tion, the fact that his omissions
to be present are numerous, his
attendance not being necessary 5.
to the faithful discharge of his
duties, forms no defense to an
action for his salary. Whitney

v. Mayor, &c., of New York, 106.

See NEW YORK CITY.

1. Where the pledgee of goods
left the goods in a warehouse
selected by the pledgor (which
was a suitable place), under the
charge of warehousemen who
had previously been co-partners
with the pledgor, and who had
sustained good reputations up to
the time of their subsequent
absconding, and employed an
agent who periodically visited
the warehouse and examined
the goods to see that they were
properly stored and protected,
and kept in proper condition,
his last visit being about a week
before the absconding,-Held,
that the pledgee was not guilty

of gross negligence, and there- 6. In this case the complaint was
fore not liable for the value of
the goods stolen or misappro-
priated by the absconding ware-
housemen. Van Nostrand
New York Guaranty and Indem-
nity Co., 73.

ity of the act of 1837, ch. 80,|
pp. 59, 60, merely confers a
power to return for taxes, not
coupled with a duty. No impli-
cation can therefore arise from
the passage of the resolution
that any particular defalcation
has been charged against or in-
cluded in the tax levy of any
particular ward. Ib.

6. That act applies only to cases

of the trade-mark for a certain
number of years, on certain con-
ditions, and at the end of that
term, the conditions having been
performed, the sole and exclu
sive right and title to the trade-
mark,-Held, that such partner
took and held the contract, and
all the rights and interests given
thereby, as trustee for the firm.
16.

where the collector and his sure- 3. In the trade-mark case above

put the other partners, after
knowledge of the contract made
by their copartner, expressed
their disapprobation, but did
not immediately resort to their
legal remedy, and notwithstand-
ing the act of their copartner
still continued the firm, and in
its business used the trade-mark,
and manufactured under it as
before, and paid to the owners
out of the firm's funds the sums
stipulated to be paid; yet it ap-
pearing that the copartner who
procured the contract for his own
benefit alone knew the secret
of the manufacture,-Held, a
forced acquiescence, which
would not sustain a finding of
ratification. Ib.

4. If they had moved in the mat-
ter, adversely, they would, in as-
serting their remedy, not have
possessed the knowledge by the
use of which the capital em-
ployed in the manufacture (all
of which was contributed by
them), might be made remunera-
tive. Ib.
Fraudulent

representations,
made by one member of a firm,
which induced the purchase of
property from the firm, creates
a liability wholly disconnected
from the liability of the firm,
upon the contract made with
them. For the fraud the member
of the firm committing the same
is alone liable to the person in-
jured. Goldberg v. Dougherty, 189.

1. When one partner, during the|
partnership, negotiates respect-5.
ing and obtains the exclusive
use of a right in which the firm
was interested, he will be de-
clared to hold such use in trust of
the firm. Weston v. Ketcham, 54.
2. When a firm under a contract
with the owner has the right to
the exclusive use of a trade-mark,
and during the partnership one
of the firm enters into an agree-
ment with the owner, whereby 6. The recovery of a judgment
the previous contract is canceled
and a new one made, giving to
such member the exclusive usel

against the firm (by the person
defrauded) upon the violation
of the contract, is no defense to

an action against the individual
member of the firm for the fraud.
The causes of action are several,
and the obligation or liability 2.
incurred by the individual mem-
ber, by his deceit, is an addi-
tional and separate security to
the purchaser. Ib.

PAYMENT.

as

1. A promissory note of a third
party, payable at a future time,
endorsed and delivered by a
debtor in payment of or
security for a part of his indebt-
edness, operates to take the case
out of the statute, as of the day.
of its delivery to the creditor,
not as of its payment. Smith v.
Ryan, 489.

a

2. A payment on account, or
transfer of a security as collat-
eral security on account, operates
to take a case out of the statute
only by reason of a promise im-
plied from the act, to pay the 4.
balance. Such a promise can be
implied only from the act of
the debtor himself or his author-
ized agent. In the case at bar,
the only act done by the defend-
ant was the transfer of the notes;
the payment of them at matur-
ity by the makers was not the act
of defendant or of his authorized
agents. The payment by the
makers was not made as agents 6.
of the defendant, but in dis-
charge of their principal debt,
pursuant to their legal obliga-

tions. Ib.

