to bind himself personally he became so
bound.-Jarvis v. Schaeffer, 220.

2. If an employer of a broker to effect a sale
promises him compensation after being
fully informed that the broker holds the
same relation to an adverse dealer, he is
bound thereby.-Id.

CANALS.

1. Under Chap. 144, Laws of 1813, the Nav-
igation Company was only authorized to
use so much water as should be necessary
for purposes of navigation, and the State
was not vested with any greater right
under the act of 1825.-The Silsby Mfg.
Co. v. The State, 169.

2. The State is not the sole judge of the ne-
cessity or amount of water to be taken.
It is its duty to prevent leakage or wast-
age to a more than reasonable extent, and
where it is made to appear that a change
of the locks would save more water and
increase the surplus, in which event the
claimant would be entitled to his propor-
tion of increase, a cause of action under
Chap. 321, Laws of 1970, is made out.—
Id.

See STATUTES, 3.

CERTIORARI.

1. The return is conclusive as to the facts
and cannot be contradicted. If it is de-
fective the court may direct a further re-
turn; if it is false the relator's remedy is
by action.- The People ex rel. Cronk v.
Weld, 25.

2. A writ of certiorari under Chap. 269,
Laws of 1886, must be made returnable at
Special Term.-The People ex rel. Ch. of
the Holy Communion v. Assessors of
Greenburgh, 89.

3. Where the return to a writ of certiorari
meets and traverses the allegations of
fact contained in the writ and papers on
which it was granted, the hearing must
be confined to the facts stated in the re-
turn; but where the return admits such
allegations of fact or is silent as to them,
then such allegations must be considered
on the hearing.-The People ex rel. Peck
v. Fire Com'rs., 539.

4. Chapter 269, Laws of 1886, renders the
general provisions of the Code in relation
to certiorari inapplicable to the review
of assessments in towns, cities and vil-
lages.-The People ex rel. Church of The
Holy Communion v. Assessors of Green-
burgh, 558.

See REVIVOR; TAXES, 20.

CHATTEL MORTGAGE.

1. An assignment or transfer of goods di-
rectly to a creditor to pay his particular
claim, reserving the surplus to the debt-
or, is in legal effect only a mortgage and
creates but a specific lien upon the prop-
erty transferred, and the residuary in-
terest of the assignor therein may still be
reached by his creditors. Such an as-
signment or transfer is not one made in
trust for the use of the party making it,
within the meaning of the statute ren-
dering such transfer void as to creditors.
-Bier et al. v. Kibbe et al., 36.

2. Where a chattel mortgage is given and
taken in good faith to secure a valid
debt, a provision in such mortgage per-
mitting the mortgagee to sell, etc., and
apply the proceeds on the mortgage
debt, and buy with such proceeds other
property of like character to replace that
sold, and give renewal mortgages at
stated periods covering such property so
purchased, the proceeds of which prop-
erty so purchased to apply in like manner
on the mortgage debt, such mortgage debt
is not per se fraudulent as to creditors
of the mortgagor.- Karr et al. v. Dildine,
70.

3. Trees, plants, and shrubs planted by a
tenant for purposes of trade are personal
property and not real estate, and belong
to the tenant as against the landlord.-
Duffus v. Bangs et al., 74.

4. The giving of a mortgage on such nurs-
ery stock by the tenant works a severance
of it from the real estate, and after de-
fault the absolute title vests in the mort-
gagee, who is entitled to enter and re-
move it within a reasonable time.-Id.

5. A chattel mortgage clause in a lease
which is not filed gives the landlord no
title to such stock as against a mortgagee
in good faith.-Id.

6. A voluntary surrender of such premises
by the tenant (mortgagor) does not de-
prive the mortgagee of his right to enter
and remove the mortgaged property.—Id.
7. When the right at law of a mortgagor
has been terminated there remains to him
an equity of redemption, which may
afford him relief until it is extinguished
by a sale by virtue of the mortgage.-
Curtis v. The Jas. Gould Co., 342.

