junction under § 603, Code Civ. Pro, the
right to the order depends upon the na-
ture of the action and requires for its
support a complaint by which it must
appear that plaintiff is entitled to a judg-
ment giving the restraining relief.—Karr
et al. v. Dildine, 70.

2. Where made under § 604, and the injunc-
tion has been granted without the aid of
the complaint, such question may be pre-
sented upon a motion to vacate after the
complaint appears in the action and
founded upon it.-Id.

3. Expenses incurred in a proceeding to as-
certain and determine damages by reason
of an injunction are properly allowed.-
Preuschl et al. v. Wendt, 196.

4. In an action to restrain a party from en-
forcing a bond and mortgage, expenses
incurred in good faith in the preparation
of papers to enforce the same before the
service of the injunction and which at
the time of such service were in the
hands of an officer to serve, and service
of which defendant had no opportunity
to stay, and which were in fact served a
couple of hours after the service of the
injunction, and by reason of the injunc-
tion defendant was obliged to discontinue
the action to foreclose the mortgage, are
properly allowable as a part of such dam-
ages.-Id.

5. Interest on a deficiency, on a subsequent
foreclosure and sale of the premises, dur-
ing the pendency of the injunction
action, when the mortgagor is insolvent,
should be allowed as an item of such
damages. Id.

6. Expenses of a motion to dissolve the in-
junction when the moving party does not
obtain any substantial success should not
be allowed.-Id.

Held,

7. The defendant in an action recovered a
judgment for costs, which she assigned
to her attorney for his services. At the
time she was indebted to the plaintiff in
Isaid action in a large amount.
That the attorney took the assignment
subject to the equities between the par-
ties, and that a preliminary injunction
was properly granted to restrain him
from enforcing the judgment until those
equities were adjusted.-Hayes v. Carr,
442.

8. The rule that the police may be prevented
from invading a private club house when
the intention is to interfere with its fes-
tivities properly conducted does not ap-
ply to a ball not confined to members of
the club and its guests, but to which
tickets are publicly sold to any one seek-
ing them-Cercle Francais de L'Har-
monie v. French et al., 485.

See ESTOPPEL, 3; NUISANCE, 4, 8; SUPPLE-
MENTARY PROCEEDINGS, 7; TRADEMARK.

INTEREST.

See EXECUTORS, 13; SPECIFIC PERFORMANCE,
2, 6.

INTERPLEADER.

1. The right of a defendant to an order of
interpleader has not been restricted by §
820, Code Civ. Pro., to a case in which
the claim made in conflict with that of
plaintiff to the same debt or property
may probably be successful. If the
rights of the rival claimants cannot be
ascertained without a trial, and defend-
ant has no interest in that trial, and
claims no part of the fund in controversy,
and is not in collusion with either of the
claimants, he is entitled to an order of
interpleader.-The Bowery Nat. Bk. v.
The Mayor, etc, of N. Y., 39.

2. In order to authorize a judgment of inter-
pleader it must appear that there is a
reasonable doubt of the title of one of the
claimants.--The Nassau Bk. v. Yandes,

486.

3. An assignment for creditors made in a
foreign State and valid under the Laws of
that State is valid here and passes the
title of property of the assignor in this
State to the assignee.-Id.

4. A sheriff cannot maintain an action to re-
move an obstacle to an attachment levied
by him.-Id.

See LIFE INSURANCE, 3.

JUDICIAL SALES.

See SURROGATES, 1.

JUDGMENT.

1. The Supreme Court has unrestricted
power over its own judgments, irrespect-
ive of the statute, and without limit as to
time, to correct a fraudulent use of its
process.-Hurlbut v. Coman et al., 232.

2. The provision of § 1290 of the Code, lim-
iting the making of a motion to set aside
a judgment to two years "for error of
fact not arising on the trial," has no ap-
plication to cases of fraud. - Id.

3. The judgment in question was procured
pending bankruptcy proceedings and the
granting of a discharge therein. Held,
That the discharge operated on the judg-
ment and could be interposed as a shield
to any proceeding to enforce it, notwith-
standing the order vacating a stay in the
bankruptcy proceedings and allowing

plaintiff to take any proceeding the
practice of the State court allowed.-
McDonald v. Davis, 413.

