the defense that Stinson after the maturity of the note took it up from the bank, and that they had an offset against him, established the fact that after its maturity it was seen in the hands of Stinson's superintendent, who demanded payment thereof from defendants. Held, that the court did not err in directing judgment; that as Stinson, as endorser, had an interest to compel payment, there was nothing in the possession of the note by his superintendent inconsistent with the ownership of plaintiff. First Nat. Bk. of Gloucester v. Cox et al. (Ct. App.), 74. 2. The action was upon a promissory note as follows: "Quarryville, September 2, 1871. Thirty days after date I promise to pay to Cornelius W. Carnwright, fifteen hundred dollars, with interest. Samuel P. Freligh.' Held, that, although no consideration was expressed and the note was not negotiable, yet, if genuine, it imported a consideration and the burden was upon the defendant to overcome this presumption. Carnwright v. Gray et al. (Sup. Ct.), 98. 3. A note not negotiable is still regarded as a promissory note, and it differs from a negotiable note in that an endorser thereof is regarded as a maker or guarantor, and also because the equities between the parties to it are not cut off by transfer to a bona fide purchaser for value before maturity. Id. 4. Plaintiff's cashier purchased from Henderson, a stranger, before maturity, two $1,000 notes, dated at Rochester, made by defendant, a farmer and resident of Root, nearly 200 miles from Rochester, without knowledge or inotice of or nquiry as to the consideration of the notes, but with knowledge of defendant's occupation. One Vosburg introduced Henderson, but declined to indorse the notes. There was from fifteen to eighteen per cent. profit for the bank in the transaction. The notes, in fact, had been procured from defendant by fraud. Held, that under circumstances so strange and unusual as accompanied this transaction it could not be said, as matter of law, that the bank had acquired the notes in good faith in the usual course of business. Canajoharie Nat. Bk. v. Diefendorf (Ct. App.), 389. 5. The interest of the cashier, who was the owner of one-fifth of its capital stock, in the transaction was co-extensive with that of the bank, and the question of his credibility was one for the jury. Id. 6. The payment of value for negotiable paper is a circumstance to be taken into account, with other facts, in determining the question of the bona fides of the transaction, and when full value is paid is entitled to great weight. But that fact is never conclusive, except in the absence of evidence tending to show notice or bad faith. Id. 7. The purchaser of commercial paper to be a bona fide holder must have bought it in good faith, in the usual course of business, before maturity, for full value and without notice of any facts affecting the validity of the paper. Id. 8. Upon proof by the defendant that his obligations have been fraudulently or illegally obtained and put in circulation, the person seeking to recover upon them must show not only that he has bought before maturity and paid value, but also the circumstances under which he acquired the paper, with the view of enabling the jury to determine whether he acted in good faith or not. Id. 9. Plaintiff's father, to pay him for services rendered after he became of age, had a note drawn for $500, payable in six years, which he showed to plaintiff, and had the same laid in a bureau drawer. He subsequently signed it, and informed plaintiff of that fact, and that it was in the bureau drawer, to which plaintiff had access. Plaintiff tock out the note, exâmined it, and returned it to the drawer. After the father's death, the note was placed, for his benefit, with the executor. Ield, a sufficient delivery and acceptance under all the circumstances of the case. Babcock v. Benson et al (Sup. Ct.), 428. 10. A promissory note given by a debtor after he has been adjudicated a bankrupt, and before he is discharged, for a debt which existed prior to the date of the filing of his petition, is not released by his discharge in bankruptcy. Jersey City Ins Co v. Archer (Ct. App.), 552. 11. Notes, made by defendants to their own order, were delivered by them to one Follett, a note broker, for sale at a rate of interest not exceeding six per cent. per annum. Fol.ett sold the notes to Seney at a discount which made the interest reserved amount to ten per cent. per annum, and afterwards failed, owing defendants the proceeds of said notes and of several others. Held, that the notes in question had no legal inception when sold to Seney and the transaction was a loan by him at a usurious rate to defendants, through Follett, and the notes were void. Claflin et al. v. Boorum et al (Ct. App.), 640. 