a firm of which their testator was a mem-
ber, even though made for the benefit of
the estate.-Johnson v. Kellogg, 467.

22. The estate may be made responsible for
such portion thereof as was used to pay
off the indebtedness of the estate.-Id.

23. A payment made on such loan which is
not shown to have been made out of the
estate will not be deducted from such a
recovery; such payment, however, is to
be allowed on the entire claim so as to
prevent the running of the statute of
limitations.-Id.

24. An executor or administrator cannot,
in general, lawfully embark in trade the
assets of his decedent's estate, even
though in adopting such a course he may
verily believe that he is acting for the
best interest of the legatees or distribu-
tees and the creditors. He has as a rule,
no power to charge the assets in his
hands by contracts originating with him-
self. Such contracts will bind him person-
ally, but will not bind the estate commit-
ted to his keeping. - In re estate of Sharp,
506

25. When a testator has authorized his ex-
ecutor to employ the remainder of the
estate, after payment of debts and fu-
neral expenses, in some legitimate busi-
ness, a person to whom the executor has
incurred a debt in carrying on such bus-
iness cannot intervene as a creditor of
the estate in a proceeding for a settle-
ment of the executor's account.-Id.

26. Even apart from any special authority
conferred upon him by the will, an exec-
utor is not bound, as of course, at the
death of the testator to make immediate
conversion into money of the assets of
the estate which were then involved in
trade. He is at liberty within reasonable
limits to make purchases and liabilities,
if, under the circumstances then existing,
the course seems to be demanded by the
best interests of the estate. Whether he
has exceeded such limits can only be
determined by investigation, and a mo-
tion to strike from his account previous
to such investigation all items of debit
and credit relating to the receipt and
disbursements of moneys in connection
with carrying on the business of the
testator is premature and will be denied.
-Id.

See ADVANCEMENT; CONTEMPT. 4; EVI
DENCE, 20; LEASE, 8; LIMITATION, 1, 2.
PLEADING, 4; SURROGATES, 2; TRUSTEES'

EXPRESS.

See COMMON CARRIERS, 5, 6.

FACTORS.

1. The factor's act was intended to protect
persons dealing in good faith with the
apparent owners of property, and does
not apply to a case where protection
would secure to a wrongdoer the fruits
of fraud.-Dorrance v. Dean et al., 493.

FALSE IMPRISONMENT.

1. An arrest in the night time under a war-
rant charging a misdemeanor is illegal,
and subjects the officer to liability for
false imprisonment, etc., unless the mag-
istrate by indorsement upon the warrant,
authorizes an arrest at such time.- Mur-
phy v. Krom et al., 538.

2. Where, in an action for false imprison-
ment, the defendants join in answering
and admit that the arrest was made by
them, it is not error to refuse to charge
that the jury might find in favor of one
and against the other-Id.

3. When defendants went to arrest plaintiff
at his residence, and before gaining ad-
mittance to the house the latter fired off
a revolver, but he was arrested and held
on the warrant alone and no complaint
was made against him for any other
offense, Held, That defendants were not
entitled to an instruction that they were
justified in arresting plaintiff on that
ground, if the arrest under the warrant
was illegal.-Id.

as

4. An execution against the person of a
judgment debtor, where no execution
against his property has ever been issued
to the county in which he resides, is a
void process and affords no justification
to the parties issuing the same
against a party injuriously affected there-
by. The rule is applicable to a judgment
of a Justice's Court, where such judg-
ment was docketed in the office of the
clerk of the county in which it was ob
tained, and was thus made a judgment
of the County Court.- Bergman v. Noble
et al., 558.

5 Where in an action by the judgment
debtor for false imprisonment because of
his arrest under such execution the
plaintiff was allowed to testify that be-
fore his arrest he did not know there
was a judgment against him, it was error
to exclude evidence on the part of the de-
fendants that said judgment had been
obtained after a trial.- Id.

FERRIES.

