thereon, among. other things, for $794.98, costs and extra allowance, which sum the assignee was, by order, directed to pay, and that in default of such payment an attachment issue against him to compel him to pay the same.

Held, that the remedy by attachment against an assignee pendente lite, given by § 321 of the Code was intended to apply only to assignees taking and holding in their own right, and that, if holding in a representative capacity, § 317 protects them from personal liability in the absence of misconduct or bad faith; § 321 imposes no greater liability upon the assignee than if the action had been originally brought by him in his representative capacity. The assignee in bankruptcy comes within the description of a trustee of an express trust, within the meaning of § 317. The fact that the trust fund is under the jurisdiction of another tribunal than the one in which the action is prosecuted does not affect his liability for costs. Reade et al. v. Waterhouse et al. Opinion by Rapallo, J.

2. It does not seem reasonable that the assignee should be personally chargeable with costs which have accrued before the assignment. Ib.

CONSTITUTIONAL LAW.

1. This was an application for a peremptory mandamus against the comptroller of the State, founded upon a provision of the appropriation bill of 1871 (chap. 715, Laws of 1871, p. 1581), appropriating $20,000, or as much thereof as might be necessary for the purchase of certain relics of George Washington, to be paid upon the certificate of Judge Grover, the chancellor of the university, and J. Carson Brevoort. The relics were presented to the three persons named at a meeting attended by all. A certificate was signed by two of them, stating that the third met with them, but refused to join in the certificate. Upon this certificate being presented to the comptroller by the relator, and demand made for his warrant on the treasurer, the comptroller refused to issue the warrant solely upon the ground of Judge Grover's refusal to join in the certificate.

Held, that the certificate was sufficient, and the fact that one of the persons so designated was, at the time, a judge of the court of appeals, and, as such, incapacitated by the constitution (art. 6, § 10) from holding any other "office or public trust," did not invalidate the provision of the appropriation bill or render his appointment void; that it was not an office or public trust within the meaning of the constitution. People ex rel. Washington v. Nichols, comptroller, etc. Opinion by Peckham, J. Dissenting opinion by Grover, J.

2. Also, held, that a question between a State and an individual is a matter of public concern, and where several persons are appointed to act therein on behalf of the State, or between the State and the individual, when all have met, a majority may act. Ib.

DOWER.

A wife can only be barred of dower by a conviction of adultery in an action for a divorce, and by the judgment of the court in such action. 2 R. S. 146, § 48; 1 id. 741, § 8. A forfeiture of dower cannot be established by proof of adultery, or by a verdict or judgment in any other action. If the husband cohabits with the wife after she has committed adultery, with knowledge of the fact, he condones the act, and it is an absolute bar to an action for a divorce. An action cannot be maintained merely to establish the fact that an offense has been committed, which has been blotted

out and forgiven by the husband in order to attach the penalty of forfeiture of dower to the wife. Pitts et al. v. Pitts et al. Opinion by Allen, J.

MORTGAGE FORECLOSURE.

Re-sale costs: surplus.— Action for the foreclosure of a mortgage. K, the respondent on this appeal, was the owner of the equity of redemption, as receiver of the Bowling Green Savings Bank. Neither he nor the bank were originally made parties to the action. Judgment was perfected, and under it the premises were bid in by W, the appellant, who paid ten per cent of the purchase-money. Upon examining the title he refused to complete the purchase, for the reason that K, said receiver, had not been made a party defendant. Upon motion, the sale was set aside and the judgment opened, and the process and papers amended, by bringing in the receiver as a defendant. The referee, who made the first sale, retained out of the ten per cent deposited by W his fees and expenses, and returned the balance. The premises were again sold upon a second judgment being obtained. There was a surplus on such sale, and W moved that his counsel fees and expenses, together with the amount retained by the referee, with interest, be paid to him out of the surplus. This motion was denied. Held, No error. That no portion of the loss resulting from the sale of the premises can be deducted from the interest of K, the owner of the equity of redemption, in the surplus moneys arising from the second sale. W. should be paid, but it should be out of the share of plaintiff in the moneys raised by the second sale and adjudged to him by the judgment of foreclosure and sale. Raynor v. Selmes et al. Opinion by Folger, J.

MUTUAL INS. CO. STOCK AND PREMIUM NOTES.