12. Defendant purchased Bohemian oats, and gave his note therefor. In an action on said note, Held, that the contract was not void under the betting and gaming act, and that the transaction was in no sense a borrowing or lending of money so as to render a defense of usury available. Kurz v. Fish (Sup. Ct.), 674. 13. The note was signed and delivered in Oswego county, and was purchased by plaintiff in Monroe county. Motion to change the place of trial to Oswego county was denied on plaintiff giving a stipulation to give no evidence of what occurred in Oswego county. Plaintiff gave such stipulation, which stated that she depended wholly on the fact that she was a bona fide holder. Held, that as all the witnesses on that question lived in Monroe county the order was proper. Id. 14. On the margin of the note in suit was a computation by which its amount was arrived at. It was claimed that certain payments on a land contract received by the payee of the note had not been accounted for to the maker thereof. The last of such payments was made more than two years before the note was given. Held, that the presumption arising from the giving of the note, that any previous indebtedness of the payee to the maker had been paid or settled, was strengthened by the evidence of a careful computation on the face of the note, and that such alleged payments could not be allowed. Hart et al. v. Riley (Sup. Ct.), 779. 15. Plaintiff having refused to discount a note without another endorser, the defendant endorsed the same for the accommodation of the maker, and the note was then discounted for the payce. In an action upon said note judgment was entered by default against the maker and payee, and subsequently the latter deposited the amount thereof as security, without restriction or reservation of power to withdraw or otherwise apply the same. By supplemental answer this defendant claimed the benefit of such deposit by the application thereof as payment on the note. Held, that by his endorsement defendant became no more than a surety of both maker and payee, and was entitled to such application of the deposit. Riverside Bank v. Totten (Sup. Ct.), 846. 16. In an action on two promissory notes the defendant's witness testified that a keeper of the prison requested him to obtain from the maker, who was a convict, his signature to two pieces of paper at the bottom thereof, each of which was headed by a petition for a pardon, leaving a space sufficient for a note, and that he did so. The keeper denied this, and stated that he drew the notes at the maker's request, and that the notes were written on the same page of the half sheet. On inspection the lower edge of each note appears as originally cut by the manufacturers. Held, that the evidence was sufficient to carry the question of forgery to the jury and to sustain their verdict in favor of defendant. Graham v. Richardson (Sup. Ct.), 950. See BANKS, 1-3, 7, 9; DEPOSITIONS, 3; EXECUTORS, ETC., 9; GUARANTY. BILL OF PARTICULARS. 1. In an action to foreclose a mechanic's lien, the defendant set up as a counterclaim a breach of contract and damages arising therefrom. Held, that the alleged counterclaim was not upon an account, and that plaintiff, if entitled to relief under 531, must seek for a bill of particulars, not for items of an account. Blake v. Harrigan (Sup. Ct.), 210. 2. An affidavit for a bill of particulars must be made by the party desiring it, unless some excuse for his failure to do so is shown. The mere affidavit of the attorney, with the pleadings, is not enough. Id. 3. In an action for the conversion of securities, the complaint contained no description of the securities, their nature or amount, but an account thereof was alleged to be contained in defendants' books of account. Plaintiffs are executors, and have no personal knowledge of the dealings between their testatrix and defendants, or as to the particular securities converted. Held, that the case was a proper one for a bill of particulars, but that the order therefor should be conditional that defendants' books be produced so that the information necessary to frame the bill can be procured from them. Allen et al. v. Stead (Sup. Ct.), 878. BOARD OF HEALTH. See NUISANCE, 8. BONA FIDE HOLDER. See BANKS, 9. BONA FIDE PURCHASER. See BILLS, NOTES, ETC., 4-8; JUDGMENT, 6. BOND. In an action on a bond for the faithful performance of duty by an agent, the complaint alleged that defendants duly signed, executed and delivered such bond, describing it, and that it was sealed with their seals. The answer alleged that defendant signed a paper substantially of the tenor and effect set forth in the complaint, and left it with such agent, but that defendant had no knowledge or information sufficient to form a belief as to whether it was duly signed and sealed by defendants or duly delivered to plaintiff, and that said paper was the same alleged in the complaint. Held, that the answer admitted the execution of the bond, and that evidence to show that it was not filled out or sealed when defendant subscribed it was not admissible. Commercial Union Assurance Co. v. Bauer (Sup. Ct.), 827. See ASSIGNMENT FOR CREDITORS, 3–5. BOTTLES. See CRIMINAL LAW, 1, 2. BREACH OF PROMISE. 