Digest. porary absence of the receiving teller | therefrom. The package was never in fact delivered by S. to the cashier, and neither the package nor its contents ever came to the hands of the cashier, or into the possession of the bank. Held, that the bank, by placing S. behind the railing, and permitting him to act there as assistant receiving teller, presented or held him out to the express agent as authorized to receive the package, at least for the purpose of delivering it to the cashier; that the express agent had a right to assume that S. was honest, and careful, and that he would deliver the package to the cashier; and that he was not bound to insist on delivering the package to the cashier, personally. Accordingly held that the loss of the money must fall upon the bank, instead of the express company. (Hotchkies agt. The Artizans Bank, 42 Barb. 517.) FOREIGN CORPORATIONS. See JURISDICTION, 7. FRAUDULENT CONVEYANCE. 1. Where a deed is made with intent to defraud creditors, by the grantor who is then in debt, and who subsequently continues to be indebted, it is fraudulent and void as to all such subsequent, as well as existing creditors. (Savage agt. Murphy, ante, 75.) FRAUDULENT REPRESENTATIONS. 1. In an action for damages for inducing the plaintiffs, by false and fraudulent representations, to sell and deliver goods to a third person, it is not essential to the right of action that the inisrepresentations were the sole inducement to the sale. It is enough that the plaintiffs would not have parted with their goods, if such false representations had not been made. (Shaw agt. Stine, 8 Bosw. 157.) 2. Where goods are fraudulently pur chased, with a preconceived design not to pay for them, the purchaser does not acquire title, and the defrauded vendor may recover possession of them from him, or any one claiming title under him not being a bona fide purchaser for value. (King agt. Phillips, 8 Bosw. 603.) 3. It is not indispensable that any representation should have been made by the purchaser; it is enough that the goods were obtained with the fraudulent intent not to pay for them, and under circumstances that deceived, and which it was designed should deceive the vendor and induce him to part with the possession of the goods. Where the purchaser's omission to disclose his insolvency, or great pecuniary embarrassment, to the seller, at the time of the purchase, who supposed the purchaser solvent, is the result of a fraudulent purpose to get possession of the goods with intent not to pay for them, the purchase is frandulent. It is otherwise where the omission is in consequence of an honest belief that the purchaser can improve his condition, and will be able to pay for the goods. (Id.) See VENDOR and VENDEE, 1, 2, 3, 4. GUARANTY. 1. The consideration in every guaranty must be executory; that is, it must be for something to be done; otherwise it is insufficient. But where guarantors bound themselves to pay all claims for maps, books, or other publications sold or delivered unto H. within three months from the date of each invoice or delivery;" held that the language employed did not import an executed consideration, but evidently referred to a future invoice or delivery. (Williams agt. Marshall, 42 Barb. 524.) 2. Whatever would be sufficient as a consideration in the case of any other kind of contract, is sufficient in the case of guaranty; and any act in the nature of a benefit to the person who promises, or to any other person upon his request, is sufficient. (Id.) Digest. 3. An agreement between the guardian | 4. In an action in which the court have 5. A guardian for an infaut plaintiff is not bound under the Code, to give security for costs. The provision of the Revised Statutes requiring the "next friend" of an infant plaintiff to give security for costs, does not apply to a guardian. (J. C. SMITH, J. dissenting.) (Grantman agt. Thrall, ante, 344.) HABEAS CORPUS. 1. Where an officer arrests a person for felony on telegraphic or other satisfactory dispatches, without warrant, it is his duty, equally as if the arrest had been made by warrant, to take the arrested party without any unnecessary delay before some officer who can take such proofs as may be offered, or if the circumstances will justify it, hold him for further examination. (In the matter of Arthur Henry, ante, 185.) 2. If this is not done with reasonable diligence, the party arrested can apply for a habeas corpus, calling on the officer to show cause why he is detained. And on the return of the writ, the rule is that where the arrest is upon suspicion and without warrant, proof must be given to show the suspicion to be 2. well founded. If no such proof is offered, it is the duty of the officer to discharge the party. (Id.) HEALTH WARDENS. By the act of 1850 the city inspector, of the city of New York, was empowered to appoint health wardens, with and by the consent of the board of aldormen. This provision was not repealed or nullified by the amended charter of 1857. (Deemarest agt. The Mayor, &c., of the city of New York, 42 Barb. 186.) The city inspector has not power to remove a health warden, without the concurrence of the board of aldermen. Health wardens are not subject to removal as clerks, under the 21st section of the amended charter of 1857, which provides that the heads of departments shall have power to appoint and remove the chiefs of bureaus and clerks in their respective departments. (Id.) INFANT. 1. Where an infant defendant in an 3. A guardian for an infant plaintiff is See GUARDIAN, 4. INJUNCTION. 