mortgage was recorded without a seal, the burden is thrown on the mortgagor to prove that it was properly sealed, and if he fails, the conclusion of law is, that the seal was wrongfully and fraudulently affixed: Id.

A mortgagor whose will seeks a foreclosure, on the sole ground that the mortgage is a legal one, cannot be decreed an equitable mortgagee, unless he files a new bill in which his equitable rights are set forth: Id.

The officers and directors of a corporate body are trustees of the stockholders, and in securing to themselves an advantage not common to all the stockholders, they commit a plain breach of duty : Id.

COURT OF APPEALS OF NEW YORK.1

Tax-Illegal Assessment-Equitable Jurisdiction to restrain Collection.-An action will not lie to restrain the collection of a tax, on the bare ground that the assessment was illegal. There must be, in addition, facts bringing the case under some acknowledged head of equity jurisdiction : The Susquehanna Bank vs. the Board of Supervisors of Broome county et al.

Bastardy-Recovery back of Money paid on erroneous Expectation.Money paid by a person charged as the father of an unborn bastard to a superintendent of the poor, upon a compromise, under chapter 25 of 1832, may be recovered back upon its appearing that the supposed mother was not in fact pregnant: Rheel vs. Hicks.

It is no defence by the superintendent that he paid the money into the county treasury, no expense having been incurred in the support of the expected child or mother: Id.

Agreement-Damages for Non-Fulfilment.-One who has agreed to build a house on the land of another, and has substantially performed his contract, but has not completely finished the house nor delivered it when it is destroyed by fire, is liable to an action for money advanced upon the contract and damages for its non-perfermance: Tompkins et al. vs. Dudley et al.

Contract-Sale-Title to Goods Sold-Notice-Chattel MortgageParol Evidence.-A brewer sold "sufficient barley now in my brewery to make malt enough, to be made in the brewery, to pay" a sum then advanced by the plaintiff, to whom a delivery was made of a specific mass of barley more than enough for the payment. The plaintiff did not

1 From 11 E. P. Smith's Reports.

remove it, but it remained until the brewer sold his brewery and the contents, with notice of the facts and subject to the plaintiff's claim. The purchaser sold the barley to the defendant, and by his direction put it upon a railroad for transportation to the latter. Held:

1. The legal title and general ownership of the barley passed to the plaintiff. The transaction was an executed sale, in the nature of a mortgage: Wooster et al. vs. Sherwood.

2. The purchaser with notice had no title as against the plaintiff and could convey none to the defendant, although the latter bought without notice: Id.

3. The apparent authority of the defendant's vendor, not having been conferred by the plaintiff, nor with his knowledge or assent, the defendant is not within the rule protecting, as a bona fide purchaser, him who deals with one to whom the real owner has given the indicia of power to sell: Id.

4. As against the defendant, the transfer was valid, without filing as a chattel mortgage: Id.

Whether a demand is necessary to sustain an action for the conversion of the barley, quære; if it were, one made on the carriers engaged in transporting it is sufficient: Id.

Parol evidence, it seems, is admissible, in addition to the written contract of sale or mortgage, that, by the agreement of the parties, the brewer was not to sell the barley delivered under the contract, or malt made from it, without the plaintiff's permission: Id.

Sheriff-Action against for not making the Money on an Execution.A sheriff levied on goods: left them with a receiptor, who claimed to be, and was, the owner, and not delivering them, the sheriff recovered judgment for their value. In an action by the plaintiff in the execution, the sheriff is estopped from showing that the goods did not belong to the judgment debtor: The People, ex rel. Knapp et al., vs. Reeder, Sheriff,

et al.

The fact offered in evidence does not exonerate the sheriff, because he had the benefit of an estoppel against the receiptor on the question of title, which enures to the plaintiff in the execution, and his failure to collect it resulted, not from the fact that the title to the goods was not in the judgment debtor, but from the insolvency of the receiptor: Id.

Mortgage Purchaser at a Mortgage Sale under Void Foreclosure

Tacking Rent to the Mortgage.-The purchaser at a mortgage sale under an attempted statutory foreclosure, void as against the mortgagor for want of notice, stands as an assignee of the mortgage: Robinson vs. Ryan et al.

It seems that this is sufficient evidence of his title, in a foreclosure suit by such assignee to which the mortgagee is not a party, as against a grantee of the land, subject to the mortgage: Id.

The land was subject to re-entry for non-payment of rent due on a lease in fee. The mortgagee had covenanted with the mortgagor to pay such rent to the landlord; but the mortgagor, by a subsequent agreement with the mortgagee, assumed the payment of such rent: Held, that, as against grantee with notice of the agreement, the assignee of the mortgage was entitled to pay the rent to protect his interest; to tack the amount to his mortgage, and to foreclose as for a sum immediately payable, though no part of the principal was due on the mortgage: Id.

