fecting the transaction, as well as from BILLS AND NOTES. PAYMENT. the statements contained in the affidaN. Y. COURT OF APPEALS. vits. The National Bank of Newburgh, general deposit of money in a bank will not operate as payment of a note held by the bank, and which has been protested, without specific instructions that it be so applied. The following circumstances, name-respt. v. Smith, applt, ly, that the goods were not needed for Decided May 25, 1876. family use when they were bought; A that the reason assigned for the purchases being evidently untrue; the early failure of the defendant; the fact that the defendant had in no way indicated any disposition to give up the goods This action was brought against dewhen their price was demanded, as well fendant as the endorser of a promissory as other circumstances in the case, just- note for $500, payable at plaintiff's ify the conclusion that the purchases bank. It appeared that when the note were made in the expectation of an ear- fell due, G., the maker, had no funds ly failure which would prevent the in the bank, except a balance of $10 43, plaintiffs from obtaining payment. and the note was duly protested. That proof of fraud, which always About two weeks afterwards G. made endeavors to guard itself from discov- a general deposit of a check for $500 ery by concealment, is peculiarly de. without any specific directions as to the pendent upon the force of circum- application or appropriation of it. Two stances for its support, and when they days after the deposit another note of are so decided as satisfactorily to estab- $500 made by G., payable at plaintiff's lish the conclusion that an intent to de-bank, fell due and was paid upon prefraud existed, it is not to be rejected sentment by plaintiff. Defendant claimbecause of the positive denial of it by ed that the note in suit was paid by the the parties concerned in the commission deposit of the $500. of the wrong. The wife of the defendant, in contracting the debt, acted as his agent. The goods were received at his residence for the use of his family; he had the benefit of them, and became liable to the plaintiffs for the payment of their purchase price. The debt was fraudulently incurred, and defendant was lawfully held to bail by the order made. Samuel Hand, for respt. Cassedy & Brown, for applt. Held, That the general deposit made by the maker of the note in suit after it had been protested, without regard to the note, did not of itself operate as a payment; that as there was no agrement that the deposit was to be appropriated for such a purpose, the act itself indicated that there was no intention n the part of the depositor or plaintiff to apply it upon the note. The subsequent disposition of the money, without objection, confirms the inference that 21 N. Y., 238; Id., 239, 240; 25 N. Y., 595, 599, 602; 40 N. Y., 454; 50 Barb., 349, 386–7. The order appealed from should be there was no design thus to appropriate reversed. Opinion by Davis, P. J.; Daniels rections or an agreement to that effect J. concurring. it was optional with the bank, whether it. In the absence of any express di it should apply the money or not upon the note in suit, and it was under no positive legal obligation to do so. 34 Barb. 298; 2 Comst. 352; 6 Wend. 611. Judgment of General Term, affirming judgment in favor of plaintiff, affirmed. Per curiam opinion. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM Edward C. Genet, respt. v. The Mayor, &c., of the City of New York, applt. Decided May 26, 1876. When upon the trial at circuit a circumstance or fact appears inconsistent with the defence, evidence explanatory of such fact is proper. Where there is a plain conflict of evidence upon one of the issues raised by the pleadings, it is error to take the question from the jury. Appeal from judgment recovered on the verdict of a jury directed by the court, and from order denying motion for a new trial upon the minutes. was paid at the rate of $1200 per annum for his services up to January 1st, 1872, but that nothing was paid from January 1st, 1872 to June 1st, 1872, although plaintiff had rendered services during the latter period. That in the course of his duties plaintiff was accustomed to go of errands for the judges. The evidence introduced by the defense showed that there was a contest in the fall of 1871, between the Comptroller and the Judges of the Common Pleas as to the appointments of the officers of the court; that a letter was written by the Comptroller to the Judges requesting information as to the number of officers required for that court, in reply to which letter a letter dated October 17th 1871, was addressed to the Comptroller by the Chief Justice of the Court of Common Pleas, stating that twenty persons would be sufficient, and stating the names of twenty persons who had been designated as such officers. Plaintiff's name was not among them. That after the above letter no person was recognized as an officer of the court except those included in the list designated by said letter. A pay-roll of the attendants of the Court of Common Pleas for the months of October, November, and December, 1871, was offered in evidence Action brought to recover for services