But the cost of improvement and inclosure of An insurance policy containing a provision that
burial lot will not be allowed an exe utor as re “if the building shall fall, except as the result
spects objecting parties in interest.

ib. of fire, all insurance by this company shall im-

mediately cease and determine," continues in
A delivery by testator to his executor of cer- full force where the building, although removed
tain money to be distributed among his servants, from its foundation by the violence of a tem-
which was so distributed after his death, eon-pest, and greatly damaged, is still intact as a
stitutes valid donationes causa mortis. 1b. building. "The Fireman's Fund Ins. Co. v. The Con-

Where an executor is likewise trustee he is gregation of Roleph Sholem.
allowed but one commission for both capacities.


Where a party accepts a policy containing the

words “Occupied as a dwelling,” it amounts to
Where an executor is allowed by the terms of a warranty that the premises are occupied, and
the will 6 per cent. commission for a!! money | if the policy provided “if the premises became
collected by him, the term collection will be vacant and unoccupied the policy should be
construed in its strict and distinctive sense, and void," and they were actually unoccupied when
will not be held to include moneys received by the insurance was effected, it avoids the policy,
the executor as the proceeds of a sale of proper- and knowledge upon the part of the company's
ty belonging to the estate, unless it plainly ap- aget that the premises were vacant, does not
pears that such was the intention of the tes- affects its validity. Alexander v. Germania Ins. Co.
'reland v, orse et al.

On a judgment recovered in a foreign country An agreement in a policy that any person
the administrators of the deceased judgment | other than the assured, who procures the insur-
creditor may maintain an action in their own ance, should be deemed the agent of the assured
names in this State. Nichols v. Smith. 471 is operative.


A general agent may waive by parol a con i.

tion of a policy even where the policy provides
The fact that premises from the proceeds ou that the waiver must be in writing. Arkell v.
the sale of which the property in suit was Commerce ins. Co.

bought was declared a homestead, &c., does not
exempt this land. Ford v. Jonnsuon.

498 A company held to be bound by acts of an

agent after surrender of his agency, the insured
being ignorant of such surrender.


Where a policy in its terms requires that in

case of loss notice of logs shall be given forth-

with, a notice given twenty-three days after the

loss is in time. Lycoming Mutual Fire Ins. Co. v.
As to what proot is admissible in actions for, Bedford.


Payment of the premium at the time of

making a contract of insurance is not n (essary
Any agreement, express or implied, to pay a

to bind the company; and if a credit is given
county clerk more than the statutory fees for by the agent, this contract is equally obligatory.
recording a deed, mortgage or other homoge-

Church v. Lafayette Fire Ins. Co.

neous instrument is illegal and void ; nor can
this result be evaded by means of an account such credit.

An agent may wa've such payment and give

stated. Curtiss, ex'r, v. McNair.


The question of waiver is for the jury to de-
The fees of county clerk for searching are


governed by the Revised Statutes, and not by
the Act of 1810, chap. 312.

ib. A condition in a policy that if the prem ses

shall become vacant or unoccupied and so re-

main with the knowledge of the assured, with-
The authority of an agent to receive propo- out notice to and consent of the compnny in
sals for insurance and countersign and deliver writing, the policy should be void, contemplates
policies, cannot be held to extend to adjusting an ab ndonment of the premises as tenantable
losses or waiving proofs of loss, and binding property or vacancy for an unreason ble time.
the company to pay without them. Bush v. The Kelly v. Home Ins. Co.

Westchester Fire Insurance Co.


As to evidence in actions on policies of fire
A substantive coinpliance with conditions of insurance, see EVIDENCE.
policy as to proof of loss, unless waived, is

As to liability of insurance companies for the
n cessary to entitle the insured to recover.-

acts of their agenis, see PRINCIPAL AND AGENT.
Bi som v. Lycoring Fire Ins. Co.


As to right of insurance agent to waive com-
The coinpany may reject a claim on the two-
old ground that the pr of of loss was too late, pliance with conditions of policy, see WAIVER.
and that the insurance was fra 'dulenily ob As to insurable interest of a general agent,
tained; it is not bad for duplicity.



Seller may terminate the credit and sue on the
debt at once.

