13. Prior to the execution of an assignment for creditors a large amount of money was withdrawn. It was claimed that this money was used to discharge liabilities incurred in another business by the firm, by way of endorsements made in stock transactions by one of the partners and his father-in-law, but no such endorsements were described or produced, or explanation of the payments given, and there were no entries thereof in the firm books. Held, that a finding that the assignment was fraudulent was justified. Illinois Watch Co. et al. v. Payne et al. (Sup. Ct.), 967.

ASSOCIATIONS.

1. The constitution of an organization provided that no member thereof should remain a member of another local union or similar organization under penalty of expulsion. Held, that this acted only on that organization, and was without effect on the other bodies referred to, and in no way interfered with the official position or membership therein of a member of such organization. Farrell v. Cook et al. (Sup. Ct.), 1003.

2. Defendant C., while president of a voluntary association, became a member of the above mentioned organization. After the adjournment of a meeting of the association, at which he presided, and while he was attending a meeting of the other body, a meeting was held at which plaintiff was elected president on the ground that the office was vacated. Subsequently C. was re-elected, and on the same evening another meeting was held, at which plaintiff presided, and an election was held, under which he claims the office. Held, that the election of plaintiff was irregular; that C. continued to hold the office of president, and that an action could not be maintained by plaintiff to recover the property of the association. Id.

ATTACHMENT.

1. An affidavit for an attachment stated that deponent called at defendant's store, which was in the possession of the sheriff, and was informed that defendant could be found at a certain place; that he went there for several days without finding him and left notes for him to call. It did not state that any inquiry was made at defendant's residence. Held, insufficient to show a concealment for the purpose of avoiding service. Thomas et al. v. Dickinson et al. (Sup. Ct.), 786.

2. The mere fact that defendant confessed a judgment to his wife under which his property was sold, without proof that it was not confessed for an actual debt or that the property was sold for less than it might be expected to bring at public sale, or that it was bought for defendants or the judgment creditor, is not sufficient to show a fraudulent disposition, assignment or concealment of defendant's property. Id.

3. The fact that the affiant states transactions positively as being within his knowledge, when it can be seen that he does not possess that knowledge, is a circumstance which requires the statements to be rejected and subjects his veracity in other respects to grave doubts. Id.

4. In an affidavit upon which to found an application for an attachment where the damages are unliquidated the facts which the plaintiff claims prove his damages must be set forth, so that the court may judge whether he has evidence of damage and that his allegation of damage is not speculative. A mere allegation that he has sustained damage to a certain amount is not sufficient. Westervelt et al, v. Agrumaria Sicula Societa Anonima Di Transporti Marittimi (Sup. Ct.), 833.

5. Plaintiffs' attachment was set aside and the moneys in the sheriff's hands paid to defendants as subsequent attaching creditors. On appeal the order vacating the attachment was reversed. Held, that such reversal did not revive the attachment with all its primitive advantages intact; that defendants did no wrong in accepting the money, and that an action for restitution thereof could not be maintained. Habler et al. v. Myers et al. (Sup. Ct.), 990.

6. To sustain an application by junior attaching creditors to vacate a prior attachment, it is necessary to establish by legal evidence a subsequent valid levy under their attachment upon the same property that the prior attachment was levied upon. Excritt v. Ereritt Mfg. Co. et al. (Sup. Ct), 996.

7. The opinion of their attorney, although expressed in an affidavit, that such subsequent lien has been secured, is not sufficient. Id.

ATTORNEYS.

1. The statute of limitations does not begin to run against an attorney's claim for compensation until his relation as attorney in the suit has terminated. Clarkson v. Young et al. (City Ct. B'klyn), 579.

2. Plaintiff and his partner were employed by defendants to take an appeal for them, which they did, and procured a reversal and new trial, and on the new trial procured a report in defendants' favor in October, 1882. Defendants failing to comply with a request for payment of the services performed, plaintiffs did not enter judgment on the report until February, 1888. On the trial of this action the referee refused to find that the attorneys refused to perform services unless they were paid for those already performed, or that defendants requested them to perform no further services. Held, that the statute did not begin to run until the entry of judgment in February, 1888. Id.

