5. The statute making trustees of a cor-
poration liable for debts of the company
upon failure to file an annual report
makes no distinction as to the place
where such debts shall be contracted, nor
does it distinguish between creditors re-
siding in this or in other States. -Sears
et al. v. Waters, 226.

6. In an action against a trustee under said
statute an answer alleging that the
goods referred to were not sold or deliv-
ered to the company in this State and
that no cause of action therefor ever
arose in this State, Held, Bad on de-
murrer.-Id.

7. A certain mortgage made by a manufac-
turing company organized under the N.
Y. statute, in 1856, held to be valid and
binding.-Martin v. The Niagara Falls
Paper Mfg. Co. et al., 251.

8. Statutory provisions for the manage-
ment of the affairs of a corporation,
intended for the benefit and protection
of stockholders, may be waived by them.
A by-law of a corporation providing that
the secretary shall sign instruments exe-
cuted on behalf of the company does not
necessarily vitiate instruments signed
only by the president of the company.-
Id.

9. The president of a corporation has gen-
eral authority to employ counsel to assist
in legal proceedings where the corpora-
tion is interested.-Potter et al. v. The N.
Y. Infant Asylum, 400.

10. A corporation which has enjoyed the
benefit of a contract cannot escape re-
sponsibility by pleading irregularity in
the making.-Id.

11. The location for taxation of personal
property of a manufacturing corporation
is the place designated in its certificate
as that where its operations are to be
carried on.-The Chesebrough Mfg. Co.
v. Coleman et al., 524.

12. An action may be maintained against
a corporation to recover damages caused
by a conspiracy, and the malice and
wicked intent necessary to sustain such

an action may be imputed to it.-The
Buffalo Lubricating Oil Co. v. The Stand-
ard Oil Co., 533.

See TAXES, 10, 12, 13, 31.

COSTS.

1. Where the court has awarded costs on
appeal from a judgment it has no power
to award costs on an appeal from an or-
der denying a new trial.-Syms et al. v.
The Mayor, etc., of N. Y., 135.

2. The right to costs depends wholly upon
the governing statute at the time such
right accrues.-Munson v. Curtis, 236.

3. There is no vested right to costs, and no
want of legislative power to impose or
change costs in an action or to impair
the force, during their pendency, of any
statute on the subject.-Id.

4. The right of a defendant to security for
costs under § 3268 is not absolute, but de-
pends on the circumstances of each case.
Todd v. Marsily, 244.

5. Where the only papers before the court
are the bill of costs and the affidavit of
the necessity of the disbursements, it
cannot strike out a disbursement which
may have been necessary, no facts being
stated to disprove the affidavit.-Cutter
v. Morris, 254.

6. Security for costs in actions brought by
an assignee is a matter of discretion, and
such discretion should not be exercised
against an assignee unless there are rea-
sonable grounds therefor.- Bennett v.
Goble et al., 298.

7. Where in an action begun in Justice's
Court an appeal was pending in the
County Court on Sept. 1, 1880, the costs
of such appeal are governed by the old
and not by the new Code.-Pruyn et al.
v. Lynch, 368.

8. Under an order allowing a respondent to
print such papers as had been improperly
omitted, such papers only as were used
on the original hearing can be printed;
and where on taxation the opposing affi-
davit alleges that none of certain papers
charged for were used or submitted on
such hearing the charge cannot be al-
lowed.-Stubbs et al. v. Ripley et al., 508.

See ATTACHMENT, 1; EXECUTORS, 4, 7, 19;
MUNICIPAL CORPORATIONS, 2; PRACTICE,
2, 5, 6; STAY; SUPPLEMENTARY PROCEED-
INGS, 9.

COUNTY COURT.

See COSTS, 7.

COUNTY TREASURERS.

See TAXES, 28; Town BONDS.

CREDITOR'S ACTION.

