any other goods which may from time to time, during the existence of this mortgage, be purchased by the grantor and put into said store to replace any part of said stock which may have been disposed of." Among the covenants was one that if the stock should be known the course of nature, and if the child had been born within nine months after the death of the tenant for life, he could not have been twenty-one at the time when the particular estate deterined. It is quite impossible that she could have intended the attainment of the age of twenty-one to be part of the diminished "faster than said sum heredescription of the person to take. Therefore, in my opinion, the plaintiff takes a vested estate subject to be divested in the event of his dying under twenty-one; and I so decide. Opinion by Jessel, M. R. MORTGAGE OF CHATTELS, AFTER ACQUIRED CHATTELS Brett v. Carter. Decided December Term, 1875. A mortgage of chattels which permits the mortgagor to continue in possession and to sell the goods in the or dinary course of business is not void per se. Whether there is a fraud in the particular case, is a question of fact. A mortgage of after-acquired chattels is valid. by secured is paid, said grantor is to furnish further security for said sum, whenever required by said grantee." Two of the notes were fully paid, but one that came due in November, 1875, not having been paid in full, the defendant demanded further security, and a mortgage was given of such stock as had been acquired during the year. This was about two weeks before the petition in bankruptcy was filed, and the theory of the bill was that it was a preference. The complainant afterwards asked leave to amend, and alleged the first mortgage to be void on the ground that the mortgagor was tacitly permitted to sell all the goods in the ordinary course of his trade. The defendant insisted that both mortgages were valid. J. B. Richardsen, for the plff. Held, I had supposed it to be well settled, after much debate and conflict Bill in equity by the assignee in of opinion certainly, but substantially bankruptcy of one Osborne N. Sargent, settled, that when a vendor or mortga against a mortgagee of the stock of sta-gor was permitted to retain the possestionery and other similar goods. It sion and control of his goods, and act appeared that in November, 1874, Sar- as apparent owner, with or without gent bought out the stock in trade of power to sell them, the question wheththe defendant Carter, as carried on by er this was a fraud or not, was one of him in a certain shop in Beacon street, fact in each case, excepting under a Boston; and on the same day gave particular clause in the bankrupt law back a mortgage to secure the payment of England, which has not been adopted of the purchase money by installments, in this country. represented by promissory notes ex- It is very strange that after our legtending over a period of four years. islatures have met the difficulties of The mortgage conveyed the stock, "and Twyne's Case, by requiring registra tion, which gives not only constructive, ence in principle between a mortgage but in most cases actual, notice of mort- by such a corporation of its rolling gages, and after many of them have stock not yet in esse, and that by a provided that fraud shall be a question trader, of his future stock in trade in a of fact for the jury, the decisions which particular shop, and none can be sucI have cited, and others following them, cessfully maintained. The truth mere. should have reverted to the harder doc- ly is that from the nature of these railtrine which had already grown obso-way mortgages, and their magnitude lete, that such deeds should be held and importance, attention has been void in law if the mortgagor retained called to the great injustice that would possession and control. This is all that those cases amount to. be done in displacing the first mortgage in favor either of general creditors, or even of subsequent mortgagees. But the injustice exists in all such cases in a less degree. The doctrine is combatted with great force of reasoning, much greater than has ever been expended in ts support, in the two cases following, to which I I rather incline to the belief that the have great pleasure in referring: Hugh- law of Massachusetts in equity is toer v. Cory, 20 Iowa, 399; and Gay v. day, that a mortgage of after-acquired Bidwell, 7 Mich., 519. chattels is valid. The second point in this case is no I am of opinion that the mortgage of less interesting than the first. By the 1874 created a valid lien in behalf of mortgage the stock that shall be put the defendant upon the stock of goods into the shop by the mortgagor is in- in the shop at the time of the bankcluded in the conveyance. It is un- ruptcy, and that the mortgage of 1875 doubtedly the law of courts of equity, does not vitiate their lien. that after-acquired chattels, definitely pointed out, as, for instance, by reference to the ship, mill, shop, or place into which they are to be brought, may be lawfully assigned as security. The common law recognizes such transfer of land, by way of estoppel, and of chattels when they are the produce either of land, or