CONDITIONAL DEVISE.

See Brundage v. Domestic and Foreign Missionary Society, 204.

CONSIDERATION.

See GENERAL ISSUE.

CONSIGNOR AND CONSIGNEE.

1. Where an express company has carried a box marked "C. O. D.," and the sum charged thereon has been paid by the consignee, and the package, on being opened, proves to be worthless, and "a swindle," on the part of the consignors; and the agent of the express company, on the discovery of the fraud, returns the money to the consignee, he cannot recover it back, even upon the promise of the consignee to "make it right." Herrick v. Gallagher, 566

2. In such a case, the express company, and its agent, are the agents of the consignors for the purpose of transporting and delivering the package to the consignee, and collecting the money of him. And if, by reason of the fraud of the consignors, the consignee becomes entitled to recall the payment he has made to the agent, for the use of his principals, he may recall it, upon notice to such agent; provided the latter has not paid the money over to his principals, and also provided no change has taken place in the situation of the agent since the payment to him and before such notice.

ib

4. If the transaction, on the part of the consignors, is a bald and naked

1. The constitution of this State having provided that when private property shall be taken for any public use, the compensation therefor, when not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, (Const. art. 1,

7,) the provision in the charter of the Rochester Water Works Company, (Laws of 1852, ch. 356, ýỷ 8-11,) which authorizes the Supreme Court to increase or reduce the amount of damages reported by commissioners, for the taking of land for the use of said company, is unconstitutional and void. The Rochester Water Works Company v. Wood.

137

no aid in the collection of moneys for the satisfaction of such a claim.

ib

5. It is clearly the duty of the agent of the express company to pay back

ages allowed were very large, in view of the quantity of land taken, and of the use to which it was to be put, it was held that the court, at special term, should have set aside

5. The act of the legislature, of May 9, 1867, (chap. 814,) amending the act of April 23, 1862, "to prevent animals from running at large in the public highways," provides for a judicial proceeding, in which the justice has jurisdiction of the parties and of the subject matter, and therefore, so far as it authorizes the seizure of animals trespassing on a private inclosure, is not liable to the objection that it is penal in its character, and deprives the owner of his property without due process of law; but is valid and constitutional. Squares v. Campbell, 391

CORPORATIONS.

1. When trustees of a manufacturing corporation, under the act of the legislature, of April 16, 1852, to facilitate the dissolution of manufacturing corporations in the county of Herkimer," &c., (Laws of 1852, ch. 361,) or the act of April 12, 1853, making the former act applicable to similar corporations in Cayuga county, (Laws of 1853, ch. 179,) shall have proceeded to declare the company insolvent, and to make an assessment upon the stockholders as for a deficiency, objections to the mode in which the trustees have. made the assessment, and to the considerations which they took into view and upon which they acted in determining the amount necessary to be assessed, being questions as to whether or not they erred in their determination as to the proper amount of the assessment, cannot arise in an action by the trustees to recover the amount of an assessment. Hurd v. Tallman, 272

3. Stockholders claiming to have been

unjustly assessed, although not expressly named as applicants in whose behalf the trustees may be directed or controlled by the Supreme Court, are probably embraced within the equity of this provision, as the general intention of the act seems to be to convert the trustees into quasi receivers in equity, and to subject them to the general control and direction of the Supreme Court. Per TALCOTT, J. ib

4. Where the trustees of a corporation have attempted to make an assessment upon the stockholders without having first disposed, or attempted to dispose, of the property of the company, or to collect its debts, this

is an objection which goes to the jurisdiction of the trustees to make the assessment at all. ib

5. Where the trustees are acting without any direction of the court, but merely under the powers expressly conferred by the act, they must defer any assessment upon stockholders till such time as they have complied with the provisions of the act in regard to disposing of the property and collecting the liabilities, that it may be seen whether any, and if any, what assessment is "necessary." ib

6. The liability of stockholders, to the company, for unpaid shares of stock, is a part of the fund applicable to the payment of the creditors, and should be collected by the trustees. ib

COSTS. See USURY, 7.