1. Before a creditor can reach equitable
interests of the debtor he must have ex-
hausted the ordinary remedies at law. The
return of an execution unsatisfied is a con-
dition precedent.—Karr et al. v. Dildine,
70.

2. A transcript of a District Court judg-
ment followed by filing and docketing
in the county clerk's office, is legitimate
evidence of the existence of a judgment
of the Court of Common Pleas.-Belgard
v. McLaughlin et al., 431.

3. In actions brought by a single judgment
creditor to remove fraudulent obstruc-
tions in the way of enforcing the execu-
tion, it is sufficient that the judgment
declare that the deeds are fraudulent
and void as to his judgment and execu-
tion.-Id.

4. In an action in the nature of a creditor's
bill brought by a receiver against a judg-
ment debtor to reach assets alleged to
have been fraudulently assigned or trans-
ferred, it is competent to prove collateral
facts from which an inference is deriva-
ble of the purpose of the transfer; and in
a close case upon the facts the court can-
not so measure the effect of such evi-
dence, having reference to the question
involved, as to say that its rejection did
not prejudice the party offering it. In
such case the rejection of such evidence
is error.-Howard v. Stoddart et al., 568.
See PLEADING, 3.

CRIMINAL LAW.

1. Under Code Crim. Pro.. SS 411 and 412,
the jury in a criminal proceeding viewed
the scene of the affray and the court re-
fused the prisoner the right to be present.
Held, That this was error; that such a
view was in itself evidence and there-
fore given in the absence of the prisoner.
-The People v. Palmer, 87.

2. Section 399, Code Crim Pro., only
requires that there shall be corroborative
evidence which tends to connect defend-
ant with the commission of the crime, so
that his conviction will not rest entirely
upon the evidence of the accomplice.-
The People v. Everhardt, 114.

3. Where a prisoner who has been indicted
by a name and several aliases states his
true name and the proceedings are
amended accordingly, a repetition of the
aliases in the oath to the jury is not a
material error, where jurors prejudiced

thereby were excluded, although it may
properly be omitted.-Id.

4. The court does not lose jurisdiction to
pronounce sentence by adjourning sine
die after conviction, where there is a mo-
tion pending for a new trial and arrest of
judgment.-Id.

5. Section 211 does not require a Court of
Special Sessions to inform a defendant,
charged with an offense of which Courts
of Special Sessions have exclusive juris-
diction under § 56, Code Crim. Pro., of
his right to be tried by a jury after in-
dictment -The People v. McGann, 166.

6. Section 58, Code Crim. Pro., is directory
merely.-Id.

7. An error to be relied upon on appeal
must be specified in the affidavit on
which the appeal is granted.-Id.

8. The burthen is with the people to estab-
lish by evidence every fact essential to an
offense in such a manner as to exclude
all reasonable doubt of guilt, and to com-
pletely overcome the presumption of in-
nocence -The People v. Wileman, 371.

9. Where no exception is taken the statute
does not require the reversal of a judg-
ment and conviction and an order for a
new trial for every error which would be
available on exception, but for such
errors only as it can be seen may have
prejudiced, and in the judgment of the
court did prejudice the defendant.-Id.

10. When evidence of good character is
given the effect of that fact as evidence
cannot be qualified or limited by the
court, but the force and bearing of it is
wholly for the jury; and its consideration
is not confined to cases of doubt, but
must take its place with the other evi-
dence and may itself raise or support a
doubt.-Id.

11. In a criminal action a bill of exceptions
was prepared and settled, and the attor-
neys for the respective parties stipulated
that the notes or minutes of the stenog-
rapher may be incorporated in or at-
tached to the judgment roll, and may
be referred to for the evidence to which
exceptions were taken on the trial; and
that they shall have the same force and
effect as though the notes had been made
and settled by the judge who presided at
the trial. Held, That the stipulation was
ineffectual for the purpose intended, as
the attorneys have no power to settle a
case in a criminal action.-The People v.
Bradner, 545,

See BODY STEaling; Forgery; LARCENY;
MURDER; NUISANCE, 1, 2; RAPE.