8. A mortgagor in a mortgage given to se-
cure the payment of negotiable promis-
sory notes, not due, may on a tender of
the amount unpaid secured by the mort-
gage, for the purpose of redemption,
require as a condition of parting with the
money tendered the surrender of the
notes.-Id.

See APPEAL, 2; TENANTS IN COMMON, 3.

CHECKS.

1. The indorser of a check by his indorse-
ment guarantees only the genuineness of
the signature of the drawer, and not the
body of the check. - The Nat. City Bk. of
Brooklyn v. Westcott, 161.

2. When money is paid by mistake on a
raised check, neither party being in fault,
it may be recovered as paid without con-
sideration.Id.

See BANKS, 5, 9, 10; PAYMENT.

CIVIL DAMAGE ACT.

1. When defendant sold plaintiff's husband
intoxicating liquor upon which he be-
came intoxicated, and in consequence
shot a man, for which crime he was im-
prisoned for life, Held, That the wife
was entitled, under Chap. 646, Laws of
1873, to recover from defendant for her
loss of means of support resulting from
her husband's imprisonment.—Beers v.
Walhizer et al., 29.

2. In an action under the Civil Damage
Act where plaintiff sued as widow to re-
cover damages for the death of her hus-
band, caused as alleged by liquor sold by
defendant, it is competent to show that
plaintiff had married again and was
being supported by her second husband.
Such evidence bears upon the question
whether her means of support have been
diminished by the death of her husband.
-Sharpley v. Brown et al., 140.

CODE CIVIL PROCEDURE.

See APPEAL, 6; ARREST, 2, 3; ATTACHMENT,
2, 3, 6; ATTORNEYS, 2, 7; BONDS; CER-
TIORARI, 4; COSTS, 4, 7; DEPOSITIONS, 1,
2; EVIDENCE. 1, 21; EXECUTORS, 3, 6, 16;
IMPRISONED DEBTORS; INJUNCTION, 1, 2:
INTERPLEADER 1; JUDGMENT, 2; LIMITA-
TION, 5; PLEADING, 10; PRACTICE, 12;
REFERENCE, 2, 6; SHERIFFS, 2, 4; SUPPLE-
MENTARY PROCEEDINGS, 7; SURROGATES,
2; UNDERTAKING.

CODE CRIMINAL PROCEDURE.
See CRIMINAL LAW, 1, 2, 5, 6.

COLLATERAL INHERITANCE.

See TAXES, 14, 15, 27.

COMMON CARRIER.

1. A carrier who receives goods to trans-
port without delivering a bill of lading,
and without informing the consignor of
any qualification of his duty as such,
assumes the common law duties and

obligations-Little v. The Merchants'
Dispatch Transp. Co., 76.

2 A common carrier is bound, in the per-
formance of his duty to transport goods,
to exercise reasonable diligence, and
when the ordinary means of transporta-
tion are interrupted by circumstances
beyond his control to use all the facili-
ties and the best opportunities to trans-
port the goods to the place of destination.
-Id.

3. Whether he uses such reasonable dili-
gence, or is negligent in the perform-
ance of his duty, is a question of fact for
the jury.-Id.

4. Whether barrels of beans while being
transported by a common carrier were
properly covered by the captain so as to
protect them from rain is not a subject
of expert evidence.-Schwinger v. Ray-
mond et al., 286.

5. Where an expressman receives goods
under an agreement to deliver them
within a specified time and makes a ten-
der of them to the consignee within that
time, which is refused, he is not liable
to the consignor unless the goods are in-
jured while in his custody.-Koch et al.
v. The Westcott Express Co., 499

6. Evidence sufficient to show such tender.
-Id.

1. The officer before whom proceedings to
punish for contempt are instituted has a
large discretion; sickness and the bona
fide advice of counsel are sufficient to ex-
cuse defendant's failure to appear for
examination in supplementary proceed-
ings. Walters v. Kenyon, 65.

2. When a surrogate is asked to imprison
for contempt one who is shown to have
disobeyed a decree of his court, he is not
bound to grant the application as of
course, but should grant or obey it in his
sound discretion.-In re estate of Battle,
392.

