amount, its dismissal would prove the least injurious to the plaintiffs. And if that would entirely correct the proceeding it would be proper to order that dismissal, as the two causes of action have not been properly united in the same action. But it would not, for still further objections, have been taken of a fundamental character to the affidavits on which the attachment has been issued, and which this dismissal would not remove. These objections are made to the affidavit of the plaintiffs' managing agent, by whom the sale was made of the plaintiffs' whiskey to the defendants. The attachment was issued upon the ground, as it has been recited therein, that the defendant, Henry A. Dickinson, keeps himself concealed within the state with the intent to avoid the service of a summons, and that the defendants have assigned, disposed of, or secreted their property with the intent to defraud their creditors. The proof of these facts consists wholly of the affidavit of the managing agent. As to the fact of concealment, he states that he tried to find the defendant, Dickinson, two or three days after the confession of a judgment, which was confessed on the 18th of July, 1890. That he went to the defendants' place of business, at No. 15 Hudson street, and found the place in the sheriff's hands, and the defendant, Dickinson, was not there, but was told by persons there that he could be found at 159 Chambers street. That he went there three or four times a day for four days without finding him, and left notes for him to call, to which he made no reply. And upon this statement the charge of concealment to avoid the service of the summons was made. For the support of that charge it was insufficient. No evidence is contained in the affidavit that the persons at the store had any knowledge of where this defendant could be found, or that he was in fact at 159 Chambers street. They seem to have been persons acting under the sheriff, without authority to make any representations concerning this defendant, and for whose information he cannot be held responsible. And as a matter of fact it has not been shown that he was at any time at 159 Chambers street, or that any reason, beyond the statement of the persons found at the store, existed for believing that he was, or had been, there. Upon this subject the affidavit failed to make proof of facts from which a concealment to avoid the service of a summons could be reasonably inferred, as no effort to find, or inquiry was made for this defendant at his residence, where it may very well be he would have been found. To show that the defendants had assigned, disposed of, or secreted their property to defraud their creditors, the same affiant stated that they had confessed a judgment in favor of Anna M. Dickinson, the wife of the defendant Dickinson, for $3,016.16, and under the execution issued upon it all their property had been sold for about $1,500. But it has not been shown, nor has it been stated, that this judgment was not confessed for an actual debt owing to the judgment creditor, nor that the property was sold for less than it might be expected to bring at a public sale, or that it was bought for the defendants, or the person to whom the judgment was confessed. The confession of the judgment and the sale under it fail, therefore, to prove any fraudulent dis position, assignment, or concealment of the debtor's property, all of which it is stated, but clearly inaccurately, was in this manner sold and disposed of. There can be no presumption, in the absence of facts warranting it, that either the judgment, or the sale under it, was fraudulent. But the presumption from the facts stated is that the judgment and sale were each, alike, free from fraud. As further proof of the fraudulent disposition or concealment. of the debtor's property, and which seems to relate to property not sold under the execution, it is stated by the same affiant that the twenty-five barrels of whiskey sold and delivered by the plaintiffs to the defendants were within a week or two after the conversation mentioned pledged with a warehouse keeper of this city, and an advance of seventy-five per cent. obtained thereon. It is further stated that within three months the defendants had bought about $10,000 worth of liquors, wines, etc., all of which have, immediately after the purchase, and out of the regular course of business, been hypothecated for about seventy-five per cent of their value, but the goods had not been paid for, nor the proceeds received by the creditors. The affiant nowhere states that he was present at either of these transactions, neither does he disclose from what source he may have obtained information concerning them, nor the extent of such information. And as the statements relate to transactions between other persons, at neither of which can he be presumed to have been present, they furnish no reliable reason for believing that they have been correctly stated. The fact that a witness states transactions positively as being within his knowledge, when it can be seen that he does not possess that knowledge, are circumstances not only requiring the statements to be rejected, but they tend to subject his