3. Where the contract of employment of an attorney is entire and there is no demand for payment while the litigation proceeded, the attorney, in order to recover compensation, must show substantial performance or a good reason for his omission. Cole v. Roby (Sup. Ct.), 734.

4. In an action by an attorney for professional services the answer alleged, among other things, that plaintiff improperly neglected to bring an appeal from a judgment rendered against the defendant, to the latter's damage. The trial court held that plaintiff was entitled to a verdict unless damages were proved by way of counterclaim. Held, that the case was disposed of on a wrong theory; that the answer alleged non-performance by plaintiff, which, if proved, would defeat a recovery. Id.

5. An attorney and counselor who makes a charge of corruption against a judicial officer in his own court while sitting in a case which he is investigating is guilty of unprofessional and improper conduct, and where he gives no sign of regret, nor retracts, apologizes nor states anything in extenuation or mitigation of his conduct, when given an opportunity to do so, his disbarment is proper. Matter of Murray (Sup. Ct.), 831.

BAILMENT.

See SAFE DEPOSIT COMPANIES, 2

BALLOT REFORM.

See ELECTION, 1-4.

BANKRUPTCY.

1. Plaintiffs delivered a certain note to defendant's firm to have discounted. Said firm discounted the note, and converted the proceeds to their own use, and subsequently went through bankruptcy. Held, that this was not a "fraud" within the meaning of the bankrupt act, so as to take the claim out of the operation of that act. Lawrence et al. v. Harrington (Ct. App.), 717.

2. The fraud intended by the bankrupt law is a positive fraud or fraud in fact, as distinguished from constructive fraud founded upon some breach of duty. Id.

3. Where the petition was filed November 24, 1877, and prior to July, 1881, payments were made on the account, such payments did not revive the same from the bankruptcy discharge as being a new promise to pay. Id. 4. Work performed by defendant's firm for the plaintiffs while the debt was an existing obligation, under an agreement that the amount be credited upon the old account, takes the case out of the operation of the statute of limitations. Id.

5. Delay in applying for a discharge in bankruptcy after adjudication is a subject for the sole consideration of the bankruptcy court, and cannot prevent such discharge from being used to obtain a cancellation of a judg

ment recovered against the bankrupt. Eberspacher v. Boehm (Sup. Ct.), 792.

6. The statute requires the court to go no further than to ascertain that a discharge has in fact been granted, and that two years have since expired, and when these facts appear it is the duty of the court to cancel and discharge the judgment. Id.

See BILLS, NOTES, ETC., 10.

BANKS.

1. On April 2, the Exchange National Bank of Norfolk, having $7,207 on deposit with the plaintiff, failed, and Peters was appointed receiver. The receiver and other claimants brought actions to recover the fund, and this action of interpleader was brought, upon which the usual order was entered and the money paid into court. On March 30th, Everett Brothers, Gibson & Co. had deposited with the Exchange Bank, for collection only, their sight draft on M. & Co. of New York, for $12,303, and it was on the same day endorsed and forwarded to plaintiff, which, on March 31st, collected the same of the drawee and credited it to the Exchange Bank. Notice of the suspension of the Exchange Bank was not received by plaintiff until April 2. The Exchange Bank had been hopelessly insolvent for six months. Held, that the drawers of the draft had the right, under the circumstances, to reclaim it or the proceeds, upon discovery of the facts, from any one to whose hands it came, not a bona fide holder. Importers & Trrders' Nat. Bk. v. Peters (Ct. App.), 182.

2. When money held by a person in a fiduciary capacity has been paid or deposited by him on his general account at a bank, the party for whom the money is held can follow it and has a charge on the balance in the banker's hands; and, if a person holding money in a fiduciary capacity pays it to his account at his banker's, and mixes it with his own money, and afterwards draws out sums by checks, generally, and in the ordinary manner, the drawer of the checks must be taken to have drawn out his own in preference to the trust money. The rule attributing the first drawings out to the first payments in, does not apply to such a case. Id.

3. Previous to the discovery of the fraud on the part of the bank by E. Bros. & G., they proved their claim and received a dividend from Peters, but subsequently refused to receive a second dividend so far as it covered the draft, and allowed to the receiver, out of the second dividend, exclusive of the draft, the amount received on the first dividend. Held, that they were not bound to return the identical money received. Id.

