the president on behalf of the 4. If the attorney claims under a

There was some company. evidence that before the arrangement for the order was consummated, the president said that he could possibly get additional subscriptions to the extent of five thousand dollars, if B. would consent to take that amount for the benefit of 5. him (the president) and A. Afterwards the agreement to construct the road was, by the mutual consent of the parties 6. thereto, canceled and annulled before the sum became due B. thereunder. A. demanded payment from B. and the company, which, being refused, he brought an action against B. for the order. Held, upon these facts, that there was no sufficient consideration to hold B. liable. Ib. 7. The validity of an assignment under the act of 1860, § 348, can not be attacked collaterally! on the ground that it was not acknowledged before delivery. 1. Randall v. Dusenbury, 174.

See PROMISSORY NOTES, 1, 2. ATTORNEY AND CLIENT. 1. An agreement by a client to pay to his attorney a certain fixed sum is valid; and so is an agreement making either any compen- 2. sation, or the amount of it, contingent on success in the action. Porter v. Parmley, 219. 2. It is the duty of the court to recognize and enforce such agreements when there is no charge of great hardship, exIb. tortion, or fraud. 3. The facts

specific agreement, and the client disputes the existence of the agreement, the court has power to try that question of fact, either on affidavits or the oral examination of witnesses before it, or through the medium of a reference. Ib.

Such a disposition of the disputed question of fact does not conflict with the constitutional provision as to trials by jury. Ib. The exercise of the power does not depend on the insolvency of the attorney, nor on the question as to whether his retention of the money, or his claim thereto, is fraudulent or in bad faith. Ib.

See EXECUTION, 18, 19.

BAIL.

See ARREST.

BILLS OF EXCHANGE.
The acceptor of a bill of ex-
change is liable to the party who,
in good faith and for value, dis-
counted the bill before its ac-
ceptance. This, although such
party knew it was to be accepted
for the accommodation of the
drawer. First National Bank
of Portland v. Schuyler, 440.
In an action on such acceptance,
evidence of
previous similar
transactions between the parties,
that plaintiff in discounting the
bill relied chiefly on its being
accepted by the drawee, and that
the plaintiff at the time of dis-
count had no knowledge that it
was not drawn in the usual
course of business, is proper if
not necessary, as tending to show
plaintiff to be a bona fide holder
for value. Ib.

See PLEDGE, 2; PROMISSORY
NOTES.

that the taxable costs now belong to the party, and that the attorney and client may now enter into agreements as to compensation, such as above stated, does not abridge or affect the power formerly exercised by the court, on summary proceedings to compel payments by an attorney to his 1. client. Ib.

BILL OF PARTICULARS.

In an action where the ordering of a bill of particulars is a

2.

to an action by the shipper,
against the carrier, for the loss
of the goods. Donovan v. Com-
pagnie Generale Trans-Atlan-
tique, 519.

Under such circumstances, such
unlawful intent forms no defense
to an action by the carrier,
for the freight. Ib.

matter of discretion, one will
not be ordered where, for any-
thing that appears, the defen-
dant is as well acquainted as the
plaintiff with the nature and
particulars of the claim, and has
all the knowledge necessary for
him to prepare an answer to the
complaint in the form as
pleaded. Powers v. Hughes, 482. 3. Plaintiff brought an action
2. Thus, in an action brought by
an administrator de bonis non
of P. against the executors of
the agent of the administratrix
of P. (which administratrix was
also deceased) for an accounting
of the assets of P., and the pro-|
ceeds thereof remaining in the
hands of such agent at the time
of his death, and for the de-
livery and payment over thereof,
the defendant moved upon the
complaint and an affidavit of
their attorney for a bill of par-
ticulars; the complaint alleged
that the agent at the time of the
death of the administratrix had|
in his possession a large amount
of assets, the property of P.,
which he had collected and re-
ceived as agent of the adminis-
tratrix; that at the time of the
death of said agent, the said as-
sets and proceeds thereof, which
he had received and collected as

against a common carrier for the
non-delivery and loss to her of a
certain case of merchandise,
delivered to it at a certain time.
An answer averring that plain-
tiff did deliver baggage and
merchandise at the time, with
the intention of being smuggled,
and that on her arrival at the
port of New York, she did
smuggle ashore from the steamer
large quantities, which formed
part of her baggage, does not
comply with above rule. It is
bad, as not distinctly averring
that the specific case for the loss
of which the action was brought,
and which formed the basis of
the cause of action, was shipped
with such intention. Ib.

See RAILROADS.

CASES CRITICISED.

Fol-

before stated, remained in his Alger v. Scott, 54 N. Y. 14.
hands unaccounted for; the affi- lowed. Risley v. Smith, 137.
davit averred that the defendants. Anderson v. Rome, &c., R. R. Co.,
were ignorant of the particulars) 54 N. Y. 334. Followed. OʻSul-
of the claim, and that it was ne- lican v. Roberts, 360.
cessary and material to this de- Bowman v. De Peyster, 2 Daly, 203.
fense, and to enable them to an-
swer, that they should have a
bill of particulars. Held, a
proper exercise of discretion to
refuse an order for a bill of par-
ticulars. 1b.

