2. A person indicted for selling liquors in
quantities less than five gallons without a
license cannot be convicted thereunder on
proof showing that he had a storekeeper's
license and had sold liquors to be drank on
the premises.-The People v. Buffrem et al.,
377.

3. A license which protects the master pro-
tects the servant.-Id.

EXECUTION.

1. When an order of arrest has been granted
against one of several joint debtors and re-
mains undischarged, an execution against
his person only may be issued after return
of execution against the property of all.-
Whitman et al. v. James et al., 214.

2. Certain executions delivered to the sheriff
were not tested, and a body execution did
not specify when it was to be returnable,
but directed its return "as required by
law." Held, That the omissions were
mere irregularities and did not render the
execution void.-Douglas v. Haberstro, 311.

3. Where the owner of chattels executed bills
of sale, absolute on their face, but made
only to secure debts, upon payment of
which the chattels were to be returned to
the owner, and the latter remained in pos-
session and was entitled to the same at the
time a levy was made, Held, That the owner
had an interest in the chattels which could
be taken on execution.-Fowler et al. v.
Haynes, 376.

See JUDGMENT, 8; REDEMPTION; SHERIFFS,
11, 12; STAY, 4.

EXECUTORS AND ADMINISTRATORS.

1. An action will not lie by one executor (or
his assignee) against another upon a claim
of the former against their testator. Such
claim should be presented to the surrogate
for allowance.-Snyder v. Snyder et al., 30.

2. The testator left a fund in trust for his
widow in lieu of dower, chargeable with
the other legacies primarily upon the per-
sonalty, and, in case of insufficiency of the
personalty, upon the real estate. The per-
sonalty left was sufficient for said purposes,
but the executors, who were the residuary
legatees and devisees, misappropriated the
same, so that there was a deficiency in the
personalty. In an action brought against
said executors to compel the performance of
the trust from the real estate and to recover
the arrears of income due on said fund,
Held, That said trust must be charged upon
the land as against the defendants, and that
the arrears of income were properly charged
on said land as against them.-Holman et al.
v. De Noyelles et al., 69.

3. Where a bitter contest has arisen over an
application for letters of administration, so

that the time of final determination of the
application is uncertain, the appointment of
a temporary administrator is proper.— West
v. Mapes et al., 92.

4. Where an executor was called to account
and filed a statement claiming that a note
held by his testatrix against him was not
assets because void for usury, and it appear-
ed that the note was void but that the
original loan was valid, Held, That the
surrogate had power to charge him with the
amount of the loan.-In re accounting of
Consalus, 92.

5. Plaintiff presented to an executor a claim
for services which was barred by time, and
the same was rejected. Plaintiff recovered
in this action upon an alleged special con-
tract by which the testator had promised
and failed to compensate her for these ser-
vices in his will. She presented no claim
to the executor in this action. Held, That
there had been no presentation of the de-
mand on which the action was founded,
and that plaintiff was not entitled to costs
against the executor.-Beecher v. Duel, 109.
6. It is sufficient if a complaint in an action
against one, as executor, upon an instrument
executed by him as executor, alleges that
fact. The complaint need not set forth the
particulars of the defendant's appointment.
-Kingsland v. Borst, 114.

7. Defendant, with the other beneficiaries of a
trust estate, executed and delivered to one
S., executor of B., deceased, a release of
certain real estate free and clear from all
liens and incumbrances, and also instru-
ments consenting to the execution of a
mortgage on said premises by said S., as ex-
ecutor, and that a mortgage made by B. to
the trust estate be postponed as a lien to the
mortgage so to be made. Held, That these
instruments operated to ratify and confirm
the execution of the mortgage by the ex-
ecutor, &c., in such manner as to estop de-
fendant from setting up an alleged claim of
lien in favor of the trust estate as a defence
to an action to foreclose the mortgage.—Id.