veracity in other respects to grave doubts. For it shows either a carelessness, or recklessness, on the part of the person making the statements, which is wholly inconsistent with a just regard for the truth. And it has been considered in that view in cases which have already been decided. Mech., etc., Bank v. Loucheim, 29 N. Y. State Rep., 188. And if the whisky was pledged as the affidavit states it was, there is nothing mentioned from which it can be inferred to have been done to defraud the creditors of the defendants, or to conceal the property. Indeed no such design has been asserted in the affidavit. The affiant states further that he has been informed by persons holding claims against the defendants that the total debts owing by the defendants amount to between $20,000 and $25,000, but that from lack of time he was unable to see these persons and procure their affidavits. This information is no proof of the facts existing to which it relates. Neither does it appear to have been so regarded, for the affiant does not even add that he believed the information to be true. But, if he had, it would still have been too loose and unreliable to prove how much was the amount of the defendants' indebtedness. Steuben Co. Bank v. Alberger, 78 N. Y., 252. For the foundation of an important legal proceeding the affidavit has been drawn with a degree of looseness that is unaccountable. The rules to be observed, and the facts to be proven, to entitle a party to an attachment, have been clearly enacted and frequently repeated. And still the practice followed is marked by an entire disregard of them. This is unjust to the plaintiffs, for it must often result, and may in this instance, in the loss of valuable demands, which would otherwise be secured by the seizure of the debtor's property. And it is equally so to the debtor, who is entitled to have a reasonably plain case made against him before he can be legally divested of the possession of his property through the instrumentality of an attachment. The rules which are to be observed have been clearly defined. And when they are substantially disregarded by radically defective affidavits, as they have been in this case, the only alternative presented is to set aside the proceeding. The order in this case should be reversed, with ten dollars costs and the disbursements, and the attachment should be vacated. VAN BRUNT, P. J., and BRADY, J., concur. In the Matter of the Application of THE BOARD OF FOREIGN The board of foreign missions is not exempt from taxation either under its charter or the provisions of the Revised Statutes, and hence a legacy to it is liable to the collateral inheritance tax. APPEAL by the people and the comptroller of the city and county of New York from an order of the surrogate of the same county, directing the executors of the estate of Henrietta A. Lenox to pay the sum of $2,500 to the board of foreign missions. Benj. F. Dos Passos, for appl'ts; Hamilton Odell, for ex'rs. DANIELS, J.-The testatrix, by her will, which has been duly admitted to probate, bequeathed the sum of $50,000 to the board of foreign missions, the petitioner in this proceeding. The sum of $47,500 of the legacy has been paid to the board, but the residue was withheld under the authority of chapter 483 of the Laws of 1885, for the payment of the collateral inheritance tax. The board considered that to be unauthorized, and petitioned the surrogate to direct the payment to it of this residue. And on the hearing of the petition an order was made directing that payment. And it is from that order that the appeal has been brought. And it rests wholly upon the question whether the legacy was liable to the payment of this tax. The first section of the act has exempted certain devises and bequests from the payment of the collateral inheritance tax made payable by its provisions. Among these are, "The societies, corporations and institutions now exempted by law from taxation." And if the petitioner was not exempt from taxation, then its legacy was liable to pay this tax, and the order of the surro gate directing the payment of the amount to the board was made without authority. The board was incorporated by chap. 187 of the Laws of 1862. But this act did not exempt it from taxation. And its claim to such exemption must depend upon the general statutes of the state. The exemptions which have been thereby declared are contained in vol. 1 of the Revised Statutes, 6th ed., 932, §§ 5-16. Those relating to colleges, seminaries of learning, and religious organizations, are contained in subd. 3 of § 5 as that has been amended by chap. 397 of the Laws of 1883. But this subdivision as it has been amended does not include the case of the petitioner. It is expressly restricted to the creation of other and different exemp tions; nor is the petitioner exempt from taxation under subd. 7 of that section, exempting corporations not made liable to taxation on their capital by the fourth title of the same chapter. That subdivision was considered and construed in the case of Catlin v. Trustees, etc., 113 N. Y., 133; 22 N. Y. State Rep., 189. And the construction then given to it limited it to certain business and stock corporations, excluding all those of the description of the petitioner. Under neither of these provisions has this board been exempted from taxation. And no other has been made by which exemption from taxation has been secured to it. Consequently it must follow, from the general provision declaring all lands and personal estate liable to taxation which have not been afterwards exempted, 1 R. S., 6th ed., 931, § 1, that this legacy was liable to the collateral tax mentioned in the first section of the act of 1885. The order should, therefore, be reversed, with ten dollars costs and the disbursements. VAN BRUNT, P. J., and BRADY, J., concur. THE PEOPLE, Resp'ts, v. LOUIS ALDRICH, App'lt. (Supreme Court, General Term, First Department, Filed October 24, 1890.) 