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note endorsed by such citizen, in the United gagor to procure the necessary mortgage search.
States Courts for that district. The Commercial Houseman v. The Girard Mutual Bldg, and Loan
Bank of Clevelanci v. Simmons et al.
97 Ass.

188
Under sec. 5198 of the U. S. R. S. relating to firing plaintiff's woodland, whether or not the

In an action against a railroad for negligently
penalties against national banks for receiving a
greater rate of interest than is allowed by law, fendant's negligence, is a question for the jury.

injury was the direct natural consequence of de-
no recovery can be had beyond twice the sum of Pennsylvania R.R. Co. v. Hope.

208
the interest paid in excess of the legal rate.
Hinaermistor v. The First National Bank of If passenger is directed to front platform with
Chittenango.

173 his bargage by conductor, and remains there,
The restriction in section 57 of Act of Con- and is there injured, he is not chargeable with

believing himself to be so ordered by conductor,
gress of 1864, as amended by section 2, chapter contributory negligence. Mack v. Dry Dock &
269 of laws of Congress, 1873 (3d session), as to East N. Y.R.R. Co.

251
issuing attachment, execution or injunction, be-
fore final judgment against national banks, does And that is so, though there is room inside,
not relate to such banks as are located in other and a notice posted conspicuously forbidding
States than that in which the suit is brought, riding on front platforin.

Ib.
but to those that are within such State South-
wick v. First National Bank of Memphis.

Where a person approaches a railroad cross-

ing it is his duty, before crossing to take the
In the absence of action on the part of the precaution to look both ways to see and ascer
Controller of the Currency, the courts have tain whether or not a train is approaching, and
power to appoint a receiver of a national bank his failure to do so is negligence. Stockus v. The
upon application by a judgment creditor, subject, N. Y.C. & H. R. R.R. Co.

401
possibly, to his being superseded by the action
of the Controllor. Wrighi v. Merchants' Na-

The owner of an implement or piece of ma-
tional Bank.

539 chinery may lawfully allow another to take and

use it, and if in using it becomes defective and
When the general banking law does not pro. causes injury to a third person, the owner is not
vide for action by the Controller, a judgment liable. King v. The N. Ý. C. & H. R. R. R. Co.
creditor is entitled to the aid of a court of equity.

460
Ib.

Where a person is killed while walking over
NE EXEAT.

a railroad crossing in the daytime, there being
See PRACTICE.

nothing to obstruct the view of the track, and it

does not appear that there was anything to dis-
NEGLIGENCE.

tract her attention, Held, that she was guilty of

contributory negligence. Mitchel ame'r v. The
An agister of cattle is liable for damages done N. Y. C. & H. R R. R. Co.

586
through his negligence by a vicious animal in
his care, to another animal also in his

The same degree of care is not required of one
al-

care,
though he may not have known the vicious' dis- driving a team across a railroad crossing as of
position of the former. Smith v. Cook
73

16.

one crossing on foot.
The question of contributory negligence is one

As to exemplary damages in case of, see

DAMAGES-
for the jury Hill adm'r v. The N. Y. C. & H. R.
R.R. Co.

94
See also PRACTICE; NEGOTIABLE PAPER.

NEGOTIABLE PAPER.
It is negligence in a passenger to alight from
a railway carriage while the train is in motion ; Negotiable paper issued in such condition as
and it makes no difference that the passenger had to be easily susceptible of alteration amounting
arrived at her destination and the train did not to a forgery, will be enforced in the hands of a
stop long enough for her to alight in safety. bona fide holder. Brown v. Rced.

35
Burrows y, The Erie R.R. Co.

105

But where an instrument not purporting to be
Contributory negligence cannot be charged negotiable paper, but capable of being readily
against a child of tender years, where its parents altered, without detection into such, is signed,
exercise such care in respect to it as persons of whether or not the party signing was guilty of
ordinary prudence would exercise under the cir- negligence, is a question of fact for the jury. Ib
cumstances, and where it exercises such care as
might reasonably be expected from one of its

A party taking a note as collateral security for
age. Fallon v. Central Park, N. & E. R.R. Co. a precedent debt, without making any advances

112

or giving any new credit thereon, is not a bona

fide holder. First National Bank of Clarion v.
It is no defence for a person against whom | Gregg.