COUNTER-CLAIM.

See EQUITY, 1, 2, 3.

COUNTY JUDGE.

See COMMON SCHOOLS, 1, 2, 3.

COURT OF APPEALS.

The circumstance that an appeal has been taken from a decision of the Court of Appeals to the Supreme Court of the United States, cannot absolve this court from following the decision. By this court the decision of the tribunal of last resort of the State must be considered the law of the land, until it shall have been reversed. The Rochester and Genesee Valley Railroad v. The Clarke National Bank, 234

CREDITORS.

1. There is no propriety in allowing one creditor to make a motion for a receiver and, by stipulation with the attorney for the defendants, to allow the proceedings to lie dormant for months, until other creditors pro

ceed to collect their claims, and then, by consent of the attorney, attempt to gain a priority. Matter of the National Mechanics' Banking Association v. The Mariposa Company, 423

2. The rule which is applied to dormant executions should be applied to such proceedings, and the vigilant creditor should be allowed priority; especially when it is apparent, from all the facts in the case, that there has been collusion in regard to the prosecution of the claim of one creditor, to defeat the claim of the other. See HUSBAND AND WIFE.

9. The effect of modern decisions is, that irregularities whereby a lawful verdict is prevented, produce a mistrial, which is no bar to a new trial. ib

10. It is conceded, at this day, that the court may discharge a jury, in case of necessity, in a criminal case, without furnishing a bar to a new trial. That the court, in the exercise of its discretion, is to judge of the necessity and propriety of the discharge, provided there be any facts on which such discretion may be exercised. Per TALCOTT, J. ib

11. Where the jury, after the cause was committed to them, and before

they had rendered or agreed upon a verdict, had separated without having been legally discharged; Held that, as any verdict in the case, to be afterwards rendered by that jury, would doubtless have been invalid, and set aside, there was a necessity for the exercise of the power of the court, in its discretion, and in furtherance of justice, to discharge the jury. And that, such power having been exercised by a competent court, the discharge constituted no bar to a new trial of the prisoner.

ib

12. By the common law, husband and wife cannot be witnesses for each other. The provisions of the Code of Procedure do not apply to proceedings under the criminal law. And the act of 1869, (ch. 678,) allowing persons charged with crime to be witnesses in their own behalf, relates only to the party charged with crime. Hence, upon the trial of an indictment, the prisoner's wife is an incompetent witness for him.

1.

D

DAMAGES.

See WARRANTY, 4, 5.

DEBTOR AND CREDITOR.

The law devotes all the property of a debtor, both real and personal, to the payment of his debts; and if a debtor, instead of paying his debts, uses his personal property upon the real estate of another, so that it becomes part of such realty, for the purpose of defrauding his creditors, and preventing them from obtaining satisfaction of their demands out of his property, with the knowledge and consent of the owner of the realty, the judgment creditor may follow the property into the hands of the owner of the premises thus benefited, and fasten his judgment upon such premises, to the extent of the debtor's property therein. Isham v. Schafer, 317

2. If a debt has been created between the judgment debtor and the owner

DIVORCE.

A decree of divorce, granted by a court in Ohio, where neither of the parties, in fact, resided at the time, without any appearance by the defendant, or notice to him, except the publication of a notice to appear, in a newspaper, is not valid and binding here, so as to annul a marriage solemnized in this State. (Following the decision of the Court of Appeals, in Kerr v. Kerr, 41 N. Y. 107 272.) Phelps v. Baker,

If such a decree contains a direction for the payment of alimony, it is void in this State, as to the alimony, whatever its effect may be upon the marriage; and will furnish no foundation for an action here to recover the alimony awarded by it. ib

E

EJECTMENT.

EQUITABLE DEFENSE.

See EJECTMENT.
EQUITY.

LIMITATIONS, STATUTE OF.