appeal to general term from an interlocutory judgment. Hathaway v. Russell, 103.
proper judgment roll. See Knapp V. Roche, 200.
Question of fact, how brought up for review. See Dart v. Gillies, 560.
5. The defendant appealed from an order referring the issues in the action for trial, and thereafter applied for leave to serve an amended answer, which was granted upon condition that the order of If the plaintiff's attorney consent to
reference stand, and that the issues made by the amended answer be tried thereunder. Thereupon defendant duly entered an order in compliance with said conditions, served an amended answer, and proceeded with the reference. Held, that he thereby waived his right of appeal from the order of reference. Egbert v. O'Conner, 194. 6. Upon an appeal from an order
denying a motion to open a default, the general term may, on reversal, direct the entry of such order opening the default as the special term should have granted. Knauer v. Globe Ins. Co., 370. 7. In an action for an accounting, judgment was rendered at special term, adjudging that the complaint be dismissed on the ground that an accounting had already
a postponement of the justification of defendant's sureties on arrrest, though for an indefinite time, the sheriff is not liable as bail under § 201, Co. Proc., and has no right to re-arrest the defendant, until an actual default has been made by the sureties. In case of such rearrest before default, proof of prior notice by the sheriff to the defendant that he would expect the undertaking to be approved of at once by the judge, on justification, or by the plaintiff's attorney, affords no defense to an action for false imprisonment, nor does ignorance of the existence of the stipulation postponing justification constitute a defense. Arteaga v. Conner, 91.
OF CREDITORS.
Where an assignee for benefit of creditors has received assets, it is no defense to an action for an accounting, brought against him by the creditors, to allege that, since the execution of said assignment, the assignor petitioned for and was granted a discharge in bankruptcy from the debts thereby secured. The beneficiaries under the trust created by the assignment, i. e., the creditors, have a vested interest in the assigned property, and its proceeds, to the extent of their respective claims. Smith v. Tighe, 270.
been had which was binding and ASSIGNMENT FOR BENEFIT conclusive on the plaintiff, and adjudging that defendant recover 1. the balance found due him on said accounting. Plaintiff appealed to general term, which reversed the judgment and ordered a new trial. Defendant stipulated and appealed to the court of appeals, which affirmed the decision of the general term, and ordered judgment absolute for the plaintiff on the stipulation, with costs. Held, such order is a final determination that plaintiff is entitled to an accounting, and to the costs of the action, and that defendant cannot enter judgment for amount found due on the reference ordered by 2. such order, nor can he tax costs and disbursement, e. g., referee's fees on taking up such report. Rust v. Hausell, 38.
An appeal from order confirming_report of referee in reference other than of issues, brings up nothing for re view, if no exceptions have been filed. See Rust v. Hauselt, 22.
The cause of action for such sums as may have been withdrawn in excess by any of the partners is in the firm, and passes as an asset by the assignment for benefit of creditors. Kuehnemundt v. Haar, 188.
Duty of respondent to prepare and file Liability of party for conversion of
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This action was brought for dissolu-
tion of the copartnership between
plaintiffs and defendant, and for
an accounting; also for damages
for inducing plaintiffs by false re-
presentations to enter into said co-
partnership; upon the issue of
fraud a verdict was rendered for
plaintiffs, and the referee be-
fore whom the accounting was
had, reported that the amount
thereof should be paid out of the
individual interest of the defend-|
ant in the partnership assets which
had been collected and paid into
court. Prior to the confirmation
of the referee's report, the defend-
ant was adjudged a bankrupt, and
two years after entry of final judg-
ment upon the report and payment
to plaintiffs thereunder, defend-
ant's assignee petitioned that the
judgment be set aside and that he
be substituted in place of defend-
ant, and be allowed to come in
and defend. It appeared that
plaintiffs were ignorant of the pro-
ceedings in bankruptcy till after
entry of final judgment and pay-
ment of the funds thereunder
Held, that the prayer of the peti-
tion was properly denied; that the
relief asked for must be sought in
an independent action. Keck v.
Werder, 339.
Effect of discharge in bankruptcy on
rights of creditors under prior assign-
ment for benefit of creditors. See
Smith v. Tighe, 270.
Application to open inquest and serve
supplemental answer, setting up
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BILL OF PARTICULARS.