1. This action was brought upon a note given by defendant to the Union Mutual Insurance Company. The defendant set up as a defense the statute of limitations. The note was in form a premium note, and was dated August 21, 1851. Defendant proved that the note was given in April or May, 1851, and before the organization of the company, that it was not dated when executed, and the date that was inserted in it was that of the policy subsequently issued thereon. When the note was given the company had not the amount of stock-notes required for organization, and organization by the agent employed for that purpose that the note was procured for the purpose of the and was delivered to those getting up the company, and that the stock notes were all in the same form, only one form being used for stock and premium notes. The court refused to submit the question whether the note was a stock or premium note to the jury, holding that it must be regarded as a premium note. The general term sustained the ruling of the court below upon the ground, among others, that the answer set up defenses wholly inconsistent with the claim that the note was a stock note. Held, That the ruling of the court below was error, that the evidence was sufficient to raise a question of fact for the jury. Jackson, Rec'r, etc. v. Van Slyke.

Also, held, that as the court below received the evidence for the purpose of sustaining the plea of the statute of limitations, it could not be disposed of on appeal, upon the ground stated, as if the objection had been entertained upon the trial non constat, but that a motion would have been made and granted to amend the answer.

Also, held, that the tenor of a note given to a Mutual Insurance Company is not conclusive upon the question as to whether it was given as a premium or stock note, but that question may be determined by the facts and circumstances attendant upon its making, and is a question of fact for the jury.

2. Where a note is so given before the company is organized there is ground for an inference that it was given as a stock note. Dana v. Munson, 23 N. Y. 564, limited. An appellate court has no power to dispose of a defense adversely to defendant, on the ground that it is inconsistent with other defenses set up in the answer, where the objection has not been before entertained by the court, the proceedings of which are in review. Ib.

QUO WARRANTO - COSTS.

1. Proceedings in the nature of a quo warranto are now to be had by a civil action, under the provisions of chapter 2, of title 13, of the Code. And in such an action the prevailing party is entitled to costs. People ex rel. Furman v. Clute. Opinion by Folger, J.

2. Where it is alleged in the complaint, in such an action, that the defendant has usurped the office in question, and that the relator is entitled to it, and both of these allegations are denied by the answer, upon judgment being given against the defendant, ousting him from the office, the people and the relator plaintiffs are the prevailing party, and as such are entitled to costs. Although the judgment also determines that the relator is not entitled to the office. Ib.

SALE-WARRANTY.

1. Purchaser not bound to return defective goods.-Action to recover damages for an alleged breach of warranty in an executory contract for the sale and delivery of eighty barrels of rock-candy syrup. It appeared that plaintiffs, after receiving the syrup, and discovering its failure to comply with the warranty, proceeded to use it, and neither returned nor offered to return it.

Held, that plaintiffs were not bound to return, or offer to return, the syrup, but that they had a right to retain the same, and have their remedy upon the warranty. (Church, Ch. J., Allen and Andrews, JJ., dissenting.) Day et al. v. Pool et al. Opinion by Peckham, J.

2. In the case of a sale of goods en presenti, the vendee cannot rely upon a warranty as to defects open and visible. Ib.

Practice: service of notice of appeal: who are “adverse parties" under section 327 of Code. The court directed that all papers in this suit should be served on all the parties hereto. The defendants are several claimants to the same fund, each one of whom had commenced au action to enforce the right asserted. From the decree entered herein, Jay Cooke & Co. alone appeal. The notice of appeal was served on plaintiff only. Held, that all the defendants are adverse parties (under § 327 of Code), who claim the fund or any part thereof. They are all plaintiffs as to each other. The appellants have disregarded the provisions of the order, in a matter of substance, and the notice of appeal having been irregularly served, the appeal should be dismissed. Walsh, assignee, etc., v. Cooke et al. Opinion by Brady, J.

ASSIGNMENTS. See Contracts. BANKRUPTCY. See Mortgages.

BILLS, NOTES, ETC.