of chattels already owned by the transferor, but not of future chattels simpliciter, unless there be some novus actus interveniens after the chattels are acquired, that is to say, either some new transfer, or possession taken under the old. It is true that many of the late cases have arisen upon mortgages given by railroad companies, and some few judges have founded a distinction upon that circumstance. But there is no differ Opinion by Lowell, J. INNKEEPER. NEGLIGENCE. EVIDENCE. N. Y. COURT OF APPEALS. In an action against an innkeeper for Negligence by an innkeeper in omitting precautions which a prudent man ought to take to protect the property of a guest, will deprive him of the benefit of the statute of 1866. This action was brought against de- the negligent omission to protect and fendant, as an innkeeper, to recover remove the property of the guest after the value of a span of horses, buggy, the fire had commenced. It appeared &c., destroyed by the burning of de- that the fire occurred between nine and fendant's hotel barn. The defense ten o'clock in the evening. The fire was, that the fire was the work of an was discovered near the window of the incendiary and occurred without fault loft, and it was shown by the defendant or negligence on the part of defendant, that two persons, not recognized or and that defendant therefore was not or identified, ran out of the alley from liable under section 1, chapter 638, laws near the barn just after the alarm was of 1866. given and disappeared. His witnesses Evidence was given on the part of also testified to appearances, indicating the defendant, tending to show that that kerosene or some other combustithe fire was the work of an incendiary ble fluid had been put upon the floor and was set in the hay loft, to which of the barn. Defendant and his seraccess was had through a window of vants and the tenant, who occupied a the barn opening into an alley, which part of the building, testified that the had been left open for several weeks, fire was not produced by their act or and that during this time lumber was neglect. Plaintiff controverted the fact piled against the barn, so that a person alleged by defendant that the fire was could easily climb upon it and enter the work of an incendiary, gave evidence the loft through the open window. The tending to contradict the testimony of court submitted to the jury the ques- the defense to the presence of kerosene tion whether defendant, under the cir- or other burning fluid on the barn floor, cumstances, was chargeable with negli- and one of plaintiff's witnesses testified gence, and ruled in substance, that if that defendant's ostler was accustomed the jury should find that this was a to smoke in the barn, and that he saw negligent act which contributed to an him about eight o'clock on the night of incendiary firing of the barn, defendant the fire on the bedding in one of the was liable for the loss sustained by the rear stalls smoking a pipe and reading plaintiff. by the light of a lamp. Held, That this evidence was properly received, as each party had the right to show any circumstance in support of his theory as to the origin of the fire which legitimately tended to establish it. W. B. Ruggles for respt. Geo. B. Bradley for applt. Held, That the question of defendant's negligence was properly submitted to the jury; that negligence on the part of an innkeeper in omitting precautions which a reasonable and Defendant called on T. as a witness prudent man ought to take to guard and offered to show by him that on the against an incendiary fire, is such neg- next street west, within forty rods of ligence as will deprive him of the the barn which was burned, on the benefit of the statute. 2 L. Raym, 909; 1 E. & B., 165; 51 N. Y., 180. same night, an attempt was made to fire a building at a point where the Negligence which precedes and fa- building was close and compact, an cilitates the commission of the crime, that kerosene, paper and other comis as much within the statute of 1866 as bustibles were used in the attempt. This evidence was objected to as immaterial and was excluded. Held, error. That the evidence of fered had a direct and material bearing upon the question as to the character of the fire which destroyed the barn. Judgment of General Term, affirming judgment for plaintiff on verdict, reversed and new trial granted. Opinion by Andrews, J. EXCEPTION. PRACTICE. USURY Charles E. Strong, as receiver &c., respt., v. The N. Y. Laundry Manufacturing Company, et al., applts. When the parties rested upon the trial the defendants made several requests, either to direct a verdict för them generally or for some one of them, which was denied. There was no request to submit any question of fact to the jury. Upon plaintiff's motion the court directed a verdict for plaintiffs, exceptions to be heard in the first instance at the General Term. Sewell & Pierce for applts. S. B. Marsh for respt. Held, That the defendants, by the course pursued by them, rested upon the ground that the usurious agreement had been successfully sustained by the evidence, and called upon the court to Decided January 28, 1876. dispose of the case