4. Speculative contracts entered into for the sale or purchase of stock by a savings bank at the stock board or elsewhere subject to the hazard and contingency of gain or loss, are ultra vires and a perversion of the powers conferred by its charter. Jemison et al. v. Citizens' Savings Bank (Ct. App.), 335.

5. Authority given to buy and sell exchange, bullion, bank notes, government stocks and other securities does not embrace or include speculative contracts in cotton futures, any more than it does hay, oats, provisions or dry goods. Id.

6. Where the brokers take title to the cotton in their own names and hold the same for the benefit of the bank, the contract is not an executed one and the defense of ultra vires is still available to the bank in an action for commissions and losses. Id.

7. Plaintiff drew a draft on the Manhattan Bank for seventeen dollars, which was raised by some one to $3,462.40 and deposited by payee with defendant, who gave him credit for the full amount, and through defendant's New York correspondent it was paid by the Manhattan Bank, and charged to plaintiff. Defendant learning of this wrote to plaintiff to return the draft with affidavit of facts and it would make it right, and requested plaintiff not to make it public as they wanted to catch the forger, which requests plaintiff complied with but defendant not remitting, plaintiff after some correspondence compelled the return of the draft and affidavit. Subsequently the Manhattan Bank paid part of the amount and plaintiff brought suit for the balance. Held, that although plaintiff's

acceptance and subsequent compliance with the proposition of defendants obligated the latter to pay the raised draft, less seventeen dollars, yet the subsequent transactions constituted a rescission of such contract and so plaintiff parted with its right of recovery. National Bank of Commerce v. Manufacturers & Traders' Bank (Ct. App.), 556.

8. The action could not be sustained as in effect one for money had and re ceived, as it did not appear that defendant received moneys belonging to plaintiff or to which it was entitled. Id.

9. Where a depositor in a bank having sufficient funds standing to his credit tenders his check to that bank in payment for negotiable paper which it has for sale, and the bank accepts the check, charges it against the deposit, files it as its voucher and delivers over the paper purchased, the holder of that paper is a holder for value, because the antecedent debt to him is pro tanto actually and in fact extinguished. Mayer et al. v. Heidlebach et al. (Ct. App.), 610.

10. Plaintiffs deposited their certified check with defendant, the latter having notice that the deposit was specially made to supply a fund to pay a check of one Dixon, which had been endorsed by the plaintiffs and plac. d to their credit in the Hanover Bank. Held, that defendant had no right to treat the fund as a general deposit on Dixon's account, and it must be deemed to have placed it to the credit of Dixon subject to the qualified purpose or trust of which it was then advised the deposit was made. Straus et al. v. Tradesmens' Nat. Bk. (Ct. App.), 638.

11. The transaction of making the deposit by the plaintiffs' messenger was with the teller only, and when the president first heard that it was claimed to have been made for a special purpose was immaterial. Id.

12. Defendant having taken a note of a corporation for goods sold, upon its maturity procured it to be certified by plaintiff, and the same was deposited in another bank, collected and the proceeds received by defendant. Plaintiff's teller certified the note under the mistaken belief that the ac count of the maker was good for the amount. Two days later proceedings were commenced to dissolve such corporation. Held, that, in the absence of proof of a change in the relations existing between defendant and the maker of the note after the certification, plaintiff was entitled to recover back the moneys so paid. National Park Bk. v. Steele & Johnson Mfg. Co. (Sup. Ct.), 890.

13. Proof of false representations made by the corporation at the time of the sale or the maturity of the note as to its ability to pay furnishes no defense to such action, in the esence of proof that the delay caused thereby deprived defendant of its ability to collect of the maker. Id.

BAR.

See DIVORCE, 1; FORMER ADJUDICATION; GAMING, 2; JUDGMENT, 2.

BENEFIT SOCIETIES.

1. By the laws of its incorporation, the defendant is to pay, on the death of a member, a certain sum to a person designated by him or to his legal heirs. In case of a failure of beneficiaries or disposition by will, the moneys are to be paid to such of his next of kin as were in need of assistance, and if none, then to the relief fund. The certificate in question provided that it should be paid "subject to will," but the holder died intestate, leaving a wife and three children. Held, that such fund could not be recovered by the legal representative of the deceased member for the benefit of creditors; that it was no part of defendant's business to provide a fund for the payment of debts. Beeckel v. Imperial Council, Order United Friends (Sup. Ct.), 434.