DAIRY LAW.

See CONSTITUTIONAL LAW.

DAMAGES.

1. It is a general rule, where the measure
of damages for taking and appropriating
property is the value of the property at
the time of such taking, that such value
and the interest upon it from the time
of the taking constitute the extent of the
recovery, and unless special circum-
stances appear in a case such rule should
be applied.-Curtis v. The Jas. Gould
Co, 342.

See CONTRACT, 16; CONVERSION, 5; DEEDS,
6; INJUNCTION, 3-6; NEGLIGENCE, 1;
WATERCOURSES, 2.

DECEDENTS' ESTATES.

1. Testator devised real estate to his wife,
but in case of her remarriage to his
daughter. The daughter's interest was
sold and a mortgage given to the special
guardian, who afterward foreclosed it
and bid in the property and thereafter
gave a mortgage thereon for a debt of
testator. The daughter procured a judg-
ment canceling the latter mortgage and
for conveyance of the title acquired in the
foreclosure. In a proceeding after the
widow's remarriage to sell for debts,
Held, That the daughter's title stood not
only on the will, but on the foreclosure
of a mortgage which was valid; that more
than three years having elapsed the
premises are not liable to sale under these
proceedings, and that having at one time
vested in a bona fide purchaser were at
that moment freed from liability for
testator's debts.-In re estate of Dodge,

525.

See ADVANCEMENT.

DECEIT.

1. In an action for fraud or deceit evidence
of contemporaneous fraudulent represen-
tations made by defendant is admissible
for the purpose of showing the intent
with which the representations in the
action on trial were made and to negative
the possible hypothesis of innocence.-
Vail v. Reynolds, 205.

2. While the true rule of damages in an
action for deceit inducing the purchase
of property is the difference between the
value of the property as represented and
its actual value, and it is error for the
court to charge that plaintiff can recover
the sum paid for said property, still, if
the trial was conducted throughout upon
the assumption that the property was
worthless, it is not such an error so to
charge a different rule as requires a re-

versal of the judgment and a resubmis-
sion of the case to the jury.-Id.

DEEDS.

1. While an action to foreclose a mortgage
was pending, the mortgagor, in order to
prevent a sale, procured a third party to
pay the mortgage and costs and take an
assignment thereof, and then executed
to him a deed of the premises under an
oral agreement to re-convey the same,
but reserving to himself a life estate
therein, upon being repaid the amount
advanced by him upon the mortgage.
Held, That this was not an agreement for
the creation of a trust in lands, but
merely an agreement that the deed should
be held as a mortgage security, and
might be established by parol evidence-
Erwin v. Curtis, 179.

2. The evidence required to show that a
deed was intended as a mortgage must be
clear, explicit and unequivocal; each
case must be determined upon its own
especial facts, but these should be of a
clear and decisive import.-Id.

3. A deed was made to a mother "in trust
for" her infant children, "with power to
sell or mortgage without the appoint-
ment of a guardian." She mortgaged it
for her own benefit. Held, That the
mortgage was void; that no valid trust
was created by the deed; that a valid
general power was created, which she
could only execute for the benefit of the
children, and the land vested in them
subject to the execution of the power.-
The Syracuse Savings Bk. v. Holden et
al., 225.

the deed was recorded. It did not appear
that the archbishop knew or had informa-
tion of the property. Held, That the
presumption that the deed was delivered
and accepted failed.-Gifford v. Corrigan,
328.