1. A taxpayer in the city of N. Y. who is
otherwise qualified under Chap. 531,
Laws of 1881, to maintain an action to
prevent the authorities of the city from
making a lease of public property, the

agreement for which was obtained at an
unlawful sale of the leasehold interest in
said property, is not disqualified from
maintaining said action because he is
himself desirous of obtaining a lease of
said property, bid at the attempted sale,
or previously held a leasehold interest in
said property.-Starin v. The Mayor, etc.,
of N. Y., 41.

2. The commissioners of the sinking fund
of the city of N. Y. have no power to
lease with ferry franchises such wharves
adjacent thereto as may be necessary for
the use of said ferries except to the high-
est bidder at public auction. They can-
not offer the lease of such wharves for
sale at a fixed price.-Id.

3. A railroad having a terminus in N. Y.
harbor has no power, under Chap. 193,
Laws of 1884, to operate a ferry except
from such terminus to the city of N. Y.
-Id.

See NEGLIGENCE, 23.

FIRE INSURANCE.

1. Where a mortgagee, for his own benefit
and at his own expense, and without any
arrangement with the mortgagor that the
latter should be charged with the ex-
pense, procures insurance, the policy
may be treated as a contract for the
mortgagee's indemnity only, with no
right in the mortgagor to the benefit of
it in case of loss, and the company on
payment of loss has the right of subroga-
tion pro tanto, notwithstanding by the
terms of the policy the mortgagor is
named as the assured, while the loss if
any is made payable to the mortgagee as
his interest may appear.-Thomas v. The
Montauk Fire Ins. Co., 51.

2. The remedy by subrogation is given be-
cause the insurer has been required by its
contract to pay the loss which between
it and the mortgagee operates to dis-
charge pro tanto the debt without affect-
ing the liability of the mortgagor or the
force of the mortgage given to secure it.
-Id.

3. Where witnesses are unable to state the
items composing a stock of goods de-
stroyed by fire and their prices, it is
proper for them to refresh their recollec-
tion by reference to an inventory of the
goods, in the taking of which the wit-
nesses participated, and to a copy of a
statement in the handwriting of one of
them of footings made by both, the orig-
inal having been destroyed, and the in-
ventory and footings are admissible as
the best evidence obtainable-Ellsworth
et al. v. The Etna Ins. Co., 53.

4. Plaintiff owned two houses, A, and B., the

former a two-story house, being the one
burned, and the other a one and a half-
story. The policy was upon "his two-
story house, as described in the applica-
tion, etc." The policy recognized verbal
applications. The application, etc., de-
scribed B., except as to its being a two-
story house. Agent testified that he
made a diagram in his note-book in plain-
tiff's presence, in answer to his questions,
and subsequently drew the application
with a diagram, and signed plaintiffs
name thereto, and sent it to the com-
pany. This was not authorized by plain-
tiff and he never saw either the diagram
nor the application, and never knew of
their contents until after the fire. Held,
That as the policy recognized and referred
to verbal as well as written applications,
surveys, etc., and as the assured never
signed or authorized any written applica-
tion or survey, the policy was not notice
to him that it was issued upon a written
application, etc, on file in the office, and
that he should inform himself of its con-
tents; that the objection that the minds
of the parties never met upon the subject
of insurance, and therefore there was
no contract, was not tenable; for if the
agent, through carelessness or mistake,
sent to the company an erroneous de-
scription of the property, plaintiff ought
not to suffer.-Landers v. The Watertown
Fire Ins. Co., 82.

5. Where a fire insurance policy provides
that it shall be optional, in case of loss,
for the insurer to repair the loss upon
giving certain notice of its election so to
do, instead of paying cash to the insured,
Held, That such provision is valid, but
where the insurer relies upon it he has
the burden of proof to establish the fact
that he is entitled to claim the benefit of
it.-Harrington et al. v. The Hanover
Fire Ins. Co., 104.

6. Where the assured claimed title to the
insured premises under a warranty deed,
and the question of ownership was sub-
mitted to the jury who found for plain-
tiff, Held, That it was no defense to the
insurer that said conveyance was made
for the purpose of defrauding creditors
of the grantor.-Smith v. The Agricul
tural Ins. Co., 129.