1. RAPE CONVICTION OF ASSAULT NOT PROPER WHERE FULL COMMISSION OF THE ACT INTENDED IS PROVED. On the trial of an indictment for rape and for assault with intent to ravish, the evidence showed that complainant, who was under thirteen years of age, with other girls of her age, visited the room of defendant, a physician, who with their assent took indecent liberties with them, and that on a second visit he had sexual intercourse with each. Held, that the evidence proved the commission of the crime of rape and not that of assault in the second degree, as the crime intended to be committed was in fact consummated, and that what took place at the first visit would not sustain a verdict of assault in the second degree, as no intent to commit a felony at that time was made to appear. 2. SAME-CHARGE. The court was requested to charge "that there is no evidence here to sustain any verdict except the crime of rape," and refused to instruct otherwise than as had already been charged. No similar instruction had been given. Held, error. APPEAL from judgment of the court of general sessions of the county of New York, convicting the defendant of the crime of an assault in the second degree. Ambrose H. Purdy, for app'lt; McKenzie Semple, for resp'ts! DANIELS, J.-The defendant was tried upon an indictment containing five counts, three of which charged him with the crime of rape, committed on the person of Annie Purcell, and the others charged him with the crime of an assault upon the same person, with the intent to ravish. The evidence produced to support the indictment exhibits a degree of licentious baseness and degradation seldom found in the female children of a large city. The complaining witness was under the age of thirteen years, and with other companions of about her own age and condition visited the apartments occupied by the defendant as a physician. And they concurred in their testimony that on the first occasion when they were present there he, with their assent, took indecent liberties with each of them, but at that time extended his acts no farther. But on the next visit made to his place by them, they testified that he had sexual intercourse with each of them when they were together and on the same bed. And that, if true, constituted the higher offense mentioned in the indictment. For that offense will be committed by a person having such intercourse with a female under the age of sixteen years, when it takes place even with her own consent. The female in judgment of law is incapable of yielding consent to the act, and its commission is then made the crime of rape by the statute. The law has defined what must be proved to establish the commission of that crime. And the evidence of the child and that of her companions, if it was to be believed, proved that this crime had been committed. They corroborated her statements concerning what had taken place between herself and the defendant. There was no deficiency whatever in their evidence, and if it was truthful the defendant was guilty of the crime of rape, and of no other offense. He should, therefore, have been convicted of that offense, if the jury believed the witnesses. But that was not the result, for he was convicted of an assault with the intent to commit the crime of rape. This was done under subd. 5 of § 218 of the Penal Code, declaring it to be an assault in the second degree for a person to assault another with the intent to commit a felony. This crime consists of an act intended to result in the felony, but failing to complete that crime. And the defendant could be lawfully convicted of the assault only upon evidence proving the assault, but failing to consummate the crime really intended to be committed, and which was the final object of the assault. But that was not the offense which the evidence tended to prove. For that, if it could be accepted by the jury as credible, proved the alleged intent to have been fully consummated, and that merged the assault in the higher, and what was the completed crime. And to convict the defendant of the assault on this evidence was to convict him of what it did not, in any legal sense, tend to prove was his crime. It was a conviction without evidence of the offense for which the verdict was rendered. In the course of the submission of the case to the jury, the court was asked to charge "that there is no evidence here to sustain any verdict except the crime of rape." The court de |