letters testamentary, administration, or want of jurisdiction on the part of such Surrogate, except in the manner and for the causes that the same could be impeached or invalidated, if made pursuant to the order of a court of original general jurisdiction.

It is claimed by counsel for the petitioner, that it is the duty of the Surrogate under Sec. 30, 2d Revised Statutes, page 109, to confirm the report of sale in this matter, because it appears The second section provides that to have been legally and fairly con- such sale shall not be invalidated or ducted, &c., but in order to determine impeached for any omission in any peunder that section whether the sale tition for such sale, provided it shall has been legally made, it becomes substantially show that an inventory necessary primarily to enquire whether has been filed, and that there are debts jurisdiction was obtained of the sub- which the personal estate is insufficient ject matter and of the parties inter- to discharge, and that recourse is neces ested by the petition and order to show sary to the real estate. cause and the service thereof.

The third section provides that such sale shall not be invalidated by reason of an irregularity in any matter or proceeding after the presentation of any petition, and the giving notice of the order to show cause, &c., and this provision is substantially preserved in the several acts amending the 3d Section.

It is also claimed by said counsel that Section 1 of Chapter 359 of the Laws of 1870, precludes the purchaser from objecting to the completion of his purchase because he has not appealed, or taken proceedings to set aside, open, vacate, or modify the proceedings in this matter, and several authorities are cited to sustain this view.

It is clear that the petition does not conform to the 4th subdivision of Section 2, 2d Revised Statutes, 104. That section prescribes, as it seems to me, the facts that are necessary to be inserted in order to obtain jurisdiction: the language of the section is "Petition shall set forth," and the omission of any of its requirements fails to secure jurisdiction.

It cannot be denied that the petition in this matter was defective in the particulars above referred to, and if the requirements of the Statute, prescribing what the petition shall contain, may be disregarded in one particular, it may be in all, but it is urged by the petitioner's counsel that under the act of 1850, Chapter 82, Sections 1, 2 and 3 and the amendments of Section 3 by Chapter 260 of the Laws of 1869, and 92 of the Laws of 1872, the objections referred to are cured.

The case of Forbes v. Halsey is cited as authority for the doctrine that no sale shall be invalidated by reason of any irregularity occurring after the presentation of the petition, but that was a case of ejectment, and clearly within the provision of the act of 1850.

The learned counsel has evidently failed to appreciate the object of that act, when he seeks to make sections 1,

By section 1 of the act of 1850, it is provided that the title of any purchaser at any such sale, made in good faith, shall not be impeached or invalidated 2 and 3 of that act applicable to proby reason of any omission, error, defect ceedings before the Surrogate, and gives or irregularity of the proceeding before no force to section 4, which seems to be the Surrogate, or by any allegation of the only section affecting the Surrogate,

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and one which specifically provides that make the order of sale, it is not perhaps he shall not confirm any such sale, un- necessary that I should consider the less, upon due examination, he shall be other questions involved in this matter, satisfied that the provisions of said title but it may be proper to state that after have been complied with, as if this act the Surrogate acquires jurisdiction, any had not been passed, showing conclus- other proceedings required by the staively that the act in question was not tute, that may have been omitted in intended to relieve the Surrogate from the progress of the proceedings, might strict conformity to the Revised Stat- be supplied by being taken nunc proutes, but only to throw such guard tunc, such as the proof and adjudication around the purchaser, by presumptions of claims, the entry of the order for of regularity, after the Surrogate has sale, the execution and approval of the acted. bond, as this court possesses the same authority as other tribunals to remedy and correct errors or mistakes in the course of proceedings, in cases where jurisdiction has been regularly acquired.

See Farrington v. King, above cited, at page 191.

For the defective character of the petition in this matter, the motion to confirm the sale must be denied.

I think the act of 1870, in its 1st section, does not contemplate any limitation of the strict requirement of the Revised Statutes in conducting such proceedings, and are not applicable to such proceedings pending before that officer; otherwise it would nullify the 4th section of the act of 1850. I am therefore of the opinion that the several acts referred to do not relieve the

Surrogate from strict conformity to the CHARGING SEPARATE ESTATE.

Revised Statutes in respects to all the proceedings required by their provisions, and that it is my duty to recognize and act upon any objection of irregularity as well as of jurisdiction, on this hearing.