See ATTORNEYS, 2, 6; CORPORATIONS, 3;
CREDITORS' ACTION, 3; EXECUTORS, 6;
PRACTICE, 17; SHERIFFS, 5.

JURISDICTION.

See CRIMINAL LAW, 4; DIVORCE, 12, 13;
ESTOPPEL, 3: EXECUTORS, 1; LARCENY;
REPLEVIN, 6; STATUTES, 2; SURROGATES, 2.

JUSTICE'S COURT.

1. Upon appeal from Justice's Court an
undertaking was filed with the justice
and a copy served on the constable hold-
ing the execution, but it was not certi-
fied by the justice to be a copy, nor was
any affidavit attached thereto showing
it to be a copy and that the original had
been filed with the justice. Held, That
it was essential in order to stay the en-
forcement of the execution that a copy
of the undertaking be also served upon
the respondent.-Wells v. Dawson et al.,
97.

LARCENY.

1. A warrant of arrest was issued by a
justice of the peace upon a deposition
which averred, That one T. has got, as
she has seen since Oct. 21st, 1885, one pin
that belongs to complainant that she
has missed the pin called rustic gold, and
she has good reason to believe that said
T. has the same, for complainant this
day saw this pin in her possession and
she would not give it up; and the pin
was mine, for I knew the pin to be mine."
Held, That the deposition entirely failed
to show the commission of larceny, and
the magistrate had no jurisdiction to
issue the warrant for the arrest of the ac-
cused.-Tracy v. Seamans, 117.

LEASE.

1. Chapter 458, Laws of 1883, operates as a
mere license and authority to the super-
visor and trustees to sell and convey the
excepted land according to the prescribed
conditions if they deem it best to do so,
and confers no right on the tenant to en-
force a sale.-Furey et al. v. The Town of
Gravesend et al., 11.

2. A lease of lands under the resolution of
1871, providing for payment to the lessee
for improvements by a new lessee, if a
new lease is made, does not make the
town liable for improvements if such
new lease is not made.-Id.

3. A judgment in ejectment bars any right
the tenant may claim to retain posses-

sion, for improvements or any other pur-
poses.-Id.

4. A covenant in a lease to grant a renewal
at the end of the term "with a like cove-
nant for future renewals of the lease as
is contained in this present indenture "is
satisfied by holding that it gave the lessee
a right to two renewals.-Syms et al. v.
The Mayor, etc., of N. Y., 135.

5 Neither a written instrument nor an ex-
press agreement are indispensable requi-
sites to the formation of the conventional
relation of landlord and tenant.-Fougera
v. Cohn et al., 142.

6. An entry and payment of rent under the
terms of a lease which was invalid will
create a tenancy from year to year.-Id.
7. While the tenants may terminate the
tenancy at the expiration of any year by
giving proper notice, yet where they fail
to do so at the end of the first year the
law implies a renewal for another year on
the same terms.-Id.

8. Executors were authorized to sell land
within a reasonable time after the de-
cease of testator, for the purpose of a
division among his heirs. Held, That a
lease executed by one of the executors
many years afterward was unauthorized
and void.-The Crooked Lake Nav. Co. v.
The Keuka Nav Co., 145.

9. Where the heirs of the original owner of
the lands do not question a lease made by
one of them to plaintiff, but, on the con-
trary, have joined in a subsequent lease
to him of the same lands, and plaintiff
and his original lessor have used, occu-
pied and enjoyed the waters of the outlet
in front of the premises, and the lands
thereunder, for the purposes of a dock,
pier, etc., for upwards of twenty years,
defendant is precluded from questioning
his title.-Id.

10. The public have no right to use private
wharves or docks erected upon the outlet
of a navigable lake.-Id.

11. A pier or dock constructed upon piles
driven into the earth is a part of the
realty, and ejectment may lie for it.-Id.
12. In the absence of restrictions in the
lease a tenant has a right to use the
outer wall of the premises for the pur-
pose of advertising his wares in a proper
manner by signs, pictures or otherwise.
Baldwin v. Morgan et al., 181.

