to all the terms and conditions] affecting it (Garlick v. James, 12 John. 146). When commer- cial paper is received as security, for an advance of money made upon it at the time, without notice of any defects of title, the law merchant protects the transferee against all latent
a contract, nor compelled to per- form the same specifically, nor can he enforce the same. See the able opinion of the court in this case, for the review of nu- merous decisions upon this ques- tion. Briggs v. Partridge, 339.
equities, whether of the parties Where, after the execution of a
to the paper or third persons (Weaver v. Barden, 49 N. Y. 294; Muller v. Pondir, 55 N. Y. 332). The pledgee of commer- cial paper, in the absence of any special power, is bound to hold it, and to collect it, and apply the money to pay the loan, and to account for and to return the balance, if any remain Wheeler v. Newbould, 16 N. Y. 392). The allegation in this answer to the effect that there are other parties claiming title] to the note, or to the proceeds, are of no force. The proceeds of the note are to be reached through the plaintiff. Moody v. Andrews, 302.
3. This answer does not put in
issue plaintiff's allegation in the complaint, that he is the lawful holder of the note, but states facts that do show that the plaintiff is the lawful holder of the note, for value. Ib.
bond with sureties for the faith- ful performance by the principal of certain duties and trusts, and the accounting and paying over of all moneys of the obligee coming to his hands, the princi- pal received, in the course of his employment, moneys of the ob- ligee which he failed to account for and pay over, which was well known to the obligee,-Ield, that the obligee's thereafter keeping the employee in his ser- vice, without notifying the sure- ties of such default, did not dis- charge them from liability for future default, it not appearing either that the omission to give notice resulted in any injury to the sureties, or that the default was fraudulent in its character. Atlantic & Pacific Tel. Co. v. Barnes, 40.
PROMISSORY NOTES. 1. A transfer of a promissory note by delivery without the payee's indorsement, if made on a valu- able consideration, amounts to an assignment, and passes the title to the note to the person to whom it is delivered. Raynor v. Hoagland, 11.
In this state, many cases have 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 2. unnamed and undisclosed prin- cipal 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 cf 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
Such a transfer will pass the title free from the equities be- tween the maker and payee, when the note thus transferred pursuant to agreement between the maker, payee, and transferee to that effect, is delivered to the transferee in renewal of a for- mer note made by the same maker, payable to the same payee, and indorsed by the payee, held by such transferee,
and on which the liability of the maker and indorser had become fixed, and to which neither of them had any defense as against the holder. 1b. 3. Where a promissory note is made at the request and for the 5. accommodation of the plaintiff, without any consideration what- ever between the plaintiff and the maker, such facts constitute a good defense in favor of the maker. Murphy v. Keyes, 18. 4. Where there was evidence to the effect that plaintiffs having a claim against A. (the father), requested him to give them therefor the notes of one of his sons, as they conld not use his paper, and that thereupon at an interview between one of the 6. The holder of plaintiffs, the father and his son, at which the son made the note sued on, the father, in the presence of the plaintiff, said to his son that the making of the note was a mere form, and that he, the father, would see to it, and the son would have nothing to do with it, and thereupon the son gave the note payable to the order of the father, knowing it was for a debt due by the father to the plain- tiffs, which note was indorsed 7. by the father to the plaintiffs, and also evidence to the effect that before this interview the father had told the son that the plaintiffs wanted his note, and the son objected on ground that he owed plaintiffs noth- ing whatever on it, and the father said that the plaintiffs wanted his (the son's) note, so that they could raise money on it, inasmuch as they could not raise money on the father's note, and that it was a mere form; and also conflicting evidence as to whether plaintiffs gave a receipt| for the debt for which the note was received, or took the note 2. in payment for the debt,-Held, that the evidence was sufficient to carry the case to the jury on
the question as to whether the note was made at the request of and for the accommodation of the plaintiffs, without any con- sideration
whatever between the plaintiffs and the son. Ib. In an action upon a promissory note, an admission in the an- swer, "that at the time men- tioned in the complaint, they (the defendants) made and endorsed a note like that set forth therein," unaccompanied with anything tending to show that it was a distinct 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.
a negotiable promissory note is entitled to protection against latent equities existing between the parties to the paper, when he became the holder, only when he has parted with something of value in money or property for the note, at the time he received the same, or he must have incurred some responsibil- ity or liabilty, or parted with some right on the faith of the note. McQuade v. Irwin, 396. The case at bar, where the plaintiff received the note for an existing antecedent debt, does not fall within this well and long established rule. Ib. See PAYMENT, 1; PLEDGE, 2.