66
negligence which caused damage is proved, to

A general promise for a valuable consideration
show that without fault on his part the same
damage would have resulted from the negli- benefit of the promisee's creditors, applies only

to pay all the debts of another, if it inures to the
gent act of another.
Slater et al. v. Mersereau. to those who were such at the time the promise

130

was made, and any one thereafter taking the
It is not prima facie negligence in a mortgagee promisee's outstanding note by endorsement
or his conveyancer, to allow the proposed mort from a then creditor, takes it subject to all equi

er.

ties between the endorser and promissor, even dorsement to the payee of the paper, when he has
though it may be taken for value before matu- made himself such for the purpose of securing
rity. Barlow et al. v. Myers.

87 the credit for the makers. Weld et al. v. Bouns.
Where a bank holding negotiable paper re-

286
ceives the money on it, on the day of its matu-
rity, from a party to is who takes it up without evidence that the party endorsing commercial

The payee upon a note may show by parol
informing the bank of his purpose, and transfers
it to a third party, the latter takes it subject to himself

and designed to become the first endors-

paper as its second endorser, had really bonnd
all equities existing between the maker and the
party taking it up. Lancey v. Clark. 146

16.
If the maker of a negotiable promissory note

Persons endorsing commercial paper should be
is induced to sign it by fraud, yet in so signing held liable to those appearing to be prior par.
acts negligently, he is liable thereon to a bona ties upon it, when they are shown to have agreed
fide holder for value. Citézens' National Bank to assume that relation, and the agreement was
v. Smith.

147 made upon a sufficient consideration. Ib.
A receipt given on the deposit of moneys, Where an accommodation note is given and
agreeing to pay the depositor or order in paper used as a collateral, and has not been diverted,
currency the amount deposited upon the return the person holding it as collateral may recover
of the receipt, is a negotiable promissory note. against the makers. (Frocers' Bank v. Penfield
Frank v. Wessels.
163 et al.

344
In an action brought thereon the defendant,
under the 2 R. S., 406, is entitled to a bond of

An agreement to extend time on the original
indemnity where the instrument has been lost. debt may be presumed from circumstances. 10.

16.

An endorser's promise to pay, after maturity
Payments of negotiable paper before it is due, of the paper, to be binding must be made with
and in the absence of such paper, are not made a full knowledge of all the facts. Richard et al.
in due course of business, and the party so pay- v. toller

352
ing should be held to do so at his own risk.
Therefore, the maker of negotiable paper is not A check for twenty dollars, drawn on the
discharged, if before the maturity of the paper, First National Bank of Houston, was fraudu-
and after its transfer, even as collateral security, lently altered and raised by the payee to two
he makes payment to any person other than the thousand dollars. It was purchased of him by
real holder. Gosling v. Griffin.

190

J. & Co., who endorsed it to their agents, tho
It is not competent for the maker of a prom- City Bank of Houston, who presented it to the
issory note to set up, as a defence to a suit by First National Bank, and it was by said bank
an endorsee for value after maturity, any equi- pronounced good. In the usual. course of busi
ties existing between the maker and an inter ness it was taken up by the First National Bank
mediate endorsee, not connected with the trans- in the exchange of checks after bank hours.
action between the original parties. Young et The City Bank thereupon gave J. & Co. credit
al. v. Shriner.

210 for the amount. The forgery was not discovered

until the next month, on the balancing of the
The bona fide holder of negotiable paper can

accounts between the banks.
recover without regard to any fraud in its incep-
tion. Roberts v. Lane.

223

Held, That the National Bank was entitled to
One who puts in suit a note shown to have recover the amount from the City Bank as
been obtained from the maker by fraud, assumes money paid under a mistake of fact. City Bank
the burden of establishing his own good faith. of Houston v. First National Bank. 379
It is immaterial what the plaintiff's knowledge
may be, if any prior owner whose right he has Where a bank certifies a check without filling
was a bona fide holder of the note.

1b. all blanks, and by such omission the check is

raised, it is liable in an action to recover the
It does not affect the principles of law above value of such raised check. Helvese v. Hibernia
stated, that the note was made to the maker's National Bank.

417
order and bore only bis endorsement, if it is
shown that in fact it was purchased by the plain The certificate of a bank is equivalent to an
tiff's predecessor in title, in good faith and for

acceptance.

Ib.
valuo, of him to whom the maker first gave it.

16.

The giving of a promissory note by one per-

son to another is presumptively a settlement of
Where an agent acts in making or endorsing all demands between the parties. Sherman
negotiable instruments within the scope of his admr. v. McIntyre.