8. The plaintiff who succeeds in an action
commenced previous to 1st September, 1880,
against executors, on a claim against their
testator, which was presented to them be-
fore action, and which they refused to
refer, is entitled to costs as provided by
the Revised Statutes.-Snyder v. Snyder
et al., 123.

9. G., M. and S. were appointed executors of
a will, with power of sale. The real estate
was sold and the purchaser gave a check
therefor, payable to M., who endorsed and
delivered it to G., who received the money
and afterwards died. S. never had the
money, and exercised good faith in the exe-
cution of his trust. Held, That G., as co-ex-
ecutor, had an equal right with S. to the
possession of the proceeds of sale, and there

was nothing to make the latter liable for the subsequent acts or default of G.; that the estate of G. was alone liable therefor.Paulding et al. v. Sharkey, 181.

10. Plaintiff individually held certain claims against defendant's intestate which he formally assigned to himself, as executor. Held, That the assignment was invalid and transferred no title.-In re Schreyer v. Holbarrow et al., 193.

11. An unauthorized restriction by a surrogate in letters of administration does not invalidate the letters, but leaves them to operate as though no such restriction had been imposed.-Martin v. The Dry Dock & E. B. RR. Co., 251.

12. If an executor is merely passive and simply does not obstruct the collection or receipt of assets by his associate he is not liable for the latter's waste; but where he knows and assents to such misapplication or negligently suffers his co-executor to receive and waste the estate when he has the means of preventing it by proper care he is liable for a resulting loss.-Croft v. Williams et al., 257.

13. A joint act of executors, where necessary and only formal by itself, draws with it no liability for the waste of the co-executor.Id.

to

14. Appellant allowed his co-executor, W., receive funds of the estate, which were afterwards misappropriated by W. He knew that W. was poor, but did not know or have reason to believe that he had wasted any of the estate. He had advanced money to W. to pay debts of the estate, taking his individual note. Held, That as nothing had occurred at that time to arouse appellant's suspicions he was not chargeable with the moneys received and liable for a devastavit by his co-executor.-Id.

15. So long as the characters of executor and trustee are coexistent in one person, commissions may be retained as executor only; but it is otherwise when there has been a separation of duties performed in the two capacities.-Hurlbut v. Durant, 287.

16. One D. gave by his will to his executors a certain amount 'invested in bonds and mortgages on real estate in New York city," in trust, to keep the same invested and pay the interest on a certain sum to five legatees, and the principal thereof in five years after his death. There being no such mortgages, sufficient funds were set apart and the interest regularly paid, each legatee giving receipts for interest on "legacy in trust. The principal was afterwards paid, the executor first deducting commissions as trustee, which retention was objected to by the legatees, but such objections were afterwards withdrawn and receipts in full given. In an action to recover the commissions so retained, Held, That these circumstances

were sufficient to constitute a valid trust, and while they may not establish a valid and complete separation of the capacities of executor and trustee, they leave that question not free from doubt, and, therefore, the adjustment of commissions should stand as the settlement of a disputed claim. -Id.

17. On a reference of disputed claims against an estate there is no power in the referee or the court to render an affirmative judgment against the claimant upon a counterclaim in favor of the executors.-Mowry v. Peet et al., 301.

18. In such a proceeding the executors can avail themselves of their counterclaim only to the extent necessary to extinguish the demand of the claimant.-Id.

19. The words "next of kin," as used in §§ 9, 10 of 2 R. S., 114, giving a remedy by action against executors or administrators for the recovery of legacies or distributive shares, include the widow of an intestate, and under said sections she can sue for and recover her distributive share of the estate. -Betsinger v. Chapman et al., 303.

20. Where an executor is also a debtor to the estate, his debt must be treated as money in his hands for the purpose of administration, even though he be insolvent; but if he is wholly unable to pay in pursuance of the order or decree of the Surrogate on account of his insolvency he cannot be attached and punished for contempt or convicted of crime, as if he had embezzled property which had actually come into his hands.-Baucus v. Stover, 313.