And as I am not satisfied that the provisions of the Revised Statutes in respect to the sale and disposition of the real estate of the intestate have been complied with, I should refuse to confirm the report of sale. Ackley v. Dygert, 33 Barb. 176; Farrington v. King, 1 Brad. 182; Wood v. McChesney, 40 Barb. 417.

It is well settled upon authority that any recitals of jurisdiction in any of the orders of the former Surrogate cannot affect the question of jurisdic tion. See Sidley v. Waffle, 16 N. Y. 189. Having reached the conclusion that there is a defect of jurisdiction to


John G. C. Todicker, respt. v. Mary A. Cantrell, applt.

Decided May 1, 1876. Insertion in note of married woman, after its execution, of words making it binding on her separate estate, if authorized by her, is valid. Appeal from judgment entered on verdict of a jury.

Defendant, who is a married woman, applied to one of her tenants, one Harms, for a loan, and he being unable to furnish it, she asked him if he knew any one who would, agreeing to pay him a bonus if he would get the loan for her.

He called upon plaintiff, who loaned the amount desired, $700, taking defendant's notes therefor. These notes

Harms endorsed at the time of making, and was paid by defendant $45 as a bo


When the notes were given, as alleged by plaintiff, he said that he would see his counsel, and if there was any

change in their form necessary he would

make it, to which defendant assented, and thereafter was added: "I hereby charge my separate estate with the payment of the above."

Defendant denied that she had authorized the change, and alleged that the bonus of $45 had been given plaintiff, and that the notes were therefore usurious.

Both the question of authority to inake the change and of usury were put to the jury, which rendered a verdict. for plaintiff.

The question of usury was given on conflicting evidence to the jury, and they found against defendant, and the proof showed that plaintiff received none of the bonus, and that it was not intended he should.


Shader, adm'r, &c., applt., v. The
Railway Passenger Assurance Co. of
Hartford, respt.

Decided June 20, 1876.

Where a policy of accidental insurance contains a provision that "no claim shall be made * *where the death or injury may have happened while the insured was, or in consequence of his having been under the influence of intoxicating drinks," and the insured, while in that state, was shot, Held, that the limitation related to his condition, not to the cause which might produce his death.

It was not essential to work a forfeit ure that the injury or death shoula occur in consequence of the use of intoxicating liquors.

Dan'l T. Robertson, for respt.
II. H. Morange, for applt.

On appeal.

This action was brought upon ar accidental insurance policy, which pro vided that "" no claim shall be made under this policy where the death or Held, That the question of defend-injury may have happened while the ant's having authorized the change insured was, or in consequence of his was fairly put to the jury, and having been under the influence of inthey found for plaintiff. The authority toxicating drinks." It appeared that conferred by defendant and in the man- after receiving his insurance ticket, the ner described, was abundant. The de- assured spent the day with one W., and sign was to make the notes valid instru- during the day he and W. drank from ments against her as feme covert, and a bottle of champagne and a bottle of this was plaintiff's right for the consid- Irish whiskey, but neither appeared eration given. under the influence of liquor when they sat down to dinner at five o'clock. Champagne and whiskey were put upon the table, and both drank. Several witnesses swore that the assured showed by his manner and speech that he was under the influence of liquor. Others who saw him either shortly before or at the beginning of dinner thought him not under the influence of liquor, if he had drank any. While at dinner, W. shot the insured, inflicting a wound of The judge stated to the jury, that the question was not sim

But if the notes had not been thus altered plaintiff could still have recovered as he proved that the loan was made for the benefit of her separate estate.

Judgment affirmed. Opinion by Brady J.; Davis, P. J., which he died. and Daniels, J. concurring.

ply whether the deceased was under the influence of intoxicating liquors at the time he was shot, but whether the injury occurred in consequence thereof, and was the natural and reasonable result of his being in that condition, and he charged, in substance, that if the injury happened in consequence of his being under the influence of intoxicating liquors, the plaintiff could not recover. Defendant's counsel requested the court to charge that if, at the time the assured was shot, he was under the influence of intoxicating drinks, plaintiff could not recover, and this was so whether the influence of the liquor occasioned the discharge of the pistol or not. This was declined and exceptions


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J. B. Adams, for applt. Geo. F. Danforth, for respt. Held, That the proposition laid down by the judge was erroneous, and he also erred in refusing to charge as requested; that the limitation in the policy related to the condition of the