Certified checks: the certifier the primary debtor: rules as to promissory notes do not apply.-Action upon a check dated 21st January, 1865, drawn by M. Morgan's Sons, payable to their own order, and indorsed by them. On or about that date it was accepted by the defendant, and duly certified to be good and registered. On the 4th February, 1865, it was in possession of the firm of Meyer & Grene, and it was on that day stolen from them. Notice of the theft was given to defendant, or payment stopped, and nothing further was heard of the note by Meyer & Grene till June, 1868. The plaintiff gave value for it and took it in a legitimate manner. The justice below refused to submit the question to the jury whether the plaintiff was a bona fide holder for value, taking the view that the check was, in judgment of law, dishonored at the time of its transfer to plaintiff, and therefore subject to all the equities existing in favor of the owners at the time it was stolen. Held, if the signatures to the check and certificate were genuine, plaintiff was not bound by any thing appearing on the face of it, to exercise any other caution as far as defendants were concerned. The check was honored because it was accepted, and was, as to the drawers, paid by such acceptance. If the holder thereafter delayed presentation, it was his own matter. The position taken below is untenable, as the rules as to promissory notes do not apply. (28 N. Y. 428; 9 Metc. 309; 14 N. Y. 629, cited.) The object of the holder in procuring the certification is to use it as money. The certificate is an acceptance payable on demand, and was obligatory until paid, or barred by the statute of limitations. The question of equities between any of the prior parties cannot intervene against a bona fide holder for value. He deals upon the value of the paper alone, looking to the bank as the primary debtor, and the cases relating to the duty to demand payment in a reasonable time become inapplicable. (2 Hill, 429; 4 Duer, 219, cited.) New trial ordered. Nolan v. The Bank of New York. Opinion by Ingraham, P. J.

1. Husband and wife: action by husband after the death of his wife.-Action by husband for loss of services of his wife. This is an appeal from a judgment dismissing the complaint for insufficiency of cause of action. The complaint charged defendant with malpractice in administering drugs to plaintiff's wife, and performing an operation on her for the purpose of producing an abortion, a few days after which she died. Held, that where the cause of action would have existed if the wife had lived, plaintiff could recover for loss of society and services after the injury, even though she survived only for a few days, nor would the consent of the wife excuse negligent or ignorant treatment, so as to deprive the husband of his claim for damages. Lynch v. Davis, 12 How. 323, cited. Although under our statute the act complained of was criminal, it was not therefore a merger of the right of action for damages. Plaintiff is entitled to recover his damages, however small, for the period of time which his wife lived after the drugs were administered. Judgment reversed. Phillips v. Wolf. Opinion by Ingraham, P. J.

1. Interpretation of contracts: distinction between loans and purchases.-Plaintiff agreed to pay defendants $2,000, for which they were to give their note at six months, and assign a one-fourth part of their interest in certain mining property. The money was paid, the note given and transfer made. It was also agreed that the plaintiff might elect to purchase a one-fifth interest within five months for $5,000, by giving written notice, and at the end of one month from such election, he was to surrender the note, pay $3,000, and receive the transfer of the one-fifth. Held, that the first transaction was clearly an advance of money and giving a note and security therefor. This could only be changed into a purchase at plaintiff's election, within the time named. Bangs v. Nordheimer. Opinion by Ingraham, P. J.

2. Interpretation of contracts: assignment of lease subject to consent of owner, must show a paper not a parol title.- Appeal from judgment in favor of plaintiff. Action to recover $5,000, paid by plaintiff, on the execution of an agreement by defendant Harway, lessee, to sell the lease and good will of the St. James Hotel, in the city of New York. The lease contained a condition restrictive of the right of lessee to assign the lease without the written consent of the lessors. The agreement is silent upon the subject. The defendant claims a waiver of forfeiture by the lessors, but could produce no written consent by them. Held, that the lease must be regarded as a part of the compact between the parties, and it is to be implied from the agreement to sell, that the requirements as to title shall be met. A title which depends upon the result of proof upon the trial is not in equity specifically enforced. The vendor having a title de hors, the instrument should provide for it by the terms of the agreement or by notice. The agreement does not warrant any other construction than that defendant was tɔ make a valid transfer by papers, conveying a clear title and sufficient without a necessary reliance upon mere facts and circumstances relating to a condition broken and forfeiture incurred but subsequently waived. Judgment affirmed. Murray v. Harway et al. Opinion by Brady, J.

DAMAGES.