3. When, in answer to such an application,
a state of facts is shown which would war-
rant the surrogate in releasing the person
in contempt if he were actually in confine-
ment therefor, the application will be
denied.-Id.

4. For the purpose of shielding himself from
imprisonment for contempt in failure to
obey a decree directing a payment by
him, an executor may be permitted to
show that, in truth and in fact, he has,
at all times since the entry of such de-
cree, been utterly unable to obey its
directions.-Id.

5. An order of attachment for contempt for
non-payment of alimony is not maintain-
able where it does not appear that the
party proceeded against has no property
or that payment cannot be enforced by
sequestration.-Sandford v. Sandford,

427.

6. Defendant being in contempt, the court
may strike out his answer and allow the
action to proceed as if the defendant had
not answered or appeared; and defend-
ant cannot apply to the court for a favor
connected with the matter out of which
the contempt arose until he has purged
his contempt.-Quigley v. Quigley, 516.
7. A judgment of divorce having been
granted on the ground of adultery, defen-
dant, being in contempt of court, made
a motion upon which the judgment was
set aside on the ground that it was for the
interest of S., with whom defendant was
charged to have committed the adultery,
and whose petition and affidavit were
read on the motion. Held, The motion
should have been denied as to defendant
on account of his contempt; and as to S.
for want of power in the court.-Id.

See BILL OF PARTICULARS, 3, 4; SUPPLE-
MENTARY PROCEEDINGS, 1-5.

CONTRACT.

1. Where, under an executory contract for
the manufacture of articles of a particu-
lar description, a party accepts such arti-
cles without an express warranty, no
remedy survives the acceptance unless
some defect exists which could not be
discovered by examination, but could
only be ascertained by use.-Cowles v.
Michel, 54.

2. Where a contract provided for a sale of
goods at " 'ruling market rates" and it
appeared that the market rates were dif-
ferent with importers and jobbers, Held,
That evidence of previous conversations
between the parties was admissible to
show the meaning of these words.-The
Manchester Paper Co. v. Moore, 58.

3. In an action to reform a contract on the

ground of mistake the court found there
was no mistake, and plaintiff then
claimed that the true meaning of the con-
tract was what it would be if the refor-
mation prayed for was made. Held,
That the question of construction was a
purely legal one, and did not belong to
the action, and that the action could not
be maintained.-The Oakville Co. v. The
Double Pointed Tack Co., 164.

4. In an action upon a building contract and
also for extra labor done and materials
furnished, defendant is not bound to ac-
cept plaintiff's general statement that he
performed all the work and supplied all
the materials called for by the estimates,
but he has a right to question him as to
each item separately,-whether he had
performed the labor or furnished the ma-
terials that each item required.—Boehme
v. Michael, 203.

5. The owner of land made a contract with
a builder to pay certain sums at certain
stages of the work of building a house.
This contract provided that if when any
payment fell due any lien should have
been filed the owner should have the
right to retain from the payment its
amount. The first payment was made
when due. At the time the second pay-
ment became due liens had been filed
equal to its amount. The builder de-
manded payment, which was refused and
upon the ground that the owner believed
that as soon as the builder had received
the payment he would abandon the con-
tract. Held, That by this refusal the
owner broke the contract and that it was
in no sense an exercise of his right to
retain the amount of the liens.-Travis v.
Smith, 210.

6. Under a contract to furnish an apparatus
constructed substantially after the prin-
ciple and plan of a model referred to,
which apparatus by the agreement was
required to do the work intended "in a
fair, workmanlike manner," it is proper
to give evidence of the condition of the
product after it has left the apparatus.-
West v. The Conesus Salt Mining Co.,
229.

7. Where a mother-in-law comes into the
family at the request of her daughter,
and renders services in the care of her
daughter and her children, there is no
implied obligation on the part of the son-
in-law to pay her for her services. -Reid
v. Farrar, 248.

8. Where there is in such a case a mutual
understanding between the son-in-law
and such mother-in-law that he is to pay
her for the services so rendered, she may
recover although there was no specific
agreement in reference to the amount
she was to receive, and such mutual
understanding may be inferred from the

fact that she kept an account of the
amount that she had received during the
period of service, and told such son-in-law
that she had such an account and the
son-in-law said he would pay her all he
owed her.-Id.