7. The policy provided that it should not
be effectual until payment of the pre-
mium, unless credit was given. Defend-
ant's agent paid the premium, when due,
to the company, and so informed the as-
sured, and looked to him for reimburse-
ment; subsequently he agreed to give
the assured until April 1st to pay the pre-
miums. Just previous to this arrange-
ment the company had directed the
agent to induce the assured not to sur-
render the policy as he had desired.
The property was destroyed April 1st,

and premium was paid to agent on same
day, who received it in ignorance of the
fire. Held, That the payment of the pre-
mium by the agent to the company
enured to the benefit of the assured, and
that neither the agent nor the company
could repudiate the arrangement made
for credit without the consent of the as-
sured; that the debt which the latter
owed was a debt to the agent individu-
ally, and not to the company.-Id.

8. The agent testified that he wrote down
the assured's answer as to the amount of
the encumbrances correctly, and that he
read the application and signed it. The
assured contradicted this, and said that
he did not read it, nor was it read to him,
and he signed it without knowing that it
contained such incorrect statement.
. Held, That the jury having by their ver-
dict found that the statement was in
serted in the application through the
fraud or mistake of the agent, and with-
out the knowledge or authority of the
assured, this defense must fail.-Id.

9. Where a policy provides that the insurer
may at any time return a pro rata share
of the premium and annul it, and the
premium has not been paid, but has been
charged, no return of a pro rata share is
required as a condition of cancellation,
but the notice of such cancellation has
the effect of canceling the charge for
premium.-Stone v. The Franklin Fire
Ins. Co., 482.

10. Facts sufficient to show that the broker
procuring the insurance was the agent of
the assured and not of the insurer.-Id.

FIXTURES.

1. In an action between the mortgagee of
a chattel and the grantee of the mort-
gagor claiming the same as a fixture to the
premises conveyed, the questions as to
whether the mortgage had been filed, and
when, and whether the chattel was a fix-
ture, and when it became such, etc.. were
submitted to the jury upon conflicting
testimony, who found in favor of the
mortgagee The appellant acquiesced in
this disposition of the case, and failed to
object to the submission of any question
to the jury as an issue of fact, nor was
the court requested to pass upon any of
the issues as a matter of law. Held, That
the verdict for defendant upon the
ques-
tions litigated was conclusive upon plain-
tiff.-Burnett v. Linsley, 132.

FORECLOSURE.

See MORTGAGE, 1, 3-5, 11; PLEADING, 4;
SALE, 2.

1. The answer alleged a contract to sell de-
fendant milk for one year from a speci-
fied date, and breach thereof. The re-
ply denied only the amount of damages.
The contract being shown to be by parol
the court directed a verdict for plaintiff.
Held, Error, as plaintiff did not set up
the statute in his reply.-Owen v. Kling,
113.

2. There must be some relation of trust
and confidence between the parties upon
which to build the duty to disclose before
the right to a disclosure can be enforced
by the courts.-Wood v. Amory, 298.

3. Mere general allegations of fraud or con-
spiracy are of no value as stating a cause
of action.-Id.

See AGENCY, 1; EVIDENCE, 6; JUDGMENT,
1, 2; LIFE INSURANCE, 1; MORTGAGE, 6;
PLEADING, 3; SPECIFIC PERFORMANCE, 3.

GAME LAW.

1. Under Chap. 317, Laws of 1883, the pen-
alties prescribed by Chap. 534, Laws of
1879, as amended by Chap. 124, Laws of
1886, for violation of the game laws, may
be recovered in an action brought in the
name of the People, upon the request of
a game protector, by any district attor-
ney, and this whether the offense was
committed in his own or in an adjoining
county.-The People v. McDonald, 366.

GIFT.

1. Where a parent conveyed land to his
son, and the latter, in consideration
thereof, agreed to pay his sister a certain
sum of money, Held, That she could
maintain an action to recover the same.
-Knowles v. Erwin, 37.

2. Where the parent delivered the written
agreement to the daughter, or to a third
party for her benefit, Held, That it be-
came an executed gift, and neither the
parent nor the son, nor both together,
could alter or rescind the contract to her
prejudice.-Id.