CARRIERS.

Followed. Schreyer v. Mayor,
&c., of New York, 277.
Burns v. Erben, 40 N. Y., 463.

Followed. Wilson v. King, 384.
Coddington v. Bay, 20 Johns.
637. Followed. McQuade v.
Irwin, 396.

Dowdney v. Mayor, &c., of New
York, 54 N. Y. 186. Reviewed.
De Peyster v. Murphy, 255.
Erben v. Lorillard, 19 N. Y. 302.
Followed. O'Sullivan v. Rob-
erts, 360.

1. When goods are shipped with
intent to smuggle them, but the
carrier is ignorant of the intent,
does no act to facilitate it, and
is not implicated therein, such Foshay v. Ferguson, 2 Denio, 617.
unlawful intent forms no defense Followed. Wilson v. King, 384.

Garlick v. James, 12 Johns. 146. Tarleton v. Stanforth, 5 T. R. 695.
Followed. Moody v. Andrews,

302.

Gregg v. Howe, 37 N. Y. Sup'r Ct.
420. Followed. McMicken v.
Lawrence, 540.

Howell v. Knickerbocker Life Ins.
Co., 44 N. Y. 281. Reviewed
and considered. Worden V.
Guardian Mutual Life Ins. Co.,
317.

Lawrence v. Kidder, 10 Barb. 541.
Reviewed and approved. San-
der v. Hoffman, 307.
Lee v. Ehrhardt, 19 Law Times, N.
S. 637. Reviewed and approved.
Ib.

Lennon v. Mayor, &c. of New York,
55 N. Y. 361. Followed and
applied. Astor v. Mayor, &c., of
New York, 120.

McGregor v. Buell, 1 Keyes, 157.
Followed. Eldridge v. Strenz,
295.

Reviewed and considered. Wor-

den v. Guardian Mutual Life
Ins. Co., 317.

Turner v. Evans, 2 Ellis & Bl.
512. Reviewed and approved.
Sander v. Hoffman, 307.

Want v. Blunt, 12 East, 183. Re-
viewed and considered. Wor-

den v. Guardian Mutual Life
Ins. Co., 317.

Warren v. New York Central R.
R. Co., 465. Followed. McLain
v. Van Zandt, 347.
Weaver v. Barden, 49 N. Y. 294.
Followed. Moody v. Andrews,

302.

Wheeler v. Newbould, 16 N. Y.
392. Followed. 1b.

Masten v. Deyo, 2 Wend. 426.
Followed. Wilson v. King, 384. See
Morgan v. Skidmore, 55 Barb. 263.
Followed. Goldberg v. Dough-
erty, 189.

Muller v. Pondir, 55 N. Y. 332.
Followed. Moody v. Andrews, 1.
302.

Munns v. Nemours, 8 Wash. C. Ct.

37. Followed. Wilson v. King,
384.

Newton v. Bronson, 13 N. Y. 587.
Followed. Baldwin V. Tal-
madge, 400.
Phillips v. Wicks, 36 Sup'r Ct. 254.
Followed. Hoffman v. Tread-
well, 183.

Roper v. Williams, 1 Turn. & Russ. 2.

22. Followed. Trustees of Col-
umbia College v. Lynch, 372.
Rundell v. Lakey, 40 N. Y. 513. 3.
Reviewed. De Peyster v. Mur-
phy, 255.

Seibert v. Price, 5 Watts & S. 438.
Followed. Wilson v. King, 384.
Simmons v. Lyons, 35 Sup'r. Ct.
555; 8. C. 55 N. Y. 671. Re-
viewed and followed. Schreyer 4.
v. Mayor, &c. of New York, 277.
Smith v. Smith, 4 Wend. 468.

Reviewed and approved. San-
der v. Hoffman, 307.

COMMON CARRIERS
See CARRIERS.

CONSIDERATION.

ASSIGNMENT, 1-6; PROMIS-
SORY NOTES, 3, 4, 6, 7.

CONTRACTS.

Where a written or printed con-
tract signed by a party contains
in its body a clause such as,
"subject to the conditions
printed on the other side and
which forms a part of this
agreement," the conditions thus
referred to become a part of the
contract. Van Nostrand v. New
York Guaranty and Indemnity
Co., 73.

One must be presumed to know
the nature of a contract he
signs. Ib.

Proof of the signature of the
party (in the absence of other
evidence) is sufficient to estab-
lish that he entered into a con-
tract of which the conditions
referred to therein formed a
part. Ib.

Evidence which shows neither
compulsion, nor fraud, nor ab-
sence of opportunity for acquir-
ing the fullest knowledge, nor
even absence of notice or know-

over-11. Any or all of the several provisions of a written contract can be waived by parol. American Corrugated Iron Co. v. Eisner, 200.

ledge is insufficient to come such proof. Ib. 5. In an action to recover damages for a delay in the completion of work contracted for within the time fixed by the contract, the fact that a part of the delay which occurred after the time limited for the completion was caused by a strike of the workmen which took place after that time, is no defense to a claim for damages suffered by that part of the delay. Herter v. Knox, 109.