Judgment under the Code must be based on the Pleadings.-A judg ment under the Code (§ 274) must, as before, be based upon the pleadings, and is not to be given in favor of a defendant for a cause of action which he has not set up by way of defence or counter-claim: Wright vs. Delafield et al.

The complaint sought to restrain the prosecution of actions pending against the plaintiff on notes given for the purchase of land, on the ground of defe of title, and prayed that the defendant might be required to make a good title and convey. There was a pure defence, which prevailed. Held, that the complaint should have been dismissed, and a judgment for the defendant for the amount of the notes was reversed: Id.

Fences-Adjoining Owners-Prescription to maintain Fences.-There may, it seems, be a valid prescription binding the owner of land to maintain perpetually the fence between him and the adjoining proprietor: Adams vs. Van Alstyne.

In such a case, the fence-viewers have no jurisdiction under our statutes: Id.

The maintenance of a fence by one of the adjoining proprietors exclusively for more than twenty years, when he might have compelled the other to maintain part, warrants the presumption of a grant or covenant compelling him to do so: Id.

But no such prescription can be established in respect to part of a boundary line by the maintenance for any length of time, since our statutes requiring fencing, of the fence thereon by one of the adjoining proprie

tors, while the other maintained an equal length on another portion of the boundary: Id.

The presumption in such case is that each maintained what had been found by agreement to be his just proportion of the fences, in discharge of his own duty, and not in exoneration of the other: Id.

Such a division, it seems, is binding upon the parties while they remain conterminous possessors; but new obligations arise when, by subdivision, or otherwise, there is a change in the extent to which one of the adjoining proprietors borders upon the other: Id.

The statute empowering fence-viewers to fix the just proportion of fence to be maintained refers to the state of things existing when they are called upon to act, and has no relation to any former ownership of the adjoining possessions: Id.

Judgment Confessed-Motion to Cancel-Conclusiveness of Order.Upon an application to the court, by motion, to cancel a judgment entered upon confession without action as having been paid, the court may order a reference to ascertain the facts: Dwight vs. St. John.

The order of the court denying such motion made upon full proofs, and appealable as affecting a substantial right, is conclusive between the parties: Id.

After such an order, the plaintiff in the judgment brought an action for the purpose of having the judgment declared to stand as security for another debt not mentioned in the sworn statement upon which it was entered, and to have such statement amended in accordance with the intent and agreement of the parties as alleged by him, but denied upon oath by the defendant: Held, that while the defendant was concluded by the adjudication upon the motion, in effect that the judgment should stand as security for such further debt, yet the plaintiff could have no affirmative relief: ld.

SUPREME COURT OF NEW YORK.1

Guaranty of a Promissory Note.-Where a guaranty of a promissory note is a separate instrument from the note, title to it will pass by delivery with the note, for a good consideration. A written assignment is unnecessary: Gould vs. Ellery.

Construction of Will.-A testator directed the residue of his estate to be divided between his brother W., and the children of his deceased

1 From the Hon. O. L. Barbour; to appear in the 39th volume of his Reports.

sister, E., and the daughter of his brother J., in equal proportions. Held, that a decree of the Surrogate, directing a distribution to be made among the legatees per capita, giving each of the nephews and nieces an equal share with W., applied the correct rule of distribution: Lee, Ex'r., vs. Lee.

Agreement-Principal and Surety.-C. applied to the plaintiffs to be supplied with gas-light and meter on certain premises, and agreed to pay for the same on the usual terms; E. signing the application as surety. Subsequently E. ceased to be the occupant of the premises, and W. became his successor. Held, that E. was liable only for the gas and meter supplied to C. on the premises named, on the default of C., and not for gas furnished to W. after he became the tenant. And that a request to notify the plaintiff of the change of proprietorship would not render the surety liable for gas furnished to W.: The Manhattan Gas Light Company vs. Ely.

Promissory Note-Statute of Limitations.-A promissory note, given to a Mutual Insurance Company, for shares of its capital stock, and in terms payable in such portions, and at such time or times, as the directors of the Company may require, and showing on its face that it was given for capital stock of the Company, is, in legal effect, payable on demand, i. e. at its date: Colgate vs. Buckingham.

The Statute of Limitations begins to run against such a note at the time it is given, and, at the end of six years from that time, will constitute a good defence: Id.

Principal and Agent-Banks.-An agent, acting under a general power of attorney giving him power to draw or indorse checks for and in the name of his principal, has no authority to overdraw his principal's account at the bank: The Union Bank vs. Mott.

And if over-drafts are made upon such account, by the agent, through a fraudulent collusion with a book-keeper in the bank, without the knowledge or sanction of his principal, who receives no part of the proceeds, the loss must fall upon the bank; such loss having been occasioned by the fraud of its own clerk and servant, in the performance of his duties in the bank: Id.

Right of Action-Receiver.—The claim for dividends improperly declared by an insolvent banking corporation, belongs to creditors, and not