performed by plaintiff as an officer of the Court of Common Pleas from the 1st of January to the 1st of June, 1872, inclusive, at the rate of $100 per month. Defence set up plaintiff was never upon which the plaintiff's name appearlegally appointed such officer, his pointment having been made by the Comptroller of the city of New York, and a general denial that the services sued for were ever rendered. ap On the trial plaintiff proved his appointment on the first day of October, 1870, by Comptroller Connolly, and that he rendered services from that time up to June 1st, 1872. That hel ed. The Clerk of the Court of Common Pleas, as a witness for the defence, was asked the question: "Do you know how that man's (plaintiff's) name came to be on the pay-roll after October 17th, 1872?" The question was objected to, and question excluded. Defendant's counsel offered in evi dence pay-rolls for the months of Jan- upon the pay-roll, the judgment should uary, February, March and April, 1872, be reversed, and a new trial ordered, certified by the Clerk, upon which with costs to abide the event. plaintiff's name did not appear. Opinion by Daniels, J.; Davis, P. At the close of the case the justice J. and Brady, J., concurring. presiding directed a verdict for the plaintiff. D. M. Cotton for respt. C. P. Miller for applt. Held, That it was proper for the defendants to show by the Clerk, if he knew, how plaintiff's name came to be upon the pay-roll after it had been dropped from the list of attendants upon the court. It might have appeared that it resulted from some mistake or misapprehension as to the facts. And that would have tended to remove the inconsistency in which the defendant and the witness both appeared, to some extent, to be involved. The evidence should have been received. Held further, That from the evidence there was a conflict of testimony as to whether the plaintiff continued in any manner to be regarded as an attendant upon the court after the 1st of January, 1872. The facts that he was not retained among those designated by the judges; that he was not recognized or regarded as an attendant by the Clerk, and that his salary was not paid after the 1st of January, 1872, very directly tend to establish the deence which was made in the case They tended to show that he was not in fact employed, and that he must have understood that to be the case. There was sufficient certainty upon the subject to entitle the defendant to have the case submitted to the jury. For that reason and because of the exclusion of the evidence proposed to be given by the clerk explanatory of the retention of the plaintiff's name. PARTNERSHIP, ORPHANS' COURT OF PHILADELPHIA. Estate of Nathaniel P. Gordon, deceased. Decided May 27, 1876. A partner to whom the partnership is indebted can have no satisfaction except out of what remains after the partnership debts are paid. The decedent was the surviving member of the firm of which he had been a copartner. His copartner in his lifetime deposited certain of his individual securities and private property with a creditor of the firm, as collateral security for a partnership debt. The debt remained unpaid at his death, and also at the death of the surviving partner, the present decedent, which occurred some time after. Letters of adminis tration were taken out upon the estate of each partner. The settlement of the affairs of the firm having devolved upon the administrator of the survivor, in the fulfilment of his duty, he entered into an agreement and contract with certain creditors of the firm, and the administrator, widow, and creditors of the other deceased partner, whereby the accountant was authorized and empowered to sell at private sale, certain real and personal estate of the firm, to the creditor whose debt had been secured by the deposit of collateral securities, as stated, and with the proceeds. first pay certain other firm creditors, and apply the balance to the liquidation of the claim of the secured cred itor. It was further agreed that account- debtedness, claimed to be entitled to ant should receive from the secured the entire balance in preference to the creditor, all the property, whether of firm creditors. The fund was awarded individual or firm assets, deposited as to the administrator. collateral security, and "use and apply Hanna, J.-It is a general rule of law, the proceeds of the former, so far as both in England and in this country, may be requisite, for and to the pay- that partnership assets must first be apment of any balance which shall remain lied to the payment of partnership due to the Philadelphia and Reading debts. Parsons on Partnership, 346; Coal and Iron Company by the firm of Bispham's Eq., 461; 8 Wright, 503; Repplier, Gordon & Co., after the ap- 9 Wright, 484. propriation of the proceeds of the collieries to the liquidation thereof, as aforesaid, the respective rights of the firm estate, and of the separate estates, in and to the proceeds of the said collaterals which shall be so used, and the respective rights of each of said estates arising from the said use of those which shall be used, not to be in any manner affected or prejudiced hereby, but to remain for future adjustment or deter An advance to