An owner of personal property cannot, against
his will, be deprived of the title to the same, by Equity may decree the delivery up and cancel.
having it attached without his consent, to the lation of deeds and other writings procured by
real estate of another, by a third person, where i fraud, and will enjoin their transfer or disposi.
such personal property can be removed from tion pending the suit. The Globe Mutual Life Ins.
such real estate without any great inconvenience, Co. v. Reals et al.

and without any subtantial injury to the real es
tate. Shoemaker et al. v. Simpson.

93 A mere purchase of goods, unaccompanied by

any fraudulent representations, is not of itself
Gas fixtures, chandeliers and brackets, do not fraudulent, although the purchaser is insolvent
pass with the sale of a house to the purchaser. at the time, and has knowledge of the fact.
Jarechi et al. v, The Philharmonic Society. 153 Fish et al. v. Payne.


As to effect of fraud in obtaining renewal of

policy, see LIFE INSURANCE.

As to evidence in cases of, see EVIDENCE.
Prima facie a Superior Court of another State FRAUDULENT CONVEYANCE.
has jurisdiction over the subject matter of a

In setting aside a conveyance procured by
judgment pronounced by it. Lowry v. Guthrie.


fraud, equity will allow the purchaser to receive

back only the identical property by which he
When the record of si ch a curt shows juris- effected the bargain, whether it has greatly de-
diction, e. g., that the party against whom judg. preciated in value or not; and even if it has be-
ment was finally pronounced had himself pre- come worthless. Neblett v. Macfırlanā. 59
viously instituted proceedings by filing a bill
against other parties, and that all parties ap

peared before the court by counsel, it is in the

absence of any allegation of fraud) conclusive,
and cannot be contradicted by parol evidence in That a foreign attachment issued out of a
a collateral proceeding in this State. Ib. court of another State, and the garnishee under

its judgment has actually paid the money to an

attaching creditor, does not discharge the garn.
In exchange of chattels, if ove party make ishee, if it appear that the court has no jurisdic-
fa'se representations as to condition of his prop. tion over the subject matter, and that i he garn-
erty, the other in action for fraud is entitled to ishee might under the law of such State, have
recover damages, although he has received full protected himself, but neglected to do so. In
value for his articles. Murray v. Jennings. 14 such a case, article 4, section 1 of the Federal

Constitution, providing that full faith and credit
Measure of damage, the difference between shall be given in eac State to the judicial pro-
actual value and value as represented. Ib. ceedings of every other State, is not applicable.

Where one of two innocent persons must suf- Noble et al. v. The Thompson Oil Co.
fer by the frand of the third, whichever has ac-

credited him must bear the loss. Aull et al. v.
Coiket et al.

30 A deposit of moneys in a savings bank in the

joint names of husband and wife is not such a
A party induced by fraud to make a purchase gift as will entitle the wife to hold the same on
of property, and to take a warranty therefor in the husband's death, without proof of further de.
writing, and under seal, may disregard the lat. ivery. Matter of accounting of Ward, exr. 503
Ler, sue directly for the fraud, and give parol evi-
dence of the fraudulent representations. India-

In the absence of such proof the moneys be
napolis P. & C. R.R. Co. v. Tyng.
89 long to the estate of the deceased.

In fixing the value of such property as a loco

As to what will constitute a donatio causa mor.
motive engine, the whole country is but a single tis, see EXECUTORS AND ADMINISTRATORS.


Where the grounds of the action are false
statements made by defendant, with intent to

To constitute larceny there must be a feloni.
deceive, it is necessary that it should appear by ous taking and carrying away of another's prop-
affirmative proof that the defendants knew the erty. Abrams v. The People.

-- representations to be false. Marshall v. Fowler

Such taking involves trespass, or fraud, or de-
vice in getting possession.

Fraud will not be presumed or conjectured.


Possession of property fraudulently obtained

with felonious intent, title remaining in owner,
Where sale is influenced by fraudulent repre. is larceny. Kelly v. The People.

sentations, even though on credit, it is unneces-
sary to allege fraud in complaint. Claflin et al. Both possession and title so obtained, is “oh.
v. Taussig et al.
317' taining money under false pretenses.


ei al.