9. After the assignment to plaintiff of a
contract to peel a quantity of bark at a
specified price per cord, an independent
agreement or understanding was had be-
tween plaintiff and defendants in regard
to the work to be performed, and as to
the mode of ascertaining the quantity;
and upon contradictory testimony as to
what the agreement really was, the jury
found in favor of plaintiff Held, That
defendants were precluded from setting
up any prior agreement made with the
assignor inconsistent with the agreement
made with plaintiff.-Connors v. Bullis
et al., 276.

10. The erroneous admission in evidence of
a letter written by defendant's book-
keeper to a third party, held, not suffi-
cient ground to warrant a new trial, as it
contained nothing inconsistent with de-
fendant's theory of the case, and was
silent upon the particular matter in dis-
pute and could not prejudice their case.
-Id.

11. A contract for goods " per prompt ship-
ment by sail from Europe" entitles the
vendee to such timely delivery as would
follow an effective shipment, and involves
an expectation that transportation will
commence within a reasonable time.-
Tobias et al. v. Lissberger, 281.

12. Loading the goods in February on board
a ship in a harbor which is closed by ice
until April is not such shipment. -Id.

13. A certain state of facts held not to con-
stitute a rescission of a contract.-Bridge
v. Penniman, 357.

14. In an action for breach of a written
contract by which defendant agreed to
sell plaintiff potatoes to be loaded in cars
on the track, the writing being silent as
to who should furnish the cars, held,
error to allow defendant to testify that
plaintiff orally agreed, before the writing
was signed, that he would get the cars.—
Smith v. Halligan, 443.

15. The referee found that plaintiff, who
was not a party to a building contract,
performed work under instructions of the
architect who acted as defendant's agent,
and that defendant accepted the work
and is enjoying the benefits thereof.
Held, That plaintiff was entitled to re-
Cover therefor.-Mooney v. Loughlin,
473.

16. In an action for refusing to take and
pay for goods under contract of sale the

measure of damage is the difference be-
tween the contract price and the market
price at the time and place of delivery.—
The N. Y. & Maine Granite Paving Co. v.
Howell et al, 490.

17. Evidence sufficient to show a market
for the goods.-Id.

18. Plaintiff manufactured goods for de-
fendant under a contract. After attempt-
ing to remedy certain defects, he deliv-
ered them. Defendant refused to pay and
declined to give them up on demand,
stating that he wished to consult counsel
as to his right to keep them as reimburse-
ment for damages sustained. Held,
That it was a question for the jury
whether this was an acceptance or sim-
ply a tentative proceeding to give him
time to examine the goods, or the ex-
pression of a determination to keep them
and rely on damages which he could prove
arising from the alleged non-perform-
ance of the contract.-Norton v. Drey-
fuss, 518.

19. Plaintiff contracted to manufacture
multiple electrical call boxes for defend-
ants, who were dealers in such boxes and
familiar with their mechanism and con-
struction, and were also the inventors of
an improvement therein. Plaintiff's fore-
man made a model incorporating said
invention, and also an improvement
which he had suggested to them; de-
fendants examined and approved of it
and directed him to make the boxes like
the model. The boxes were manufac-
tured accordingly and delivered to de-
fendants, who, having had ample oppor-
tunity to examine them, retained and
sold them, and 2,000 were in use at the
time of trial. Held. That the defects,
if any, being patent, defendants could
not under such circumstances retain the
boxes and afterward counterclaim for
damages upon the ground that they were
not of the character, quality or descrip-
tion called for by the agreement -The
Western Electric Co. v. McGonigal et al,
548.

20. The rule that upon breach of a contract
of employment of personal services for a
definite period the employee is not justi-
fied in lying idle for the whole length of
the unexpired period, but that he is
bound to seek other employment of a
similar character, and thus mitigate the
damages suffered by the breach of the
contract, has no application to a contract
for the erection of a building.-Graves v.
Hunt, 567.