2. Defendant insured Alexander M. Kenyon in the sum of $5,000, the application to form part of the agreement, and any untrue statement therein to render the certificate null and void. Among the rest of the questions in the application were the following: "State precise nature of business? Importer and wholesale dealer in wines and hquors. Is the person engaged in any way in the retailing of alcoholic liquors? No; keep no bar, and sell only at wholesale, have government license and tow

license." Kenyon further warranted the truth of the answers, and agreed that if any were untrue, or if he failed to pay the assessments when due, that the certificate should be void. Insured died, and defendant refused to pay. Kenyon sold liquor by the barrel and by measure; but it was not a part of his business to sell by the drink. Held, that as the words of his statement upon the subject expressed in the application taken together were, in their import, somewhat equivocal, the question as to the sense in which they were used was one of fact for the jury. Kenyon et al. v. Knights Templar & M. M. Aid Ass'n (Ct. App.), 467.

3. The certificate provided that non-payment of any assessment within ten days at the office in Cincinnati, O., or to an officer on production of receipt, rendered the certificate void. On March 27, the secretary at Cincinnati mailed a notice to Kenyon, at Watertown, N. Y., of an assessment payable on or before April 6, 1885, payable by cash, sight draft, money order or express company order. On April 4th, Kenyon sent the secretary, by mail, his check on a Watertown bank, but it was not received by defendant's secretary. For a year and a half preceding this assessment, Kenyon had paid by fifteen checks. On April 10, the secretary wrote saying that he could pay at any time before April 27 by bank check, and Kenyon replied that he had paid, and soon after died. Held, that the assured may fairly and in good faith have been led to suppose that the requirement of the defendant upon him was satisfied by mailing, as he did in his customary manner of doing. Id.

4. Where a benefit society has refused to make an assessment to pay a loss, but the amount which would have been realized therefrom if made is neither alleged nor proved, the beneficiary is entitled to recover at least nominal damages, and it is not error to refuse to nonsuit or to direct a verdict for defendant. Crum et al. v. Equitable Acc. Ass'n (Sup. Ct.), 670. 5. In such case it is error for the court to charge that if the jury found in favor of plaintiff, they should find for the full amount of the certificate. Id. 6. John Luhrs, a member of the Knights of Honor, had designated his wife as the beneficiary to receive the insurance fund payable at his death. By the constitution a member might surrender his certificate by an endorsement upon it which should be forwarded by the reporter of his lodge to the supreme reporter, who should cancel it and issue a new one, payable as he might direct. Luhrs signed a surrender and direction that a new certificate issue for the benefit of his sister; it was attested by the reporter of his lodge and mailed to the supreme reporter on the 10th of March, on which day Luhrs died. On the 12th the supreme lodge canceled the old and issued the new certificate, but the printed acceptance on the new was of course not signed by Luhrs. Held, that the sister, the beneficiary named in the new certificate, was entitled to the fund. Luhrs v. Luhrs (Ct. App.), 688.

7. Such written endorsement of a surrender of the certificate and the written direction thereon to issue a new one to a new and proper beneficiary, followed by an actual and manual surrender of the old certificate to the acknowledged and authorized agent of the Supreme Lodge, was equivalent, for the purpose of acquiring rights under the new certificate, to an actual delivery of the surrendered policy to the Supreme Lodge and a formal cancellation thereof by it. Id.

8. The old certificate was canceled when it was properly surrendered by a writing to that effect signed by the member and endorsed thereon, and the certificate itself actually placed in the custody of the authorized agent of the principal. Id.

See SUBMISSION OF CONTROVERSY.

BETTING AND GAMING.

See BILLS, NOTES, ETC., 12; GAMING.

BILLS, NOTES AND CHECKS.

1. Defendants made a promissory note payable to the order of Stinson, who sold it to plaintiffs before maturity for value. Defendants, to establish N. Y. STATE REP., VOL. XXXIII.

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