1. A plaintiff is at liberty to read additional affidavits in support of an application for an injunction, when defendant reads affidavits in opposition thereto. It rests in the discretion of the Digest. courts to allow the defendant to read affidavits in reply. (Childs agt. Fox, 18 Abb. 112.) 2. The court below having allowed the plaintiff, as a matter of right, to support his application for an injunction by affidavits additional to those served with his notice of motion: Held, that the admission of such affidavits was an exercise of the discretion of the court not reviewable by the general term. (Id.) 3. Injunction orders are not to be granted except with great caution, and in cases where the right and the necessity are clear. An injunction against dispossessing a tenant should not be granted after a warrant of dispossession has been executed. (Roberts agt. Mathews, 18 Abb. 199.) 4. In an action of an equitable nature See TAXES and ASSESSMENTS, 1. See BANKS, 4. See INTERPLEAder, 2. INNKEEPERS. do not belong to the boarder, but to a stranger. (Jones agt. Morrill, 42 Barb. 622.) 3. It was the intention of the legislature, by that act, to give boardinghouse keepers the same lien, in respect to the effects of their boarders, as the common law gave to innkeepers, as to the goods of their guests. (Id.) 1. INSOLVENT DEBTOR. There is no principle of law that prevents a party who is involved in debt from selling his property, nor from making such sale on credit, nor from taking the notes received for his goods and paying his creditors with them. (Scheitlin agt. Stone, ante, 355.) 2. If a creditor chooses to receive a note in payment of his claim, he is not hindered or delayed in its collection. His debt is paid as soon as he receives the notes in payment. (Id.) 1. The liability of an innkeeper is of the 2. Since the act of April 16, 1860, ""for See INSOLVENT DISCHARGE. See CREDITORS' ACTION. See ASSIGNMENT FOR THE BENEFIT INSOLVENT DISCHARGE. A discharge under the insolvent laws of this state (known as the two-third act), granted to a citizen of this state, is a bar to an action against him by a citizen of another state, upon a contract made in that state to be executed within this state. (This appears to be adverse to the case of Baldwin agt. Hale, and cases there cited, United States supreme court, Am. Law Reg. June, 1864, CLIFFORD, J.) (Pratt agt. Chase, ante, 296.) INSURANCE. upon the premises by a boarder, to 1. Where a policy of insurance on chat furnish his room, although they in fact i VOL. XXIX. tels contains a clause that "in case of 34 Digest. any sale, transfer, or change of title in the property insured, such insurance shall be void and cease," the execution of a chattel mortgage on the property by the insured to a third person, without notice to the insurance company, or their assent obtained, avoids the policy. (Tallman agt. The Atlantic Fire and Marine Ins. Co. ante, 71.) 2. And the sale of the mortgaged property under the power contained in the mortgage to the mortgagee, and possession by him without notice to the insurer, avoids the policy. (Id.) 3. Where the insured has no interest in the property at the time of the loss, the policy is void, although the loss is by the terms of the policy made payable to a third person having an interest in the property. (1d.) 4. The transfer by one partner to another of his interest in the property insured, without any notice to the insurer, does not affect the policy. (Id.) 5. A mutual insurance company, being in need of funds to pay losses, procured a loan of $32,000, from different persons and firms, and transferred to the plaintiff premium notes, made by various individuals, to be held by him as collateral security for the repayment of the loan: Held, that the plaintiff held the notes as trustee of an express trust, and that an action on two of them was properly brought in his name. (Clark agt. Titcomb, 42 Barb. 122.) 6. The usual custom of a corporation being to transfer its notes by the mere indorsement of the president, such an indorsement is all that is requisite to effect a transfer of the title, where the transfer itself is authorized by a resolution of the directors. (Id.) for winding and coloring yarn, and for the storage of spun yarn," it does not thereby warrant that such building is to continue to be thus used. Such statement in the policy is a warrant as to the use of the premises in presenti only, and is not to be deemed a continuing warranty as to the future use of such building. (Smith agt. The Mechanics' and Traders' Fire Ins. Co. ante, 384. Court of Appeals.) 9. The insurer wishing to protect himself by a continuing warranty, as to the future use of such building, must do so by language plainly importing such an intent (Id.) 10. Where on account of the character of the use of the property insured, special rates are required to be paid, and the policy contains no warranty of continued use, a change of such use, keeping within the same character of risk, calling for the same special rates, will not avoid the policy when the risk is not thereby increased. In such case it is for the jury to find the fact whether the risk has been increased by such change. (Id.) 11. Evidence on the part of the insured, that the risk was thereby greatly decreased, is competent. (Id.) See LANDLORD AND TENANT, 14. See REFEREES AND REFERENCE, 5, 6. INTERPLEADER. 