486
general authority, the fact that he has abused or
perverted it in the particular instance, consti This presumption may be repelled by evi-
tutes no partlcular defense against a bona fide dence.
holder for value. White's Bank of Buffalo v.
Getz.

267 An endorsee of a note, who takes it as collat.

eral security for a debt, created at the time,
An endorser will become liable upon his en- with no notice of any equities between the origi-

Ib.

et al.

nal parties, and relying on the note for security, Only those persons can be sued on an inden-
is a bona fide holder for value. Logan v. Smith ture, who are named as parties thereto. Briggs
509 et al. v. Partridge et al.

371
The time when a note should have its incep-

A plaintiff has a sufficient interest to sustain
tion is a question of fact for the jury under all the an action upon several promissory notes en-
facts. Sweet v. Chapman.

513

dorsed to him for the purpose of collection, such
In an action on a note given by an intestate endorsements being made upon the understand-
just before his death, mere inadequacy of con- ing that plaintiff would collect the notes if pos-
sideration, except as a circumstance bearing sible, and then account to the respective endors-
upon the question of fraud or undue influence, ers for the proceeds of the notes over and above
is not a dofence to the note. Earl v. Peck, admr. their respective shares of plaintiff's expenses,
527 and the expenses of collection. Devol v. Barnes.

384
A party to a note may annex to such note any
condition as to its delivery he may deem pro-

The Board of Health is the successor of the
per. Lattimer et al. v. Hill et al.

566 City Inspector, and as such has control of all

existing contracts made by hím. Bell v. The
Insertion in note of married woman, after its Mayor, &c., of New York.

511
execution, of words making it binding on her
separate estate, if authorized by her is valid. By section 5, act of 1874, the Board is made a
Todicker v. Cantrell.

572 necessary party in any action where any of its
proceedings are called in question.

Ib.
As to manner of protesting negotiable paper,
see PROTEST.

PARTITION.
As to evidence in actions on negotiable paper,
see EVIDENCE.

A sale in partition discharges & mortgage

made by one of the co-tenants upon his interest.
NEW TRIAL.
The act of March 20, 1867, does not prevent this.

222
If the charge of a jndge is erroneous, it is the Wright v. Vickers, admr.
duty of the court to grant a new trial, although An estate in fee, not subject to any life estate,
neither the evidence nor the charge was excep: though subject to the possession of trustees for
ted to. Lattimer et al. v. Hill et al.

566

the purpose of executing certain trusts, is a suffi.
For other cases in which a new trial may be cient possession to uphold an action for parti-
granted, see PRACTICE.

tion. Chapman et al. v. Cowenhoven impld. 365
NONSUIT.

A receiver appointed under supplementary

proceedings may maintain an action for the par-
See PRACTICE.

tition of real estate in which the judgment

debtor is interested as a tenant in common.
NUISANCE.
Powelson, recr. v. Reeve et al.

375
Burning brick with anthracite coal for a fuel

But the action being an equitable one, the
is a nuisance. Compbell et al. v. Seaman. 41

court will order its discontinuance upon the pay.

ment of the judgment under which the receiver
OFFICIAL CERTIFICATE.

was appointed, together with his costs, fees and
The Recorder of Deeds is liable in damages expenses as receiver.

16.
for losses suffered by a mortgagee by reason of It is not admissible in an action of partition to
a false certiícate of mortgage search issued

from try the legal title, but equitable claims may be
the recorder's office. Houseman y. The Girard determined in such actions. Knapp v. Hunger-
Mutual Bldg. and Loan A88.
188

490
PARENT AND CHILD.

PARTNERSHIP.
To entitle a daughter to recover of her father

A partner is not liable for goods ordered by
for wages for her labor and services, the contract his

copartners, on his individual account, where
to pay her must be clearly proved. Sullivan y; the goods, by mistake, were delivered to the
Sullivan.

111

firm, if immediate notice is given the vendor.
Story v. Evans.

89
PARTIES.

Where one of several partners withdraws
In the action against a firm of which one of from the firm, under an agreement that the re-
the partners is dead, the administratrix of the maining partners and another shall pay all the
deceased partner is a proper party defendant. debts, the retiring partner becomes, as between
Hlaénes et al. v. Hollister, admrž., &c.. et al. 20

himself and former partners, a surety. Moess v.
So also is the assignee of the firm where an Gleason et al.

151
accounting is prayed for.