See INSURANCE, 1.

PERFORMANCE.

See CONTRACTS, 21; SPECIFIC
PERFORMANCE.

PLEADING.

1. When the defendant's pleading
formally and explicitly admits
that which establishes the plain-
tiff's right, he will not be suf-
fered to deny its existence or to
prove any state of facts incon-

5.

sistent with that admission.
Schreyer v. Mayor, &c., of New
York, 1.

Thus, when the complaint avers
that the contract sued on was
made by the defendant, and the
answer expressly admits such
averment, the defendant can not
be permitted to prove,-

1. Either that the contract
was not his, and that conse-
quently he was not liable there-

on.

2. Or (there being no affirma-
tive defense to that effect) that
the contract, being fair on its
face, was illegal. Ib.

When the complaint avers the
making of a contract fair on its
face, and the answer admits such
averment, the illegality of the
contract can not be insisted on
to defeat a recovery unless such
illegality is set up in the answer
as an affirmative defense. Ib.

The fact that one of the defend-

ants has answered, has no effect
upon the determination of the
question as to whether a de-
murrer is well taken or not.
Webb v. Vanderbilt, 4.

Admission of title in the plain-
tiff by the answer preludes de-
fendant from insisting that the
plaintiff was a mere trustee, and
had no leviable interest. Bruce
v. Kelly, 27.

The court has the power to al-
low any allegation material to the
case to be inserted in the answer,

although the effect may be to
change the defense; and when
a new trial has been ordered the
court has the same power to al-
low the parties to amend their
pleadings as before the trial.
Schreyer v. Mayor, &c., of New
York, 277.

7. In an action upon a promissory
note, an admission in the answer,
"that at the time mentioned in
the complaint, they (the defen-
dants) made and endorsed a note
like that set forth therein," un-
accompanied with anything tend-
ing to show that it was a dis-

tinct note from that described]
in the complaint, and on which
the action is brought, must be
held to refer to the note sued
upon. Moody v. Andrews, 302.
8. The defendant in this case,
after a general denial, with
some exceptions, attempted to
set up a counter-claim in the
answer. The plaintiff demurred
to the counter-claim, on the
ground "that the same does
not state facts sufficient to con-
stitute a defense to the plaintiff's
complaint." The court below
overruled the demurrer, with-
out prejudice to the right of
plaintiff to move that the defenses
in the answer be made more de-
finite and certain. Held, on
appeal, that this demurrer in its
present form notifies the defen-
dant that the objections to the
pleading are not of a general 1.
nature, but confined to the
special matter stated therein,
namely, the counter-claim;
therefore, the order below must
be examined upon the nature of
this special ground of demurrer.
Armour v. Leslie, 353.

9. The code distinguishes between

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 the 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 BILL OF PARTICULARS.

PLEDGE.

Where the pledgee of goods
left the goods in a warehouse
selected by the pledgor (which
was a suitable place) under the
charge of warehousemen who
had previously been co-partners
with the pledgor, and who had
sustained good reputations up
to the time of their subsequent
absconding, and employed an
agent who periodically visited
the warehouse, and examined
the goods to see that they were
properly stored and protected,
and kept in proper condition,
his last visit being about a week
before the absconding,-Held,
that the pledgee was not guilty
of gross negligence, and there-
fore not liable for the value of
the goods stolen or misappropri-
ated by the absconding ware-
housemen. Van Nostrand v.
New York Guaranty & Indem--
nity Co., 73.

a defense and a counter-claim.
It is not necessary that a coun-
ter-claim should contain facts
sufficient to make a defense, and,
therefore, it was impossible for
the court below to properly
make any other order than that
appealed from. It would bel
clearly wrong in this case, for
the court to decide that the al-
legations did not constitute a
counter-claim, because they were
not sufficient as a defense. I b.
10. Where a defendant relies on
certain facts which can consti-
tute a defense only as connected
with the basis of the cause of 2. Where a party holds a note as

action, he must in his answer
distinctly aver and show such
connection. Donovan v. Com-
pagnie Generale Trans-Atlan-
tique, 519.

11. Plaintiff brought an action
against a common carrier for the

a pledge, the law confers upon
him the power to receive the
whole money from the makers
of the note, and sue and collect
the same. The money when re-
ceived by him, is held as a sub-
stitute for the note, and subject.