1. Damages on non-acceptance of foreign bill.- Appeal from order dismissing complaint. Action to recover money deposited with defendant. At the request of drawers the holders agreed to return to England for acceptance and payment a bill of exchange, which had been protested for non-acceptance and returned to the holders in New York, on condition that the drawers would deposit with them $2,000 as security that the draft would be paid. The money was so deposited, and the bill was returned to England, and the amount of the face of bill was paid on the day when it would have been originally payable if accepted on the date of its first presentation. Defendant claims to deduct from the deposit damages on the protest of the bill for nonacceptance, and has paid the residue into court. Held,

that the holders were clearly entitled to damages, and the return of the draft did not relieve drawers from liability. If the drawer was discharged, it was without consideration. Hargous v. Labens, 3 Sandf. Sup. Ct. R. 213, cited; Bangor Bank v. Hook, 3 Greenl. 174, doubted. The security deposited applied as well to the damages as to the face of the bill. Judgment affirmed. Pesant v. Pickersgill, survivor, etc. Opinion by Ingraham, P. J.

2. Damages where both parties are at fault.- The plaintiffs contracted to erect a certain building for defendant. By the specifications the walls were to be erected with mortar made from sand found on the premises and adjoining. When it was about completed the mortar thawed, and part of the wall bulged out. Defendant had the building taken down, and claims to recover damages against plaintiffs. The referee found the bulging was caused by the character of the sand, which was furnished to plaintiffs by defendant, and that defendant, having contributed to the result, cannot recover damages against the plaintiffs, and that neither can plaintiffs recover the balance due on that building. Held, the finding is correct. Both parties were to blame, one for requiring the sand from the lot to be used, the other for using it when he knew it would not be fit for the purpose. Neither party can recover from the other any thing for what so became useless. McLane et al. v. De Leyer. Opinion by Ingraham, P. J. DEATH. See Cause of Action. DEVIATION. See Insurance. DISTRICT COURTS. See Statutes, construction of.

EVIDENCE.

1. Examination de bene esse: waiver.- Plaintiff in error was indicted for grand larceny, and convicted. On the trial the main reliance of the prosecution was upon the de bene esse examination of certain non-residents of the State. The depositions were taken by consent of the prisoner and in his presence, and read by his consent at the trial. Held, such examinations are provided for by statute, and plaintiff having waived a compliance with its details by consent, was bound thereby. The case of The People v. Cancemi is not adverse to this view. The waiver of rights made by plaintiff did not conflict with positive statutory enactments, or prohibitions of the constitution. Wightman v. The People. Opinion by Brady, J.

2. Evidence of usury. - Defendants E. and W. made their note to the order of the defendants A. and B., for the accommodation of the latter, who passed it to plaintiffs in course of business. The defense of usury, as between plaintiffs and A. and B., is interposed to an action on the note. On the trial the question, "What was the discount?" was excluded. Appeal from judgment in favor of plaintiffs. Held, that if the objection was cured by the subsequent statements of the witness, that the amount to be taken from the note he thought was 24 per cent, then the usurious rate was established. If it was not so cured by reason of its indefiniteness, then the exception remains, and is fatal to the validity of the judgment. The question was improperly excluded. Judgment reversed. Hallgarten et al. v. Eckert et al. Opinion by Brady, J. See Judgments.

EXECUTIONS. HUSBAND AND WIFE.

See Cause of Action.

steamer Meteor, at and from Philadelphia to New York. The defenses were lack of insurable interest; that the vessel was unseaworthy; that it deviated from the voyage described; that it was not lost by any peril insured against. It appeared that the vessel was stopped at Chester, on the river Delaware, to have a crack in the steam chimney repaired; that the engineer left her that night and returned to Philadelphia, | and the next morning found the vessel burned. This crack was known to the parties, and the inspectors had refused a certificate until repairs were made. Held, that these statements being undisputed, it was mere question of law whether there had been a deviation. The cases of Fernandez v. Great Western Insurance Company (48 N. Y. 571), and Stevens v. Commercial Ins. Co. (id. 402), show clearly that it was a deviation. The stoppage at Chester may also be said to have led to the occurrences which aided in the destruction of the vessel by allowing the officers to leave her. Verdict below in favor of plaintiff set aside. Audenried v. The Mercantile Mutual Ins. Co. Opinion by Ingraham, P. J.

JUDGMENTS.