Plaintiff having sued defendant, an
attorney, for the conversion of a
certain draft and the moneys col-
lected thercon, claiming title
thereto by assignment from one
D., defendant in his answer al-
leged that the draft was received
by him under an agreement with
D., by which he was to collect the
sum due thereon and credit D.
with the net amount collected, on
account of moneys which he al-
leged were due to him from D.
for professional services and other-
wise, and on account of divers
contracts, &c., assumed by him
for D. In another subdivision of
his answer, he further alleged that
said agreement having been car
ried out, D. had executed and de-
livered to him a general release of
and from all claims. Held, that
plaintiff was entitled to a bill of
particulars of defendant's first
defense, notwithstanding the fact
that another of the defenses relied
on was a general release. Diossy
v. Rust, 374.
BILLS, NOTES AND CHECKS.
R. held three notes made by one
Williams to the order of L., and
indorsed L. per Henry White.
Henry White had been in the em-
ploy of L., and it was claimed that
he had authority from L. to in-
dorse these notes. After White
had been discharged by L., R.
came with these notes to L., who
denied his liability. The matter
was compromised by a renewal of
the notes; two of the renewal
notes L. indorsed unconditionally;
the third he indorsed without re-
course. When this third note
came due it was not protested, but
was taken up by Williams, he giv-
ing, in lieu of it, his note to the
order of R. at three months. Held,
L. was not liable upon, or by
reason of said third note. Roberts
v. Leslie, 76.
What sufficient consideration for
firm indorsement of note given for
individual debt of partner.
See
Rust v. Hauselt, 22.
Liability of indorser who has not re-
ceived notice of presentment and non-4.
payment, how roviced; conditional
acquiescence by indorser in charge of
such check to his bank account, effect
of. See Van Dyck v. Jones, 538.
Indorser has one day after receipt of
notice protest to serve prior indorser.
Parol evidence inadmissible to vary
indorsement. See Higgins v. Bar-
rowcliff, 540,
What proof necessary for recovery on
note given for accommodation or
taken by fraud.
See Nickerson v.
Ruger, 571.
laid down on the map, is not suf
ficient, even when taken in con-
nection with the reference to the
map contained, and the dimen-
sions given, in the deed, to show
an intent to exclude the street on
the south, and, therefore, title
passes to the center of that street.
lb.
When no right to possession in
the land appropriated for the pur-
poses of a street thereafter to be
opened passed to the contiguous
owner until it was closed, and the
only purpose and object for which
the original grantor could wish to
retain any interest in the land so
appropriated, was that the street
could thereby be actually opened
without paying anything to the
adjoining owners for the land,
which object and purpose wholly
ceased upon the street being def-
initely abandoned as a highway,
there is nothing in the situation of
the parties showing an intent to
exclude the street from the opera-
tion of the grant. Ib.
5. Where there is no agreement be-
tween the parties as to the bound-
ary line, there, although a division
line has been actually in existence
and the parties have severally occu-
pied according, yet, if such exist-
ence and occupation has been for
less than twenty years, the fact of
their acquiescence in the line as a
boundary line must be found to
establish it as a boundary line
by practical location. Ib.
1. The effect of bounding property
conveyed, by, upon, or along
(or other equivalent phrase), a
highway, waterecourse, or public
street, is, that title to the center of
the highway, watercourse,
street will pass, unless by the
terms of the grant, as interpreted
and illustrated by surrounding 6.
circumstances, or necessary impli-
cation, an intent to exclude the
highway or street or bed of the
stream is made to appear. Stevens
v. Mayor, 274.
2. In such case, when the land con-
veyed is described as a certain lot
designated on a certain map by a
certain number (e. g., 143), and is
there bounded on each side by
streets laid out on said map, and
then gives dimensions which ex-
clude the streets, intent to exclude
street is not shown. Ib.
3. A coloring, on the map, from
which it would seem that the
whole street on the north, but no An
part of the street on the south,
was included within lot 143, as
A line cannot be practically lo-
cated by an intention in the minds
of parties to locate it in a certain
place, when, in fact, they locate it
somewhere else. lb.
BREACH OF PEACE.
See POLICE.
CHATTEL MORTGAGE.
unfiled chattel mortgage on
property subsequently brought by
the mortgagor into a firm of which
he becomes a member, as his pro-§ 1238..
portion of the capital, is not in- §§ 1336, 1349, 1350, 1353.
valid as to the other partners by $ 1354..
reason of its non-filing. The prop- 3268..
erty comes into the concern im- §§ 3343, 3347.
pressed with the lien of the mort-
gage. Rust v. Hauselt, 22.
