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upou an insufficient statement, but not impeached for actual fraud, is good as between the parties. Miller vs. Earle.

Where the property of the defendant has been sold under an execution upon such a judgment, the purchaser's title cannot be impeached by a creditor having no judgment or lien on the property at the time of the levy: ld.

Sale-Purchase with Design not to Pay-Fraud.-Though the omission of a purchaser of goods for credit to disclose his insolvency is not necessarily fraudulent, yet if the purchase be made with a preconceived design not to pay, it is a fraud: Hennequin et al. vs. Naylor.

Such design may be inferred by the jury from the circumstances and conduct of the vendee, not only in respect to the sale in question but in other contemporaneous transactions: Id.

Evidence-Exemplification of Will.-The exemplification of the record of a will, in order to be evidence, under ch. 94 of 1850, must contain the proofs taken before the surrogate. A mere exemplification of the will, recorded as having been proved, is insufficient: Hill et al. vs. Crockford.

Account Where it Lies.-The action of account, at common law, would only lie between two merchants. It was unavailable where the partnership consisted of a larger number: Appleby vs. Brown.

The Revised Statutes (2 R. S., p. 385, § 49), though implying a different understanding on the part of the legislature, did not change the law or enlarge the cases in which the action might be brought: Id.

Highway When it may be laid out over Railroad Track or Property— Constitutional Law.-A highway cannot be laid out over grounds acquired by a railroad corporation for the site of an engine-house, &c., necessary for its use at a station: The Albany Northern R. R. Co. vs. Brownell et al. An injunction suit will lie to restrain highway commissioners from taking possession of such a site: Id.

It seems that an injunction suit will not lie in a case where the commissioners would have the right to lay out a highway, but fail to acquire jurisdiction, or where their proceedings were irregular: Id.

The statute (ch. 62 of 1853), in authorizing the construction of highways across railroad tracks without compensation, does not violate the constitutional provisions against taking private property for public use or impairing the obligation of contracts: Id.

The title which a railroad corporation acquires to its track is qualified

as being taken for public use. and is subject to the exercise by the legislature of all the powers to which the franchises of the corporation are subject: Id.

Judgment by Confession-Validity.-A judgment by confession is valid as between the parties, though the statement on which it is founded does not conform to the Code in setting forth the origin and particulars of the indebtedness: Neusbaum vs. Keim et al.

Such a judgment, therefore, upon proof of its bona fides, authorizes the creditor to impeach a fraudulent transfer by his debtor: Id.

A statement, it seems, is sufficient under the Code, which, after declaring that the plaintiff had sold and delivered to the debtor large quantities of meat in 1854 and 1855, averred that there was justly due him, upon such sales, a balance of $2114, with interest from January 18, 1855: Id.

Insurance-Warranty-" Free from Liens."-A marine policy of insurance "upon the whole tackle," &c., of a vessel, containing a warranty that "the property is free from all liens," parol evidence is admissible that the property insured was the owner's equity of redemption in the vessel which was subject to certain mortgages known to the insurer: Bidwell vs. The North Western Ins. Co.

The existence of such mortgages is no breach of the warranty: Id.

Sunday Law-Newspaper.-A contract for the publication of an advertisement in a newspaper to be issued and sold on Sunday, is void: Smith et al. vs. Wilcox et al.

Habitual Drunkard-Promissory Note, what Payment of.-The jurisdiction given to the County Courts for the custody of habitual drunkards (Code, § 30, sub. 8) is general, not limited to those having estates of less than $250: Davis vs. Spencer.

The reference in subdivision eleven of the same section to the powers of the old Courts of Common Pleas in this matter does not limit the effect of subdivision eight, but was intended to continue in the County Court cases then pending in the Common Pleas : Id.

An agreement between the payee of a note and the maker, made with the asseut of the latter's partner, to apply the indebtedness of the payee to such maker and his partner in payment of the note, operates in presenti as a satisfaction of the note pro tanto: ld.

ld.

Whether the assent of the partner was necessary or material: Quare ·

SUPREME COURT OF NEW YORK.

Action for Specific Performance.-When it appears, or is conceded, on the trial at a special term of an action for the specific performance of an agreement to sell and convey real estate, that the defendant is not, and never has been, able specifically to perform, the judge should decline to proceed with the trial, and should send the action to the circuit, for trial: Stevenson vs. Buxton.

The defendant, in such a case, has a right to have the question of damages tried by a jury; of which the justice, at special term, cannot deprive him, by a compulsory reference to a referee; particularly where the fact that the defendant never had title, and was not and never had been able to specifically perform, is set up in the answer: Id.

Insurance-Transfer of Interest without Consent-Liability upon Premium Note.—A clause, in a policy of insurance, providing that the interest of the assured in the policy, or in the property insured, is not assignable without the written consent of the insurers; and that in case of any transfer or termination of such interest without such consent, the policy shall be void and of no effect, is to be regarded as a provision made for the exclusive benefit of the insurers, and to be practically exercised by them or not, at their option: Hyatt, receiver, &c., vs. Wait.