1. Where plaintiff sues for breach of contract of marriage, she must prove the contract by a peponderance of evidence, and although seduction is charged, the jury cannot be allowed by their verdict to punish defendant where no such contract is legally shown. Roe v. Doe (Sup. Ct.), 41. 2. Where the acts towards and letters of plaintiff to defendant were of a character likely to result from an improper intimacy only, and where the letters, especially, were of a nature inconsistent with an engagement and nowhere contained any allusion to marriage, a verdict for plaintiff must be held as against evidence. Id. BROKERS. 1. By mutual agreement between the seller, the purchaser and the broker, the purchaser was to pay the broker's commission, and this provision was inserted in the written contract of sale. Held, that the oral agreement gave the broker a good cause of action against the purchaser for his commissions, which a subsequent cancellation of the contract, without the broker's consent, could not take away. Bab v. Hirschbein (City Ct. N. Y.), 423. 2. In an action for commissions as broker in procuring an exchange of real estate, the defense was that defendant did not accept the offer of the person procured by plaintiff and that he was not to be liable until the exchange was consummated by the delivery of the deeds. The evidence on these points was conflicting. Held, that these questions were properly submitted to the jury. Burtis v. Cassidy (City Ct. Bklyn), 581. 3. Defendant employed plaintiff at the outset to procure a purchaser of the right to run cable cars, in a certain territory, under its letters patent, at the sum of $400,000, assured the monopoly, promising to spend $100,000, if necessary, in defending it, and to pay plaintiff twenty per cent. on the purchase price. Plaintiff made the sale to one Shinn on a written contract providing that in case Shinn failed to make the payment of any instalment therein specified, the rights intended to be sold to him should revert to and become the absolute property of said defendant, except that Shinn in such emergency might sell said rights to a corporation to be formed for dealing therein with a capital of $2,500,000, divided into shares of fifty dollars each, he to receive 35,000 of its stock, and which in excess of 26,000 shares were to be placed in escrow with S. & Co., to be delivered on certain payments being made by Shinn, but unless they were made he was to forfeit all the payments made. Another contract was made by which plaintiff was to receive thirteen and one-third per cent. of any kind of consideration received by Shinn or his assigns, "except in case of forfeiture." Plaintiff claimed that Shinn had fulfilled his contract by paying a cer'ain sum and the balance in stocks of the company, being compelled to do so because defendants did not prosecute the infringers, so that the stock sold slowly, and demanded commissions of thirteen and one-third per cent on $400,000. Leld, that the contract contemplated the payment of $400,000 in money for the patented rights; that the "forfeiture" referred to the payment in money; that the taking of the stock under the alternative provision was not intended as a payment; that Shinn was not prevented from proceeding by any act or default of the defendant. Phelps v. Cable R. Co. (Ct. App.), 625. 4. That upon a fair interpretation of the contract it did not require the defendant to prosecute for alleged infringements outside of the territory within its provisions, except as therein specified. That the question whether the defendant failed to do what was required of it by way of performance of the Shinn contract was primarily a matter between the parties to that contract, and any default of the defendant in that respect was not available to the plaintiff unless it prevented or caused its failure to make the payments of the purchase money provided by it. Id. BROOKLYN. See MUNICIPAL CORPORATIONS, 6-9. BUSINESS CORPORATIONS. 1. If a report of a business corporation proves to be untruthful in representations which would have no effect whatever upon the judgment or conduct of persons dealing with the corporation, such representations cannot consistently be held to be material, so as to render the directors liable under § 21 of chap. 611, Laws 1875. Walton v. Godwin (Sup. Ct.), 886. 