plaintiff was injured could have been avoided by proper care and diligence is a question for the jury.

This action was brought to recover damages for injuries sustained by plaintiff at a railroad crossing on defendant's road. The plaintiff testified that at the time of the injury she was in her seventeenth year, and was passing along the sidewalk of Elk street, in the village of Dunkirk, north of defendant's tracks, some five in number; that she had crossed two of them and looked both ways to see if a train was approaching, and saw an express train coming west on the main track further south; that she stopped to let this train pass, standing within about one foot of another track. She first stated that she remained standing between the two tracks about ten minutes, but she afterwards said it was a shorter time, waiting for the express train to pass, and while thus waiting she was hit by the tender of an engine which had backed out and came along in an opposite direction from the express train, at the rate of eight miles an

sion, which, from all the circumstances of the case, may have been entirely erroneous. It was fair to presume that a very short time had elapsed before plaintiff was struck, and that plaintiff could not have turned and avoided the accident. The time she remained between the tracks, and whether the accident could have been avoided by the exercise of proper care and diligence, should have been submitted to the jury.

Order of General Term, granting motion for a new trial, affirmed. Opinion by Miller, J.

OFFER OF JUDGMENT.

N. Y. COURT OF APPEALS. Harris, applt., v. Equitable L. As. Soc. of U. S., respt.

Decided February 15, 1876.

A renewal of a life insurance policy, which had been forfeited by non-payment of premiums, procured by

hour; that this train sounded no whistle, fraud, is void, and an offer of judy

ment for the amount of the money received as premiums at the time of renewal, with interest and costs, after suit brought, is a sufficient tender to allow the company to disaffirm.

rung no bell, and gave none of the usual warnings of its approach. The evidence showed that the rear of the express train had just passed Elk street, when, at the same instant, the engine of the other This action was brought upon a policy train came the other way. It did not ap- of life insurance issued by the defendant, pear that plaintiff had any means of de- which provided that if any declaration in termining how long she stood between the the application upon which it was issued tracks. A witness on the part of the should prove false, then the policy should plaintiff testified that she stood there about become null and void. The policy was a minute, and other evidence showed it forfeited by reason of a failure to pay the must have been a very short time. The premiums due in September and DecemCourt directed a non-suit, on the ground ber, 1869, and March, 1870. In Februathat plaintiff was guilty of contributory ry, 1870, the assured had a severe attack negligence. of inflammatory rheumatism, which resulted in disease of the heart, and of which she died in April following. On March 28, 1870, plaintiff went to defendant's office and tendered the premiums due and asked to have the policy renewed, stating that the assured was in good health, that she had not been sick since she was ex

A. P. Laning, for applt.
Murray & Pattison, for respt.

Held, error: That plaintiff's testimony as to the length of time she stood between the tracks should not be considered as absolutely accurate, conclusive and controlling, and was at most but a mere impres

amined for insurance, and signed a paper TAXATION. which stated that she was as well as when insured and in as good insurable condition N. Y. SUPREME COURT, GENERAL TERM.

The officers of the company appeared before the said assessors and asked to have said assessment stricken from the roll, on the ground that the debts owing by the company exceeded the true value of the judg-personal property of said company. The

officers of the Railroad Company did not give to the assessors any information as to the amount and value of its capital or the cost of its real estate, or any information from which the assessors could de

termine its surplus profits or reserved owned by said company. The statement funds, or the true amount of its capital was not sufficient.

Held, That the certiorari was properly brought against the assessors and city treasurer. The tax roll had, by resolution of the Common Council, been placed in the hands of the city treasurer, and the writ stayed the collection of the tax.

The collector was not a necessary porty. That the assessors committed no error. That the Railroad Company was liable to be assessed and taxed for personal property at the actual value of their capital stock

and in the same manner as other personal property. (People v. Assessors of Brooklyn, 39 N. Y., 81.)