If, after the assured has transferred his interest in the policy and in the property insured, without the written consent of the insurers, the latter choose to rectify the transfer, and to continue the insurance, the policy will not be absolutely void: Id.

And if, after notice of such transfer, they treat the assignee as a member of the company, they will be estopped from denying such ratification and approval: Id.

Whether a policy of insurance be regarded as originally void, or only voidable in consequence of an unauthorized transfer, it is nevertheless conditionally susceptible of ratification and confirmation: Id.

Notwithstanding a policy be regarded as absolutely void, by reason of an unauthorized transfer, so far as to prevent an action for a loss, by the assured, against the company, the former is not released from the obligations of his deposit or premium note until he has complied with a condition of the policy and charter, requiring "the payment of his proportion of all losses and expenses that may have occurred prior to the surrender" of the policy, or alienation of the property: Id.

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The assured will remain liable upon his deposit note, as well for losses occurring after as before the alienation, until all assessments are paid: Id. Notwithstanding a clause in the charter of a mutual insurance company, declaring that all persons who shall insure with the company, SO long as they shall be insured in said company, shall be and continue members thereof, and no longer," persons insured are still members of the company, and liable to contribute for losses sustained, although they have alienated the property without the written consent of the company: Id.

Husband and Wife-Wife when a witness against Husband-Parol Promise of Husband, and Settlement in consideration thereof.-When husband and wife are co-defendants, and their interests are not conflicting, she is a competent witness in her own behalf, and may be examined as to an agreement between them: Scheffner vs. Reuter and others.

Where a husband receives from his wife a sum of money belonging to her absolutely, upon a parol promise to repay the same, he not being indebted at the time, such parol promise, though void at law, is good in equity and the receipt of the money forms an equitable consideration for the repayment thereof, or for a settlement of real estate of equivalent value, and for a post-nuptial contract carrying such an arrangement into effect: Id.

Where a conveyance, made by a husband to his wife, was no more than a joint equivalent for the money borrowed by him of her, and was apparently free from actual fraud, it was held that such conveyance, although executed after a debt had been incurred by the husband, was supported by the antecedent equitable obligation and consideration, and in legal effect related back to that period. Id.

Mortgage-Condition that all shall become due on Default.-A condition, in a mortgage, that upon default in the payment of interest for twenty days after due, the principal sum, together with all arrears of interest, shall, at the option of the mortgagee, become due and payable immediately, is not in the nature of a forfeiture, to be relieved against by a court of equity, or which a court of equity will not enforce. It is an agreement which the parties have a right to make, and the extension of credit is lawfully made dependent upon the punctual payment of interest: Valentine vs. Van Wagner.

Certificate of Deposit, payable in "Illinois Currency."-The plaintiffs deposited money with the defendants, who were bankers, at Chicago, receiving from them a certificate stating that the plaintiffs had "deposited

in their office $1781.42, Ills. Cy., payable to the order of themselves.” Held, that the fair construction of the terms "Ills. Cy.," if applied to the payment of the certificate, was that the same might be paid in bills of banks which at the time of payment were received and passed as ordinary currency, in Illinois; but that payment could not be made in the same bills which were deposited. And that it was error to hold that the defendants were bound to pay in specie, or in bills which passed at par,

in Chicago: Hulbert and others vs. Carver and others.

Sheriff-Liability for Acts of his Deputy-Authority of Deputy, how proved-Impeaching Witnesses.-To render a sheriff liable for the acts of his deputy, it is not necessary that he should be sued in his official capacity as sheriff and facts sufficient to charge him as such be set out in the complaint Curtis vs. Fay.

The sheriff's liability for the acts of his deputy, in the execution of process, rests upon the doctrine of principal and agent; and in all such cases it is essential to prove the agency, upon the trial, if the fact is denied by the answer: ld.

The authority of the deputy to act as the agent of the sheriff, and to bind him by his acts, can only be proved by the production of his appointment as deputy. It cannot be proved by a certified copy of such appointment; nor by evidence that the deputy acted as such: Id.

One having no personal knowledge of the character of a witness, but deriving his information solely from others whom he does not know, is not qualified to testify in relation to the witness's character or reputation: Id.

An impeaching or sustaining witness is not to speak of the reputation of the witness whose veracity is in question, unless he knows it; and such knowledge must be founded upon an acquaintance and intercourse with the neighbors and acquaintance of the witness, sufficient to enable him to gather the general estimation in which such witness is held in the community where he resides: Id.

SUPREME COURT OF MASSACHUSETTS.1

Promissory Note-Failure of Consideration-Patent.-The sale of the right to make, use, and vend a patented invention which cannot be applied to auy beneficial purpose, but is wholly worthless, is not a valid consideration for a promissory note, although the parties acted in good faith and both then believed the patent to be valuable: Lester vs. Palmer.

1 From Charles Allen. Esq., Reporter of the Court.

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