3. A person depositing his own money in a
savings bank to the credit of another, at
the time of the deposit may apply such
terms and conditions to the right to draw

it as he pleases, and a by-law of the bank
contained in the deposit pass book deliv.
ered to the depositor constitutes a part
of the contract under which the deposit
is made.-Orr v. McGregor, 244.

4. Such a deposit without any qualification
expressed at the time is prima facie evi-
dence of a gift of the fund deposited, but
an intent to the contrary may be shown,
and where such intent is shown such de-
posit cannot be treated as an executed
gift.-Id.

5. Plaintiff, who is the widow of defend-
ants' testator, claims title by gift to a
bond and mortgage found among testa-
tor's papers. She was permitted to
testify, under objection as to the compe-
tency of the evidence, that she had pos-
session of the bond and mortgage in 1885
and also in Feb., 1886, at the New York
Hotel where they were then living, and
that her husband used to take the paper
to settle the matter with Mr. Levitt."
This evidence was stricken out as coming
within the prohibition of § 829 of the
Code. Held, Error. -Taber v. Willetts et
al., 359.

6. It does not need a written assignment to
make a complete gift if all other re-
quisites to make a gift are proven.-Id.
See TRUSTS, 1.

GUARANTY.

1. A guaranty to secure deposits in a bank
provided that the bank should faithfully
perform its contract and account for all
moneys deposited, and all moneys now
on deposit and due or to become due.
Held, That the guarantors were liable for
all that the bank owed at the time of the
execution of the guaranty or afterward.
-The People v. Lee et al., 4.

2. Several guarantors of a bond to plaintiff
having died, it required a new bond and
guaranty, and one was given on which
defendants were guarantors, and soon
after the old bond was surrendered.
Held, That the surrender of the old bond
was a good consideration for the guar-
anty.-The Erie Co. Sav'gs Bk. v. Coit et
al., 17.

3. Defendant's testator entered into the
following agreement with plaintiff : "In
consideration of your having purchased,
upon my representation as to their value,
forty shares of the capital stock of the
Albemarle Swamp Land Co., and of one
dollar to me in band paid, I do hereby
guarantee that you shall receive, as long
as you hold said stock, dividends equal to
seven per cent. per annum, or I will make
good to you all deficit from such
amount." Held, That the obligation cre-

ated by such agreement did not extend
beyond the lifetime of defendants' testa-
tor and defendants were not liable there-
on -Kernochan v. Murray et al., 66.

4. Where it appears that a guaranty sued
upon was not in writing the evidence re-
lating to such guaranty may be stricken
out or the claim thereon dismissed.-Am-
son v. Schultze, 491.

5. Where the pleading set forth a claim on
guaranty of payment, a recovery can-
not be had on the ground that there was
no guaranty but that a credit was given,
without an amendment of the pleading.
-Id.

GUARDIAN.

See ATTORNEYS, 1, 3; SURROGATES, 1.

HIGHWAYS.

1. Upon a writ of certiorari to review the
proceedings of the commissioners of
highways in laying out a highway, re-
spondents returned that it was mutually
agreed between the applicants and the
relator that no one should be allowed to
act as a juror who was not satisfactory
to both parties, and that the jury was so
drawn by their consent. Held, A waiver
of irregularities.-The People ex rel.
Cronk v. Weld, 25.

2. The acceptance by the viewers of an in-
vitation to dine at the house of one of
the applicants for the road, which invita-
tion was made in relator's presence, when
the viewers were a long distance from
any hotel and had not partaken of their
dinner, is not of itself sufficient to war-
rant the court in setting aside their pro-
ceedings-Id.

3. A commissioner of highways extended
the water bars across a side hill highway
so that they crossed a ditch on the upper
side and turned the water across the
highway and upon defendant's cultivated
lands. Held, That defendant was not lia-
ble for removing the part of the bars
which obstructed the flow of water in the
ditch as for obstructing a highway.-Jen-
nings v. Bates, 33.