21. Plaintiff's testimony showed that his
damages were a specified sum, and de-
fendant gave no evidence upon the ques-
tion. The jury were instructed, inter alia,
that plaintiff was entitled to recover such

sum, no exception being taken. Held,
That though the jury were not bound by
plaintiff's testimony as to the amount of
damages, and the jury should have been
so instructed, yet the point was not avail-
able upon appeal in the absence of an ex-
ception.-Id.

See AGENCY, 1, 3; EJECTMENT; EXECUTORS,
24; REFERENCE, 7; SALE, 9; SPECIFIC
PERFORMANCE.

CONTRIBUTION.

1. The doctrine of contribution rests upon
the principle that where parties stand
equal in right and duty in their relation
to the subject of the burthen, the law re-
quires equality, which is equity, and that
each shall bear his equal proportion of it.
-Boyer v. Marshall, 406.

2. Where there is no allegation or finding
in such an action that defendant signed
the obligation at the request of plaintiff,
the question of liability to contribute de-
pends upon the relations of the parties
between themselves to the liabilities as-
sumed.-Id.

3. Where the committee of a lunatic be-
comes one of the co-makers of a promis-
sory note made on the assumption of lia-
bilities against the estate of the lunatic,
which liabilities the committee was under
no legal obligation to assume, and is com-
pelled to pay such note, and brings an
action for contribution against his co-
maker, it is proper to stay the trial of
such action until an accounting of such
committee can be had.-Id.

CONVERSION.

1. Evidence of demand and refusal held
sufficient to establish a conversion by one
co-owner of grain of the portion belong-
ing to the other.-Holeman v. Randall,
20.

2. An absolute refusal to deliver any por-
tion of the grain belonging to a co-owner
precludes the other from afterward rais-
ing the objection that the demand was
for too much.-Id.

3. Plaintiff loaned to a firm of which de-
fendant was a member certain bonds for
temporary use, to be returned on demand.
They were delivered to defendant who
did not pass them to the firm, but depos-
ited them as security for his individual
note. Held, A conversion.-Birdsall v.
Davenport, 243.

4. An assignment of property which has
been converted by a third person carries
with it a right of action for such conver-
sion.-Id.

5. In an action for conversion of articles
having a market value the measure of
damages is the market value at or near
the place of conversion.—Adams v.
Loomis et al., 338.

6. In actions between tenants in common
the tenant whose property has been con-
verted is entitled to recover only to the
extent of his interest therein, and it is
error to refuse to so charge. —Id.

7. Where a debtor, in payment of his debt,
delivers goods to a railroad company
consigned to the creditor, and forwards
the bill of lading which is accepted and
the goods entered on the creditor's books,
the title passes and the custody of the
carrier gives the creditor possession.-
Brown et al. v. Bowe, 455.

8 In an action against a sheriff for conver-
sion of the goods which he took under an
attachment against the debtor, he cannot
defend by showing that the debtor made
an assignment under which the assignee
might have claimed the property.—Id.

9. Evidence admissible in such an action.
-Id.

10. Plaintiff made loans of money to one I.
to be used in payment for goods, and as
collateral. I delivered the bill of lading
and gave a bill of sale to plaintiff's mana-
ger, under whose direction the goods
were received and stored. Held. That
the delivery of the bill of lading without
indorsement consitituted a valid trans-
fer, and that a seizure thereafter by the
sheriff under execution against I. was
wrongful.-The Third Nat. Bk. v. Dutch-
er, 466.

See DAMAGES; EVIDENCE, 4; TENANTS IN
COMMON, 2.

CORPORATIONS.

1. The treasurer of a manufacturing cor-
poration upon a written request of a
party entitled thereto for a statement of
the affairs of the company, is required
only to make and deliver an account of
all the assets and liabilities in detail un-
der oath of such corporation, and is not
required to include in such statement the
details of the financial operations which
produced the financial results.-French
v. McMillan, 46.

2. In the construction of the words used
in a statute all portions of the statute in
pari materia may be referred to for the
purpose of determining the legislative
intent in its enactment, and when penal
the meaning of the words will not be ex-
tended by implication.-Id.

3. A judgment for costs against a corpora
tion in an action for trespass commenced