16. And where he procures a past due outstand-
In a certiorari where the collection of a tax in ing note of the old firm to be transferred to
the hands of the City Treasurer is stayed, the one of his former partners, who transfers it to
Treasurer is a proper party. So also, all the a third party, he is not liable thereon until the
assessors of the city. The People ex rel. Ulica holder exhausts all his remedies against the
& Black R. R. Co. y. Shields et al.
157 partnership assets.

Jb.

ford et al.

Ib.

Where, upon the formation of a copartner combined forces or processes, from that given by
ship, it is agreed that the new concern shall their separate parts. There must be a new re-
take the assets of one of the partners and pay sult produced by their union,

16.
all his specified debts, such promise inures to
the benefit of the creditors of him whose assets

Where a license has been given by one or
were so tiiken. Arnold et al, exrs. v. Nichols, more of several owners in common of letters
impld, &c.

174 patent, the remedy of the others is by action

for an account for whatever has been received.
And so long as the incoming partner retains De Witt v. Elmira Nobles Mfg. Co.

589
the assets, lie cannot defend upon the ground he
was fraudulently induced to make the agree-

As to sale of void patent, see CONSIDEEATION.
ment.

16.

As to jurisdiction of State and Federal Courts
One partner has no right, unless specifically in actions on patents, see JURISDICTION.
authorized, to retain an attorney to appear in an
action for his copartners in a suit brought

PAYMENT.
against all the copartners. Lyles et al v. Hagy

A voluntary payment cannot be recovered.
el al.

287

Fear of the result of an arbitration is not
Where partners have settled and liquidated duress, and cannot affect the fact of its being
their accounts, Courts of Equity will not open

made voluntarily. Quincey v. White. 37
them except upon clearly proved allegations of
fraud or inistake. Augsbury v. ,Flower.

Whether a payment is voluptary or not is a
359

question of law. Scholey, exr. v. Mumford, rrr.
A partner to whom the partnership is indebted

294
can have no satisfaction except out of what re-
mains after the partnership debts are paid.

Where illegal fees are demanded and paid as

a condition of giving up certain property, such
Estate of Gordon.

438

payment is not voluntary.
Where firm holds all earnings in common, it
is enough interested in a contract of third party ties, the law applies payments first to the in-

In the absence of appropriation by the par-
with a member of said firm, to bring an action terest, and then to the principal of the debt.
in the firm name to enforce said contract. Moore v. Kif et al.

307
Tracy et al v. Watson.

524

Where a debt is payable in a commodity, a
Partnership debts must be first paid out of failure to make or offer such payment fixes a
partnership property, and when creditors obtain liability to pay in money.

Ib.
judgment against one member of a firm, and
judgment is rendered against the creditor in A party who pays money in his hands to A.,
favor of other members of the firm on ground who claims the same, after notice by B. that
of infancy, such creditor is still entitled to be such money is the property of B., does so at his
paid out of partnership property. Whittemore peril. Phillips v. Pace.

350
v. Elliott et al.

535

Where one of several partners dies, and the
Where one party advances money to another partnership is in debt, and the surviving part-
to be used in iusiness under an agreement that ners continue their dealings with a particular
they are to share equally in the profits and creditor, and the latter joins the transactions of
losses, they are partners as to third persons. the old and new firms in one entire account,
Mason v. Partridge, impld.

576 payments made from time to time by the sur.
Where there are limitations upon the au-

viving partners must be applied to the old debt.

407
thority of the active partner to bind the other. Hooper et al v. Keay et al.
by debts contracted by him, and the limitations The pecuniary ability of the defendant does
have been disregarded with knowledge of such not raise a presumption of payment. Altxan-
other, they furnish no defense, even as to those ler, exr. v. Dutcher.

415
who knew of them.

1b.

A general deposit of money in a bank will
As to power of onc member of a firm to bind not operate as payment of a note held by the
his copartners by submission to arbitration, see bank, and which has been protested, without
ARBITRATION.

specific instructions that it be so applied. Na-

436
As to power of one partner, after the dissolu- tional Bank of Neuburgh v. Smith.
tion of copartnership, to enter an appearances A negotiable note given for assessment on a
for other nonresident partners who were not per- premium note is payment of the same, if so in.
sonally served, see JURISDICTION.

tended by the parties at the time, and ihe agent

in taking it binds the company, by his act.
PATENTS.

Lycoming Mutual Fire Ins. Co. v. Bedford. 444
The decision of the Commissioner of Patents

PERJURY.
as to the extent of the utility or importance of
an improvement is not conclusive. Reckendor-

An extra-judiciai oath is no ground for indict-
fer v. Faber.