4. Evidence admissible in an action for ob-
structing a highway.—Id.

5. Plaintiff was injured by falling down an
embankment on the side of a road in the
defendant town. The road was sixty feet
wide, with walks eleven feet wide, and
was built on an embankment. Held,
That defendant owed no duty to the trav
eling public to erect a fence at that place,
and it was not negligence to omit to do
so.-Monk v. The Town of New Utrecht,
143.

6. The money received by the highway
commissioners was not sufficient for
ordinary repairs, and to guard similar
places would require two miles of bar-
riers to be erected. Held, That it was
confided to their discretion to apply the
fund in making repairs which in their
judgment were most urgently needed
and they were not responsible for an
error in judgment in so doing.-Id.

7. For a failure of the commissioners in
constructing a plan for the highway to
provide safeguards at dangerous places,
arising from an error of judgment, no
liability arises.-Id.

8. While an order laying out a highway
might in a direct proceeding be set aside
for uncertainty in the description, it
does not follow that the court will hold
it void in a collateral proceeding, where
it appears that the order was made more
than fifty years ago and there has been
since then a user in supposed conformity
to it.-Dominick v. Hill, 239.

9. Where objection is not taken to its not
being the best evidence, one may testify
that he is a commissioner of highways.-
Id.

10. Where a ditch along a highway has been
used for more than twenty years to drain
surface water and confine waters from
a spring, it may become part of the high-
way by such user.-Id.

11. The validity of an order discontinuing
a highway is not affected by the failure
of the town clerk to post notice of the
order in the manner required by law.—
Engelman v. Langhorst et al., 242.

12. In a proceeding to lay out a highway
through a building enclosure there must
be a retrial before the county judge if
the matter is there contested; and the
evidence taken before the county judge
must be presented to the General Term,
and its determination had thereon.
davits made after the hearing before the
county judge cannot be considered by the
General Term.-In re application Com'rs
of Highways v. James, 282.

Affi-

13. The commissioners, county judge, and
General Term may act on an allegation
that a certificate of necessity has been
made, in the absence of a denial of such
allegation.-Id.

HUSBAND AND WIFE.

1. A pregnant woman on the eve of being
confined is justified in leaving her hus-
band's house and going to her relatives
where the state of hostility in which she
and her husband live at the time is dan-
gerous to her health and that of her ex-
pected child.—Kent v. Brinckerhoff, 438.

See AGENCY, 2; CIVIL DAMAGE ACT, 1;
MORTGAGE, 1.

IMPRISONED DEBTORS.

1. A person imprisoned under an order of
arrest, issued before judgment, in an ac-
tion, is not entitled to be discharged from
imprisonment under and by virtue of the
provisions of § 111, Code Civ. Pro., as
amended by Laws of 1886, Chap. 672.-
In re Shepard, 155.

See ARREST, 2, 3; SHERIFFS, 4; UNDERTAK-

ING.

INDEMNITY.

1. Defendant, the equitable owner of a
judgment against plaintiff, agreed to ac-
cept a certain sum in satisfaction and
give a bond indemnifying plaintiff
against all claims set forth in an action
thereon and all costs and damages which
he might be compelled to pay by reason
of such action or claims Held. That the
condition was applicable to defendant
himself and covered expenses incurred in
defending an action brought to recover
the balance of the judgment; it also
included counsel fees incurred by plain-
tiff in such action.-Thomson v. San-
ders, 387.

1. The Court of Appeals will not review a
decree awarding the custody of infants
where it appears that the courts below
exercised their discretion in view of all
existing facts relating to the welfare of
the infants and simply regarded a decree
of a foreign tribunal in relation thereto
as a fact bearing upon the discretion to
be exercised, without controlling it.—The
People ex rel. Allen v. Allen, 69.

2. Where one orally agreed with his minor
son that if the latter would stay with his
parents while they lived and aid in tak-
ing care of them he would have the title
to certain real estate on the death of
both of the parents, and the son carried
out his part of the agreement and the
parents did not both die until after the
son reached his majority, Held, That the
agreement was valid to vest the title in
the son.-Thorp v. Stewart, 264.
See SURROGATES, 1.

INJUNCTION.

1. Where an application is made for an in-