If a street railway car is at rest or on the point of rest although some motion remains, the get- ting on by the front instead of the rear platform is not, as matter of law, contributory negligence. Maher v. Central Park, North & East River R. R. Co., 155.
If the evidence leaves it un- certain as to whether the motion was not so great as to make it unsafe for a man of commoj
prudence to get on the car, the question should be submitted to the jury. Ib.
of fraud for trial is not a suffi- cient answer. Patterson v. Stet- tauer, 413.
torney and counsel of the party opposing the motion, stating generally that difficult questions of law are involved is not suffi- cient. The questions of law expected to arise must be pointed out specifically, and in such man- ner as to enable the court to de- termine whether they are of any real difficulty. Ib.
A motion for a compulsory ref- erence of all the issues may be founded on averments contained in the answer. Maryott v. Thayer, 417.
3. The hurrying-up of the horses 4. An affidavit made by the at- while a passenger is in the act of getting on, and before he is fairly on, is evidence of negli- gence te go to the jufy. Ib. 4. Where there was evidence that at the time a passenger was getting on a car by the front platform, the car was at rest or on the point of rest, and that the driver invited the passenger to get on by the front platform, 5. and the court charged the jury that they should find for the de- fendant, unless the proof showed that the car was stopped or being stopped, and further charged that 6. the front platform is a place of danger, and the occupation of it or an attempt to get on by it is prima facie evidence of danger, unless the passenger is invited so to do by a servant of the company,-Held, that the quali- fication as to the invitation must be considered as applied to the case of a passenger at- tempting to get on while the car was at rest or on the point of rest. In this aspect the charge
Thus in an action on contract. where the answer sets up as affirmative defense or defenses, by way of counter-claim or other- wise, involving the examinetion of a long account, all the issues are referable, although the cause of action set forth in the com- plaint is non-referable. Ib.
See APPEAL, 12-15; CON- TRACTS, 13, 14.
was a more favorable one to the The defendant, desiring to pur- carrier than he had a right to ask for. Ib.
1. The findings of a referee upon conflicting evidence should not be disturbed, and especially so, when the contradictions are ir- reconcilable, and one side or the other must be disregarded. American Corrugated Iron Co. v. Eisner, 200.
2. His findings of fact, like the verdict of a jury, will not be disturbed by an appellate court, unless unsupported by, or very clearly against, the weight of evidence. 16.
3. Upon a motion for a compul- sary reference, the fact that the answer presents a question
chase a wagon fitted with a pole, went to the plaintiff's establish- ment, and there saw a wagon fitted with shafts which would suit him if a pole was fitted to it. The price of the wagon as it stood was four hundred and seventy-five dollars. The defend- ant asked how much a pole would cost. Plaintiff answered forty dollars. Defendant said he would not give so much for a pole, that he had several poles, one of which he thought could be made to fit the wagon, and he wanted plaintiff to fit it to the wagon. Plaintiff said if it was possible to do so without going to very great expense, in fact, making almost a new pole, he would, without any extra ex- pense, as far as the pole was con-
cerned. Plaintiff sent for the 5. pole and found that it could not be fitted to the wagon, and thereupon sent the wagon as it stood to McDonnell's stable, where the defendant had direct- ed it to be sent. Defendant was not consulted in relation to plaintiff's decision that the pole could not be fitted, nor did it appear from the evidence that he had notice of it, or consented to accept the wagon without the change. Held, no acceptance of the wagon as it stood, without having a pole fitted to it. Brewster v. Taylor, 159.
1. In respect to executions against property, the sheriff is bound to use all reasonable endeavors to execute the process of the law in the most effectual manner. Watson v. Brennan, 81. 2. The fact that property is in the custody of the law does not ab- solve the sheriff from this duty. He is nevertheless bound to use such reasonable care and dili- gence as will, if the goods or any part thereof are under the fact and the law subject to the execution held by him at the time of its issue, or if they or their proceeds, or any part there- of, subsequently during the life of the execution become subject thereto, enable him or the plain- tiff in the execution so to subject the same. 1b.