1. An action to compel parties, claiming a particular fund, to interplead, will not lie where the complaint shows that the plaintiff is fully advised of the grounds of the different claims, and his liability under each of them. (Morgan agt. Fillmore, 18 Abb. 217.) 2. One who has in violation of an injunetion incurred an obligation by which he is liable to be sued by different persons in reference to the same demand, is not in a position to ask the interpoposition of the court to award an issue to be tried between the claimants. (Id.) The provision of the Code, that in actions for recovery of real and personal property, third persons, having an interest in the subject matter, may be brought in as parties, upon their own application-is only intended to extend the power formerly possessed by courts ef equity, in this respect, to the 7. It is well settled law, in this state, that any corporation may borrow money for the ordinary business, and to accomplish the objects, of the corporation, and may give its obligations for the money thus borrowed. A corporation having the power to issue its own obligations for money so borrowed, has also the right, instead of giving its own obligations, to turn out its 3. assets to secure the payment of money so borrowed. The two powers stand on the same principles. (Id.) 8. Where the policy of insurance describes the property insured as being "a two story framed building, used] Digest. legal actions designated; and its application is confined to the class of cases in which a bill of interpleader would have accomplished the same end. (Hornby agt. Gordon, 9 Bosw. 656.) 4. In an action brought by a vendor of goods, to recover possession of them, on the ground of fraud on the part of the purchaser, third persons claiming, under the purchaser, by virtue of contracts with him, and in hostility to each other, should not be granted leave to come in as parties. (Id.) JOINT-DEBTORS. 1. Where judgment has been obtained agaiust two defendants upon a joint 2. contract, but process served only on one of them, and judgment taken to be collected of the joint property of both, or of the separate property of the defendant served, a second action may be brought against both defendants, alleging the recovery of the former judgment, and setting out the joint obligation, and serving process only on the defendant not served in the former action, and a like judgment obtained against the latter defendant. agt. Eldridge, ante, 218.) (Dean 2. The second action is not an action upon a judgment, within the meaning of section 71 of the Code. Neither is such an action superseded by section 375 of the Code, which provides for summoning a party not brought into court to show cause why he should not be bound by the judgment, &c. This remedy provided by the Code must be considered as merely cumulative. (Id.) 3. The common law rule that in an action on a joint contract, against several persons, the plaintiff cannot recover against either, without establishing that the contract sued upon is the joint contract of all, still applies in actions which were commenced before the Code. (Fielder agt. Lahens, 9 Bosw. 436.) See CORPORATIONS, 6, 7, 8. JUDGMENT. 1. In an action on a money bond (secured by mortgage) for the penalty, by reason of default in the payment of a half year's interest-the principal not yet due-the defendants served an offer under section 385 of the Code, to allow the plaintiff to take judgment for the condition of the bond with the interest due, besides the costs of action, which offer was not accepteb dy the plaintiff, and on the trial she recovered judgment for the amount of the interest only the court deciding that the plaintiff could not, under the Code, have judgment for the penalty. Held, that the plaintiff obtained a more favorable judgment than the defendants' offer, which entitled her to the costs of the action. For by accepting the defendants' offer she would have been bound to discharge the bond and mortgage not yet due, and re-invest her money at a probable loss of interest and expense. (Howard agt. Farley, ante, 4.) Where judgment has been obtained against two defendants upon a joint contract, but process served only on one of them, and judgment taken to be collected of a second action may be brought against both defendants, alleging the recovery of the former judgment, and setting out the joint obligation, and serving process only on the defendant not served in the former action, and a like judgment obtained against the latter defendant. (Dean agt. Eldridge, ante, 218.) 3. The second action is not an action upon a judgment, within the meaning of section 71 of the Code. Neither is such an action superseded by section 375 of the Code, which provides for summoning a party not brought into court to show cause why he should not be bound by the judgment, &c. This remedy, provided by the Code, must be considered as merely cumulative. (Id.) 4. The judgment of a court of competent jurisdiction upon litigated questions between the same parties, is conclusive in all subsequent controversies where the same matters come in question, either directly or collaterally. And there is no difference in the application of this rule whether the first adjudication be in a formal action, or in a proceeding summary in its character. (Demarest agt. Darg, ante, 266, Court of Appeals.) 5. The recital of jurisdictional facts in a judgment roll of a court of record is not conclusive. It is prima facie and presumptive evidence of its truth, but may be controverted and disproved. Thus, a defendant is not concluded by a recital in a judgment record which avers that process was duly served on |