8. Plaintiff was the owner of two lots in the
city of N. Y. known as numbers 141 and
143 West 49th street, each twenty-two
feet in breadth and one hundred feet, four
inches in depth. A small structure was
built upon the rear of lot No. 141, which
did not cover the whole breadth of the
lot. Subsequently a structure was built
upon the rear of lot No. 143, which cov-
ered the whole breadth of that lot and ex-
tended five feet, eight inches over the
line of lot 141 and up to the west wall of
the structure upon the latter lot, which
formed the easterly wall of that upon lot
143. The walls of the building on lot No.
143 were not keyed to the walls of that
upon lot No. 141, and its beams rested
upon piers. Plaintiff conveyed lot No.
143 by deed, describing it as twenty-two
feet front and rear by one hundred feet,
four inches in depth, with the buildings
and improvements thereon, together with
the appurtenances. Held, That the deed
conveyed only that part of the building
which is on the land described and that
no easement existed in relation to the ad-
joining land.-Griffiths v. Morrison et al,

553.

9. One N. conveyed to a trustee certain land
which he was to sell and invest the pro-
ceeds, applying the proceeds to the use of
the grantor's wife and children. Subse-
quently, to more fully secure the income
to his wife and children, he executed to
the trustee a quitclaim deed. Held, That
the first deed and agreement created a
valid power in trust to convert the land
into money and invest the proceeds in
securities in which the wife was to have
a life estate only; that the reversionary
interest in the land not being conveyed
reverted to the grantor on the death of
his wife, and that the quitclaim deed did
not affect his reversionary interest in the
land.-Nearpass et al. v. Newman et al.,

576.

See MORTGAGE, 6, 10.

DEPOSITIONS.

1. The complaint alleged an employment by
defendant to sell real estate and that the
services were rendered. The answer was
a general denial. Defendant, under Code,
$872, sought to examine plaintiff before
trial, and his moving affidavit stated that
he expected to prove by plaintiff that
plaintiff had never been employed by
him and never sold the real estate. Held,
not a proper case for the order. This de-
partment, however, does not decide that

such an examination, i. e., one which is
intended to examine into defendant's
case, cannot be had by plaintiff under §
872.-Jenkins v. Putnam, 155.

2. Service of the order on the attorney for
the opposite party is an absolute pre-
requisite to the right to examine a witness
under § 876.-Cowen v. Ferguson et al.,
401.

3. Where the affidavit presents facts which,
if true, form a material allegation in de-
fense, an examination of plaintiff to en-
able defendant to prepare his answer
should be allowed.-The N. Y, L. E. &
W. RR. Co. v. McHenry, 498.

4. Where the questions involved arise from
facts which may be shown by accounts
between the parties, plaintiff's books
should be produced to enable witnesses to
answer by reference thereto.- Id.

DIVORCE.

1. In an action for a separation, where the
answer set up adultery by plaintiff and
demanded a judgment for divorce, and
"this action and the issues therein" were
referred to a referee to hear and deter-
mine, Held, That the referee had power
to pass upon the question of plaintiff's
adultery, and to render judgment for an
absolute divorce, although no reply had
been interposed to defendant's answer.-
Breakey v. Breakey, 28.

2. The testimony of hired detectives and of
witnesses who have made previous incon-
sistent and contradictory statements,
should be received with great caution
and be carefully scrutinized.-Id.

3. Where, in an action for divorce, the ref-
eree found as a fact that "on divers days
and times during the six years before the
commencement of this action, the de-
fendant committed adultery with one S.
at her residence ;" and "that during all
this time she was living in open adultery
with him at her residence," etc.; and the
evidence tended to show that plaintiff
had discovered the commencement of
such adulterous intercourse more than
five years before suit brought, judgment
for plaintiff was reversed and a new trial
ordered, although it appeared that S. was
living with his wife upon the same street,
opposite defendant's residence.--Church
v. Church, 122.

4. Where the answer charges adultery on
the part of plaintiff and prays for a judg-
ment of divorce, and evidence is given in
support thereof, the referee must make an
express finding upon this issue, otherwise
a judgment rendered for plaintiff will be
reversed.-Id.

5. A defendant in an action for divorce on

the ground of adultery has a right to a
trial by jury upon the charges of adultery
put in issue by his answer, and he does
not waive such right by a failure to have
such issues settled before plaintiff moves
such action for trial at Special Term.-
Galusha v. Galusha, 223.