3. If, by his omitting to use such care and diligence, the plaintiff thereby loses the benefit of his execution, the sheriff will be liable in an action for a false re- turn. Ib.
4. In an action against the sheriff for a false return, it does not lie with the sheriff to urge that the plaintiff's judgment is invalid under the bankrupt act, and that therefore no act done under or by color of it could enure to plaintiff's benefit. Ib.
Thus where the defendant, being an incumbent sheriff, held three executions against the same judgment debtor (the plaintiff's being the junior of the three), and the preceding sheriff, under a previous attach- ment against the same judg- ment debtor, had attached and held in custody goods of suffi- cient value to satisfy the attach- ment and all the executions, and refused to allow his succes- sor to seize and levy on them under his executions, but allowed a portion to be removed from his custody in a concealed and surreptitious manner, by persons other than his successor, of which the deputy holding the executions had notice, and afterwards bankruptcy proceed- ings were commenced against the judgment-debtor in which the attachment was declared void under the bankrupt act, and an order made on notice to the incumbent sheriff, authoriz- ing him to sell the property which had not been removed, and directing him to hold the proceeds, under which order he did sell and afterwards applied the proceeds on the two execu- tions prior to the plaintiff's leav- ing a balance unpaid on one of them, the money so applied, however, as well as the pro- ceeds of the goods removed (which were sold under an order in the bankruptcy proceedings) were subsequently, under an order in those proceedings, paid over to the assignee in bank- ruptcy, and the plaintiff's exe- cution was thereafter returned nulla bona-Held,
1. That the deputy holding the plantiff's execution owed to him the duty of seeking from the watchman who gave the information of the removal what information and knowl- edge he had about it, of making inquiries for persons or carts likely to remove the goods, of
asking to look at the warrant] of attachment, of applying to the former sheriff himself in relation to the removal, of call- ing on him to release from the levy of the attachment all goods beyond what was necessary to satisfy the attachment and 2. sheriff's fees, of notifying the plaintiff of the excessive levy under the attachment, and of the removal, and of either mak- ing a claim under the plaintiff's 3. execution in the bankruptcy proceedings, or notifying the plaintiff so that he could either indemnify the sheriff or make a claim himself.
2. That the deputy not having performed these duties, the plain- tiff had lost the benefit of his execution by reason of such negligent omission.
3. That the negligence was of such character as to entitle the plaintiff to recover, in an action for a false return, the amount of his execution and interest thereon.
4. That the proceedings in bankruptcy did not relieve the sheriff from the liability raised by such negligence.
5. It does not lie with the sheriff to raise the objection that plaintiff's judgment was invalid under the bankrupt law, and urge that, therefore, neither the property nor its proceeds could be realized under it. Ib.
See ARREST, 2; EXECUTION.
SMUGGLING. See CARRIERS, 1–3.
SPECIAL TERM. See JUDGMENT, 3, 4. SPECIFIC PERFORMANCE.
1. The superior court, as a court of equity, has the same jurisdic- tion as the late court of chancery of this state, in actions to com- pel the specific performance of
contracts for the purchase and sale of real estate, where the parties to the action have been brought within its juris- diction by service of process or otherwise. Baldwin V. Tal- madge, 400.
The late court of chancery ex- ercised such a jurisdiction (see the cases cited in the points of counsel and the opinion of the court). Ib.
The provisions of the code are not applicable, when land which is the subject of the action lies out of the state. Ib.
See PRINCIPAL AND SURETY.
defendant does not know the secret of the manu- facture, and is selling un- der the trade-mark an article different from that represented by it, yet (whatever may be the effect of these elements in other cases) no cause of action arises there from against him in favor of one who has no more right to the trade-mark than he has. Weston v. Ketcham, 54.
See LITERARY PROPERTY; PART- NERSHIP, 2-4.
1. Upon a motion to dismiss a complaint on a particular ground, if that ground is un- tenable, and there is no other ground which is incapable of being obviated, a denial of the
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