-

13. A mining lease provided that the lessees
should mine and carry away not less than
a specified number of tons per year and
pay a royalty of thirty cents per ton on
every ton mined; it also provided that if
the amount mined should fall short of

the minimum quantity named the lessees
should pay as if the said number of tons
had been mined, and that if a greater
number were mined the excess may be
set off against the deficiency of any year.
In an action for rent it appeared that the
lessees had mined and paid a royalty on
an excess over the full amount required
for the whole of the period in question.
Held, That the complaint was properly
dismissed; that it was intended to pro-
vide for a certain amount of rent, and
when that was paid, no matter when,
the lessees' obligation ceased; that the
lease did not provide for a sleeping rent
-McIntyre v. The McIntyre Coal Co.,
388.

14. Where a purchaser of property enters
into actual possession of leased property
not included in the sale the fact of such
actual possession unexplained permits
the conclusion or inference that such
purchaser had such possession as as-
signee, or held it in such a manner as to
charge him with the liability to pay the
stipulated rent. -Frank v. The N. Ÿ., L.
E. & W. RR. Co., 414.

15. Although a valid transfer of the lease
requires a written assignment, yet the
fact that the purchaser entered into the
possession and occupation of the leased
road permits the inference that it as-
sumed the liability to pay the same
amount of rent as that reserved in the
lease until this liability was qualified or
modified by some effectual arrangement.
-Id.

16. Where there is no covenant on the part
of the assignee of a lease to defeat the
right in favor of an interested party for
whose benefit the lease is made, there is
no contract relation between the latter
and the assignee of the lease which would
interrupt the making of an effectual
agreement between the assignee and the
lessor, or the lessee, modifying or qual-
ifying his liability as assignee.-Id.

17. The legal right of a party to assert the
performance of a contract made between
others for his benefit rests upon the ex-
press promise of the party he seeks to
charge, and arises from privity of con-
tract.-Id.

18. Under the judgment in the action in
which the receiver was appointed, as the
order of sale and conditions of the ref-
eree's deed required appellant to assume
the indebtedness and liabilities of the re-
ceiver, the amount of such assumed lia-
bility for rent can be established in this
action.-Id.

19. The liability also of appellant for the
payment of rent up to the time that a
modified arrangement was made can be
established in this action.-Id.

20. A written offer to take a building, to be
altered, at a certain rent; plans to be
agreed on, and an acceptance in writing
of such offer, do not constitute a valid
lease, and the owner having refused to
give such lease before the plans were
agreed upon specific performance cannot
be enforced.-Mayer v. McCreery, 449.
See CHATTEL Mortgage, 3, 5, 6; FERRIES,
2; MARRIED WOMEN, 3, 4; NEGLIGENCE,
25, 29; REPLEVIN, 2.

LEGACIES.

1. The will in question gave a legacy to
testator's nephew, and gave the residue,
without distinction as to real or personal
property, to others. Held, That the
legacy was a charge on the realty.-
Brill v. Wright, 436.

See TAXES, 17; WILLS, 14.

LIBEL.

1. The publication of judicial proceedings
is privileged, and the presumption of
malice does not arise from such publica-
tion.-Saulsbury v. The Union & Adver-
tiser Co., 555.

2. The ground upon which liability for
libel rests is malice, and when the pub-
lication tends to disgrace or degrade and
is false, the presumption arises in sup-
port of an action unless it comes within
the classes of privileged publications,
when malice must be proved; and where
there is no evidence of malice other than
furnished by the article itself, that ques-
tion is dependent on the fact whether it
was itself a fair and true report of a judi-
cial proceeding.—Id.

3. When the entire article is set out in the
complaint it must be construed together,
and although some portions of it stand-
ing by itself might be construed as libel-
ous, yet when such portions are con-
strued with all the other portions of the
publication, it appears to have been em-
braced in and was part of a judicial pro-
ceeding, and as published fair in that re-
spect, it it sufficient to bring it within
the rule of a privileged publication -Id.
4. Such publication need not be verbatim,
but may be condensed. All that is re-
quired is that it be a substantially fair
report, not garbled, so as to produce mis-
representations, not a suppression of
some portions of the evidence or proceed-
ings, such as to give a false impression
to the prejudice of some party concerned.
-Id.