2. The report of the corporation erroneously stated that a certain person was a stockholder who had refused to accept stock issued to him, omitted the names of some stockholders and by mistake stated the capital to be $2,000 larger than it was. The capital was $146,000. Held, that the discrepancy was too small to affect dealings of creditors, and was not material. Id. CARRIERS. 1. An employe and agent of plaintiffs checked a trunk from Detroit to New York, which reached the Grand Central depot twenty-four hours before he did, and was taken out of the baggage car by employes of the express company, and left at the incoming baggage room. On his way to New York, the next day, he gave his check on the train to an agent of defendant for the purpose of having his baggage delivered, but the latter could not find it in the New York baggage room. Afterwards it was seen at police headquarters, and a man was convicted for stealing it. Held, that it had not been delivered to defendant, and until a delivery was shown it could not be made responsible for its loss. Aikin et al. v. Westcott (Ct. App.), 623. 2. Up to the time of the surrender of the check, and while the baggage was lying in the baggage room of the railroad company, although placed there by the defendant's employes when they took it out of the baggage car, it cannot be said to have passed out of the control and possession of the railroad company. Id. 3. A carrier of freight or passengers may lawfully stipulate for exemption from liability for the negligence of itself or servants; but such contract must be strictly construed, the exemption must be expressed in terms, and when general words of release may be made operative without including negligence of the carrier or its servants, such construction as will exclude exemption for negligence must obtain. Elliott v. N. Y. C. & H. R. R. R. Co. (Supr. Ct. Buff.), 861. 4. Defendant contracted with the Western Union Telegraph Company to transport its employees free of charge, provided they exhibit passes in which "all responsibility of the railroad company for any loss or damage or injury to said officers and employees shell be waived and released in the form usual in such cases." Plaintiff was an employee of the telegraph company, and was injured while traveling on defendant's road. The contents of the pass were not proved. Held, that the language of the contract was not effectual to release defendant from liability for acts of negligence. Id. CERTIORARI. 1. There is no authority for striking out any part of the return to a writ of certiorari because it may be irrelevant. When the officers to whom the writ is directed have returned matters not relevant to the review of the proceedings, it is not the practice to strike them out, but to disregard them on the hearing. People ex rel. Higgins v. Grant et al. (Sup. Ct.), 810. 2. Where there are omissions of facts which may possibly be of advantage to the relator, a further return as to such matters may properly be ordered. Id. See MUNICIPAL CORPORATIONS, 23, 26; TAXES, 1. CHATTEL MORTGAGE 1. Plaintiff leased to one G. a farm for two years, reserving the rye sown the last year. The lease was subsequently renewed and mortgages given by G. to plaintiff on said rye as security for rent accrued and to become due. Prior to this, however, G. had procured a loan from defendants, agreeing to give a mortgage on the rye as security for the loan and an old account. Such mortgage was given subsequent to, but filed before, those given to the plaintiff. Held, that defendants were not subsequent mortgagees in good faith so that their diligence in filing their mortgage could affect the priority of plaintiff's unfiled mortgages. Harder v. Plass et al. (Sup. Ct.), 186. 2. Plaintiff took a chattel mortgage on a vessel to secure a note, and upon default in payment took possession of the vessel for the purpose of foreclosure, but upon receiving an assignment of the net earnings for two round trips to Chicago, released and surrendered it for sucl. trips. Prior to the time plaintiff took possession, but after default, defendani also tool: a mortgage on the vessel, and on its being attached by an insurance com pany, brought replevin and retained possession by virtue of its mortgage, received the freight moneys and refused to pay them to plaintiff. Hole, that the surrender by plaintiff was conditional and Imited, and by it he parted with no part of his legri title; that defendant cssessed no property in the vessel and could enforce no right which was not subject to the payment of plaintiff's claim; that it acquired no greater rights by the seizure than it already had, and plaintiff was entitled to the moneys earned. Kimball v. Farmers & Mechanics' Bk. of Buffalo (Supr. Ct. Buff.), 870. See CONVERSION, 1, 2; REPLEVIN, 2. CITY COURT OF NEW YORK. CIVIL SERVICE ACT. 1. The imposing of a test by means of which to secure the qualifications of a candidate for an appointive office, of a nature to enable him to prop |