21. In a decree charging an executor with a debt as so much money, the charge should be specified separately, so as to save all rights of the executor.-1d.

22. A. had a lien on certain judgments against F. as executor of another. F. sold his testator's real estate to pay creditors, and misapplied the proceeds. A. brought an action in which it was decided that F. was liable to A. for this misapplication; but before judgment F. died, and his executor N. was substituted as defendant. On sale of F.'s real estate to pay creditors, Held, That the judgment of A. was not entitled to preference over other creditors, but must share pro rata. In re estate of Fox, 339.

23. Costs recovered against an executor cannot be paid, as a part of the debt, from moneys arising out of a sale of the testator's realty to pay creditors.-Id.

24. An ante-nuptial agreement which provides for the payment of a certain sum to the widow "in lieu of dower, or her rights as widow in his estate," and that she agreed to receive the same in full satisfaction of her dower in his estate, "either in his real

or personal estate," releases her right to the
articles set apart by statute for the widow
in cases where there are no minor children,
and the cases holding that an exemption
law cannot be waived do not apply.-In re
estate of Young, 367.

25. Where an administrator de bonis non ob-
tains a judgment upon a former judgment,
if leave was necessary to prosecute the first
judgment the omission to obtain such leave
is a matter of pleading.-In re The German
Sargs. Bk. v. Carrington, 475.

26. Where an administrator invested trust
funds in the stock of a bank of which he
was personally a stockholder and director,
and the bank failed, Held, That he was
liable for the loss to his cestuis que trustent,
and could claim no allowance for a pay-
ment made by him as administrator to
the receiver of the bank in settlement of the
liability of the stock to creditors.-Mills v.
Hoffman, 482.

27. A cestui que trust who is an infant is not
estopped from proceeding against an ad-
ministrator by a judicial decree' settling his
accounts in an action in which no guardian
ad litem was appointed for her, nor by the
fact that on coming of age she settled with
her guardians for funds received by them
and gave them a release.-Id.

See COSTS, 9; EVIDENCE, 7, 8, 14; NEGOTIA-
BLE PAPER, 6; PARTIES, 1, 3; SURETYSHIP,
3; SURROGATES, 1, 3-7; WILLS, 3, 4, 6, 7.

EXEMPTION.

See TAXATION, 4, 5.

EXPERTS.

See EVIDENCE, 3, 38, 39.

FALSE IMPRISONMENT.

1. A party to an action is, prima facie, bound
by, and responsible for, the act of his attor
ney in issuing an execution against the
person, void for want of jurisdiction to
issue.-Guilleaume v. Rowe et al., 196.

2. A release from liability for false imprison-
ment, executed by one in actual custody
under a void process, and upon a statement
of the deputy-sheriff that unless he signed
it he would have to stay in jail a long time,
is void for duress.-Id.

FALSE PRETENCES.

1. Plaintiff in error falsely pretended and
represented to one S. that a horse which he
had sold to him was sound, kind and true.
The horse was apparently as represented,
but proved worthless and broken down.
Held, That plaintiff in error was guilty of
obtaining money by false pretences, and was
not relieved from the effect thereof by

the fact that a written warranty was given.
- Watson v. The People, 40.

FIRE INSURANCE.

na

1. In an action on an insurance policy on a
vessel, evidence as to the condition of the
boat, her age and when and to what extent
repaired, although years prior to the fire, is
admissible on the question of its value at
the time it was destroyed.-Marks v. The
Guardian Fire Ins. Co., 338.

2. Evidence as to what other boats sold for
about the time of the fire is inadmissible, as
it can throw no light on the value of the
vessel in question.-Id.

3. Before different policies can be held to
contribute to the same loss the insurance
must have been upon the same interest in
the same property or some part thereof. —
The Lowell Mfg. Co. v. The Safeguard Fire
Ins. Co., 485.

See DEEDS, 11; EVIDENCE, 32.

FIXTURES.