If a person is overpaid by mistake, and at the a certain sum in lieu of support, in an aciion to
time of diecovering the error, whether that be recover for the wife's board evidence of cohabita-
at the moment of payment, or afterwards, forms tion after the separation is competent to do
the intention of defrauding the rightful owner away with the effect of the separation. In
as to such overpayment, it is larceny. Wolfstein such case proof of cruel or inhuman treatment
v. The People.

184 by the husband is not necessary. Holt v. Des-

A guaranty that certain county warrants are Where a physician is employed in attendance
genuine and regularly issued," means that they upon a sick person, his employment continues
aro valid, legal claims against the county. while the sickness lasts, and the relation of
Smeltzer v. White.

106 physician and patient continues unless it is put

an end to by the assent of the parties, or the
Such a guaranty covers the defect in the war-
rants of thie want of a proper seal, without which express dismissal of the physician. "Potter v.

they would be invalid.


A wife cannot abandon her husband's house
To recover upon & guaranty it is not necessary
to return, or offer to return, the property pur and home and bind him for necessaries, pro-
chased upon its faith.


visions, clothing, medical attendance &c., ex-

cept on proof of gross abuse, neglect and mis.
conduct on the part of the husband.

The inadequacy of the security given by a In the absence of the husband the wife may
guardian ad litem, and his compromise of suits act as his agent and rent a house, and bind him
without the knowledge of his wrd, and without for rent, &c. Roberts v. Heap.

the sanction of the court, does not furnish suf-
ficient cause for removing such guardian, with-

out first affording him an opportunity to ex.

plain his conduct. Ashley v. Sherman.

As to effect of judgment entered without the

appointment of a guardian ad litem, see JUDG-

As to organization of Grand jury, see JURIES.

As to practice on the trial of, see CRIMINAL

A person digging a pit or ditch near or in a As to the requisites and sufficiency of indict-
highway, must see that travelers are protected ments for any particular offence. see the title of
from falling into it. Beck v. Carlton et al. 116 the crime in question, such as BIGAMY, GRAND
The same rule is applicable to any alley in a

city, although the ditch or pit is not in the exact

bounds of a street, alley, or lane.

The fact that a street is laid out with side A Court of Equity will not restrain proceed-
walks, gutters, &c., and used by the public, is ings at law upon a note which contains, as
prima facie evidence that it is a street for public liquidated damages, a clause which provides
use &c. Baxter v. Warner.

266 that after maturity it shall bear interest in ex.

cess of the legal rate. Downey v. Beach. 72
No person, therefore, had a right to do any-
thing himself, or to cause anything to be done An injunction will not be granted unless a
by another, whether servant or contractor, reasonably clear case is made out. Clark v. The
which rend ers the street less safe than for- N. Y. Life Ins. & Trust Co., et al.



Neither illegality or irregularity in the pro
One obstructing a highway cannot escape ceedings, nor error, or excess in the valuation,
liability for the doing of such acts by proving nor the hardship or injustice of the law, pro-
that he made a contract with another to do them, vided it be constitutional, nor any grievance
and that they were actually done by the latter which can be remedied by a suit at law, either
and not by himself.


before or after its payment, will authorize ad
Commissioners of High ways are not liable injunction restraining the collection of a tax.
for damage caused by an erroneous construction Taylor, Collector, v. Secor et al.

of an embankment in a highway, by means of
which the lands of abutting owners are deprived

The rule as to courts of equity interfering
of drainage. Gould et al v. Booth et al., Comes with the collection of taxes stated and applied

to a peculiar case.

Private actions will not lie against them for

errors in the exercise of their discretion, or
omissions to perform their duty.