upon questions of Where a general exception is taken to law arising from undisputed facts. the refusal of a judge to direct a Their request assumed there was no verdict for defendants, no request dispute about the facts, and nothing, being made that the justice submit to therefore, to go to the jury. They al the jury any questions of fact, on appeal the party making the request lowed the judge presiding to be substi is concluded by the finding of the tuted in the place of the jury, and not justice from raising the point that having asked that the questions presentspecific questions of fact should have ed by the facts should be submitted to been submitted to the jury-the jus- the jury,they are concluded by the findtice having thereafter directed a verdict for plaintiff. ing of the justice. Wacchell v. Hicks, The defence of usury should be made 18 N. Y. Rep., 558; Marine Bank of out by a fair preponderance of evi- New York v. Clements, 31 N. Y. Rep., dence. 33. This action was brought against the Defendants cannot, therefore, upon corporation defendant, maker, and the appeal, under a general exception to individual defendants as indorsers of a the judge's subsequent direction that a promissory note. The answer set up verdict be entered for the plaintiff that the note was made for the accom- make the point that there were ques modation of Everett Clapp, and was tions of fact which should have been endorsed by Gill for his accommoda- submitted to the jury. They are theretion, without any consideration having fore deprived of any advantage, either passed between the parties until Everett from the exception taken to the refusal Clapp endorsed it and delivered it to to grant their requests or either of the Atlantic National Bank, of which them, or to the direction of the judge plaintiff is receiver. That such transfer that a verdict be entered for the plainwas made by Clapp upon an usurious tiff. But upon the examination of the agreement, and that the bank received case, it appears that the evidence given more than seven per cent. in behalf of the defense did not satis factorily sustain the defence of usury. was no agreement between plaintiff Upon the defendant's evidence it is and S. H. G. that the new note should left doubtful whether the note was an be taken as collateral to the old one, accommodation note or not. The defense of usury should be made out by a fair preponderence of evidence, and it does not seem to have been in this case. Judgment affirmed. Opinion by Brady, J; Davis, P. the note as surety, the court overruling J., and Daniels, J., concurring. NEGOTIABLE NOTE. SURETY. and that the latter should be retained as security. Defendant did not know of any of the transactions between S. H. G. and plaintiff. Defendant proved under objection by parol that he signed the objection and plaintiff excepting. Held, no error; That parol proof that defendant signed the note as surety was admissible, it being material for the purpose of enabling him to establish the defense that he was discharged by the extension of time given S. H. D. by plaintiff, the latter knowing that defendant had signed as surety. N. Y. COURT OF APPEALS. Hubbard, applt., v. Gurney, respt. Decided March 21, 1876. In an action by the payee of a note against one of two makers, parol Also held, That from the facts proved evidence is admissible to show that there appears to have been an implied defendant signed the note as surety. agreement to take the new note as a If the payee, under such circumstances, take a new note of the other makers, payment of the first, or to extend the extending the time of payment, and time of payment of the latter in favor of procures the new note to be discount- S. H. G. As this was done without the ed, the surety on the first note is dis- knowledge or assent of defendant his charged; the raising of the money rights were thereby affected and he was on the new note is a sufficient consideration. discharged, 3 Den., 512; 23 Barb., 478; 39 id., 610; 43 id., 444; 38 N. Y., 96. This action was brought upon a That the fact that the original note was promissory note given by S. H. G., not surrendered did not change the and defendant being surety in fact for legal effect or real character of the con$1,000, dated April 5, 1872, payable tract to be implied from the transacone day after date to plaintiff. May tion, 6 Duer, 304; 5 Hill, 465. That 18, 1872, a new note was given by S. the raising of the money upon the H. G., payable at thirty days and indorsed by plaintiff, upon which the new note, and the receipt thereof by plaintiff, was sufficient consideration for money was obtained and paid to plain- such a contract. tiff. When this note became due a small payment was made and a new note given payable in thirty days, upon which $200 was afterwards paid, leaving a balance of $700 unpaid, which plaintiff paid. The note in suit was given with the understanding that one B. was to sign as surety, but not doing so defendant signed instead. There Halliday v. Hart 30 N. Y., 474; Cary v. White 52 N. Y., 138, distinguished. Judgment of General Term, affirıning judgment on verdict for defendant, affirmed. Opinion by Church, Ch. J. |