the firm, as against mination." This agreement was car- creditors, is to be treated as an addition ried out, the conveyance made, and to to the capital, and does not ipso facto discharge the balance of the debt due constitute the partner a creditor of the the secured creditor, not only firm col- firm. A partner to whom the partnerlaterals, but a portion of the indi-ship is indebted can have no satisfacvidual securities, deposited in the man- tion but out of what remains after all ner stated, were assigned, and the bal- the joint debts are paid. ance returned to the administrator of the deceased partner, as his separate es tate. There were, however, creditors of the firm, who were not parties to and never sanctioned or ratified this agreement and settlement. The partner paying a debt cannot be substituted to the rights of the creditor against his copartner; he must first account for the profits of the business in which they were jointly engaged. If there is anything due him, account rendered is his remedy at law, and to that action, or to a bill in equity for an account he ought to be remitted. Baily v. Brownfield, 8 Harris, 46. The pledge by the deceased partner in his lifetime of his individual property, was a loan or advance to the firm. It would be contrary to equity to hold him to be a creditor of the firm and entitled to a preference in the distribution of the firm assets, should his collaterals be used to pay his debts; or to hold in case of insolvency that he was entitled to share pro rata with the rest of the creditors. Upon the audit of the account of the administrator of the surviving partner, they claimed to be awarded their respective claims against the firm, and the administrator of the Neither can the administrator claim deceased partner, whose separate prop-to be a creditor of the firm to the prejuerty had been applied by accountant, dice of the other creditors, as he stands in pursuance of the agreement men- in the same position as the decedent tioned, to the payment of the firm in- whom he represents. The exceptants were not parties to the direction of the court, gave a versettlement made by the accountant with diet for the plaintiff for the whole a creditor who was thereby given a amount claimed. preference, and their rights cannot be affected or diminished thereby. Being of opinion that the claims of the creditors are entitled to payment, and that the balance should be retained by the accountant to await a settlement between the partners, the exceptions are sustained. SLANDER. U. S. SUPREME COURT. Marie A. N. Pollard, pltff. in error, v. Jacob Lyon, deft in error. (October, 1875). Words spoken, imputing unchastity to a female, are not actionable without special damage. The special damage should be alleged and proved specifically. (See, how ever, Laws of N. Y., 1871, c. 219.) This was an action on the case for slander,rought by plaintiff to recover damages for the injury to her name and fame. The defendant filed a motion in arrest of judgment, on the ground that the words set forth in the declaration are not actionable, and because the declaration does not state a cause of action which entitles the plaintiff to recover. The court ordered the motion to be heard at the general term in the first in stance. The general term sustained the motion in arrest of judgment, and decided that the declaration was bad in sub stance. Judgment was subsequently rendered for the defendant, and the plaintiff sued out this writ of error. Clifford.J-Certain words, all admit, are in themselves actionable, because the natural consequence of what they impute to the party is damage; as if they import a charge that the party has been guilty of a criminal offence involv ing moral turpitude, or that the party is infected with a contagious distemper, or if they are prejudicial in a pecuniary sense, to a person in office, or to a person engaged as a livelihood in a profession or trade, but in all other cases the party who brings an action for words spoken must show the damage he or she has suffered by the false speaking of the other party. The declaration was as follows: "That the defendant, on a day named, speaking of the plaintiff, falsely and maliciously said, spoke and published of the plaintiff the words following: 'I saw her in bed with Captain Denty.' That at another time, to wit, on the same day, the defendant falsely and mali- Unless the words alleged impute the ciously spoke and published of the the offence of adultery, it can hardly plaintiff the words following: 'I look-be contended that they impute any ed over the transom light and saw Mrs. criminal offence for which the party. Pollard,' meaning the plaintiff, 'in bed may be indicted and punished in this with Captain Denty,' whereby the district (District of Columbia), and the plaintiff has been damaged and injured court is of opinion that the words do in her name and fame, and she claims damages therefor in the sum of ten thousand dollars." The defendant pleaded the general issue, and on the trial, the jury, under not impute such an offence, for the reason that the declaration does not allege that either plaintiff or defendant were married at the time the words were spoken. Our conclusion is that plain |