to show cause why he should not be bound
by the former judgment. B. set up the
Statute of Limitations, which would not have
been good as a defense if set up by him in
the original action. Held, That it was no
bar in this proceeding.-Maples v. Mackey et
al., 493.

See CONSTITUTIONAL LAW, 1; CONTRACT, 2; COR-
PORATIONS, 7, 19; FRAUD, 3; REVIVOR, 1, 2;
TRUSTS, 2.

LOTTERIES.

1. Where the bonds of a foreign government,
in addition to the payment of annual interest
and principal, give the holder a chance of
drawing a cash prize, such bonds are lottery
tickets or certificates within the meaning of
the Revised Statutes.-Kohn v. Kohler, 301.
2. Any one buying such a bond may recover
of the seller the price paid, and double the
value of any goods, &c., given in consider.
ation of such purchase, with double costs.—
Id.

MALICIOUS PROSECUTION,

1. In an action for malicious prosecution, the
court charged that the failure of the grand
jury to indict plaintiff for the alleged offence
was conclusive evidence of his innocence.
Held, error.-Barber v. Gould, 81.

2. Plaintiff, a physician, was employed by one
B. to exhume the body of B.'s child, and re-
move a portion of a fractured thigh bone,
which was done, such portion to be used for
the purpose of sustaining a defense of mal-
practice against defendant, a physician, who
had set such fractured limb, and subsequently
brought an action against B. to recover for
his professional services. Defendant caused

3.

4.

to be instituted prosecutions against plaintiff
under 3 R. S., 6th ed.. p. 965, sec. 18, which
resulted in plaintiff's discharge, who brought
this action for malicious prosecution and re-
covered a verdiet of $50 damages. Held, No
violation of the spirit of the statute was com-
mitted or contemplated, and the questions of
probable cause and actual malice were in this
case, under all the circumstances, questions
for the jury.-Rhodes v. Brandt, 94.

A person guilty of a crime cannot sustain an
action for malicious prosecution or false im-
prisonment against one who institutes
criminal proceedings against him therefor,
however much malice may be shown, or
however improper may have been the
motives of the prosecution. Actual guilt is
conclusive evidence of probable cause.-
Turner v. Dinegar, 160.

Where, before beginning the criminal action,

the defendant in the action for malicious
prosecution or false imprisonment had fully
stated his case to an attorney and counsellor
at law, and obtained his advice as that of one
learned in the law, such advice so given can-
not be excluded as evidence of probable
cause of good faith and absence of malice on
the ground that the person giving such ad-
Vice was the magistrate who afterwards con-
ducted the proceedings-Id.

5. Defendant caused the arrest of plaintiff for
the larceny of two unrecorded deeds, formerly
executed by plaintiff to defendant. The
affidavit on which the arrest
was made
charged the larceny in technical terms, and
stated the facts and circumstances. The
facts were proved true. Held, That an action
for malicious prosecution could not be main-
tained; that the affiant was liable for the
statements in the affidavit, but not for the
legal conclusions drawn from them by the
magistrate, district attorney or grand jury.—
Thaule v. Krekeler, 395.

6.

Before a defendant in a suit for malicious
prosecution can be called upon to go into a
defense, the plaintiff must establish the want
of a reasonable and probable cause for the
complaint made, and that it was instituted
for malice.-Id.

7. Plaintiff was asked whether he had made an
offer in the police justice's court to convey
the property to defendant if she would reim-
burse his expenses. Held, Improper, as the
evidence could have no bearing on the ques-
tion of malice or probable cause for the pro-
secution. Id.

8. Defendant was asked if plaintiff had deeded
the property to other persons about the time
the deeds in question were stolen. Held,
Proper, as it bore directly on the question of
probable cause.-Id.

books and papers of a certain office, unless the removal or expiration of the official term of the outgoing officer and the election or appointment of the relator as his successor is conceded or established beyond controversy. If these facts are not so established or conceded. quo warranto is the proper remedy.-The People ex rel. Cahill v. Hines, 88. 2. In support of a writ of mandamus the relator seeking the writ must show a clear legal right and the absence of a plain and adequate legal remedy.-The People ex rel. Coppers v. The Trustees of St. Patrick's Cathedral et al., 124.

3. Where it is sought by mandamus to enforce some matter of private interest, the legal right of the relator must be complete, not inchoate. It must also be vested in the relator. It is not the province of a mandamus to enforce a doubtful equity or aught save a clear legal right.-Id.

4. Mandamus is appropriate where a public duty is imposed or some act specifically directed by statute. But it will not lie to enforce mere private contracts, however special or peculiar their nature.-Id.

MARINE COURT.

See REVIVOR, 4, 5.

MARRIAGE.

1. The validity of a contract of marriage must depend upon the place of performance.Campbell v. Crampton, 183.

2. The place where the parties are to be domiciled is the place of performance of the marriage contract.-Id.

3. A contract of marriage, void by the laws of Alabama, entered into in that State, to be solemnized in the State of New York, the parties intending to live in Alabama, is void and cannot be enforced.-Id.

4. In this case, where the relation of aunt and nephew exists, the consanguinity of the parties would not render their marriage a voidable one by the statute or common law of this state, but such an agreement of marriage will not be sanctioned, for it contravenes the laws of moral decency and public policy.-Id.

5. Semble. That marriage should not be sanctioned in any nearer degree than that of cousins german.-Id.

6. Under the laws of this state, a man and woman who are competent to marry may do so per verba de presenti without going before a minister or magistrate, without witnesses or previous public notice, and without form or ceremony, or record or written evidence kept, and if subsequently the marriage is denied, proof of actual cohabitation, public acknowledgment and recognition of each other as such, and the general reputation thereof,

MASTER AND SERVANT.

1. The negligence of a servant in using imperfect machinery will not excuse his principal from liability to a co-employee for an injury which could not have happened if the machinery had been suited to the use to which it was applied.-Cone v. The D., L. & W. RR. Co., 232.

2. While it is true that a master is not liable to his servant for damages caused by the negli gence of a fellow-servant, yet an employee having charge of a distinct department of the master's business, with authority to employ subordinate servants in his department and discharge same, is not a fellow-servant, .but rather an agent of the master, or an alter ego, and the master is liable for the negligence of such agent. And this is true, though such agent may be under the direction of a superior. The test is largely in the power to employ and discharge subalterns; also, in the independence with which the function is exercised. Even the latter need not be absolute.-McCosker v. The L. I. RR. Co., 388.

3. An employer is not liable for an injury to his employee arising from the negligence of a co-employee. To make him liable it must be proved that the person through whose negligence the injury happened had been entrusted by the employer with the management or control of his business, or some branch or department thereof to which the person injured belonged, and that the injury happened therein in consequence of some negligent act or omission of the person so entrusted.-Garrison v. The Knickerbocker Ice Co., 502.