12. A party may always surrender the benefit or advantage of a provision in his favor, and parties may by a new and independent agreement contract for work or materials, other and different from such as may be specified in the original contract, and this may be done by parol. Where the original contract provided for certain certificates from the architect, &c., as to the work being done and the materials being furnished, &c., &c., agreeably to the contract, such provisions will not apply to or affect extra work done in accordance with a subsequent parol agreement, unless such extra work is made subject thereto by an express agreement. 10.

6. In a contract for work and
labor, where there is a provision
that the work should be com-
pleted by a certain date, and be
paid for upon completion, and
such work is not completed at
the time limited for its perform-
ance, but is proceeded with
afterwards, with the assent of
the party for whom the work is
being done, a recovery may be
had for the work done accord-
ing to the date of compensation 13.
fixed by the contract.
Dillon v.
Masterton, 133.

7. In such a case "time is not
deemed to be of the essence of
the contract." Ib.

8. When time is of the essence
of the contract," it must be
made to appear so in express
terms, and not be left for in-
ference or presumption from
doubtful expressions therein. Ib.
9. In the case at bar, if the work 14.
had not been completed at the
time specified, the party for
whom it was to be done could
have rescinded the contract at
that time, and the other party
could not have recovered for the
work done. Ib.

10. If the party did not rescind,

but allowed the work to go on, he must pay for the same at the rates specified in the contract, and if he required it to be completed within a reasonable time, he must give the other party notice thereof, before he can terminate the same. Ib.

Where a case had had three trials, on a third appeal to the general term, upon a review by the court of the questions presented on the former trials and hearings,-Held, that two findings of fact, by the referee, on the last trial, were fully supported by the evidence, and conclusively and properly disposed of the case. Justice v. Lang, 283.

These findings are as follows: "That said memorandum or agreement was not delivered absolutely, but only in the expectation and on the condition that a written order should be given by the plaintiff for two thousand rifles, and which was to embrace the one thousand rifles mentioned in said memorandum or agreement, in such a form as to make it a valid contract upon the plaintiff as well as upon the defendants; and that the understanding of both parties was, at the time said memorandum or agreement was

trolling considerations. A construction or decision that would make defendants liable under the circumstances in this case, would be harsh and unjust. It would be an unwise interference with the usual course of business and trade, and the requirements of public convenience and comfort, which should never be prejudiced by contracts imposing restraints upon traffic. Ib.

delivered, that the contract for the said rifles was incomplete and only to become perfect upon the receipt by the defendants of the written order from the plaintiff to procure for him the two thousand rifles mentioned and referred to, of which the said one thousand rifles were a part and parcel." "That at the time when the said defendants made, executed, and delivered to the plaintiff the memoran- 17. In this state, many cases have dum or agreement in writing, bearing date on May 13, 1861, the said plaintiff did not accept the said agreement, absolutely and unconditionally, as a completed contract." İb.

15. The defendants sold the goodwill of a provision business, at 228 Third avenue, to plaintiffs, and covenanted with them that they would not engage in a similar business, for five years, within certain limits. Within the stipulated time, defendants resumed and engaged in a like business at 805 Sixth avenue, beyond the limits prescribed. Some of their former customers residing within the prescribed limits sought them in their new place of business, and solicited them to supply them with meats, &c., and they did so, sending their agent or messenger every day to their houses, situate within the limited district, to receive orders, and afterwards filling the orders given. The orders were not originally sought or procured by defendants, but proceeded from the

customers.

The plaintifis claimed this to be a breach of the covenant of defendants. Held by this court, that the acts of the defendants did not consti tute a breach of said covenant. Sander v. Hoffman, 307. 16. Such contracts are upheld only when it appears that the public interest or convenience will not be prejudiced. The public comfort and welfare are the con

been decided where it has been held, that when a contract not under seal has been made in writing by a person apparently acting on his own behalf, his unnamed and undisclosed principal may sue and be sued upon the same, although the contract was required to be in writing by the statute of frauds; but the principle and rule of these cases fail, in the case of a contract under seal for the conveyance of real estate. An unnamed and undisclosed principal can not be made liable for a breach of such a contract, nor compelled to perform the same specifically, nor can he enforce the same. See the able opinion of the court in this case, for the review of numerous decisions upon this question. Briggs v. Partridge, 339. 18. A owning lands contiguous to B, entered into a written and sealed agreement with B, in which each party covenanted that thereafter no buildings but a certain class and kind of dwelling-houses should be erected on their respective lands described in said agreement, and neither they nor their heirs and assigns, or their tenants, or subtenants, should permit, grant, erect, make, establish, or carry on in any manner, on any part of said lands, any stable, schoolhouse, engine-house, tenementhouse, or any kind of manufactory, trade, or business whatsoever, or erect or build, or