The clerk has no anthority to enter S$ 69, 113, (1848), 114, (1848), 127,
an absolute judgment for interest 128, 129.
in an action for the recovery of § 134.
personal property, where the plaint- $ 135.
iff is entitled to a judgment in the $136.
alternative for the recovery of the $ 149, subd. 2.
possession of the property, or in SS 186 to 203..
default of delivery for the value 309..
thereof, the jury having awarded $427..
no damages for detention of the
property. The interest allowed by
section 1,235, Code Civil Proced-
ure, must be added to the sum
which plaintiff recovers in case
possession cannot be had, and is
'subject to all the conditions ap-
plicable to said principal sum.
Munsell v. Flood, 134.
CONSTITUTIONAL LAW.
1. The word "property," as used
in the constitutional inbibition
against taking private property,
implies the free use, enjoyment
and disposal of all of one's acquisi-
tions without control or direction.
From the above definition of prop-
.361, 387, 405 erty it follows that the polluting
the air of one's dwelling with
noisome smells which render the
enjoyment of life and property
uncomfortable, is the taking of
property. This, although the smell
be not unwholesome. Caro v.
Metr., &c. R. R. Co., 138.
2
10
21
335
424 2.
.421, 424
409
15
It seems, that unless the legisla-
ture have the grounds of the ap-
plication, showing the necessity
and the public use of the private
property or lands to be taken, laid
before it and incorporated in the
act, such act is unconstitutional
and void,- -e. g., acts of 1839, ch.
246, and 1834, ch. 150. Carleton v.
Darcy, 484.
136 Where an order dismissing a motion
to punish for contempt in not]
obeying injunction is reversed by
general term, the proper directions
to be given are as follows:-
Where there is evidence tending
to show a violation of the injunc-
tion, but the general term is not in 2.
possession of all the facts, and the
proof before the court is not as
full or explicit as it evidently could
be made, the proper course to
pursue is for the general term to
order that an attachment issue
against the accused parties, baila-
ble in a sum sufficient to secure his
attendance hereafter, that inter-
rogatories be filed and served
touching the alleged contempts;
that the accused party be required
to make written answers thereto,
and that it be referred to a referee
to examine him on oath, upon the
said interrogatories, and to take
such further proofs as either party
may produce before him touching
the alleged contempts, and to as-
certain what injury, if any, the
plaintiff sustained in consequence
thereof, and the extent thereof,
and that he report such answers
and proofs to the court, with his
opinion thereon, and that, upon
the coming in of said report, either
party may, on eight days' notice,
move at special term for the
proper order and adjudication
thereon, and that for these pur-
poses the case be remitted to the
special term. A. & P. Tel. Co. v.
B. & O. R. R. Co., 377.
When order directing security for ali-
mony and an attachment in case of
failure to file, is improper.
Gane v. Gane, 218.
1. In case of an agreement for con-
tingent compensation, measured
by a proportionate part of the
fruits resulting from the services
to be compensated for, the em-
ployer is personally liable when he
actually receives the fruits, or
when one other than the employer,
acting under a power of attorney
from the employer, given with the
consent of the employee, actually
receives such fruits. This, al-
though such person retains in his 3.
hands the proportionate part of
the fruits which was payable to
the employee for his compensa-
tion, and does not pay it over to
the employer or employee. Dick-
enson v. Devlin, 232.
A contract was made in April,
1870, by a corporate body, a sem-
inary, to take effect July 1, 1870,
for the services of a professor,
without specifying the time of its
duration. On July 9. 1873_(the
professor, in the precing June,
having been informed by a com-
mittee appointed at a meeting of
the board of trus.ees, at which a
quorum was not present, that the
board did not feel justified in em-
ploying him for the next year),
the chair of the professor was va-
cated by resolution of the board
of trustees, of which the profes-
sor had notice July 13. In the
month of June, of each year,
there was an annual meeting of
the board of trustees, at which, as
plaintiff well knew, provision was
made for carrying on the work of
the scholastic year next ensuing,
and at which it was customary, as
plaintiff also well knew, to select
the professors who were to per-
form duty during the coming year,
and to fix their salaries; and it
further appeared that it was not
until after the completion of these
arrangements that the salaries thus
fixed as so-called annual salaries
commenced to run from July 1 of
each year. Held, that it might be
a question whether the first con-
tract was not one for a definite
term, to wit, the next ensuing
scholastic year, and whether the
continuance of the professorship
at the annual meetings in June,
1871, and June, 1872, were not
new independent contracts for a
definite term, to wit, the scholas-
tic year next ensuing each of said
annual meetings; if so, whether
any action was necessary on the
the part of the trustees to deter-
mine the contract of employment,
and if any action was necessary,
whether the action had in June
and July, 1873, did not of them-
selves have such effect. Tyng v.
Theol. Sem., 250.
In case of a contract where one
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