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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