677 ment for perjury. Van Dusen v. The People. 90
A combination, to be patentable, must pro- The Fire Marshal of the City of New York
duce a different force or effect, or result in the has power to administer an oaih upon an in.

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quiry into the cause or circumstances of a fire, tee of the corporation for neglect to make and
without first having a complaint under oath publish the report required by law, cannot be
made before him. Harris v. The People. 108 joined. Wiles et al. v. Suydam.

281
On the trial of an indictment for perjury, The fact that the allegations as to botlı
which charged the prisoner with having sworn grounds were mingled in one count, does not
falsely that he had lost 60,000 cigars by the deprive defendant of the right to demur. Io.
fire, and the proof showed that he swore to
having lost 65,000, the variance is immaterial, Where defendant believes in good faith that
and it cannot be raised on appeal.

16. he is concluded from pleading a certain defense,

and therefore omits it in his answer, but after.
PERSONAL PROPERTY.

wards and before trial learns that the disability
Where a conflict arises between the laws of should be allowed to amend his answer, and to

as to the particular defense is removed, le
two States as to the distribution of personal
property, the law of the State where the prop- Mayor, &c., of N. Y.

set up this defense. Seaver, collector, v. The

340
erty is situated must control. Rice, exr., &c.,
v. llarbeson et al.

49

In such a case defendant should pay all costs
The judgment of another State affecting the incurred from the time of service of his original
distribution of the personal property of a de. answer.

16.
ceased citizen of this State, is of no effect as
against the decree of a court of this State. 16.

In an action arising out of an alleged breach

of covenant of seizin in a summons for money
As to effect of attaching to real estate, see demand under subdivision 1 sec. 129 of the code,
FIXTURES.

is not proper; it should be under subdivision 2.
Strong v. Dana.

423
PLEADINGS.
A complaint uniting in one statement two action is in a receiver named, and not in plain-

An allegation in the answer that the right of
causes of action, growing out of same act. but tiff, is a proper defence, and not demurrable.
against different parties, not demurrable. Ar. Under this defendant may prove appointment of
rell v. Ossusky et al.

9

receiver, and all facts necessary to establish his
A demurrer on the ground of a defect of

title. Torensend v. Norris.

433
par-
ties will lie only where the defect is apparent ; General averments of time refer to the com-
otherwise the objection must be taken by an-

mencement of the action.

Ib.
swer, Haines et al. v, Hollister, admrx. &c., et
al.

20 The court has authority to appoint a trustee
An amendment changing a cause of action an allegation that he was duly appointed by an

of real estate in place of a deceased trustee, and
upon certain notes to an action to recover cer- order of the court is sufficient. Hoj', trustee, v,
tain loans for which the notes were given,can-

Pentz.

489
not be regarded as the substitution of a new
cause of action. Rocky Mountain National An amendment to a complaint striking out a
Bank v. Bliss.

39 waiver of a tort will not be allowed. Cushman
No reply is necessary where the answer sets

Jewell.
up merely that plaintiff is not the real party in

Where plaintiff delays for several years after
interest. Johnson v. White.

90

issue joined, in bringing his cause to trial, such
Denial of knowledge or information sufficient delay will not prevent defendant amending his
to form a belief, in answering affidavit, is insuffi- answer. Bradley v. Sheehy.

589
cient to put in issue positive allegations in the
affidavit of applicant for writ of mandamus.

As to setting aside answer in foreclosure as
The People ex rel. Carlton v. Board of Asse8 sham, see MORTGAGE.

118

As to pleadings in actions by executors, see
In a suit against the maker of a promissory EXECUTORS AND ADMINISTRATORS.
note, it is not sufficient to allege that plaintiff
had "settled with” the payee, without alleging

As to pleadings in actions for fraud, see
payment. Bank v. Berger.

In an action for damages for fraud committed As to amendments of pleadings, see PRAC-
by means of representations, falsely stating the TICE.
state of defendant's knowledge, it should be so
alleged specifically in the complaint to raise As to pleadings in actions where a receiver is
such an issue on the trial. Marshall v. Foroler a party, see RECEIVERS.
et al.

274

For rules of pleading in various special pro.
In an action against a stockholder to recover ceedings, see their titles, such as BANKRUPTCY,
the amount of a judgment against an insolvent &c.
corporation, on ground of failure to pay in his
stock, and because no certificate of the payment

POSSESSION.
of capital stock had been filed, a cause of action,
seeking to recover against defendant as a trus-

See TITLE.

V.

567

8018.

274 FRAUDS.

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