1. A steam engine and its connections used
in a saw mill are fixtures.-Bigler v. The
Natl. Bk. of Newburgh, 410.

See DEEDS, 5.

FORCIBLE ENTRY.

1. In proceedings for forcible entry and
detainer a jury found an inquisition
that the defendants had forcibly entered,
&c. This was traversed. The matter was
taken by certiorari into this court, and a
return made. The Circuit Judge quashed
the inquisition upon a review of the evi-
dence taken before the jury in the first in
stance. Held, Error. A traverse having
been made, a trial should have been had.—
The People ex rel. Pierce v. Corill et al., 31.

2. A bond given on the writ, signed by three
sureties, and not by the defendant, is good.
-Id.

Error to admit in evidence letters written
by plaintiff to her husband and children on
the evening before her death in which she
said she was tired of life; said letters being
offered to show that she committed suicide.
The transactions in question had happened
six months before, and, in the absence of an
allegation of insanity, the letters could have
no bearing on the condition of her mind at
the time of the bargain.-Suffern et al. v.
Smith et al., 412.

See ARREST, 1; ATTACHMENT, 5; GIFT, 3;
MORTGAGE, 5; REFERENCE, 2; SALE, 3.

FRAUDULENT TRANSFER.

See BANKRUPTCY, 4, 5; CREDITOR'S BILL.

GAMING.

See ARREST, 2.

GAS COMPANIES.

1. The failure to furnish a continual supply
of gas upon a proper application renders
the company liable to the applicant in the
amount of the penalties imposed by § 6,
chap. 311, Laws 1859, though such applica-
tion was accepted and there was no failure
to supply gas within ten days from such
acceptance.-Meiers v. The Metropolitan
Gaslight Co., 552.

See BAR, 2.

GIFT.

1. Where a father held a mortgage upon
lands of his son and gave the son a receipt
purporting to show a payment upon the
mortgage, Held, That the delivery of the
receipt amounted to a gift of the sum
named therein instead of a mere promise
to give.-Carpenter v. Soule, 100.

2. Although such receipt contains a provision
that the sum named is to be indorsed on
the mortgage, such indorsement is not es-
sential to the gift of so much of the debt.-
ld.

3. The mere relation of father and son does
not per se create a presumption of fraud or
undue influence in a mutual dealing.-Id.

4. One M. told his wife that she was to have
his horse and buggy after he was gone; and
at another time that his boys should never
have them, as he had given them to his
wife; that she should have the hay cut and
stored as she would need it for the horse and
that he hoped she would enjoy it and ride
out every day after he was gone. Held, Not
a valid gift, as the use of the property was
reserved to the donor during his life.—
Mann v. Mann, 154.

5. To consummate a gift there must be such
a delivery by the donor to the donee as will
place the property within the dominion and

control of the latter with intent to transfer
the title to him.-Noyes v. Bailey, 188.

6. One S. purchased certain shares of defend-
ant's stock and told the treasurer to set
aside 30 shares in the name of Y., plaintiff's
testator, in whose name a receipt was also
taken, and he would let him know at some
future time whether to deliver it to Y. He
afterwards told Y. that he had set aside the
stock, which he intended for a child adopted
by Y.
Thereafter S. procured an order
from Y. for three of the shares, and the
dividends were paid to Y. by direction of
S. to help support the child. The certificate
was never delivered to Y. In an action to
compel the company to issue the stock to
plaintiff, Held, That there was not a valid
gift of the stock, there being no delivery
within the meaning of the law with intent
to vest the title in Y. and give him the con-
trol thereof, and that this defence was
available to the company.-Jackson v. The
Twenty-third St. RR. Co., 401.

GUARANTY.

1. It is not a condition precedent to the right
of recovery on a guaranty of collection of a
claim against the estate of a deceased per-
son that a judgment and execution shall
have been procured against the estate; the
guarantee has done his duty when he has
procured the adjustment of the claim and
lodged the demand with the executor for
payment.-Schmitz v. Langhaar, 428.