5. A new trial will not be granted to a
party nonsuited when the court is satis-

fied that a verdict in his favor would be
set aside as against the evidence.-Id.

LIEN.

1. Where, by the terms of the contract or
by the dealings of the parties, payment
for work and labor performed is deferred
until after the delivery of the property,
and the possession of the property is sur-
rendered, no lien exists upon other prop-
erty in the hands of the workman for
the value of his services performed upon
the property surrendered -The Wiles
Laundering Co. v. Hahlo et al., 314.

2. Where a particular future time of pay-
ment is fixed which may be subsequent
to the time when the owner is entitled to
a return of the article upon which the
work is done, there can be no lien.-Id.

See ATTORNEYS, 3, 7, 8; SALE, 2.

LIFE INSURANCE.

1. Upon the back of a policy issued by de-
fendant was indorsed a stipulation that
no question as to its validity should be
raised unless raised within two years and
during the life of the insured. Held,
That this provision precluded defendant
from interposing the defense of fraudu-
lent representations in an action on the
policy after the death of the insured, and
that it was not against public policy.-
Wright v. The Mut. Ben. Life Asso., 18.
2. A certificate of insurance in a mutual
benefit association issued to H. M. Case
provided that "all benefits that may ac-
crue or become due to the heirs of the
person insured will be payable to Mrs. H.
M. Case, or lawful heirs." At the time
this certificate was issued Case had a wife
named Amelia, and a daughter. The
wife having died, Case married defend-
ant and afterward died, leaving her and
his said daughter surviving. The origi.
nal certificate remained unchanged.
Held, That the daughter of Case and his
wife Amelia, and not defendant, was en-
titled to the fund agreed to be paid by
the certificate of the association.-Day
v. Case, 30.

3. In an action upon a life insurance pol-
icy there were two claimants for the
money, and under Code, § 320, an order
of interpleader was made and the com-
pany paid the money into court. Held,
That the action was triable of right by
jury and its character was not changed
by the order.-Clark v. Mosher, 60.

4. When the action was reached on the cal-
endar in Oct., 1885, defendant's counsel
said it was an action in equity, plaintiff's
counsel said nothing. The judge said he
would put a jury in the box in case he

wished to submit any question to them.
A single question was submitted to them.
They answered it in favor of plaintiff
and a verdict was directed for her by the
court. Defendant moved on the min-
utes to set it aside as contrary to the law
and evidence and also asked the court to
find the question in his favor. Subse-
quently, and on Sept. 13, 1886, the court
granted defendant's motion; findings in
his favor were made and settled and he
had judgment. On Sept. 23, 1886, plain-
tiff moved to set aside this latter order
and the judgment thereon; the Special
Term refused. Held, That so far as the
order of Sept. 28 refused to set aside the
order of Sept. 13 it was correct, but so far
as it refused to set aside the judgment
with its findings of law and fact it was
erroneous, and that the order setting
aside the verdict should contain an order
for a new trial.-Id.

5. Where there is no doubt as to the mean-
ing of the language used such meaning
must prevail. -Holly v. The Metropolitan
Life Ins. Co., 333.

6. A policy provided that after a certain
number of premiums had been paid up
the company would give a paid up pol-
icy if required within thirty days after
maturity of premium. After such pre-
miums had been paid the insured failed
to pay a premium but gave a note there-
for upon the understanding that if not
paid at maturity all benefits should be
void and forfeited. He failed to pay the
note at maturity. Held, That the com-
pany had the right by the agreement
under which the note was taken to im-
mediately forfeit the policy and all
rights to further insurance.-Id.

7. It is not necessary for a plaintiff to allege
in his complaint, or to prove an omis-
sion on the part of a life insurance
company to serve the statutory notice to
the assured requisite to give the com-
pany a right to declare a policy forfeited
for non-payment of premium; and until
the thirty days fixed by the statute has
expired, after the service of the notice,
the policy remains in force and valid -
Baxter v. The Brooklyn Life Ins. Co.,
334.

8 The court will take judicial notice of the
statute requiring the service of such no-
tice -Id.

9. It is sufficient for the plaintiff to aver
that the insured performed the contract
on his part, as the statute became a part
of the contract at the time of its execu-
tion.-Id.