In an action against an innkeeper for loss of

a guest'e property by fire, when the defense,

under chapter 638 laws of 1866, was that the

fire was of incendiary origin, and defendant's
Where a husband and wife live apart under witnesses had given testimony tending to estab-
a deed of separation by which the wife is paid | lish, and plaintiff's witnesses testimony tending



v. Hill.

to rebut the defense, evidence that an attempt

was male to fir an adjacent building on the
samne night is admissible Faucet v. Nichols. 332 A judgment recovered against co partners in

one State cannot be enforced in another against
Negligence by an innkeeper in omitting pre- a partner not personally served with process
cautions which a prudent man ought to take to and not residing in the State where the judg.
protect the property of a guest, will deprive ment was obtained, though his co-partner, after
him of the benefit of the statute of 1866 16. dissolution, may have authorized an appearance

by attorney for the firm in the suit in which the

judgment was recovered. Hall et al v. Lanning

et al.
As to liability of insurance companies for acts

of their agents, see PRINCIPAL AND AGENT. In an action on a foreign judgment, the record

of which discloses an appearance, it is compe-
As to waiver of conditions of policy by agents, tent for the defendant to show the appearance

was unauthorized.

As to principles governing different classes of After the dissolution of a co-partnership, one
insurance, see ACCIDENTAL INSURANCE ; FIRE of the partners in a suit brought against the firm
INSURANCE; LIFE INSURANCE; MARINE IN- has no authority to enter an appearance for the

other partners who do not reside in the State

where the suit is brought and have not been

served with process.
Compound interest is only recoverable on a

In an action for the recovery of property, it is
special agreement to pay such interest upon in not sufficient to give this court jurisdiction to
terest after the latter has become due. Young review, on a writ of error, the decision of the

115 highest court of a State, that title in a third
A final account made by a party, in which he party, acquired under a United States statute,
includes interest on interest on his own bond, fendant himself must claim title under a statute.

is set up to defeat th: p aintiff's claim; the de
is such a special agreement as binds him to pay |(R. S., 709.) Long et al v. Converse et al. 33
compound interest.

There being no agreement as to the rate of the judgment or decree of a State Court simply

The U. S. Supreme Court cannot re-examine
interest upon accrued interest, it will be com- because a Federal question was presented to
puted at six per cent. (Ohio) Cramer v. Leppers that court for determination. It ma-t appear


that such a question was in fact decided, or that

its decision was necessarily involved in the judg.

ment or decree as rendered. Bolling v. Lersner.
Interest warrants of a railroad company are
not within the provisions of 1 R. S., 768, nego.
tiable instruments as between third parties.

Due notice, actual or constructive, to the de-
Evertsen v. Nutional Bank of Newport. 574 fendant, is essential to the jurisdiction of all

courts. Earle et al v. Me Veigh.


What is a good notice under a statute pro-
Clerical error in defendant's name in Sheriff's viding for constructive process, decided.
certificate of service, does not vitiate judgment
afterwards obtained. Miller et al v. Brenham et A claim by a trustee, that he was compelled

465 to pay over the trust funds to the Confederate

States, when the country was under military
Action may be maintained in this State on
judgment barred in State where recovered by rule, is not a Federal question, and will not give
lapse of time.

this court jurisdiction to review a decision of

the State court. Rockhold v. Rockhold et al. 82
A judgment entered without having a guard-

A court will not be deprived of jurisdiction
ian ad litem appointed for infant defendants is
not absolutely void, but voidable. Me Murray et unless it appears affirmatively in the declaration

that the “matter in demand” is beyond its
al v. McMurray.

jurisdiction. Sullivan v. Vail.

As to setting aside judgments, see APPEAL.

Before the jurisdiction of the Orphans Court
As to assignment of, see ASSIGNMENTS.

has attached, a proceeding to declare void and

alleged, release of dower is properly brough!
on the equity side of the Common Pleas

A challenge to the array of a grand jury on bell et al v. Hammett.

ground that it was not selected by the commis-
sioners of jurors will not be allowed. Carpenter

The Commissioners of Central Park bad full
v. The People.

405 jurisdiction to alter the grade of 123d St. be

tween 6th and 7th Avenues. The People er rel.
The acts of a de facto officer are valid as to Kurzman v. Green et al.

the public and the validity of his title to office
cannot be drawn in question collaterally. Ib. To give the United States Supreme Court juriz

diction to review the decision of a State Court
As to manner of arriving at verdict, see PRAC- the judgment of the latter must be final Zeller

et ul v.