This action was brought against the I. B. & W. R. Co. to enforce the payment of ten coupons of the said company, and forty-seven interest warrants of the D. U. B. & P. R. R. Co., each of which represented the semi-annual interest due April 1, 1871, on a $1,000 bond. The present defendant, having claimed the interest, was substituted as defendant in place of the Railway Co., the latter having paid the amount due into court. The coupons promised to assured, not to the cause which might pay the bearer $35 at a day and place named, for semi annual interest on produce his death; that it was not es- bond No. ———. The others were as sential to work a forfeiture that the follows: "$35. Interest warrant for injury or death should occur in conse-thirty-five dollars, $35, upon bond No. quence of the use of intoxicating of D. U. B. & P. R. R. Co., payliquors. Bradley v. Mut. B. L. Ins. able in gold coin at the office of the Co., 45 N. Y., 222, and Weltz v. Conn. Farmers' L. & T. Co. in the City of M. L. Ins. Co., 48 Id., 34, distinguished. New York, April 1, 1871," the num Judgment of General Term, revers-ber of the bond to which they were ing judgment for plaintiff on verdict attached being inserted in each. It and granting a new trial, affirmed. appeared that the coupons and i. terest Opinion by Miller, J. warrants were stolen from defendant and were purchased by plaintiff, who was a broker, in good faith, without


PONS. INTEREST WARRANTS. knowledge or notice that they had

N. Y. COURT OF APPEALS. Evertsen, respt., v. The National Bank of Newport, applt.

been stolen, and that he paid full value therefor.

Decided April 18, 1876.

Samuel Hand, for applt.
N. C. Moak, for respt.

Held, That as to the coupons of the I. B. & W. R. Co., they were promissory notes and negotiable, and the rule of caveat emptor did not apply and plaintiff's title to them was valid. 102 Mass. 503; 29 N. Y., 220. That their validity was not destroyed by their being separated from the bonds, nor was the title of one purchasing them without the production of the bonds to which they referred, impaired. 21 How., [U. S.,] 575; 1 Wall, 175; 20 Id., 583; 25 N. Y., 496; 57 Id., 573; 109 Mass., 88. Myers v. Y. & C. R. R. Co., 43 Me., 232; Jackson v. same, 48 Id., 147, disapproved.

Also held, That the interest warrants of the D. U. B. & P. R. R. Co. were not within the provisions of 1 R. S., 768, negotiable instruments as between th rd persons. They were neither promissory notes nor checks nor bills of ex change. 1 Pars. on Bills, 33; 13 Mass., 158; 1 H. Bl., 569; 6 Wend., 637; 4 Id., 575; Smith v. Clark & Co., 54 Mo., 58, and McCoy v. Wash. Co., 3 Wall. Jr., 381, distinguished; and that therefore plaintiff, although a bona fide transferee, acquired no title thereto.

Also held, That the coupons of the I. B. & W. R. Co., being promissory notes they had all the characteristics of such instruments and were entitled to

the benefit of the days of grace allow-which
able on bills and notes payable at a
given day or time.

poel, applt., v. The Mayor, &c., respt.

Decided July 6, 1876.

The records of proceedings in an assess-
ment cannot be reached by certiorari
to the Mayor, &c., by one seeking to
vacate the same.

Proceedings to vacate should be taken

under the statute.

Appeal from order denying application for certiorari.

The relator is the owner of certain

property on 5th avenue, New York, on
which an assessment for repaving has

been laid.

Desiring to vacate this for certain
alleged irregularities, he applies as a
preliminary step, for a writ of certio-
rari directed to the Mayor, Aldermen
and Commonalty, requesting them to
certify and return all papers, &c., rela-
ting to this assessment.

A. G. Vanderpoel, for applt.
W. C. Whitney, for respt.
On appeal.

Held, That the irregularities com-
dehors the record, and the production
plained of by the relator are apparently
of the records of the proceedings con-
cerning the assessment is not neces-
that appears.
sary therefore to his case for aught

He complains only of irregularities are the subject of proof, and which the proceedings referred to would not necessarily disclose. The allowance of the writ of certiorari is not

Judgment of General Term, affirm

ing judgment for plaintiff on report of always a matter of right, and in the

referee, reversed and new trial granted.
Opinion by Allen, J.

exercise of a sound discretion should be
granted only ex debito justitia, when
apparently necessary for the accom-
plishment of the relief scught (5 Wait's
Pr. and cases cllated).



Besides, Ch. 338 of act of 1858, and
312 of act of 1874, seem to confine

The People, ex rel. Jacob Vander-owners of property who seek to vacate

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