6. Where only part of the charges of adul-
tery contained in the complaint are put
in issue by the answer the court at Special
Term may take proof of the undenied
charges of adultery and determine the
same, and if the evidence is sufficient di-
rect a judgment of divorce -Id.

7. The determination of the amount of ali-
mony is largely in the discretion of the
court, yet it is a judicial discretion, and
the sum allowed is not confined to what
is established or seems to be actually nec-
essary for support and competent main-
tenance of the plaintiff.-Id.

8. The statute is broad enough to authorize
the court to adjudge that such alimony
be continued to be paid plaintiff during
her life.-Id.

9. An agreement for the separate mainte-
nance of the wife is not a bar to an action
for divorce, and the judgment in divorce
simply would not have the effect to annul
it; but when permanent alimony is
awarded by the judgment, such judgment
should declare the effect intended upon
such an agreement.-Id.

10. Trial by jury of the fact of adultery,
when put in issue, is a matter of right
preserved by the Constitution; and must
be granted, unless waived by the par-
ties; and a motion to frame issues is not
addressed to the discretion of the court
but is a matter of right.-Conderman v.
Conderman, 348.

11. The right to make an application to the
court to frame issues is not waived by an
omission to make such application with-
in ten days after issue in actions for di-
vorce on the ground of adultery.—Id.
21. A judgment of divorce rendered in the
court of another State in which the court
had jurisdiction of the defendant is a bar
to an action of divorce between the same
parties in this State. But the service of
process upon the party defendant out of
the State where the action initiated is
purely statutory, and jurisdiction of the
absent party can in such case be acquired
in the manner only which the statute
provides -Burton v. Burton, 561.

13. In an action of divorce initiated in the
Court of Common Pleas of the State of
Pennsylvania, the mere personal service
of the process on the defendant in this
State does not, under the statute of Penn-
sylvania, give the court jurisdiction over

the person of the defendant, although
such defendant be at the time of such
service a citizen of that State.-Id.

See CONTEMPT, 6, 7; DɔWER, 4.

DOWER.

1. Plaintiff entered into an agreement with
the children and committee of her hus-
band by which, in consideration of one.
third of his property, she released and
transferred all her interest, including her
inchoate right of dower. Held, That a
pecuniary provision was made for her
and that while she retained it she could
not claim that the arrangement was not
properly made, and that having received
a separate estate thereunder it was bind-
ing upon her under the married women's
acts, and a claim for dower could not be
allowed.-Jones v. Fleming et al., 75.

2. As an action of dower is triable of right
by jury, the verdict should show that
plaintiff was entitled to dower in the
premises.-Vadney v. Thompson et al.,

163.

3. Where such an action was tried before a
jury, to whom the only question submit-
ted was whether certain deeds had ever
been delivered to plaintiff's husband and
the jury answered "Yes," Held, That
the practice was irregular. A general
verdict should have been rendered for or
against plaintiff, the court having no
power to make additional findings.-Id.

4. Plaintiff's husband, who resided in Illi-
nois, procured a divorce dissolving the
marriage on the ground of wilful deser-
tion, plaintiff appearing in the action.
Held, That the judgment was conclusive,
and that plaintiff was not entitled to
dower.- Van Cleaf v. Burns et al., 219.

5. Where a fixed sum equal to one-third of
the rental value has been ascertained by
final judgment the court has no power to
alter such judgment by providing that
the party entitled to dower shall receive
one-third of the net rents and no more.-
McIntyre v. Clark, 247.

See TRUSTS, 3, 4.

DURESS.

1. While it is true that money paid, as
alleged, through fraud or duress cannot
be recovered back where the considera-
tion of the contract is in any way con-
nected with the compounding of a felony,
it must still appear that both parties
knew that the consideration was such
compounding.-Devoe v. Davis, 420.

2. And where it appeared that the person
paying might have supposed the arrest