The Supreme Court has no jurisdiction to

direct a receiver appointed under Secti 50 of
the National Currency act, who is not a party to

As to where sureties on an undertaking to dis-
the record, to pay over moneys in his hands to charge an attachment may justify, see ATTACH-
a judgment creditor of the bank over which he
is appointed receiver. Ocean National Bank v.


Such receiver being under the control of the to amend answer for the purpose of setting up

Long delay is making application for leave
Controller of the Currency, such judgment the Statute of Limitations, is good ground for
creditor should present his cla m to the Con. denying such application, especially where
troller of the Currency for payment. Ib. plaintiff's rights against other parties have been
An unauthorized appearance by an attorney

lost on account of the failure of defendants to
gives jurisdiction, and the subsequent proceed - set up, said defence in the first instance. Chase

ings in the action cannot be attacked in a col- v. Lord et al.
lateral proceeding, on the ground that such ap-

When more than three years have elapsed since
pearance was unauthorized or forged. Fergu- the commencement of a suit, judgment by de-
son v. Crawford et al.

336 fault will not be granted without notice to de
A petition of administrators to the Surrogate fendant. Phipps v. Cresson.

for authority to sell real estate to pay debts,
which omits "to state a description of all the

As to laches in presentation of checks for col-
real estate of deceased, whether occupied or not, lection, see BANK CHECKS.
and if occupied, the names of the occupants,"

As to laches in applying for writ of certiorari,
will not confer jurisdiction on the Surrogate to
grant the order to show cause, Estate of Kel-


As to effect of laches in not bringing action to
If the requirement of the statute which pre trial, see PLEADINGS.
scribes what such petition must state, may be
disregarded in one particular, it may be in



When one of joint lessees receives rents under
Sections 1, 2 and 3 of Chap. 82, Laws of 1850, the authority created by a lease, and upon the
and the amendments of Sec. 3 by Chap. 260, strength of the title of the lessees, he has no
Laws of 1869, and Chap. 92, Laws of 1872, do right to retain the money on the ground that
not cure or obviate such omission.

16. the lease was a nullity. Dayton, public Admr. v.

Mc Cahill et al.
Said Sections 1, 2 and 3 are not applicable to
proceedings before the Surrogate, and do not Lessee is bound to make ordinary repairs
relieve him from requiring strict conformity to Statute of 1869 (Conn.) applies only to cases
the requirements of the Revised Statutes govern: where the building becomes untenantable by
ing such proceedings. To hold otherwise would reason of some sudden and unexpected calamity.
nullify Sec. 4 of same act. That section pro Hatch et al. v. Stamper.

hibits the Surrogate from confirming a sale
“ unless upon due examination be shall b esatis An action may be maintained in their in-
fied that the provisions of the title of the Re dividual names by a church committee. Stott et
vised Statutes (governing such proceedings) al v. Rutherford.

have been complied with, as if this act had not
been passed."


A lessee cannot dispute his lessor's title. Ib.
The United States courts have exclusive

Acceptance of new tenants operates as a sur:

jurisdiction of an action for the infringement of render of a lease. Fobes v. Lewis.
a patent. De Witt v. Elmira' Nobles Mfg.Co. 589 Where a lessee agrees to and does make re-

pairs, under an agreement with the lessor that
State courts have jurisdiction in actions in his lease shall be renewed and the amount ex-
which patent rights come in question collater pended in repairs shall be applied to the rents.

Ib. and the demised premises are destroyed before
As to effect of filing of petition in involuntary the new lease is delivered, he may recover the

the commencement of the new term and before
bankruptcy on jurisdiction of state court over amount so expended in repairs. Smith v. Farns-
pending cause, see BANKRUPTCY.


As to presumption in favor of, see FOREIGN

A board of Supervisors have no power to

enter into a lease of a building for armory and

drill purposes, until they have complied with
An answer alleging that a note was of no

all the requirements of section 120 of the Mili-
legal force, held a sufficient allegation to justi- tary Code of 1870. Ford v. The Mayor &c. of

N. Y.

fy the defendant in insisting upon his right to
amend by pleading the statute of limintations,

The Military Code of 1862, is repealed by the
Leonard v. Forster

508 Military Code of 1870, except as to certain legal
As to justice's return, see PRACTICE,




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