That had the company furnished to the assessors the statement showing the real estate owned by them, the amount of its capital stock and amount paid in and secured to be paid in, excepting the sums paid for real estate and other matters as required by law it would have been the duty of the assessors to have adopted the data or facts embraced in such statement in making their assessment. That by reason of the failure of the company to furnish such statement, the assessors had no data to follow in making such assessment, and they were justified in forming their judgment upon the best information in their possession.

Writ of certiorari dismissed.
Opinion by Smith, J.

JUDGMENT LIEN. PRIORITY.
SUPREME COURT OF PENNSYLVANIA.
In re Malone v. Clinton.
Decided January 6, 1876.

A judgment creditor, whose judgment was
a lien against his debtor's real estate,
prior to the latter's being declared an
habitual drunkard, cannot be postponed
on a sale of the real estate in the payment
of his claim till after the costs of the es-
tate are paid.

Error to the Court of Common Pleas,

No. 1, of Alleghany County.

This is an appeal, by one Malone, from a decree of the court, distributing the fund raised by a sale of the real estate of Wm. Clinton, an habitual drunkard. The sale was made by his committee on leave of the court. The appellant claims the money should be applied on a judgment in his favor, which is the prior lien on the land sold. After the entry of the judgment, Clinton was, by inquisition, duly found to be an habitual drunkard. It does not appear that the court then made any order in regard to the payment of the costs attending the inquisition, as is made its duty by the second section of the Act of 16th of April, 1849, Purdon's Digest, 881, pl. 13. These costs appear to be unpaid. There now appearing to be no personal estate out of which they can be

That, although the affidavit presented paid, the auditor reported, and the court by the company to the assessors showing decreed, that they be paid out of the prothe indebtedness of the company may ceeds of the real estate. The fund is have been supposed to have been suffi- insufficient to pay the judgment of the cient, it was not and did not bind the assessors, and such company were not entitled to have their debts deducted from such assessment on any such showing. The indebtedness they claimed to deduct may have been for actual valuable property purchased and now held and

appellant. If these costs are thus paid it takes that amount from the appellant which he would otherwise receive on his judgment. All the assignments involve the correctness of giving a preference to the payment of these costs.

Held, That the judgment creditor could

not be divested of his vested lien; that he had a prior claim, which must be paid in preference to the costs.

Messrs. O'Conor, Carter & Peckham for plaintiffs.

Messrs. D. D. Field, Field, & Deyo,

Decree reversed, and distribution or- and Edelstein for defendant Tweed. dered accordingly.

Opinion by Mercur, J.

MOTION FOR NEW TRIAL. STAY OF
PROCEEDINGS. ALLOWANCE.
N. Y. SUPREME COURT, CIRCUIT, PART
Two.

The People of the State of New York against William M. Tweed and others.

Westbrook, J. Section 265 of the code provides for a motion for a new trial before judgment, and requires it to be heard in the first instance, "At the Circuit or Special Term, except that when exceptions are taken, the judge trying the cause may, at the trial, direct them to be heard in the first instance at the General Term, and the judgment in the mean time suspended." Its language is incompatible with Decided Mar. 21st, 1876. a hearing at the General Term in the first The Special Term has no power to or- instance, when a motion at Special Term der a motion for a new trial, upon has been entertained and decided. There exceptions, to be heard in the first in- is, it seems to me, an absolute want of stance at the General Term, after power to send the motion to the General having entertained a motion for a Term in the first instance, when the Spenew trial, upon the judge's minutes; and it makes no difference that the cial Term has passed upon the applicalatter motion was based upon question. And this has been expressly held. tions of fact; the code allows no (Hastings vs. McKinley, 3 Code Reportseparation of the application. Upon a motion for a stay of proceedings, without security, pending an 8 appeal, the Court should be possessed of all the facts and circumstances There was, in this cause, a motion for relating to the appellant's means and a new trial under section 264 of the code property; in considering such an upon the judge's minutes, and that was application, the recovery had is pre- denied. It is true that such motion was sumed to be correct, and the posses- based only upon questions of fact, and sion thereof ought not to be jeopard- not upon exceptions; but it was none the ized by tieing appeilee's hands.

er 10; Morgan vs. Bruce 1 Code Reporter, new series, 364; Price vs. Keyes N. Y. Sup. Court, page 177.)