Lien of judgments: sales thereunder after death of judgment debtor: executions. - Appeal from judgment in favor of defendant. The question involved is, whether one Coe or the defendant is vested with the title to certain real property in New York city. Both claim under one J., who died November 10, 1852, being seized of the fee of the property. On November 19, 1851, M. recorded and docketed a judgment against J., and issued execution on the same day. On July 23, 1852, B. recovered and docketed a judgment against J., and in like manner, before J.'s death, issued execution. On April 6, 1853, the sheriff sold said real estate to one S., and issued his certificate. In February, 1855, the sheriff executed a deed thereof to Coe, the assignee of the certificate of S. On October 3, 1851, the Bowery Bank recovered and docketed a judgment against J. On September 25, 1861, the surrogate, on the petition of defendant, made an ex parte order granting leave to issue execution on the judgment of the bank. On the execution, pursuant to this order, on January 14, 1862, the sheriff sold the real estate to defendant, and thereafter executed to him a deed for the same. Held, that Coe's title seems to be established. It is only when a debtor dies after judgment, and before execution, that the statute applies which stays in execution for a year. The referee, therefore, erred in holding the sale of real estate could not be made under the M. and B. executions. The lien of the judgment of the Bowery Bank had ceased by the expiration of ten years. Under the Act of 1850 the surrogate cannot grant leave to issue execution without notice to all parties interested, which includes personal representatives. This act is in addition to § 376 of the Code (49 N. Y. 161, cited). Although the bank was the senior judgment creditor, its precedent claim was not enforced in time, or in the proper manner. The M. and D. executions had not become dormant. That doctrine does not apply to real estate, the lien upon which depends upon the docketing of the judgment, and not on the execution or levy (7 Barb. 341, cited). Judgment reversed. Goodrich v. Haskins. Opinion by Brady, J. LEASES. See Contracts. See Judgments.

LIENS.

MORTGAGES.

Effect of bankruptcy proceedings against the owners of equity of redemption on foreclosure of the mortgage.

Appeal from an order of Special Term denying the motion of the purchaser, at the sale under the judgment of foreclosure, in this action to be relieved from such purchase. He asks this relief on several grounds, most of which are held by the General Term to be of no weight, for the reason that by the terms of the sale the incumbrances alleged, if they existed, were to be allowed by the referee out of the purchase-money. The principal ground assigned by the purchaser is, that during the pendency of the action, and before judgment, three petitions in bankruptcy against the owners of the equity of redemption were filed in the United States Courts, and were pending undetermined at the time of the sale and purchase. No assignee in bankruptcy has been appointed, and it does not appear that any will be. The United States Court, upon the application of plaintiffs in this action, modified the injunction in those proceedings so as to allow the action of foreclosure to proceed to judgment and sale. Held, the case of Wilson v. Clark (47 N. Y. 261) does not govern this case, for this has proceeded to final judgment and sale, without an assignee in esse, who could be made a party. An assignee, appointed after a completed foreclosure, would be held bound by the judgment, and a fortiori, where the injunction has been modified as here (Marshall v. Knox, U. S. Supreme Court, cited). Order affirmed. Lenihan v. Hamann et al. Opinion by Davis, J.

2. Relation back of assignments in involuntary bankruptcies: construction of statutes.-The fourteenth section of the Act of Congress of March 2, 1867, applies to voluntary cases of bankruptcy, and the forty-second section of the same act does not give the effect to the assignment in involuntary cases as is provided by the 14th section. The courts of bankruptcy having power, by injunction, to prevent injustice, are in no need of the rule of relation in involuntary proceedings, that the statute gives in voluntary bankruptcies. Ib.

NAVIGATION.

Duties of towing and towed boats. - Plaintiffs were insurers of certain corn in course of transportation by canal boat from Buffalo to New York. Defendant undertook the towing of the boats down the Hudson river, and, opposite West Point, the corn was lost, or injured, by the alleged fault of defendant. Plaintiff paid the loss and took an assignment of the claim against the Tow Boat Company, and bring this action. It has been previously argued (see 54 Barb. 559). On the second trial the judge charged the jury: "If you find that the captain of the tug is the captain of the canal boat (in other words, that the canal boat is subject to the orders of the captain of the tug boat), and, as such, omitted to take the proper precautions which he should have taken for safe navigation and for the safe delivery of freights, such, for example, as directing and insisting upon a light being put out, the plaintiff would be entitled to your verdict, and you need not consider any other question in the case." Held, that this charge was erroneous, and too narrow. It did not follow the ruling in 54 Barb., supra. It was not sufficient to stop with the question, whether the captain of the tug boat had a right to give and enforce orders in respect to the keeping out of lights, but it was also proper to inquire whether, if orders were given, they were not negligently disobeyed, or, if not given, whether a due care and caution to protect his own property should not have required the captain of the canal boat to put out a light without any explicit