10. The burthen is with a company defend-
ing to show that such notice was served;
and in the absence of any proof on that

subject the presumption is that no notice
was served.-Id.

LIMITATION.

1. The will of testator directed his execu-
tor to reduce his entire estate to money
and to dispose of the proceeds as follows:
"Third. My mother to receive the sum
of $1,650, being the amount of borrowed
money due her, also interest on the same
as may appear by my note held by her
for above amount." Testator died in
1876, and his mother in the following
year. At various times prior to 1880 the
executor of the mother of the testator re-
ceived from the latter's executor sums of
money amounting to $200, on account of
the claims of the estate of testator's
mother against that of testator. Subse-
quently the two executors had certain
personal business transactions with each
other, upon a settlement of which on
May 31, 1883, it was ascertained that the
executor of the testator's mother was in-
debted to the other in the sum of $13.44,
and it was agreed between them that this
indebtedness should be discharged by
crediting testator's estate with payment
of that amount upon the claim of testa-
tor's mother. Upon an accounting of
testator's executor instituted in 1886,
Held, That the provision of the will in re-
gard to testator's mother was in the nature
of a legacy, and that, even if such were not
the case, the claim of the estate of testa-
tor's mother was taken out of the statute
of limitations by the crediting of the
$13.44 as a payment thereon.-In re estate
of Thompson, 172.

2. A statement of a claim on judgment
made in an administrator's account ac-
companied by a statement that the claim
is disputed is not an acknowledgment
within § 376 of the Code sufficient to take
such judgment out of the statute of limi-
tations. In re accounting of Kendrick,
315.

3. Plaintiffs, at defendant's request, loaned
certain money to one J. and took an as-
signment of a mortgage as security on an
agreement that on being reimbursed they
would transfer it to defendant. During
an action against J. defendant paid half
the loan and took assignment of half
the mortgage. Judgment was recovered
against J. and various sums collected of
him by supplementary proceedings.
Held, That the debt was not revived by
the sums so collected or by the payment
made by defendant; that whether de-
fendant's payment on the contract of
purchase was also made on the contract
of agency was a question for the jury,
and that it was error to direct a verdict
for plaintiffs. -Blair et al. v. Lynch, 367.
4. When a debtor, owing a larger sum, sent

the creditor his note for a certain
amount, which the creditor at once had
discounted at a bank in the regular course
of business, Held, That the payment of
the note by the debtor was not an ac-
knowledgment of his indebtedness to
the creditor and did not take the case out
of the statute of limitations.-Lawrence
v. Baker, 424.

5. It seems that the giving of the note for
the smaller sum was not an acknowledg
ment or new promise, under Code Civ.
Pro., 395, sufficient to save from the
effect of the statute of limitations the bal-
ance due beyond the note. It was a new
promise only to the extent of its face.-
Id.

See AGENCY, 5; ASSESSMENTS, 1; EXECU-
TORS, 20, 23; JUDGMENT, 2; WATER-
COURSES, 3.

LUNATICS.

See CONTRIBUTION, 3.

MANDAMUS.

See SCHOOLS, 2, 3; TAXES, 26.

MARINE INSURANCE.
See BILL OF PARTICULARS, 1.

MARRIAGE.

1. The presumption of marriage from a co-
habitation apparently matrimonial, in a
case involving legitimacy of children,
held to be repelled by the countervailing
evidence.-Newton v. Southworth et al,

170.

MARRIED WOMEN.

1. A married woman under the statute as it
stood in May, 1883, was not charged with
liability by the mere act of signing with
her husband a promissory note given for
money loaned her husband, and the bur-
then was on the plaintiff to establish by
evidence the requisite state of facts to
charge her.-Baker v. Gillett, 235.

2. The signing of such note by her is not in
legal effect an adoption of the representa-
tations of which she had no knowledge,
made at the time the loan was made and
note given.-Id.

3. Where the only evidence of the husband's
authority to hire a house in his wife's
name was that he requested the receipt
to be made out in her name, and she de-
nied that he had such authority, Held,
That she was not liable.-Sanford v. Pol-
lock, 278.