The difficulty of the legal questions in-less a motion for a new trial. The 265th volved, the length of the trial, the la-section of the code allows no separation of bor of preparing for trial, the the application. The existence of excepamount of the verdict, the number of motions made in the course of the proceedings, are considered in determining whether a case is "difficult or extraordinary" for the purpose of fixing an allowance.

Motion on the part of plaintiffs for an extra allowance, and on the part of the defendant, Tweed, that the motion for a new trial be heard in the first instance at General Term, pursuant to section 265 of the code, or for a stay of proceedings, pursuant to section 348 of the code.

tions is necessary to the order which sends the motion to the General Term in the first instance, but the fact that they have been taken does not authorize the Circuit or Special Term to send them to the General Term and retain the motion upon the facts for its own disposal. On the contrary, when the order to hear at the General Term is made, the Special Term loses its control of the cause, and when the Special Term hears and decides the application, the power to send to the General Term in the first instance is gone.

This conclusion disposes of the motion cases, when a defence has been interfor a suspension of judgment upon a pure- posed, or in such cases where a trial has İy legal ground, without any considera- been had, and in actions or proceedings tion of the propriety of such action, which will be presently considered in examining the second motion for a stay of proceedings after judgment, pursuant to section 348 of the code, pending an appeal to the General Term from the judgment and from the order denying the motion for a new trial.

for the partition of real estate, the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent. upon the amount of the recovery or claim, or subject matter involved." This action is conceded to be within the spirit and the letter of the statute. It certainly is both "difficult" and "extraordinary "--difficult, not only because of the legal questions involved, but also on account of the very great labor and preparation which the development of the facts upon the trial involved, and the length of time occupied with the trial itself; and

It is undoubtedly true that section 348 authorizes the Court or a judge thereof to stay proceedings upon the appeal upon such terms as shall be just, but the exercise of this discretion can only be intelligently exercised upon proof showing the condition of the defendant's property. extraordinary when considered with referWhilst it is true that I regard this cause ence to the character of the issues and the as presenting difficult and extraordinary amount of the verdict, and the number questions, worthy of review, yet I cannot, of motions argued previous to the trial, and do not, assume that errors have been in two of which were only finally determined fact committed, and that the r covery is by the Court of Appeals. The preparawrong. On the contrary, moderate self- tion for trial must have occupied the time respect requires me to believe that the of counsel for months, and the employplaintiffs are entitled to the fruits of their ment and compensation of proper acrecovery, and that their possession thereof countants for a long time was also necesshould not be jeopardized by arbitrarily sary. The trial itself also consumed sevtieing their hands. If there is no property eral weeks, and from the number of counto be reached, the judgment and execu- sel employed, I do not think that an altion will do no harm; if there is, and ex-lowance of one per cent. is unreasonable. ecution is necessary to recover it, then

such execution should not be stayed, with- SALE. DELIVERY.

out security sufficient to preserve it. When an appeal shall have been taken, the Court, or a judge thereof, upon an application showing all the facts, will be able to exercise an intelligent discretion, which, in the absence of such proof, it is impossible for me to do.

There can, however, be no objection to the time which the defendant needs to make a case. Ninety days is not unreasonable, but such time is not to operate. as a stay of proceedings.

The application for an extra allowance remains to be disposed of. This is founded upon section 309 of the Code, which provides: "In difficult or extraordinary

POSSESSION.

REVENUE LAWS. SUPREME COURT OF ILLINOIS. Straus et al. v. Minzesheimer. Decided February, 1876. Where the vendor of personal property, such as cigars, has done all in his power to complete its delivery to vendee, and thereafter exercises no control over and asserts no possession in the property, the vendee's title is perfect.

The relative rights of vendors and purchasers of cigars are not affected by the act of Congress of July 20, 1868, requiring the boxing and stamping of cigars before sale, so as to invali