2. The obligation to pursue a due course of

law" in the collection of a demand does
not require a creditor to obtain a judgment
whose enforcement by execution is subject
to the discretion of another court, and then
only to the extent to which, if undisputed,
it would be paid.—Id.

GUARDIAN.

1. A special guardian appointed in proceed-
ings to sell infants' real estate is entitled
only to such compensation for his services
as the court may deem reasonable, and
should not be allowed commissions under
the statute allowing guardians the same rate
of compensation as executors.—In re appli-
cation of Matthews, 357.

See CONTRACT, 18.

HABEAS CORPUS.

See HUSBAND AND WIFE, 5.

HIGHWAYS.

1. A person who, without special authority,
makes or continues an obstruction in a pub-
lic highway, for a private purpose, is, in
the absence of negligence of the party in-
jured, responsible for all injuries resulting
from the highway being there by rendered
less safe, irrespective of any degree of care

1. Where, in an action for enticing the wife to leave her husband, &c., it appears that the defendant, her father, being a man of means, publicly threatened in the presence of several people to disinherit his daughter unless she left her husband and came back to him, and there is evidence that she heard of this threat and was influenced by it to leave her husband, a motion to dismiss on the ground that there is nothing to show that defendant connived at or requested the wife to leave should not be granted.—Remsen v. Hay, 443.

2. A conversation between the husband and wife, in his house, three days after she first left him, stating that she would not return, which throws light upon the causes and motives which induced her to leave, is admissible as part of the res gesto.-Id.

3. An agreement of separation between husband and wife is of no effect unless the parties are separated when the same is entered into, or unless they afterwards separate in pursuance thereof. An agreement between the husband and wife, and a trustee, providing for a separation during life is valid, and a provision awarding the custody of the children to either is not necessarily void. -Allen v. Affleck, 536.

4. Although an agreement be void, yet if a party has derived benefit from it by a part performance he must pay for what he has received, and the stipulated amount which the trustee was to receive and the husband was to pay may be taken as the measure of damages in an action on such an agreement as the above.-ld.

5. If a provision as to the custody of children is voidable it may be tested by habeas corpus, or the husband may demand custody of the children on that ground and then refuse to pay for further maintenance.-Id.

IMPRISONED DEBTORS.

1. An omission in an order discharging an insolvent debtor from imprisonment under an execution to name all the parties to the judgment on which such execution issued is not

sufficient to vitiate the discharge.-Goodwin et al. v. Griffis, 510.

2. It appeared that an admission of service in the name of the judgment creditor was endorsed on the petition; proof was given of his signature and it did not appear that there was any other person of the same name. It further appeared that he was present at the last examination, though not appearing formally. Held, That it could not be said that there was no proof that the person upon whom the papers were served was the judgment creditor properly identified.—Id.

3. Where the notice of application was for a term held at the court house, and the order shows it was granted at a term held at the office of the judge, Held, That it was a fair presumption that the judge's office was at the court house and that the order was made at a regular term of the court.-Id.

4. Even if the order omits a recital of any necessary fact, the sheriff will be protected if he can show aliunde the existence of such fact. -Id.

INFANTS.

See GUARDIAN.

INJUNCTION.

1. Counsel fees for services in procuring a dissolution of an injunction and in attending a reference to assess damages are proper items of damage to be allowed, but counsel fees incurred on the trial of the issue in the action are not allowable on such assessment unless incurred solely or principally in consequence of the injunction.— Newton et al. v. Russell, 41.

3. An order of reference to assess damages in such a case which directs the referee to allow counsel fees incurred in the preparation for and trial of the action" as part of such damages is a final order affecting a substantial right and is appealable under § 190 of the Code.-Id.

3. Where the injunction was temporary, and there was no prayer for its continuance as part of the final relief sought in the action, and the only damages sustained were counsel fees incurred in an effort to show cause why an injunction should not be granted, there is no ground for the allowance of such expenses or the expenses of the reference.Randall v. Carpenter, 225.